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BRYAN M. v. ANNE B.

Cite as 292 Neb. 725

Bryan M., appellant, v. Anne B., appellee, 

and Adam B., intervenor-appellee.

___ N.W.2d ___

Filed February 12, 2016. No. S-15-075.

1. Estoppel: Equity: Appeal and Error. A claim of equitable estoppel 

rests in equity, and in an appeal of an equity action, an appellate court 

tries factual questions de novo on the record and reaches a conclusion 

independent of the findings of the trial court.

2. Statutes: Appeal and Error. Statutory interpretation presents a question of law, which an appellate court reviews independently of the lower 

court’s determination.

3. Constitutional Law: Statutes: Appeal and Error. The constitutionality of a statute is a question of law which the Nebraska Supreme Court 

reviews independently of the lower court’s determination.

4. Paternity: Statutes. An action to establish paternity is statutory in 

nature, and the authority for such action must be found in the statute and 

must be in accordance with the provisions thereof.

5. Paternity: Guardians and Conservators: Words and Phrases. In the 

context of a paternity action, a next friend is one who, in the absence of 

a guardian, acts for the benefit of an infant or minor child.

6. Guardians and Conservators. It is generally recognized that a next 

friend must have a significant relationship with the real party in interest, 

such that the next friend is an appropriate alter ego for the party who is 

not able to litigate in his or her own right.

7. Estoppel: Words and Phrases. Equitable estoppel is a bar which 

precludes a party from denying or asserting anything to the contrary 

of those matters established as the truth by his or her own deeds, acts, 

or representations.

8. Estoppel: Fraud: Limitations of Actions. The equitable doctrine of 

estoppel in pais may, in a proper case, be applied to prevent a fraudulent 

or inequitable resort to a statute of limitations, and a defendant may, by 

his or her representations, promises, or conduct, be so estopped where 

the other elements of estoppel are present.

Nebraska Supreme Court Online Library

www.nebraska.gov/courts/epub/

02/12/2016 08:24 AM CST
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9. ____: ____: ____. Equitable estoppel is not limited to circumstances of 

fraud but may also be applied to prevent an inequitable resort to a statute of limitations where the other elements of estoppel are present.

10. Estoppel: Fraud. The elements of equitable estoppel are, as to the 

party estopped: (1) conduct which amounts to a false representation or 

concealment of material facts, or at least which is calculated to convey 

the impression that the facts are otherwise than, and inconsistent with, 

those which the party subsequently attempts to assert; (2) the intention, or at least the expectation, that such conduct shall be acted upon 

by, or influence, the other party or other persons; and (3) knowledge, 

actual or constructive, of the real facts. As to the other party, the elements are: (1) lack of knowledge and of the means of knowledge of 

the truth as to the facts in question; (2) reliance, in good faith, upon 

the conduct or statements of the party to be estopped; and (3) action or 

inaction based thereon of such a character as to change the position or 

status of the party claiming the estoppel, to his or her injury, detriment, 

or prejudice.

11. Words and Phrases. Constructive knowledge is generally defined as 

knowledge that one using reasonable care or diligence should have.

12. Estoppel. Only reasonably justified reliance will create an estoppel.

13. Fraud. An essential element of actionable false representation is justifiable reliance on the representation.

14. Constitutional Law: Proof. The burden of demonstrating a constitutional defect rests with the challenger.

15. Equal Protection. The dissimilar treatment of dissimilarly situated persons does not violate equal protection rights.

16. ____. Under principles of equal protection, the government may not 

subject men and women to disparate treatment when there is no substantial relation between the disparity and an important state interest.

17. ____. The initial inquiry in an equal protection analysis focuses on 

whether the challenger is similarly situated to another group for the 

purpose of the challenged governmental action.

18. Standing: Words and Phrases. Standing is the legal or equitable right, 

title, or interest in the subject matter of a controversy.

19. Standing: Jurisdiction: Appeal and Error. If the party appealing an 

issue lacks standing, the court is without jurisdiction to decide the issues 

in the case.

20. Due Process. Due process principles protect individuals from arbitrary 

deprivation of life, liberty, or property without due process of law.

21. Due Process: Notice. Due process does not guarantee an individual any 

particular form of state procedure; instead, the requirements of due process are satisfied if a person has reasonable notice and an opportunity to 
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be heard appropriate to the nature of the proceeding and the character of 

the rights which might be affected by it.

22. Constitutional Law: Due Process. The determination of whether procedures afforded an individual comport with constitutional requirements 

for procedural due process presents a question of law.

Appeal from the District Court for Cass County: David K. 

Arterburn, Judge. Affirmed.

John A. Kinney and Jill M. Mason, of Kinney Law, P.C., 

L.L.O., for appellant.

