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307 Nebraska Reports

BENJAMIN M. v. JERI S.

Cite as 307 Neb. 733

Benjamin M., appellant, v. 

Jeri S., appellee.

___ N.W.2d ___

Filed November 6, 2020. No. S-19-1144.

1. Motions to Dismiss: Rules of the Supreme Court: Pleadings: Appeal 

and Error. A district court’s grant of a motion to dismiss for failure to 

state a claim under Neb. Ct. R. of Pldg. § 6-1112(b)(6) is reviewed de 

novo, accepting all the allegations in the complaint as true and drawing 

all reasonable inferences in favor of the nonmoving party.

2. Statutes: Appeal and Error. Statutory interpretation presents a question of law. On a question of law, an appellate court is obligated to 

reach a conclusion independent of the determination reached by the 

court below.

3. Jurisdiction: Words and Phrases. Subject matter jurisdiction is the 

power of a tribunal to hear and determine a case in the general class or 

category to which the proceedings in question belong and to deal with 

the general subject matter involved.

4. Courts: Jurisdiction: Paternity. District courts have subject matter 

jurisdiction of actions to determine paternity of a child.

5. Limitations of Actions: Pleadings. A challenge that a pleading is 

barred by the statute of limitations is a challenge that the pleading fails 

to allege sufficient facts to constitute a claim upon which relief can 

be granted.

6. Limitations of Actions: Pleadings: Waiver. A statute of limitations 

does not operate by its own force as a bar, but, rather, operates as a 

defense to be pleaded by the party relying upon it and is waived if 

not pleaded.

7. Limitations of Actions: Jurisdiction. The failure to comply with a 

statute of limitations is not an issue of subject matter jurisdiction.

8. Paternity: Acknowledgments. The proper legal effect of a signed, notarized acknowledgment of paternity is a finding that the individual who 

signed as the father is in fact the legal father.

Nebraska Supreme Court Online Library

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

01/29/2021 09:09 AM CST
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9. ____: ____. The establishment of paternity by acknowledgment is the 

equivalent to establishment of paternity by judicial proceeding.

10. Constitutional Law: Parental Rights: Minors. Parents have a constitutional right to retain custody and control of their child.

11. Constitutional Law: Jurisdiction: Equity: Child Custody. Article 

V, § 9, of the Nebraska Constitution confers equity jurisdiction upon 

the district courts, and issues of child custody fall within that general 

equity jurisdiction.

12. Paternity: Acknowledgments: Child Custody: Child Support. Neb. 

Rev. Stat. § 43-1402 (Reissue 2016) authorizes the filing of an action for 

child custody and child support when an acknowledgment of paternity 

has been executed by the parties.

13. Limitations of Actions: Paternity: Acknowledgments: Child 

Custody: Child Support. The 4-year statute of limitations on paternity 

actions does not bar an action for child custody and child support for a 

father who executed an acknowledgment of paternity.

14. Appeal and Error. An appellate court is not obligated to engage in an 

analysis that is not necessary to adjudicate the case and controversy 

before it.

Appeal from the District Court for Lancaster County: 

Susan I. Strong, Judge. Reversed and remanded for further 

proceedings.

Megan E. McDowell and Jerrad R. Ahrens, of Cordell & 

Cordell, P.C., for appellant.

Robert Wm. Chapin, Jr., for appellee.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, 

Papik, and Freudenberg, JJ.

Funke, J.

NATURE OF CASE

Benjamin M. filed an action to establish paternity, custody, 

support, and parenting time. Benjamin later filed two notarized 

acknowledgments of paternity contemporaneously with an 

amended complaint to establish custody, support, and parenting time. The district court dismissed the amended complaint 
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BENJAMIN M. v. JERI S.

Cite as 307 Neb. 733

based on statute of limitations grounds. Benjamin appeals and 

argues that the district court erred in failing to give proper legal 

effect to the notarized acknowledgments of paternity. We agree 

and reverse the district court’s order and remand the cause for 

further proceedings.

