Jeffrey B. v. Amy L.

Jeffrey B., appellee , cross -appellant, and cross -appellee ,
v. amy l., appellant and cross -appellee , and todd W.,
intervenor-appellee , cross -appellant,
and cross -appellee .
814 N.W.2d 737
Filed June 1, 2012. 	No. S-11-561.
1. Paternity: Appeal and Error. In a filiation proceeding, questions concerning
child custody determinations are reviewed on appeal de novo on the record to
determine whether there has been an abuse of discretion by the trial court, whose
judgment will be upheld in the absence of an abuse of discretion.
2. Interventions. Whether a party has the right to intervene in a proceeding is a
question of law.
3. Judgments: Appeal and Error. When reviewing questions of law, an appellate
court has an obligation to resolve the questions independently of the conclusion
reached by the trial court.
4. Interventions. Leave to intervene after the entry of a final decree is not allowable
as a matter of right and should seldom be granted, but equity sometimes requires
a departure from the general rule.
5. Interventions: Appeal and Error. An order permitting equitable intervention is
reviewed for an abuse of discretion.
6. Judgments: Interventions: Trial: Time. A right to intervene should be asserted
within a reasonable time. The applicant must be diligent and not guilty of unrea-
sonable delay after knowledge of the suit.
7. Statutes. To the extent there is conflict between two statutes on the same subject,
the specific statute controls over the general statute.
Appeal from the District Court for Sarpy County: max
K elch, Judge. Reversed and remanded with directions.
Anthony 	W. 	Liakos, 	of 	Govier 	& 	Milone, 	L.L.P., 	for
appellant.
Phillip G. Wright for intervenor-appellee Todd W.
C.G. (Dooley) Jolly and Tyler J. Volkmer, of Jolly Law, P.C.,
L.L.O., for appellee Jeffrey B.
heavican, c.J., Wright, connolly, stephan, mccormacK,
and miller-lerman, JJ.
per curiam.
NATURE OF CASE
Amy L. is the biological mother of Fianna L. In 2001, the
Sarpy County District Court entered a paternity decree finding
940 	283 NEBRASkA REPORTS
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:42 AM CST

Jeffrey B. to be Fianna’s father. Several years later, Amy began
to suspect that Todd W. was Fianna’s father.
In 2009, Amy filed an application to modify the paternity
decree. Todd sought to intervene in the action, claiming that he
was Fianna’s father. The trial court allowed Todd to intervene,
and it later set aside the paternity decree. Later still, the court
entered an order finding that Todd was Fianna’s father and
awarding custody of Fianna to Todd. Genetic tests confirmed
that Todd was the biological father. Because it was error for the
trial court to permit Todd to intervene, we reverse the judgment
and remand the cause with directions.
FACTS
Todd was in Omaha, Nebraska, between January and July
1999, working for a company that did wireless construction.
Between March and June 1999, Todd and Amy were involved
in a sexual relationship. Though Todd testified that he used
contraception during his sexual encounters with Amy, he also
admitted to being intoxicated during at least one of these
encounters, which made it possible that he did not always take
such measures. Around that same time, Amy was also in a
sexual relationship with Jeffrey. When Todd left Omaha in July
1999, he did not know that Amy was pregnant. He ultimately
returned to St. Louis, Missouri.
Amy learned she was pregnant in June 1999. Shortly there-
after, she went to St. Louis to find Todd and “see if there was
anything more between [them].” She did not meet with Todd
because he was out of town; however, she did locate two of
his coworkers, but she did not ask them for Todd’s telephone
number or tell them she was pregnant.
Later, Todd learned that Amy had met with his cowork-
ers. Todd testified one of them told him that he thought Amy
might be pregnant, but that he also thought she was seeing
someone other than Todd. Though Todd knew that Amy could
be pregnant and did not know that she had another boyfriend
during their sexual relationship, Todd testified that he never
considered the possibility that he could be the father of
Amy’s baby.
JEFFREy B. v. AMy L. 	941
Cite as 283 Neb. 940

