State ex rel. A.E. v. Buckhalter

730 N.W.2d 340

273 Neb. 443

STATE on Behalf of A.E., appellee, v. Correll BUCKHALTER, appellant.

No. S-06-693.

Supreme Court of Nebraska.

April 20, 2007.

Lindsay K. Lundholm and William G. Dittrick, of Baird, Holm, McEachen, Pedersen, Hamann & Strasheim, L.L.P., Omaha, for appellant.

Gary Lacey, Lancaster County Attorney, and Barbara J. Armstead, Gering, for appellee.

HEAVICAN, C.J., WRIGHT, CONNOLLY, GERRARD, STEPHAN, McCORMACK, and MILLER-LERMAN, JJ.

CONNOLLY, J.

The State of Nebraska sued Correll Buckhalter on behalf of A.E., a minor child, to establish paternity and award child support. Buckhalter, however, failed to answer or otherwise appear. On December 2, 2005, 17 months after the State filed the action, and after Buckhalter failed to appear numerous times for verified genetic testing, a referee found that Buckhalter is A.E.'s father by default and recommended the district court award child support of $4,035 per month.

Buckhalter claims that (1) he did not receive notice of the evidentiary hearing, (2) an unverified, private paternity test exculpates him as the father, and (3) the evidence of his income was insufficient to award child support. We affirm because after failing to answer or appear, Buckhalter was not entitled to notice of the hearing, the unsubstantiated test results are not a meritorious defense, and the child support award is supported by the evidence.

I. BACKGROUND

1. A.E.'s BIRTH AND PATERNITY TESTS

While a student at the University of Nebraska-Lincoln, Buckhalter had a sexual relationship with Jennifer Brown. In 1999, Brown gave birth to A.E. Buckhalter currently plays professional football for the Philadelphia Eagles.

Brown had sexual relationships with three men about the time A.E. was conceived, including Buckhalter. The other two men took paternity tests through the State, which excluded both of them as being A.E.'s father. In April 2004, Buckhalter and Brown arranged for private genetic testing to determine if Buckhalter was the father. The test purported to exclude him as the father. The record, however, fails to show how Buckhalter's DNA sample was taken, and no fingerprint or photographic evidence authenticated that the DNA sample tested was Buckhalter's.

Despite the test results, Brown still believed that Buckhalter was A.E.'s father because, according to her, no one else could have been the father. She testified that Buckhalter continued to acknowledge that A.E. is his child after the test results. Brown testified that she and Buckhalter agree that A.E. looks like Buckhalter. Buckhalter has sent A.E. gifts, including shoes, clothes, and Philadelphia Eagles merchandise; he regularly speaks to him on the telephone; and he has offered to pay child support in the past.

2. PATERNITY AND CHILD SUPPORT SUIT AGAINST BUCKHALTER

In June 2004, the State filed a complaint against Buckhalter to establish paternity and award child support. The complaint and summons were served at Buckhalter's mother's home in Mississippi on July 15, 2004. On September 9, Buckhalter was personally served with a summons and a copy of the complaint at the Eagles headquarters in Philadelphia, Pennsylvania.

(a) The District Court Orders Buckhalter to Take a Verified Paternity Test

On December 20, 2004, the State moved to compel Buckhalter to submit to genetic testing. On January 5, 2005, Buckhalter contacted the Lancaster County Attorney's office and told the paralegal that he had taken a private paternity test. The paralegal informed him that he would need to send in the original results with photographs attached to verify that the DNA sample was his. Otherwise, the hearing on the State's motion would take place. Buckhalter did not send the results or any identifying documentation.

The court granted the motion and ordered Buckhalter to submit to genetic testing on January 25, 2005. Buckhalter contacted the county attorney's office to reschedule, and the county attorney's office arranged testing for February 22. Buckhalter apparently arrived late for the appointment, and later called the office to reschedule. The county attorney's office rescheduled the paternity test twice more, but Buckhalter did not show up for either of these rescheduled appointments and did not contact the county attorney's office. On May 25, the State filed an affidavit informing the court that Buckhalter had not submitted to genetic testing as ordered.

(b) Hearing Before Referee

(i) Buckhalter's Addresses

In January 2005, Buckhalter told the paralegal at the county attorney's office to send all mail to the Mississippi address where his mother lived. In February, Buckhalter informed the paralegal that he was then living at an address in New Jersey, but also gave her an address in Texas. The evidence is somewhat contradictory regarding whether he was then moving to Texas or whether, at that time, he was just going to be in Texas for a few days.