BACKGROUND

Benjamin and Jeri S. are the unmarried parents of two minor 

children: F.M., born in 2010, and L.M., born in 2012. Two days 

after the birth of F.M., Benjamin and Jeri executed a notarized 

acknowledgment of paternity for F.M. One day after the birth 

of L.M., Benjamin and Jeri executed a notarized acknowledgment of paternity for L.M.

In April 2019, Benjamin filed a complaint in the district court 

for Lancaster County, Nebraska, to establish paternity, child 

custody, child support, and parenting time. Jeri filed a motion 

to dismiss pursuant to Neb. Rev. Stat. § 43-1411 (Reissue 

2016), arguing that the court lacked subject matter jurisdiction to adjudicate the case because the complaint was filed 

beyond the 4-year statute of limitations for a paternity action. 

In response, Benjamin filed an amended complaint to establish 

child custody, child support, and parenting time in which he 

pled that he and Jeri had executed notarized acknowledgments 

of paternity for both children. The amended complaint further 

alleged that as a result of the acknowledgments of paternity, 

Benjamin was the legal father of both children.

The court held hearings on the motion to dismiss on 

August 23 and September 10, 2019. The hearings were held 

“in chambers [and] not on the record.” However, at the 

September 10 hearing, the court went on the record to “see if 

[counsel for Benjamin] would like to offer the acknowledgments of paternity as exhibits that the Court could consider 

on the motion to dismiss,” as well as to “address [counsel 

for Benjamin’s] comment that an Amended Complaint has 

been filed after the motion to dismiss.” Certified copies of 

the notarized acknowledgments of paternity for both F.M. and 
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BENJAMIN M. v. JERI S.

Cite as 307 Neb. 733

L.M. were offered and received into evidence, without objection from Jeri. In response, the court proposed converting 

the motion to dismiss into a motion for summary judgment. 

Neither party objected.

On September 11, 2019, the district court entered an order 

of dismissal. In its order, the district court determined that 

Benjamin set forth no allegations that would toll the statute 

of limitations and pointed out that Benjamin knew he was the 

biological father at the time of the births, as evidenced by the 

notarized acknowledgments of paternity, but he waited more 

than 4 years to bring this action. The district court discussed 

Neb. Rev. Stat. § 43-1409 (Reissue 2016), which recognizes 

that a signed, notarized acknowledgment of paternity can be 

rescinded within the earlier of 60 days or the date of a judicial proceeding relating to the child, including a proceeding 

to establish a support order, in which the signatory is a party. 

The district court also discussed Cesar C. v. Alicia L.,

 1 in 

which this court found that a lower court committed plain 

error when it failed to give proper legal effect to a notarized 

acknowledgment of paternity signed at birth. However, the 

district court noted that Cesar C. did not involve the statute 

of limitations. The district court concluded that Benjamin 

failed to timely exercise his parental rights with due diligence 

and that thus, his action was barred by the 4-year statute of 

limitations set forth in § 43-1411. Because the court considered evidence (in the form of the acknowledgments of paternity), it applied a motion for summary judgment standard to 

Jeri’s motion to dismiss. The court stated that when viewing 

the evidence and all reasonable inferences in the light most 

favorable to Benjamin, it could not find any genuine issues 

of material fact which would preclude summary judgment. 

The court determined that Benjamin was asserting his parental 

rights more than 4 years after the birth of his children and 

1 Cesar C. v. Alicia L., 281 Neb. 979, 800 N.W.2d 249 (2011).
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ultimately found that an untimely action to establish paternity 

under § 43-1411 was a defect in subject matter jurisdiction 

and dismissed the case.

On September 20, 2019, Benjamin filed motions to reconsider, to vacate the order of dismissal, for new trial, and to 

reopen evidence. After a hearing, the district court entered an 

order denying all four motions. Benjamin timely appeals.

ASSIGNMENTS OF ERROR

Benjamin assigns, restated and consolidated, that the district court erred (1) by not giving proper legal effect to the 

acknowledgments of paternity, (2) in finding the notarized 

acknowledgments of paternity recognized in Neb. Rev. Stat. 

