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303 Nebraska Report

STATE ON BEHALF OF MIA G. v. JULIO G.

Cite as 303 Neb. 207

State of Nebraska, on behalf of St

of Florida, on behalf of Mia G

a minor child, appellan

v. Julio G., appellee.

___ N.W.2d ___

Filed May 24, 2019. No. S-18-642.

1. Attorney Fees. Whether attorney fees are authorized by statute or by 

the court’s recognition of a uniform course of procedure presents a 

question of law.

2. Judgments: Appeal and Error. An appellate court independently 

reviews questions of law decided by a lower court.

3. Constitutional Law: Due Process: Right to Counsel: Paternity. Due 

process requires that an indigent defendant in a paternity proceeding 

be furnished appointed counsel at public expense.

4. Paternity: Presumptions. A notarized acknowledgment of paternity 

creates a rebuttable presumption of paternity, but the presumption 

can be challenged on the basis of fraud, duress, or material mistake 

of fact.

Appeal from the District Court for Lancaster County: Jodi L.

Nelson, Judge. Affirmed

Patrick F. Condon, Lancaster County Attorney, and Anna 

Marx for appellant.

Elise M.W. White, of White Law Office, P.C., L.L.O., for 

appellee.

Heavican, C.J., Miller-Lerman, Cassel, Stac

Papik, and Freudenberg,

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

08/09/2019 01:06 AM CDT
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STATE ON BEHALF OF MIA G. v. JULIO G.

Cite as 303 Neb. 207

Miller-Lerman,

NATURE OF CASE

In this appeal, we are asked to decide whether a court 

may appoint counsel at public expense for an indigent individual who has signed a notarized acknowledgment of paternity pursuant to Neb. Rev. Stat. § 43-1408.01 (Reissue 2016) 

but who, in response to a suit by the State for child support, 

challenges the acknowledgment of paternity under Neb. Rev. 

Stat. § 43-1409 (Reissue 2016) on the basis of fraud, duress, 

or material mistake of fact. Because we conclude that such 

appointment is required by due process, we reject the State’s 

claim to the contrary and, accordingly, affirm.

STT

Mia G., a minor child, was born in 2016, and on March 25, 

2016, Julio G. and Mia’s mother signed a notarized acknowledgment of paternity, attesting that Julio was the father of 

Mia. Julio is also named as the father on the minor child’s 

birth certificate.

On May 1, 2017, the State, through the county attorney for 

Lancaster County, filed a child support action in the district 

court for Lancaster County against Julio on behalf of Mia 

and attached the signed acknowledgment of paternity to its 

complaint. On July 20, at a hearing before the district court 

referee, speaking through an interpreter, Julio admitted that 

he signed the acknowledgment of paternity in the hospital but 

challenged the acknowledgment and requested an attorney. 

Julio indicated that he does not read or speak English, that 

he did not know what he was signing, and that he was led 

to believe the acknowledgment related to medical care. Julio 

stated that “the doctors in Cuba had all told me that I could 

not have children.” Julio stated that he would not have signed 

an acknowledgment of paternity without a DNA test and that 

prior to mistakenly signing the acknowledgment, he and Mia’s 

mother had agreed they would complete genetic testing. Julio 

stated that “if I’m going to be ordered by the State to pay 
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STATE ON BEHALF OF MIA G. v. JULIO G.

Cite as 303 Neb. 207

child support for a child for 18 years, I just want to be sure 

that they’re mine.” The referee found that Julio was indigent 

and, over objections by the State, appointed counsel for Julio. 

On July 25, the district court entered a written order that 

appointed counsel for Julio to be paid by Lancaster County. 

In the order, the court made clear that the action was a paternity case.

Counsel for Julio proceeded to file pleadings consistent 

with Julio’s claims and obtained an order for genetic testing. 

