In a split decision Friday, the Nebraska Supreme Court said a Douglas County judge was wrong to reverse a Minnesota man's order to pay child support because a DNA test said he wasn't the father.

The child is 19 now, but the latest issue dates back to 2011.

That year, the Minnesota man listed in Friday's opinion as Brian F. sought to reduce or terminate his child support obligation, which had gone up two years earlier to $369 per month.

The state asked for the increase when the boy was removed from his mother's home in 2009.

In 2012, in the course of the proceedings, a genetic test showed Brian F. wasn't the teenager's biological father, despite the fact that he'd signed an acknowledgment of paternity in 1995, five months after the boy was born.

At a child-support hearing in June 2012, a referee said, "You're not the dad, so to hold you responsible in the future is unconscionable. So that's what I'm going to recommend."

Douglas County District Judge Peter Bataillon ultimately agreed on Oct. 29, 2012, and set aside the finding of paternity and terminated child support as of May 31, 2012, the date of the DNA test.

The state appealed.

On Friday, a Nebraska Supreme Court majority said the district court had gone too far when, on its own initiative, it turned a motion to modify child support into an action challenging paternity and set aside the finding of paternity.

Justice Lindsey Miller-Lerman wrote that the district court improperly expanded the scope of the action.

"And because Brian was still legally the father under the paternity decree, the district court further erred when it terminated child support based solely on the finding that Brian was not the biological father of the child," she wrote.

Miller-Lerman said the high court wasn't unsympathetic to Brian F.'s current status, but it reversed the order and sent it back to Douglas County to address the requested modification of child support.

It is not uncommon, she wrote, for a man to say court-ordered child support should be reduced or terminated because DNA testing excludes him as a biological father.

However, there is nothing in case law, Nebraska statutes or the Nebraska Child Support Guidelines that says that alone is sufficient to warrant modification or termination of child support, Miller-Lerman wrote.

Justices William Cassel and Kenneth Stephan and Chief Justice Michael Heavican agreed for other reasons.

"That said, I do not particularly like the result which the court reaches in this case," Stephan wrote.

But, he said, there is no legal basis on the record for vacating the 1996 judgment determining Brian F. to be the child's father.

Justices William Connolly and Michael McCormack dissented.

Connolly wrote that the majority opinion, "through a series of legal contortions, manages to avoid the issue that the parties tried."

Under the version of the statute that existed in 1996, he wrote, Brian F. had no obligation to continue paying child support, and the state had no right to seek it if he could prove he was not a child's biological or adoptive father.

Brian F. can try to have the paternity finding set aside when the case returns to Douglas County.

Reach the writer at 402-473-7237 or On Twitter @LJSpilger.


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