§ 43-1402 (Reissue 2016) are subject to the 4-year statute of 

limitations for paternity actions set forth in § 43-1411, and 

(3) by improperly converting Jeri’s motion to dismiss into a 

motion for summary judgment without proper notice or an 

opportunity to respond.

STANDARD OF REVIEW

[1] A district court’s grant of a motion to dismiss for failure to state a claim under Neb. Ct. R. Pldg. § 6-1112(b)(6) is 

reviewed de novo, accepting all the allegations in the complaint as true and drawing all reasonable inferences in favor of 

the nonmoving party. 2

[2] Statutory interpretation presents a question of law. 3 On 

a question of law, an appellate court is obligated to reach a 

conclusion independent of the determination reached by the 

court below. 4

2 Anderson v. Wells Fargo Fin. Accept., 269 Neb. 595, 694 N.W.2d 625 

(2005).

3 See, State ex rel. Wagner v. Gilbane Bldg. Co., 280 Neb. 223, 786 N.W.2d 

330 (2010); State v. Decker, 261 Neb. 382, 622 N.W.2d 903 (2002).

4 Ruzicka v. Ruzicka, 262 Neb. 824, 635 N.W.2d 528 (2001).
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BENJAMIN M. v. JERI S.

Cite as 307 Neb. 733

ANALYSIS

Jurisdiction

[3,4] Before reaching the legal issues presented for review, 

an appellate court must determine whether it has jurisdiction. 5

In its order of dismissal, the district dismissed the case for 

lack of subject matter jurisdiction for Benjamin’s failure to file 

his paternity action within 4 years of the birth of the children. 

Subject matter jurisdiction is the power of a tribunal to hear 

and determine a case in the general class or category to which 

the proceedings in question belong and to deal with the general subject matter involved. 6 We have consistently held that 

the district court has subject matter jurisdiction of an action to 

determine paternity of a child. 7

[5-7] A challenge that a pleading is barred by the statute 

of limitations is a challenge that the pleading fails to allege 

sufficient facts to constitute a claim upon which relief can be 

granted. 8 We have previously stated that a statute of limitations specifies only that an action must be commenced within 

a specified time period. 9 Further, a statute of limitations does 

not operate by its own force as a bar, but, rather, operates as 

a defense to be pleaded by the party relying upon it and is 

waived if not pleaded. 10 Parties cannot confer subject matter 

jurisdiction upon a judicial tribunal by either acquiescence 

or consent, nor may subject matter jurisdiction be created 

5 McEwen v. Nebraska State College Sys., 303 Neb. 552, 931 N.W.2d 120 

(2019).

6 J.S. v. Grand Island Public Schools, 297 Neb. 347, 899 N.W.2d 893 

(2017).

7 Sherman T. v. Karyn N., 286 Neb. 468, 837 N.W.2d 746 (2013). See Neb. 

Rev. Stat. § 43-1411.01 (Cum. Supp. 2018).

8 Anthony K. v. Nebraska Dept. of Health & Human Servs., 289 Neb. 540, 

855 N.W.2d 788 (2014).

9 In re Estate of Hockemeier, 280 Neb. 420, 786 N.W.2d 680 (2010).

10 Id.
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by waiver, estoppel, consent, or conduct of the parties. 11 As 

such, the failure to comply with a statute of limitations is not 

an issue of subject matter jurisdiction. Instead, we find that a 

more appropriate ground for dismissal in this case would have 

been dismissal for failure to state a claim upon which relief 

can be granted. 12 However, neither party has raised this issue 

on appeal, and as such, we proceed with our analysis as if the 

district court had dismissed this case on the ground of failure to 

state a claim upon which relief could be granted.

Acknowledgments of Paternity

Benjamin argues that the district court erred by not giving the acknowledgments of paternity proper legal effect. He 

further contends that a notarized acknowledgment of paternity 

which has not been rescinded is not merely a presumption of 

paternity, but a legal finding of paternity. Jeri counters that 

any paternity action brought more than 4 years after the birth 

of the child is barred by § 43-1411. She contends that an 

acknowledgment of paternity has no effect on the 4-year statute 

of limitations.