When Fianna was born in December 1999, both Amy and
Jeffrey thought Jeffrey was her biological father. After Fianna
was born, Jeffrey lived with Amy and Fianna, and attempted to
form a family, an attempt that lasted 6 to 8 months. Jeffrey and
Amy were never married.
By 2001, Jeffrey had filed a petition to establish paternity.
On October 26, 2001, the Sarpy County District Court entered
a paternity decree making a legal finding that Jeffrey was
Fianna’s father. Under the decree, Amy had custody of Fianna,
Jeffrey had visitation rights, and Jeffrey paid child support.
At this point, Amy still believed Jeffrey was Fianna’s biologi-
cal father. In July 2002, the paternity decree was modified to
adjust Jeffrey’s child support payments.
In 2005, Fianna was removed from Amy’s home and placed
in the temporary custody of the Department of Health and
Human Services. The paternity decree was modified again in
2006, and custody was transferred from Amy to Jeffrey, subject
to Amy’s visitation. When Amy signed the stipulation transfer-
ring custody, she still thought Jeffrey was Fianna’s biological
father. Fianna lived with Jeffrey for approximately 7 years
prior to trial.
Amy first realized that Todd could be Fianna’s biological
father when Fianna was about 6 years old. Fianna had certain
physical traits resembling Todd. Amy sought modification of
the paternity decree on August 10, 2009, but did not raise her
concerns about paternity with the court. At that time, Fianna
was in Jeffrey’s custody.
After Todd left Omaha in July 1999, he had no contact with
Amy for approximately 10 years. On October 12, 2009, Amy
sent Todd an e-mail telling him that he could be Fianna’s bio-
logical father. Amy testified that in an e-mail response to her,
Todd mentioned hearing from his coworker that Amy was preg-
nant but that “he didn’t think anything more of it.”
When Todd saw a picture of Fianna, he thought she resem-
bled him, and he agreed to a genetic test. The test was per-
formed on DNA samples from Fianna, Amy, and Todd and
showed a 99.997-percent probability that Todd could not be
excluded as Fianna’s biological father. A later genetic test
942 	283 NEBRASkA REPORTS

excluded Jeffrey as Fianna’s biological father. Todd first met
Fianna in May 2010.
On May 17, 2010, Todd moved to intervene in the pending
proceedings to modify the paternity decree, alleging that he
was Fianna’s biological father. Todd’s initial motion to inter-
vene was denied because he had failed to challenge the existing
paternity decree, which the trial court determined was res judi-
cata as long as it stood. Within a month of that decision, Todd
filed another motion. This motion asked the court to allow him
to intervene and to set aside the paternity decree. On August
10, the court entered an order allowing Todd to intervene. He
filed a complaint on August 16 asking the court to set aside the
paternity decree.
On May 9, 2011, the trial court set aside the paternity decree.
It relied on Neb. Rev. Stat. § 25-2001(2) and (4) (Reissue
2008). The court found that Todd had met his burden of show-
ing that he did not have sufficient information or knowledge to
participate in the paternity action which resulted in the October
26, 2001, decree. The court determined that the 2-year statute
of limitations in Neb. Rev. Stat. § 25-2008 (Reissue 2008) ran
from the time Todd discovered he might be Fianna’s father and
that from this point forward, Todd had 2 years to attempt to
set aside a decree under § 25-2001(4). It found that Todd did
not know of Amy’s pregnancy, despite her visit to St. Louis in
1999. Therefore, the court concluded that Todd met the statute
of limitations by instituting legal proceedings within 2 years
after he knew of the situation.
At the trial of Todd’s petition to set aside the paternity
decree, the court found that Todd had shown irregularity
in obtaining the decree because a necessary party was not
included in the proceedings, newly discovered material evi-
dence that could not have been discovered before the 2001
paternity decree was entered, and unavoidable casualty or
misfortune kept Todd from participating in the 2001 paternity
action. It determined that Todd had met the requirements of
§ 25-2001(4)(a), (4)(c), and (4)(f) and that the October 26,
2001, paternity decree and subsequent modifications should
be set aside.
JEFFREy B. v. AMy L. 	943
Cite as 283 Neb. 940