Adam E. Astley, of Slowiaczek, Albers & Astley, P.C., 

L.L.O., for appellee.

Julie E. Bear, of Reinsch, Slattery, Bear & Minahan, P.C., 

L.L.O., for intervenor-appellee.

Heavican, C.J., Wright, Connolly, Miller-Lerman, Cassel, 

and Stacy, JJ.

Wright, J.

I. NATURE OF CASE

This is an appeal from the dismissal of a paternity action 

pursuant to Neb. Rev. Stat. § 43-1411 (Reissue 2008). The 

biological father brought a paternity action on behalf of himself and as the “next friend” of the minor child. He sought a 

declaration of paternity and custody of the child, who was born 

8 years before the action was filed. He claimed that the statute 

of limitations barring paternity actions after 4 years should be 

tolled by the doctrines of fraud and equitable estoppel based 

on misrepresentations of the mother that he was not the father. 

He asserts that our holding in Doak v. Milbauer, 216 Neb. 331, 

343 N.W.2d 751 (1984), permits him to bring the action as the 

next friend of the child. And he claims that § 43-1411 is unconstitutional under the Due Process and Equal Protection Clauses 

of the state and federal Constitutions.

For the reasons stated below, we affirm the order of the district court.
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II. SCOPE OF REVIEW

[1-3] A claim of equitable estoppel rests in equity, and in 

an appeal of an equity action, an appellate court tries factual 

questions de novo on the record and reaches a conclusion 

independent of the findings of the trial court. Olsen v. Olsen, 

265 Neb. 299, 657 N.W.2d 1 (2003). Statutory interpretation 

presents a question of law, which an appellate court reviews 

independently of the lower court’s determination. Flores v. 

Flores-Guerrero, 290 Neb. 248, 859 N.W.2d. 578 (2015). 

The constitutionality of a statute is a question of law which 

we review independently of the lower court’s determination. 

See Big John’s Billiards v. State, 288 Neb. 938, 852 N.W.2d 

727 (2014).

III. FACTS

Appellee, Anne B., and intervenor, Adam B., have been married since May 1999. During the first 5 years of their marriage, 

Anne and Adam unsuccessfully attempted to conceive a child. 

Appellant, Bryan M., has been married to his wife for more 

than 25 years, and they have two children.

In the fall of 2003 until spring 2004, Anne and Bryan 

engaged in an extramarital affair in which they regularly 

engaged in sexual intercourse without contraception. During 

the affair, Anne continued to have regular sexual intercourse 

with both Bryan and her husband without using contraception. 

When Anne became pregnant, she broke off her relationship 

with Bryan. Bryan inquired several times whether he was the 

father of the child and was told that he was not. After the child, 

T.B., was born in 2004, Bryan again asked Anne whether he 

was the biological father. Again, he was told that he was not 

the father. Since T.B.’s birth in 2004, Adam has raised T.B. 

with the belief that he is T.B.’s father. Adam has served as 

T.B.’s father for T.B.’s entire life. Since T.B.’s birth, Bryan’s 

contact with Anne and T.B. has been limited to occasional, 

unplanned meetings.

In 2012, Anne and Bryan resumed their extramarital affair. 

When the relationship resumed, Bryan requested a DNA 
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test to determine whether he is T.B.’s biological father. A 

DNA test performed at an Omaha, Nebraska, medical center 

revealed a 99.9-percent chance that Bryan is T.B.’s biological father.

Bryan filed his initial complaint on September 17, 2013, 

seeking to establish paternity of T.B. and custody. His second 

amended complaint, as stated by the district court, asserted 

the following:

1. [Bryan] is bringing this action in his own capacity, 

and Nebraska’s four-year Statute of Limitations [provided 

in § 43-1411] is unconstitutional;

2. [Bryan] is bringing this action in his own capacity, 

and the Statute of Limitations should be tolled [based on 

fraud/deception]; and

3. [Bryan] is bringing this action both in his individual 

capacity and “as someone informally acting in the best 

interest of T.B., but not formally his guardian.” The action 

is also captioned “Bryan . . . , on behalf of himself and as 

‘next friend’ of T.B.[”]

Bryan argued that the 4-year statute of limitations should 

be tolled because Anne told him that he was not the biological father.

The district court rejected Bryan’s argument and found that 

the statute of limitations under § 43-1411 should not be tolled. 

The court found that Bryan had not been “deceived or hoodwinked into inactivity” by Anne, but simply failed to exercise 

his rights with due diligence. It found that Bryan originally did 

not want to be a parent to T.B., because he wanted to preserve 

his own marriage, and that he knew or should have known that 

it was impossible for Anne to know with certainty that he was 

not the father. It also granted Anne’s motion to strike Bryan’s 

claims brought as “the next friend” of T.B., because it was not 

alleged or shown that T.B. was without a guardian, since T.B. 

was currently living with his biological mother.