(ii) Notice and Hearing

On September 2, 2005, the State notified Buckhalter that a hearing would be held on September 13 to determine paternity and child support. The notice was delivered by regular U.S. mail to Buckhalter's Mississippi, Pennsylvania, and New Jersey addresses. Buckhalter contacted the county attorney's office to inform them he could not attend that day because he had to play in a football game. The hearing was continued to October 25; notice of the new hearing date was mailed to Buckhalter's New Jersey address.

Buckhalter did not attend the hearing, nor did he contact the county attorney's office again before the October 25, 2005, hearing. Neb.Rev.Stat. § 43-1412(2) (Reissue 2004) permits a default judgment of paternity upon a showing of service and failure of the defendant to answer or otherwise appear. The referee found that Buckhalter is A.E.'s father by default under § 43-1412(2).

(iii) Child Support Calculation

At the hearing, the State produced employment verification forms submitted by the Philadelphia Eagles showing Buckhalter's salary. The evidence showed that Buckhalter earned $1,075,000 annually; the referee concluded that Buckhalter's gross monthly income was $89,583.33. However, she did not have evidence of any deductions to which he would be entitled in calculating child support, so she used Buckhalter's gross income in the calculation. Brown testified that she was unemployed so that she could stay at home to care for another child of hers who was ill. She had previously received Medicaid, but stopped receiving payments in anticipation of receiving child support from Buckhalter.

Evidence revealed that A.E. has special financial needs. Brown testified that A.E. is autistic and has been diagnosed with "ADHD." His medication alone costs $300 per month. He has received counseling through a psychiatrist, participated in a therapeutic program called "Karate Kicks," and attended a specialized daycare center to address his needs. He no longer participates in these services, however, because of the cost.

Because the Nebraska Child Support Guidelines do not set out support amounts for income levels over $10,000 per month, the referee extrapolated from the child support chart to calculate an appropriate support level. She recommended that the court award child support of $4,035 per month. She further recommended retroactive child support from July 2004—the date the complaint was served on Buckhalter—for a total of 17 months. The referee sent a copy of her findings to Buckhalter on December 2, 2005, at his addresses in Pennsylvania, New Jersey, and Texas.

(c) Buckhalter Gets Involved

On December 12, 2005, Buckhalter moved to dismiss and vacate the referee's report and filed exceptions to the referee's report and notice of appeal and hearing. On March 1, 2006, he moved to compel discovery of the private genetic test results and to continue the hearing. The court, however, denied all of his motions and overruled the exceptions. The court found that Buckhalter is A.E.'s father and ordered child support consistent with the referee's recommendations.

II. ASSIGNMENTS OF ERROR

Buckhalter assigns that the district court erred in (1) adopting and refusing to vacate the default judgment of paternity, (2) denying his motion to compel discovery of genetic testing evidence in the State's possession, (3) violating his due process rights, and (4) approving the referee's child support calculation.

III. STANDARD OF REVIEW

We review a ruling on a motion to vacate for abuse of discretion.¹

We review child support cases de novo on the record, and will affirm the trial court's decision in the absence of an abuse of discretion.²

IV. ANALYSIS

1. DUE PROCESS

(a) Failure to Provide Notice of Evidentiary Hearing

Buckhalter alleges that the State failed to provide notice of the evidentiary hearing to establish paternity and award child support. He contends that Neb.Rev.Stat. § 25-534 (Reissue 1995) required the State to serve him with notice of the property hearing at his "last-known address." He argues that his last known address was in Texas. The State, however, contends that because Buckhalter did not answer or otherwise enter an appearance, he was not entitled to receive notice of the hearing. And alternatively, the State contends that notice was properly sent to Buckhalter's New Jersey address.

We have consistently held that a party who is served with summons and a copy of the complaint and fails to answer or make an appearance in a case is not entitled to further notice of a hearing. In Tejral v. Tejral,³ the district court entered a default judgment dissolving the parties' marriage. The wife had been personally served with summons and a copy of the petition, but did not answer or appear. After the district court entered the default judgment, she moved to vacate, arguing that she had not received notice of the dissolution hearing. We held that

where a party in a dissolution of marriage case is served personally with a summons and a copy of the petition in the case,...