[8] The procedure for obtaining a judicial determination of 

paternity is set forth in Neb. Rev. Stat. §§ 43-1401 to 43-1418 

(Reissue 2016 & Cum. Supp. 2018). Section 43-1409 provides 

as follows:

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. 

11 J.S., supra note 6.

12 See Anthony K., supra note 8.
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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 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.

We have held that an unrescinded and unchallenged acknowledgment of paternity operates as a legal finding of paternity 

and that the proper legal effect of a signed, notarized acknowledgment is a finding that the individual who signed as the 

father is in fact the legal father. 13

[9] In Cesar C., we considered the legal effect of an 

acknowledgment of paternity in a custody matter. 14 In that 

case, Cesar C. and Alicia L. were unmarried, but shared a 

child, Jaime C., together. A notarized acknowledgment of 

paternity was executed at Jaime’s birth, and Cesar was listed 

as Jaime’s father on the birth certificate. Three years later, at 

a subsequent court proceeding to establish custody and child 

support, a genetic test ruled out Cesar as a possible biological father of Jaime. Although the district court received the 

notarized acknowledgment of paternity into evidence without 

objection, it awarded custody of Jaime to Alicia and determined Alicia had superior rights to custody as the biological 

parent of Jaime. On appeal, this court reversed the decision 

of the district court and concluded that the district court committed plain error when it failed to give proper legal effect to 

13 See, Tyler F. v. Sara P., 306 Neb. 397, 945 N.W.2d 502 (2020); In re 

Adoption of Jaelyn B., 293 Neb. 917, 883 N.W.2d 22 (2016); Cesar C., 

supra note 1.

14 Cesar C., supra note 1.
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the acknowledgment of paternity, which established Cesar as 

Jaime’s legal father. We determined that had the court given 

proper legal effect to the acknowledgment, the court would 

have viewed both Cesar and Alicia as legal parents to Jaime. 

We found that the establishment of paternity by acknowledgment is the equivalent to the establishment of paternity by 

judicial proceeding. As a result, we held that based upon the 

acknowledgment of paternity, the court should have treated the 

complaint to establish paternity as a complaint to determine 

custody and support.

In In re Adoption of Jaelyn B.,

 15 we addressed the legal 

effect of an acknowledgment of paternity in a proceeding for 

adoption. We held that a father whose paternity is established 

by a final, voluntary acknowledgment has the same right to 

seek custody as the child’s biological mother, even if subsequent genetic testing shows he is not the biological father.

Recently, in Tyler F. v. Sara P.,

 16 we again had the occasion 

to consider the effect of an acknowledgment of paternity in 

a custody matter. In Tyler F., the district court ruled that an 

acknowledgment of paternity established Tyler as the legal 

father and a subsequent genetic test established another man as 

the biological father. In doing so, the court granted both men 

paternal rights. On appeal, we held that the original acknowledgment of paternity determined that Tyler was the only father 

of the minor child and that the subsequent genetic test did not 

establish paternal rights for the other man without setting aside 

the acknowledgment of paternity.

Additionally, § 43-1402 states that the father of a child 

whose paternity is established either by judicial proceedings 

or by acknowledgment shall be liable for the child’s support 

to the same extent and in the same manner as the father of a 

child born in lawful wedlock is liable for the child’s support. 

15 In re Adoption of Jaelyn B., supra note 13.

16 Tyler F., supra note 13.
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We have explained that this language contained in § 43-1402 

contemplates that an establishment of paternity by acknowledgment is the equivalent to an establishment of paternity by 

judicial proceeding. 17

Furthermore, § 43-1412.01 authorizes the setting aside of a 

final judgment, a court order, an administrative order, an obligation to pay child support, or any other legal determination 

of paternity if a scientifically reliable genetic test performed 

establishes the exclusion of the individual named as a father 

in the legal determination. However, the statute precludes the 

granting of such relief when, among other things, the individual named as the father completed a notarized acknowledgment of paternity. 18 This provision in § 43-1412.01 provides 

further support for the conclusion that an acknowledgment 

legally establishes paternity and grants the individual named 

as father the legal status of a parent to the child regardless of 

genetic factors. 19

In the instant matter, it is undisputed that the acknowledgments of paternity have not been timely rescinded. It is also 

undisputed that there have been no challenges made to the 

signed and notarized acknowledgments of paternity based on 

fraud, duress, or material mistake of fact. 20 Further, neither 

party disputes that the acknowledgments of paternity operate as a finding that Benjamin is the legal father of F.M. and 