On Bryan’s and Anne’s renewed motions for partial summary 

judgment, the court found that § 43-1411 did not violate the 
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Due Process Clauses of the U.S. and Nebraska Constitutions. 

The court found that the statute permitted sufficient time for 

parents to assert claims and that the government had a sufficient interest in preventing children from being removed from 

stable homes after a certain period of time. Moreover, it found 

that § 43-1411 did not violate Bryan’s rights under the Equal 

Protection Clauses of the U.S. and Nebraska Constitutions. It 

rejected Bryan’s arguments that § 43-1411 impermissibly discriminated against men as opposed to women and found that 

Bryan lacked the standing to bring the argument that the statute discriminated against children born out of wedlock. Bryan 

timely appealed.

IV. ASSIGNMENTS OF ERROR

Bryan assigns as error the trial court’s finding (1) that Bryan 

could not file this action derivatively as T.B.’s next friend, 

(2) that Bryan did not meet his burden of proving equitable 

estoppel/fraud tolling of the statute of limitations found in 

§ 43-1411, (3) that § 43-1411 is constitutional under the Equal 

Protection Clauses of the U.S. and Nebraska Constitutions, 

and (4) that § 43-1411 is constitutional under the Due Process 

Clauses of the U.S. and Nebraska Constitutions.

V. ANALYSIS

This appeal raises statutory, equitable, and constitutional 

issues associated with § 43-1411. We consider the statutory 

question first.

1. Next Friend Argument

Bryan claims that § 43-1411 permits him to bring this action 

as the “next friend” of T.B. to secure T.B.’s rights. Anne and 

Adam claim that Bryan may not bring an action as T.B.’s next 

friend, because he has not shown T.B. is without a guardian. 

We reject Bryan’s claim.

[4] An action to establish paternity is statutory in nature, and 

the authority for such action must be found in the statute and 

must be in accordance with the provisions thereof. County of 
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Hall ex rel. Wisely v. McDermott, 204 Neb. 589, 284 N.W.2d 

287 (1979). See Bohaboj v. Rausch, 272 Neb. 394, 721 N.W.2d 

655 (2006). Summarized in pertinent part, § 43-1411 provides 

that a paternity action may be instituted by (1) the mother or 

the alleged father of a child either during pregnancy or within 

4 years after the child’s birth or (2) the guardian or next friend 

of such child, or the state, either during pregnancy or within 18 

years after the child’s birth.

[5,6] Thus, a parent’s right to initiate paternity actions 

under § 43-1411 is barred after 4 years, but actions brought 

by a guardian or next friend on behalf of children born out of 

wedlock may be brought within 18 years after the child’s birth. 

In the context of a paternity action, a next friend is one who, 

in the absence of a guardian, acts for the benefit of an infant 

or minor child. See In re Adoption of Amea R., 282 Neb. 751, 

807 N.W.2d 736 (2011). Actions brought by the next friend of 

the child are causes of action that seek to establish the child’s 

rights rather than those of the parent. See State on behalf of 

Kayla T. v. Risinger, 273 Neb. 694, 731 N.W.2d 892 (2007) 

(quoting State on behalf of S.M. v. Oglesby, 244 Neb. 880, 510 

N.W.2d 53 (1994)). It is generally recognized that a next friend 

must have a significant relationship with the real party in interest, such that the next friend is an appropriate alter ego for the 

party who is not able to litigate in his or her own right. In re 

Adoption of Amea R., supra.

Bryan brings this action in his own behalf and as T.B.’s next 

friend. Since T.B. was in the custody of Anne and Adam, his 

biological mother and legal father, Bryan did not show that 

T.B. was without a guardian.

This is not the first time we have considered this type of 

issue. Zoucha v. Henn, 258 Neb. 611, 604 N.W.2d 828 (2000), 

involved an action for grandparent visitation rights wherein 

the grandmother of the minor child brought the action as 

the child’s next friend. Since the minor child lived with his 

mother, we concluded there was no legal basis, reason, or 

cause for a “next friend” to institute a paternity action on the 
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minor child’s behalf. The mother and father were the natural 

guardians of the minor child. We concluded the court correctly 

dismissed the paternity action, because the grandmother did 

not dispute that the child lived with his mother.

Bryan relies upon Doak v. Milbauer, 216 Neb. 331, 343 

N.W.2d 751 (1984). He claims that this court suggested that 

parents may use the “next friend” status as a basis for bringing a claim of paternity. In Doak, the mother filed a paternity 

action against the putative father in 1981 and requested that he 

be declared the father of a child born to her in 1972. The court 

dismissed the action. In reviewing the constitutionality of Neb. 