The parties agree that following DNA testing, Julio stipulated 

to paternity, and the referee determined that Julio should pay 

child support. The district court found that Julio is the biological father of Mia and entered an order for child support. Julio’s 

appointed counsel moved for attorney fees and expenses. The 

district court granted attorney fees and expenses for fees 

incurred through the point at which appointed counsel sent a 

closing letter to Julio, consistent with its earlier order appointing counsel.

The State appeals.

ASSIGNMENT OF ERROR

The State claims, summarized and restated, that the district 

court erred when it appointed counsel to represent Julio at 

public expense.

STANDARD OF REVIEW

[1,2] Whether attorney fees are authorized by statute or 

by the court’s recognition of a uniform course of procedure 

presents a question of law. D.I. v. Gibson, 295 Neb. 903, 890 

N.W.2d 506 (2017). We independently review questions of law 

decided by a lower court. Id.

ANALYSIS

The State contends that because paternity was presumed by 

the parties’ acknowledgment of paternity, it was not at issue 

in its child support case, and that the district court erred when 
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STATE ON BEHALF OF MIA G. v. JULIO G.

Cite as 303 Neb. 207

it appointed counsel for Julio to be paid by Lancaster County. 

We reject the State’s assignment of error.

[3] It is established in Nebraska that due process requires 

that an indigent defendant in a paternity proceeding be furnished appointed counsel at public expense. Carroll v. Moore, 

228 Neb. 561, 423 N.W.2d 757 (1988). Although commenced 

as a child support case, paternity immediately became the central issue in this case when Julio challenged the acknowledgment of paternity, claiming a material mistake of fact under 

§ 43-1409, and sought DNA testing pursuant to Neb. Rev. Stat. 

§ 43-512.04 (Reissue 2016). It was established that Julio was 

indigent, and we conclude the district court did not err when it 

determined that paternity was at issue in the case and that Julio 

was entitled to court-appointed counsel.

Relevant Statutes.

We begin by setting forth the relevant and applicable statutes which frame the State’s child support action and Julio’s 

subsequent challenge to the notarized acknowledgment which 

placed paternity at issue in the case.

Section 43-1409 provides:

The signing of a notarized acknowledgment, whether 

under section 43-1408.01 or otherwise, by the alleged 

father shall create a rebuttable presumption of paternity as against the alleged father. The signed, notarized 

acknowledgment is subject to the right of any signatory 

to rescind the acknowledgment within the earlier of (1) 

sixty days or (2) the date of an administrative or judicial 

proceeding relating to the child, including a proceeding 

to establish a support order in which the signatory is 

a party. After the rescission period a signed, notarized 

acknowledgment is considered a legal finding which may 

be challenged only on the basis of fraud, duress, or material mistake of fact with the burden of proof upon the 

challenger, and the legal responsibilities, including the 

child support obligation, of any signatory arising from 
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STATE ON BEHALF OF MIA G. v. JULIO G.

Cite as 303 Neb. 207

the acknowledgment shall not be suspended during the 

challenge, except for good cause shown. Such a signed 

and notarized acknowledgment or a certified copy or 

certified reproduction thereof shall be admissible in evidence in any proceeding to establish support.

(Emphasis supplied.) Section 43-512.04 discusses the procedure for initiating an action for child support or medical support on behalf of a child whose paternity is presumed by a 

notarized acknowledgment as described above in § 43-1409. 

Section 43-512.04(4) provides:

In such proceeding, if the defendant is the presumed 

father as described in subdivision (1)(b) of this section, 

the court shall make a finding whether or not the presumption of paternity has been rebutted. The presumption 

of paternity created by acknowledgment as described in 

section 43-1409 may be rebutted as part of an equitable 

proceeding to establish support by genetic testing results 

which exclude the alleged father as being the biological 

father of the child. A court in such a proceeding may 

order genetic testing as provided in sections 43-1414 

to 43-1418.

District Court Could Properly 

Appoint Julio an Attorney 

at Public Expense.