L.M. In fact, at the hearing on the motion to dismiss, counsel 

for Jeri stated, “I think what’s interesting about this particular 

case is that the acknowledgment of paternity establishes that 

[Benjamin] is, in fact, the father. We’re not actually even contesting that.”

Based upon the clear language of §§ 43-1402 and 43-1409, 

our cases interpreting these statutes, and the record before 

17 Id.; Cesar C., supra note 1.

18 § 43-1412.01.

19 Cesar C., supra note 1.

20 See § 43-1409.
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us, we find that Benjamin’s acknowledgments of paternity 

established him as the legal father of the minor children.

Statute of Limitations

In the present case, the district court did not have the benefit 

of our decision in Tyler F.

 21 However, the court did consider 

our decision in Cesar C. and determined that its holding was 

inapplicable to this matter because Jeri’s defense was based 

on the statute of limitations, rather than on paternity. 22 The 

4-year statute of limitations for paternity actions is found in 

§ 43-1411, which states, in relevant part:

A civil proceeding to establish the paternity of a child 

may be instituted, in the court of the district where 

the child is domiciled or found or, for cases under the 

Uniform Interstate Family Support Act, where the alleged 

father is domiciled, by (1) the mother or the alleged father 

of such child, either during pregnancy or within four 

years after the child’s birth . . . .

In its order, the district court determined that if Benjamin 

had filed his action within 4 years from the date the children were born, “[it] would be required to treat the case as 

one for custody and support as between two legal parents 

(unless [Jeri] could successfully challenge the acknowledgments of paternity).”

It is undisputed that Benjamin filed his complaint to establish paternity, custody, and support more than 4 years after the 

birth of the minor children. However, by the time Benjamin 

initiated the current proceedings, Benjamin’s paternity of F.M. 

and L.M. had already been established by the execution of 

unrescinded and unchallenged acknowledgments of paternity. 

As such paternity was no longer an issue, the only remaining 

issues to decide were issues of custody and support. As we 

have previously stated, when an action to establish paternity, 

21 See Tyler F., supra note 13.

22 See Cesar C., supra note 1.
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custody, and support has been filed after the execution of an 

acknowledgment of paternity, the court should treat the action 

as an action solely to determine custody and support. 23

[10] Jeri contends that despite Benjamin’s status as the legal 

father, there is no statutory authority for Benjamin to bring an 

action in district court to establish custody and support. We disagree. First, it is beyond dispute that under the U.S. Supreme 

Court’s longstanding precedent, parents have a constitutional 

right to retain custody and control of their child. 24 Second, the 

Nebraska Legislature has recognized the critical importance of 

the parent-child relationship in the welfare and development of 

the child and that the relationship between the child and each 

parent should be equally considered unless it is contrary to the 

best interests of the child. 25

The district courts of Nebraska are courts of general jurisdiction and thus have inherent power to do all things necessary for the administration of justice within the scope of their 

jurisdiction. 26 Any power conferred by the constitution cannot 

be legislatively limited or controlled. 27 The Legislature may, 

however, grant to the district courts such additional jurisdiction 

as it may deem proper. 28

[11] We have said that article V, § 9, of the Nebraska 

Constitution confers equity jurisdiction upon the district 

courts, and issues of child custody fall within that general 

23 See, Tyler F., supra note 13; Cesar C., supra note 1.

24 Amanda C. v. Case, 275 Neb. 757, 749 N.W.2d 429 (2008). See, Troxel v. 

Granville, 530 U.S. 57, 120 S. Ct. 2054, 147 L. Ed. 2d 49 (2000) (plurality 

opinion) (citing Prince v. Massachusetts, 321 U.S. 158, 64 S. Ct. 438, 88 

L. Ed. 645 (1944); Pierce v. Society of Sisters, 268 U.S. 510, 45 S. Ct. 

571, 69 L. Ed. 1070 (1925); Meyer v. Nebraska, 262 U.S. 390, 43 S. Ct. 