Rev. Stat. § 13-111 (Reissue 1977), the predecessor statute to 

§ 43-1411, we held:

The clear import of the language of § 13-111 is that the 

mother’s cause of action to establish the paternity of her 

child in order to recover her damages is barred 4 years 

after the child’s birth. There is, however, no such limitation on a cause of action brought on the child’s behalf by 

a guardian or next friend to establish paternity and secure 

the child’s rights. . . . Accordingly, [the mother’s] equal 

protection and due process arguments [in this case] are 

misdirected. The dismissal of her petition has no effect 

upon her child’s cause of action.

Doak, 216 Neb. at 334-35, 343 N.W.2d at 753.

Bryan misinterprets Doak as an indication that parents may 

enforce their rights through the guardian or next friend provisions of § 43-1411. And Doak is clearly distinguishable from 

the case at bar. In Doak, we considered whether a mother, who 

had physical care of a child, could prosecute a cause of action 

as a child’s next friend to assert the child’s rights. The father 

sought to prevent that cause of action from proceeding, most 

likely to avoid paying child support. We held that although the 

mother was barred from bringing an action to assert her own 

rights and recover damages after 4 years, she could have prosecuted a cause of action as the child’s next friend, because such 

an action would have been to secure the child’s rights and, 

therefore, would be permitted under the statute.
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Bryan argues:

While the issue here does not relate to [T.B.’s] right to 

child support from his father, [T.B.] should have the right 

to an emotional bond with his biological father that is the 

same as his right to a relationship with the person that is 

married to his mother at the time of his birth.

Brief for appellant at 21. We disagree. This relationship is 

not the type contemplated by § 43-1411, nor is it the type of 

support with which the State has a reasonable interest. Bryan 

does not cite to any case in which a court in a similar context 

has interpreted “support” to mean an emotional bond. Taking 

Bryan’s argument to its logical conclusion, a “next friend” 

under § 43-1411 could bring suit to secure the child’s “right 

to an emotional bond” with the child’s biological parent. We 

reject this argument.

We conclude that Bryan cannot bring this action as the next 

friend of T.B. under § 43-1411. Bryan admits in the operative pleadings that T.B. is in the care of his biological mother. 

Thus, applying our holding in Zoucha v. Henn, 258 Neb. 611, 

604 N.W.2d 828 (2000), Bryan may not bring the paternity 

action as T.B.’s “next friend.” He has no significant relationship with T.B., and there is no indication that T.B. is without 

financial support. Bringing this action as T.B.’s next friend is a 

thinly veiled attempt to bypass the 4-year limitations period in 

§ 43-1411 for actions brought by parents.

2. Equitable Defenses to

Statute of Limitations

We next consider Bryan’s equitable defenses to the statute 

of limitations. At the time this action was brought, T.B. was 8 

years of age. Bryan clearly failed to bring his action within the 

limitations period pursuant to § 43-1411. He asserts the limitations period was tolled on the grounds of fraud and equitable 

estoppel. Bryan argues that Anne, by telling him on several 

occasions that he was not T.B.’s biological father, committed 

fraud and is equitably estopped to assert the statute of limitations as a defense.
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A claim of equitable estoppel rests in equity, and in reviewing judgments and orders disposing of claims sounding in 

equity, an appellate court tries factual questions de novo on the 

record and reaches a conclusion independent of the trial court. 

See deNourie & Yost Homes, LLC v. Frost, 289 Neb. 136, 

854 N.W.2d 298 (2014). Thus, we review Bryan’s equitable 

defenses de novo on the record, subject to the rule that where 

credible evidence is in conflict on material issues of fact, the 

appellate court considers and may give weight to the fact that 

the trial court observed the witnesses and accepted one version 

of the facts over another. Id. For the reasons stated below, we 

reject Bryan’s arguments in equity.

[7-9] Equitable estoppel is a bar which precludes a party 

from denying or asserting anything to the contrary of those 

matters established as the truth by his or her own deeds, acts, 

or representations. McGill v. Lion Place Condo. Assn., 291 

Neb. 70, 864 N.W.2d 642 (2015). The equitable doctrine of 

estoppel in pais may, in a proper case, be applied to prevent a 

fraudulent or inequitable resort to a statute of limitations, and 

a defendant may, by his or her representations, promises, or 

conduct, be so estopped where the other elements of estoppel 

are present. Manker v. Manker, 263 Neb. 944, 644 N.W.2d 522 

(2002). Equitable estoppel is not limited to circumstances of 

fraud but may also be applied to prevent an inequitable resort 

to a statute of limitations where the other elements of estoppel 

are present. Mogensen v. Mogensen, 273 Neb. 208, 729 N.W.2d 

44 (2007).