At the initial court hearing, when the district court heard 

Julio’s challenge to his acknowledgment of paternity, the court 

correctly determined and stated in its order that the child support case had become an action in which paternity was challenged, and hence a paternity action.

[4] Based on the language of § 43-1409, we have explained 

that a notarized acknowledgment creates a rebuttable presumption of paternity but that the presumption can be challenged 

on the basis of fraud, duress, or material mistake of fact. In 

re Interest of Kodi L., 287 Neb. 35, 840 N.W.2d 538 (2013); 

Cesar C. v. Alicia L., 281 Neb. 979, 800 N.W.2d 249 (2011).
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STATE ON BEHALF OF MIA G. v. JULIO G.

Cite as 303 Neb. 207

In this case, Julio followed the path set forth in § 43-1409 

for challenging an acknowledgment of paternity. At the initial 

referee hearing, Julio told the referee that he had reasons to 

believe that he was not the biological father of the child. He 

explained that he did not know what he was signing when 

he signed the acknowledgment of paternity, because he did 

not read or speak English, the acknowledgment form was in 

English, and he believed it was a form pertaining to a medical 

matter relating to the birth of the child. Although the better 

practice is to file a challenge in writing using the language of 

the statute, Julio’s challenge was sufficient under § 43-1409 to 

allege a material mistake of fact with regard to the acknowledgment form and was recognized as such by the referee. 

Julio acted promptly and unequivocally to put paternity at 

issue at the initial referee hearing, and the district court correctly determined that the case related to paternity in its order 

for appointment of counsel. Julio’s subsequent motions to 

dismiss the complaint and for genetic testing and the affirmative defenses asserted in his answer are consistent with a 

paternity proceeding.

In Carroll v. Moore, 228 Neb. 561, 579, 423 N.W.2d 757, 

767 (1988), we held that under the U.S. Constitution, an 

indigent person who is alleged to be the father of a child has 

“an absolute right” to court-appointed counsel in a paternity 

proceeding. See, also, Elstun v. Elstun, 8 Neb. App. 97, 589 

N.W.2d 334 (1999), reversed in part on other grounds 257 

Neb. 820, 600 N.W.2d 835. We noted that due process was 

implicated because, inter alia, the “threat of future incarceration resulting from a finding of paternity is significant 

in determining the need for counsel.” Carroll v. Moore, 228 

Neb. at 578, 423 N.W.2d at 767. We stated: “The concepts 

of ‘fundamental fairness’ and ‘meaningful opportunity to be 

heard’ which are integral to the notion of due process make 

the right to counsel mandatory.” Id. at 579, 423 N.W.2d at 

767. In Carroll v. Moore, we observed that all parties, including the State, are interested in an accurate and fundamentally 
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STATE ON BEHALF OF MIA G. v. JULIO G.

Cite as 303 Neb. 207

fair determination of paternity. Although the posture of Carroll 

v. Moore differs from the current case, its principles logically 

apply to this action initiated by the State and in which paternity 

was inextricably linked to the prosecution of the matter.

Because the child support action was based on a notarized 

acknowledgment of paternity, Julio’s challenge to the acknowledgment under § 43-1409 rendered the action a “paternity proceeding.” Julio was indigent, and under our recognized course 

of procedure, the district court correctly concluded that he had 

a right to court-appointed counsel at public expense. In this 

case, the district court properly ordered that appointed counsel’s reasonable fees, up to and including preparation of the 

closing letter to the client, be paid by Lancaster County.

CONCLUSION

In this action initiated by the State, Julio, who was indigent, challenged his signed acknowledgment of paternity under 

§ 43-1409 based on a material mistake of fact. Julio had a right 

to appointed counsel at public expense. Accordingly, the district court did not err when it appointed counsel for Julio and 

ordered Lancaster County to pay reasonable attorney fees. We 

affirm the orders of the district court.

Affirmed