625, 67 L. Ed. 1042 (1923)).

25 Neb. Rev. Stat. § 43-2921 (Reissue 2016).

26 Charleen J. v. Blake O., 289 Neb. 454, 855 N.W.2d 587 (2014).

27 Id.

28 Id.
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equity jurisdiction. 29 Indeed, since a century ago, Nebraska 

common law has recognized an action in equity for custody 

apart from an action for dissolution of marriage or paternity. 30

Even when custody is determined within a dissolution or paternity action, it is considered “‘incidental’” to those causes of 

action. 31 Questions of custody within such actions still derive 

from the court’s general equity jurisdiction. 32 The paternity 

statutes therefore cannot circumscribe the district courts’ inherent powers in equity to determine child custody. 33

Statutorily, § 43-1402 states that the liability of each parent 

may be determined, enforced, and discharged in accordance 

with the methods hereinafter provided. In Cesar C., we held 

that when reading §§ 43-1402 and 43-1409 together, the provision in § 43-1409 that an acknowledgment is a “legal finding” 

means that a properly executed acknowledgment legally establishes paternity in the person named in the acknowledgment as 

the father. 34 A father whose paternity is established by a final, 

voluntary acknowledgment has the same right to seek custody 

as the child’s biological mother. 35 As such, Benjamin’s parental 

rights and responsibilities for the children could be determined 

and enforced through the filing of an action to establish custody and support. Any inability of Benjamin to enforce his 

parental rights and obligations would run contrary to his constitutional rights as a parent of the children. 36

If the 4-year statute of limitations were to bar an action 

for custody and support for a father who executed an 

29 Id.

30 Id.

31 Id. at 460, 855 N.W.2d at 593.

32 Id.

33 Id.

34 See Cesar C., supra note 1.

35 Tyler F., supra note 13.

36 See Amanda C., supra note 24.
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acknowledgment of paternity, a man could be a legal father 

with the obligation to support his children, but have no parental 

rights of custody and parenting time. This would be an untenable result. Therefore, we conclude that Benjamin’s action cannot be barred by the 4-year statute of limitations.

[12,13] We find that when an acknowledgment of paternity 

has been executed by the parties, the district court has the 

inherent authority to consider the issue of child custody, and 

that § 43-1402 authorizes the filing of an action for child custody and child support. We further find that the 4-year statute 

of limitations on paternity actions does not bar an action for 

child custody and child support for a father who executed an 

acknowledgment of paternity. As such, the district court erred 

in its application of § 43-1411.

Remaining Assignment of Error

[14] Benjamin’s remaining assignment of error is that the 

district court erred in improperly converting Jeri’s motion to 

dismiss into a motion for summary judgment without proper 

notice or an opportunity to respond. However, because we 

have already determined the district court erred when it failed 

to give proper legal effect to the notarized acknowledgments 

of paternity, we need not address this assignment of error. 

An appellate court is not obligated to engage in an analysis 

that is not necessary to adjudicate the case and controversy 

before it. 37

CONCLUSION

The district court erred in failing to give proper legal effect 

to the signed, notarized acknowledgments of paternity executed 

by Benjamin and Jeri days after the births of F.M. and L.M. 

Additionally, where there is a properly executed and unrescinded and unchallenged acknowledgment of paternity, an 

37 Fales v. County of Stanton, 297 Neb. 41, 898 N.W.2d 352 (2017).
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action for establishment of paternity should be treated solely 

as an action to determine the issues of custody and support. 

As such, the statute of limitations governing the time to 

bring a paternity proceeding is inapplicable in cases where 

there is a properly executed and unrescinded and unchallenged 

acknowledgment of paternity. Accordingly, we reverse the district court’s order of dismissal and remand the cause for further 

proceedings consistent with this opinion.

Reversed and remanded for 

further proceedings.