[10] The elements of equitable estoppel are, as to the party 

estopped: (1) conduct which amounts to a false representation 

or concealment of material facts, or at least which is calculated 

to convey the impression that the facts are otherwise than, and 

inconsistent with, those which the party subsequently attempts 

to assert; (2) the intention, or at least the expectation, that 

such conduct shall be acted upon by, or influence, the other 

party or other persons; and (3) knowledge, actual or constructive, of the real facts. Olsen v. Olsen, 265 Neb. 299, 657 

N.W.2d 1 (2003).
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As to the other party, the elements are: (1) lack of knowledge and of the means of knowledge of the truth as to the facts 

in question; (2) reliance, in good faith, upon the conduct or 

statements of the party to be estopped; and (3) action or inaction based thereon of such a character as to change the position 

or status of the party claiming the estoppel, to his or her injury, 

detriment, or prejudice. Id.

The district found that Anne made false statements to Bryan, 

because she could not have known which man was the father 

of T.B. But it determined that Bryan was relieved to be told 

he was not the father, because he wished to remain in his 

marriage. The court concluded Bryan’s decision to not timely 

bring the action was not caused by Anne’s statements, but by 

his desire to conceal the affair from his wife. The court found 

Bryan could not have reasonably relied on Anne’s statements 

that he was not T.B.’s father, because he knew that they had 

not used contraceptives during the period in which they regularly engaged in sexual intercourse. The court determined that 

Bryan failed to exercise his rights within the required time 

period, which demonstrated a lack of reasonable diligence. 

We agree.

Our review leads us to conclude that Bryan could not have 

reasonably and in good faith relied on Anne’s statements that 

he was not T.B.’s father. Bryan had unprotected sexual intercourse with Anne on numerous occasions around the time she 

became pregnant. He knew that Anne had not conceived a 

child in the 5 years of marriage prior to the affair. He knew or 

should have known that Anne’s statements were not based on 

reliable information.

[11,12] We find that Bryan failed to meet his burden to 

show that he had no knowledge or the means of knowledge 

of the truth as to the facts in question or constructive knowledge of the facts. Constructive knowledge is generally defined 

as knowledge that one using reasonable care or diligence 

should have. Gaytan v. Wal-Mart, 289 Neb. 49, 853 N.W.2d 

181 (2014). Only reasonably justified reliance will create an 
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estoppel. Breslow v. City of Ralston, 197 Neb. 346, 249 N.W.2d 

205 (1977).

Similarly, we reject Bryan’s testimony that he did not know 

about the availability of DNA testing. The availability of 

DNA testing to determine paternity is common knowledge and 

accessible to the public, and therefore, we reject Bryan’s claim 

that he was unaware that DNA testing was available to him at 

the time of T.B.’s birth.

[13] For the same reasons, we reject Bryan’s fraud argument. An essential element of actionable false representation 

is justifiable reliance on the representation. InterCall, Inc. v. 

Egenera, Inc., 284 Neb. 801, 824 N.W.2d 12 (2012). Where 

a plaintiff fails to use ordinary prudence in relying on a false 

statement, he or she cannot show that such reliance was justified. See Lucky 7 v. THT Realty, 278 Neb. 997, 775 N.W.2d 

671 (2009). Had Bryan used ordinary prudence, he would 

have been able to timely discover that he was T.B.’s biological father.

In the case at bar, the facts closely resemble those in Jeffrey 

B. v. Amy L., 283 Neb. 940, 814 N.W.2d 737 (2012). There, the 

mother had been in a sexual relationship with two men around 

the time she became pregnant. The biological father moved 

away before the child was born, and the second man obtained 

a decree of paternity. At the time he left town, the biological 

father did not know that the mother was pregnant or that there 

was a possibility that he was the father of the child. A decade 

later, and years after the mother had lost custody of the child 

to the purported father, the biological father attempted to intervene and assert his rights. We held that the biological father 

was not entitled to equitable relief, because he did not exercise 

reasonable diligence to determine whether he was the minor 

child’s father. We stated:

While [the biological father] slept on his rights, [the 

purported father] fulfilled the obligations of a father in 

justifiable reliance on the 2001 paternity decree. [The 

purported father] was judicially determined to be [the 
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minor child’s] father, and he developed a parental relationship with her. He exercised his visitation rights when 

[the child] was in [the mother’s] custody, paid child 

support, and later took custody of [the child] after she 

was removed from [the mother’s] care. [The biological father’s] failure to exercise any attempt to discover 

whether he was the biological father of [the child] prevents him from obtaining equitable relief.