The trial court also found that Todd had made the neces-
sary showing for the court to exercise its equity power pursu-
ant to § 25-2001(2). The court concluded that Amy had not
told Todd’s coworkers she was pregnant, Amy and Todd took
measures to prevent pregnancy, and absent speculation from a
coworker, Todd had no information to support a belief that he
was the father of a child with Amy. As a result, the court con-
cluded that Todd had met his burden to show that the paternity
decree and its later modifications should be set aside pursuant
to § 25-2001(2).
Given the evidence, including the statistical probability of
Todd’s paternity, the trial court found that Todd was Fianna’s
biological father and was a fit parent. Though the court was
concerned about Amy’s parenting ability, it did not find her
to be an unfit parent. It concluded that Jeffrey could not be
awarded custody because the rights of Amy and Todd were
greater than any rights Jeffrey had under the doctrine of in loco
parentis. The court found it would be in Fianna’s best interests
for Todd to have custody. It granted Jeffrey and Amy visitation
and set out a visitation schedule. The court later stayed the
change of custody until after the appeal was decided but denied
other postjudgment relief requested by the parties.
ASSIGNMENTS OF ERROR
Amy assigns that the trial court erred in (1) granting Todd’s
amended motion to intervene, (2) determining § 25-2001 gov-
erned the complaint the court allowed Todd to file, (3) setting
aside the paternity decree and the modifications made to the
decree in 2002 and 2006, (4) determining Todd’s complaint was
timely filed under § 25-2008, (5) awarding custody to Todd, (6)
failing to sufficiently consider Fianna’s trial testimony, and (7)
changing Fianna’s surname.
On cross-appeal, Jeffrey assigns that the trial court erred
in (1) disestablishing Jeffrey’s paternity, (2) granting Todd’s
amended motion to intervene, (3) failing to appoint a guardian
ad litem for Fianna, (4) awarding custody to Todd, (5) failing
to give appropriate consideration to Fianna’s best interests, (6)
failing to sustain Jeffrey’s motion for new trial, and (7) failing
to grant any of Jeffrey’s requested postjudgment relief.
944 	283 NEBRASkA REPORTS

Todd also cross-appeals, claiming that the trial court erred in
awarding Jeffrey visitation and arguing that if Jeffrey is to have
visitation, he should pay child support.
STANDARD OF REVIEW
[1] In a filiation proceeding, questions concerning child
custody determinations are reviewed on appeal de novo on the
record to determine whether there has been an abuse of discre-
tion by the trial court, whose judgment will be upheld in the
absence of an abuse of discretion.1
[2,3] Whether a party has the right to intervene in a proceed-
ing is a question of law.2 When reviewing questions of law, an
appellate court has an obligation to resolve the questions inde-
pendently of the conclusion reached by the trial court.3
ANALySIS
In a paternity decree entered on October 26, 2001, the Sarpy
County District Court legally determined that Jeffrey was
Fianna’s father. Both Amy and Jeffrey claim that the trial court
erred in allowing Todd to intervene and in setting aside the
paternity decree. Whether a party has the right to intervene in a
proceeding is a question of law.4
We first examine whether Todd had a right to intervene.
Under Neb. Rev. Stat. § 25-328 (Reissue 2008),
Any person who has or claims an interest in the matter
in litigation . . . in any action pending or to be brought in
any of the courts of the State of Nebraska, may become
a party to an action . . . by joining the plaintiff . . . by
uniting with the defendants . . . or by demanding anything
adversely to both the plaintiff and defendant, either before
or after issue has been joined in the action, and before the
trial commences.
(Emphasis supplied.) The plain language of § 25-328 makes
clear that intervention as a matter of right is allowed only
1 Cesar C. v. Alicia L., 281 Neb. 979, 800 N.W.2d 249 (2011).
2 Merz v. Seeba, 271 Neb. 117, 710 N.W.2d 91 (2006).
3 Id.
4 Id.
JEFFREy B. v. AMy L. 	945
Cite as 283 Neb. 940

