Child Support Enforcement - Sarpy County Nebraska

excluded as the father before the state went after the defendant. The testing showed that the
alleged father was not the biological father of the child. The state here was forced to pay the
alleged father’s attorney’s fees.
The State must first have evidence of corroboration of the mother‘s claim of paternity
in order to file a complaint alleging paternity. An example of corroboration would be
favorable genetic testing results, or a written acknowledgment of paternity. A failure of
the State to have corroborating evidence before filing will constitute a frivolous
lawsuit, entitling the alleged father to the payment of his attorney fees by the State.
under § 43-1412, the term “frivolous” connotes a paternity suit brought for an
improper motive or premised upon a legal position so wholly without merit as to be
without rational argument in the law or evidence.
[T]he fact that the mother can testify on the issue of who fathered her child does not
resolve the issue of whether this is a frivolous lawsuit. However, § 43-1412 and
pertinent case law require that the mother's testimony be corroborated. See Gregory v.
Davis, 214 Neb. 408, 334 N.W.2d 1 (1983).
We are affirming the award because the State‘s legal position in filing the paternity suit,
which can only be characterized as an ―errant shot in the dark,‖ was wholly without
merit and therefore frivolous.
See R.R.S. §43-1412: [i]f it is not determined in the proceeding that the alleged father is
actually the father of the child, the court shall, if it finds that the action was frivolous, award
court costs and attorney’s fees incurred by the alleged father, with such costs and fees to be
paid by the plaintiff.
In Lutheran Medical Center v. City of Omaha, 229 Neb. 802, 429 N.W.2d 347
(1988), the court had to define the term "frivolous" as a prerequisite for the
assessment of fees under § 25-824. There, it was stated that the offending party
had demonstrated a disdain for common law and common sense.
[from the dissent:] The term "ex rel.", or ex relatione, is defined as "[l]egal
proceedings which are instituted by the attorney general (or other proper person) in
the name and behalf of the state, but on the information and at the instigation of an
individual who has a private interest in the matter...." Black's Law Dictionary 582 (6th
ed. 1990).
Note: In civil proceedings where paternity is an issue, most states provide that there must be
corroboration to support the mother’s testimony that the respondent is the father. Other cases
addressing the need for corroboration in the testimony as to paternity include:
State ex rel. Klostermeier v. Klostermeier, 161 Neb. 247, 72 N.W.2d 848 (1955)
Lockman v. Fulton, 162 Neb. 439, 76 N.W.2d 452 (1956)
Wade v. Hicks, 191 Neb. 847, 218 N.W.2d 222 (1974)
State on behalf of Cooper v. Harmon, 2 Neb. App. 612, 512 N.W.2d 656 (1994)
Perkins v. Perkins, 198 Neb. 401, 253 N.W.2d 42 (1977)
The presumption favoring legitimacy of children may only be rebutted by clear and
convincing evidence beyond the testimony of husband or wife denying child‘s
legitimacy.
Snay v. Snarr, 195 Neb. 375, 238 N.W.2d 234 (1976)
In a paternity proceeding, only a preponderance of evidence is necessary to
sustain a verdict.
- 144 -