Id. at 949, 814 N.W.2d at 745.

We find that Bryan did nothing to determine whether he 

was the biological father, despite knowing of the substantial 

possibility that he was the biological father. Meanwhile, Adam 

fulfilled all the obligations of a father to T.B. and established 

a parent-child relationship. The trial court found that under 

the circumstances, Bryan is not entitled to equitable relief. 

We agree.

Bryan was not deceived or hoodwinked into inactivity by 

Anne’s actions and statements, thereby preventing him from 

bringing this action in a timely manner. Rather than diligently and prudently attempting to establish paternity within 

the first 4 years after T.B.’s birth, he did nothing for 8 years. 

Consequently, Bryan’s claim that he was defrauded has no 

merit, and he has shown no basis to toll the statute of limitations in § 43-1411.

We do not find persuasive Bryan’s claims that this case is 

similar to Manker v. Manker, 263 Neb. 944, 644 N.W.2d 522 

(2002). Manker involved the husband’s secretly divorcing his 

wife after she signed a voluntary appearance and property 

settlement agreement. Although he filed the paperwork with 

the court and obtained a dissolution of marriage, the husband 

told her that he was only considering a divorce and had time 

to stop it.

The couple continued to hold each other out as husband 

and wife for 14 years following the dissolution. They cohabitated, they listed each other as spouses and left each other the 

entirety of their estates in their respective wills, the husband 
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listed her as his spouse on health insurance forms, and the 

husband acknowledged a child born during the time period as 

his son. Because the husband always retrieved the mail, she 

never received notice that their marriage had been dissolved. 

Furthermore, he handled the couple’s finances. Therefore, 

nearly all the “joint property” acquired during the 14 years following the dissolution was titled in the husband’s name. Upon 

learning of the dissolution after the husband made suspicious 

comments, the wife attempted to separate from him. However, 

the husband convinced her to keep the dissolution a secret to 

avoid getting into trouble with the Internal Revenue Service 

and losing his job.

We held that the doctrine of equitable estoppel was necessary to prevent the husband’s inequitable resort to a statute of 

limitations. The husband had repeatedly misrepresented to the 

wife and others that they remained married. He repeatedly prevented the wife from learning the truth. Upon her learning the 

truth, the husband convinced her to sit on her rights by causing 

her to believe that pursuing her rights would cause him to lose 

his job and the Internal Revenue Service to seize their assets, 

thereby losing any means of support.

In contrast to Manker, in this case, there was not a systematic pattern of fraud. Bryan understood that there was a 

substantial possibility, if not probability, that he was T.B.’s 

father. Anne did not know who was the father. At the time of 

conception, she had unprotected sexual intercourse with both 

men. Bryan is not permitted to bring this paternity action as 

T.B.’s next friend, nor do his equitable claims have merit. He 

has shown no statutory or equitable basis for a reversal of the 

district court’s order.

3. Constitutional Issues

[14] We next turn to Bryan’s constitutional challenges to 

§ 43-1411. Bryan challenges § 43-1411 on the basis that it 

violates the Equal Protection and Due Process Clauses of 

the U.S. and Nebraska Constitutions. Constitutional interpretation is a question of law on which we are obligated to reach 
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a conclusion independent of the decision by the trial court. 

Henderson v. City of Columbus, 285 Neb. 482, 827 N.W.2d 486 

(2013). The burden of demonstrating a constitutional defect 

rests with the challenger. Coffey v. County of Otoe, 274 Neb. 

796, 743 N.W.2d 632 (2008). A statute is presumed to be constitutional, and all reasonable doubts are resolved in favor of 

its constitutionality. State v. Loyuk, 289 Neb. 967, 857 N.W.2d 

833 (2015).

(a) Equal Protection Challenge

Bryan claims that § 43-1411 violates the Equal Protection 

Clause because it impermissibly discriminates against natural 

fathers and children born out of wedlock.

(i) Gender-Based Classification

We have held that parents are the natural guardians of their 

minor children. Zoucha v. Henn, 258 Neb. 611, 604 N.W.2d 

828 (2000). Bryan argues that because natural parentage of a 

mother is established at birth, but a father’s parentage is not, a 

mother can bring paternity actions on behalf of the child for up 

to 18 years, whereas fathers have only 4 years.

[15,16] Where a statute is challenged under either the Due 

Process Clause or the Equal Protection Clause of the state 

and federal Constitutions, the general rule is that legislation 

is presumed to be valid, and the burden of establishing the 

unconstitutionality of the statute is on the one attacking its 

validity. Sherman T. v. Karyn N., 286 Neb. 468, 837 N.W.2d 

746 (2013). The dissimilar treatment of dissimilarly situated 

persons does not violate equal protection rights. Kenley v. 