before trial begins. Intervention after judgment cannot be
obtained as a matter of right under § 25-328.5 Todd did not
attempt to intervene until 2010, nearly a decade after the pater-
nity decree was entered. He could not intervene as a matter
of right.
[4] Leave to intervene after the entry of a final decree is not
allowable as a matter of right and should seldom be granted,
but equity sometimes requires a departure from the general
rule.6 In such a case, the burden of persuasion is a heavy one.
One court wrote that “absent extraordinary and unusual cir-
cumstances, intervention, by a party who did not participate in
the litigation giving rise to the judgment sought to be vacated,
should not be permitted.”7 The Washington Supreme Court has
stated that “[w]here a person seeks to intervene after judgment,
the court should allow intervention only upon a strong show-
ing after considering all circumstances, including prior notice,
prejudice to the other parties, and reasons for and length of
the delay.”8
We conclude that the trial court erred in allowing Todd
to intervene; in setting aside the October 26, 2001, paternity
decree; and in relying upon § 25-2001(2), (4)(a), (4)(c), and
(4)(f), which state:
(2) The power of a district court under its equity juris-
diction to set aside a judgment or an order as an equitable
remedy is not limited by this section.
5 See, Meister v. Meister, 274 Neb. 705, 742 N.W.2d 746 (2007); Lincoln
Bonding & Ins. Co. v. Barrett, 179 Neb. 367, 138 N.W.2d 462 (1965);
Department of Banking v. Stenger, 132 Neb. 576, 272 N.W. 403 (1937);
Kitchen Bros. Hotel Co. v. Omaha Safe Deposit Co., 126 Neb. 744, 254
N.W. 507 (1934); Association of Commonwealth Claimants v. Hake, 2
Neb. App. 123, 507 N.W.2d 665 (1993).
6 Meister, supra note 5; Lincoln Bonding & Ins. Co., supra note 5; Kitchen
Bros. Hotel Co., supra note 5; Engdahl v. Laverty, 110 Neb. 672, 194 N.W.
862 (1923).
7 Bank of Quitman v. Phillips, 270 Ark. 53, 56, 603 S.W.2d 450, 452 (Ark.
App. 1980), citing 7A Charles Alan Wright et al., Federal Practice and
Procedure: Civil § 1916 (1972).
8 Kreidler v. Eikenberry, 111 Wash. 2d 828, 832-33, 766 P.2d 438, 441
(1989).
946 	283 NEBRASkA REPORTS

. . . .
(4) A district court may vacate or modify its own judg-
ments or orders after the term at which such judgments or
orders were made (a) for mistake, neglect, or omission of
the clerk, or irregularity in obtaining a judgment or order
. . . (c) for newly discovered material evidence which
could neither have been discovered with reasonable dili-
gence before trial nor have been discovered with reason-
able diligence in time to move for a new trial . . . (f) for
unavoidable casualty or misfortune, preventing the party
from prosecuting or defending . . . .
Todd cannot invoke § 25-2001(4) because § 25-328 does
not permit intervention after the paternity decree was entered
in 2001. Todd has not shown that the 2001 paternity decree
was obtained by mistake, neglect, or irregularity. Amy’s preg-
nancy could have been discovered by reasonable diligence
before trial or in time to move for a new trial, but Todd
did not exercise reasonable diligence to discover that Amy
was pregnant with his child. Todd has not shown there was
unavoidable casualty or misfortune that prevented him from
intervening before the 2001 decree. Thus, it was error to
allow Todd to intervene and for the trial court to rely upon
§ 25-2001(4) as a basis for Todd to intervene and set aside
the 2001 decree.
[5] We next examine whether, consistent with § 25-2001(2),
the trial court could apply equity jurisdiction and allow Todd
to intervene and set aside the 2001 paternity decree. An order
permitting equitable intervention is reviewed for an abuse
of discretion.9
[6] A key factor in the analysis is the length of delay, which
in this case is the time between entry of the paternity decree
and Todd’s attempt to intervene. “A right to intervene should
be asserted within a reasonable time. The applicant must be
diligent and not guilty of unreasonable delay after knowledge
of the suit.”10
9 In re Interest of Destiny S., 263 Neb. 255, 639 N.W.2d 400 (2002).
10 Lincoln Bonding & Ins. Co., supra note 5, 179 Neb. at 371, 138 N.W.2d at
465. See Merz, supra note 2.
JEFFREy B. v. AMy L. 	947
Cite as 283 Neb. 940