Neth, 271 Neb. 402, 712 N.W.2d 251 (2006). Under principles 

of equal protection, the government may not subject men and 

women to disparate treatment when there is no substantial relation between the disparity and an important state interest. In 

re Adoption of Baby Girl H., 262 Neb. 775, 635 N.W.2d 256 

(2001), disapproved on other grounds, Carlos H. v. Lindsay 

M., 283 Neb. 1004, 815 N.W.2d 168 (2012).
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[17] The initial inquiry in an equal protection analysis 

focuses on whether the challenger is similarly situated to 

another group for the purpose of the challenged governmental 

action. State v. Rung, 278 Neb. 855, 774 N.W.2d 621 (2009). 

Absent this threshold showing, one lacks a viable equal protection claim. Id. For the purposes of argument, we assume that 

Bryan has met this requirement.

Once the challenger establishes that he or she is similarly 

situated to another group, the analysis then focuses on whether 

the challenger is receiving dissimilar treatment pursuant to the 

statute at issue as compared to the similarly situated group.

Sherman T. v. Karyn N., supra. On its face, § 43-1411 treats 

mothers and putative fathers identically by imposing a 4-year 

limitations period on paternity actions brought by parents 

asserting their own rights. Similarly, the statute does not discriminate based on gender in allowing a guardian or next friend 

to bring an action on behalf of the child.

Our case law shows that § 43-1411 has been invoked to 

bar paternity actions brought by both men and women after 4 

years. More fundamentally, Bryan’s argument fails to recognize 

the distinction between bringing a paternity action to vindicate 

the parent’s right as compared to filing an action to vindicate 

the rights of the child. See, State on behalf of S.M. v. Oglesby, 

244 Neb. 880, 510 N.W.2d 53 (1994); Doak v. Milbauer, 216 

Neb. 331, 343 N.W.2d 751 (1984).

It is unclear what Bryan believes are the necessary measures 

that would place mothers and fathers “on a level playing field” 

in bringing paternity actions. His argument suggests that any

time limitation on a parent’s right to assert his or her right 

to bring a paternity action is unconstitutional. That notion is 

patently hostile to the rights of the child and the State’s interest in preserving family stability. More fundamentally, it is 

contrary to our law regarding paternity actions and support. 

Consequently, we reject Bryan’s argument that § 43-1411 

impermissibly discriminates against men.
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(ii) Discrimination Against Children 

Born out of Wedlock

[18,19] In addition to gender-based classification, Bryan 

claims that § 43-1411 impermissibly discriminates against children born out of wedlock. But Bryan lacks standing to raise 

this issue, because he would be required to do so on behalf of 

T.B. Standing is the legal or equitable right, title, or interest 

in the subject matter of a controversy. In re Guardianship & 

Conservatorship of Barnhart, 290 Neb. 314, 859 N.W.2d 856 

(2015). If the party appealing an issue lacks standing, the court 

is without jurisdiction to decide the issues in the case. In re 

Claims Against Pierce Elevator, 291 Neb. 798, 868 N.W.2d 

781 (2015).

As the child born out of wedlock, the right and interest in 

challenging § 43-1411 on that basis belongs to T.B. We have 

determined that Bryan was not permitted to bring a paternity 

action on behalf of T.B. or assert T.B.’s rights. Similarly, we 

find he lacks standing to raise this issue. Regardless, we note 

that this issue was addressed in our opinion Doak v. Milbauer, 

supra (holding that § 13-111 was constitutional because it did 

not bar children born out of lawful wedlock from themselves 

bringing the action after the specified period of limitations).

(b) Due Process Challenge

Bryan argues that § 43-1411 violates his due process rights. 

He asserts that society has changed a great deal in the last 20 

years and that the State no longer has an interest in imposing a limitations period on parents bringing paternity actions. 

Bryan’s arguments seem to allege that § 43-1411 violates his 

procedural due process rights. We reject Bryan’s arguments.

[20-22] Due process principles protect individuals from 

arbitrary deprivation of life, liberty, or property without due 

process of law. Doe v. Board of Regents, 280 Neb. 492, 

788 N.W.2d 264 (2010). Due process does not guarantee an 

individual any particular form of state procedure; instead, 

the requirements of due process are satisfied if a person has 
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reasonable notice and an opportunity to be heard appropriate 

to the nature of the proceeding and the character of the rights 

which might be affected by it. In re Interest of S.J., 283 Neb. 

507, 810 N.W.2d 720 (2012). The determination of whether 

procedures afforded an individual comport with constitutional 

requirements for procedural due process presents a question of 

law. Id.