Several cases demonstrate this principle. In Engdahl v.
Laverty,11 we held that a trial court did not err in permitting a
landowner to intervene in a mortgage foreclosure action 17 days
after the decree of foreclosure had been entered, but before its
execution. In Meister v. Meister,12 we held under principles of
equity that an attorney should have been permitted to intervene
8 days after his attorney’s lien was found to be unenforceable,
because he was given notice only 5 business days before the
hearing on the validity of the lien. But in Lincoln Bonding &
Ins. Co. v. Barrett,13 we held that a party was properly denied
leave to intervene several months after a decree dissolving a
corporation and ordering its liquidation had been entered. We
noted the party was aware of the action prior to trial, but did
not seek leave to intervene until after the judgment had been
entered, a receiver had been appointed, and the corporation had
been partially liquidated.
We have held that laches, or unreasonable delay, is a proper
reason to deny intervention even prior to trial or judgment. In
Merz v. Seeba,14 an action by a shareholder for an accounting
and divestment of stock had been dismissed for lack of pros-
ecution, but no formal order of dismissal was entered. Nearly
10 years later, after the original plaintiff had died, another
shareholder sought but was denied leave to intervene. We
noted that laches depends on the circumstances of the case
and does not result from the mere passage of time, but results
when, “during the lapse of time, circumstances changed such
that to enforce the claim would work inequitably to the disad-
vantage or prejudice of another.”15 We reasoned that such cir-
cumstances existed because the original defendant could have
justifiably believed that the action had been finally concluded
and the statute of limitations for the filing of a new action
had run.
11 Engdahl, supra note 6.
12 Meister, supra note 5.
13 Lincoln Bonding & Ins. Co., supra note 5.
14 Merz, supra note 2.
15 Id. at 121, 710 N.W.2d at 95.
948 	283 NEBRASkA REPORTS

To be entitled to vacate a judgment after term by an
action in equity, the litigant must show that, without fault or
laches on his part, he was prevented from proceeding under
§ 25-2001.16 Todd has not shown that he was without fault or
was prevented from proceeding in a timely manner. His actions
show that he is not entitled to equitable relief. Todd did not
exercise reasonable diligence to determine if he was Fianna’s
father. Todd was told in 1999 that Amy could be pregnant. At
that point, he could have taken steps to confirm the pregnancy
and establish or rule out his own paternity, but he did not do
so until after being contacted by Amy in 2009. Instead, “he
didn’t think anything more of it” or consider whether he could
be the father if Amy was pregnant. He took no action for 10
years despite knowing that he had sexual relations with Amy
in 1999. He admitted he was intoxicated during at least one of
those sexual encounters, so it was possible he had not always
used contraception.
While Todd slept on his rights, Jeffrey fulfilled the obliga-
tions of a father in justifiable reliance on the 2001 paternity
decree. Jeffrey was judicially determined to be Fianna’s father,
and he developed a parental relationship with her. He exer-
cised his visitation rights when Fianna was in Amy’s custody,
paid child support, and later took custody of Fianna after she
was removed from Amy’s care. Todd’s failure to exercise any
attempt to discover whether he was the biological father of
Fianna prevents him from obtaining equitable relief.
Another reason that Todd cannot intervene as a matter
of equity is that “equity follows the law to the extent of
obeying it and conforming to its general rules and policies
whether contained in common law or statute.”17 This maxim is
strictly applicable whenever the rights of the parties are clearly
defined and established by law.18 Also, equitable remedies are
16 See, State ex rel. Birdine v. Fuller, 216 Neb. 86, 341 N.W.2d 613 (1983);
Lindstrom v. Nilsson, 133 Neb. 184, 274 N.W. 485 (1937).
17 Guy Dean’s Lake Shore Marina v. Ramey, 246 Neb. 258, 264, 518 N.W.2d
129, 133 (1994).
18 Id.; In re Petition of Ritchie, 155 Neb. 824, 53 N.W.2d 753 (1952).
JEFFREy B. v. AMy L. 	949
Cite as 283 Neb. 940