Bryan bases his argument primarily on the holding in Michael 

H. v. Gerald D., 491 U.S. 110, 109 S. Ct. 233, 105 L. Ed. 2d 

91 (1989). There, the Court upheld a California statute which 

created a presumption that a husband is the natural father of a 

child born during a marriage. In Michael H., a putative natural 

father, whose blood tests indicated a 98.07 percent probability 

of paternity and who had established a parental relationship 

with the child, filed an action to establish paternity and a right 

to visitation. The Court held: (1) The statute creating a presumption that a child born to a married woman living with her 

husband is the child of the marriage did not violate the putative 

natural father’s procedural due process rights, (2) the statute 

did not violate the putative natural father’s substantive due 

process rights, (3) the child did not have a due process right 

to maintain a filial relationship with both the putative natural 

father and the husband, and (4) the statute did not violate the 

child’s equal protection rights. In reaching its conclusions, the 

Court stated:

In Lehr v. Robertson, a case involving a natural 

father’s attempt to block his child’s adoption by the 

unwed mother’s new husband, we observed that “[t]he 

significance of the biological connection is that it offers 

the natural father an opportunity that no other male possesses to develop a relationship with his offspring,” . . . 

and we assumed that the Constitution might require some 

protection of that opportunity . . . . Where, however, the 

child is born into an extant marital family, the natural 

father’s unique opportunity conflicts with the similarly 

unique opportunity of the husband of the marriage; and 
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it is not unconstitutional for the State to give categorical 

preference to the latter.

Michael H., 491 U.S. at 128-29. Section 43-1411 is substantially less rigid than the California statute. Section 43-1411 

imposes a 4-year limitations period, whereas the California 

statute imposed a 2-year limitations period. Moreover, whereas 

§ 43-1411 allows putative fathers (such as Bryan) to bring 

paternity actions within that time period, the California statute 

seemingly barred persons outside the marriage from bringing 

such actions.

Bryan claims that in contrast to the California statute in 

Michael H., § 43-1411 does not have a provision allowing for 

visitation rights for natural fathers if they stood in loco parentis 

to the child, which, for a variety of reasons, is often not the 

case. Bryan’s reliance upon Michael H. is misplaced. Under 

§ 43-1411, the biological parent need not be in loco parentis to 

the child to bring a paternity action. Instead, the sole requirement is that he or she must bring the action within the time 

period provided in that statute.

We conducted a due process analysis in Doak v. Milbauer, 

216 Neb. 331, 343 N.W.2d 751 (1984), when the mother challenged § 13-111—the predecessor statute to § 43-1411—on 

equal protection and due process grounds. The mother claimed 

the 4-year statute of limitations to bring paternity actions was 

unconstitutional. There, we stated:

More recently, the U.S. Supreme Court has held that 

restrictions on support suits by children born out of lawful wedlock will survive equal protection scrutiny to the 

extent that they are substantially related to a legitimate 

state interest. However, the period for obtaining parental 

support must be long enough to provide a reasonable 

opportunity for those with an interest in such children 

to bring suit on their behalves. Further, any time limit 

on that opportunity has to be substantially related to the 

state’s interest in preventing the litigation of stale or 

fraudulent claims. . . .
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There is, however, a major distinction between the statutes determined to be constitutionally infirm in the abovecited cases and the statute at hand. Those statutes found 

not to pass constitutional muster purported to bar children 

born out of lawful wedlock from themselves bringing the 

action after the specified period of limitations. We do not 

so read our statute.

Doak, 216 Neb. at 333-34, 343 N.W.2d at 752-53 (citing 

Mills v. Habluetzel, 456 U.S. 91, 102 S. Ct. 1549, 71 L. Ed. 

2d 770 (1982)). We concluded that the statute was constitutional because it provided sufficient time for a natural parent, 

whether having custody of the child or not, to assert his or her 

rights. We conclude that § 43-1411 does not violate Bryan’s 

due process rights.

We also reject Bryan’s claims that “[o]ur society has changed 

such that protecting the ‘legitimacy’ of a child born during a 

marriage between a man and a woman is no longer a meaningful goal of the state.” Brief for appellant at 30. This mischaracterizes the State’s interest involved in § 43-1411. Even if 

protecting legitimacy is no longer important, a conclusion we 

need not and do not reach, the State certainly has a legitimate 

interest in protecting children from being removed from their 

homes and stability after an extended period has passed. See 

Jeffrey B. v. Amy L., 283 Neb. 940, 814 N.W.2d 737 (2012). 

The blame in failing to timely bring a paternity action rests 

solely on Bryan.

VI. CONCLUSION

For the reasons stated above, we affirm the order of the district court.

Affirmed.

McCormack, J., not participating.