generally not available where there exists an adequate remedy
at law.19
Todd sought to set aside the paternity decree on the basis of
his own unadjudicated claim that he was Fianna’s biological
father. Nebraska law provides specific statutory remedies to be
utilized in establishing paternity and setting aside a paternity
decree. Neb. Rev. Stat. § 43-1411(1) (Reissue 2008) authorizes
the mother or “alleged father” of a child to bring a civil action
to determine paternity “either during pregnancy or within four
years after the child’s birth,” except in circumstances not appli-
cable here. Neb. Rev. Stat. § 43-1412.01 (Reissue 2008) pro-
vides a remedy whereby “an individual” may ask a court to set
aside a legal determination of paternity based upon the results
of a scientifically reliable genetic test performed in accordance
with certain statutes. Even where such testing demonstrates
that a presumed or adjudicated father is not the biological
father, a court has discretion in determining whether to grant
disestablishment of paternity, based upon its consideration of
the interests of the child and the adjudicated father.20 Section
43-1412.01 specifically provides that a “court shall not grant
relief from determination of paternity” under certain circum-
stances, including where “the individual named as father . . .
completed a notarized acknowledgment of paternity pursuant to
section 43-1408.01.”
In his amended motion to intervene, Todd asserted that the
paternity decree should be set aside pursuant to § 43-1412.01.
But in response to a specific question from the court dur-
ing the hearing on this motion, Todd’s counsel argued that
§ 25-2001(2) and (4) provided the statutory authority for set-
ting aside the decree. The district court’s subsequent order
granted Todd leave to intervene and to “file a Complaint . . .
requesting that the Decree of Paternity be set aside pursuant
to Neb.Rev.Stat. § 25-2001(4).” In his complaint, Todd alleged
that it had been determined by genetic testing that he “is the
19 Central States Found. v. Balka, 256 Neb. 369, 590 N.W.2d 832 (1999);
Vaccaro v. City of Omaha, 254 Neb. 800, 579 N.W.2d 535 (1998).
20 See Alisha C. v. Jeremy C., ante p. 340, 808 N.W.2d 875 (2012).
950 	283 NEBRASkA REPORTS

true biological father” and that the paternity decree should be
set aside pursuant to § 25-2001(2) and (4).
[7] To the extent there is conflict between two statutes on
the same subject, the specific statute controls over the gen-
eral statute.21 Under this well-established rule, the question
of whether the paternity decree should be set aside must be
determined under § 43-1412.01, applicable to setting aside
a judgment of paternity, and not under the provisions of
§ 25-2001, applicable to vacating judgments in general. And
to have standing in the form of a legal or equitable right, title,
or interest in the subject matter of the controversy,22 it was
necessary for Todd to establish his own paternity under the
procedure set forth in § 43-1411. By permitting Todd to inter-
vene for the purpose of setting aside the 2001 decree pursuant
to § 25-2001, the district court effectively negated the specific
procedures and limitations which the Legislature imposed in
§§ 43-1411 and 43-1412.01. A court’s equitable power does
not include the power to circumvent statutory requirements
and procedures.
Fianna has resided with Jeffrey since 2004, and we can find
no reason that would allow Todd to intervene and substitute
himself as Fianna’s father. An applicant must be diligent and
not guilty of unreasonable delay in bringing such claim.23 Todd
made no attempt to assert his claim of paternity for 10 years.
Therefore, the trial court abused its discretion in applying its
equity jurisdiction to set aside the October 26, 2001, pater-
nity decree.
Because the trial court erred in allowing Todd to intervene
and in setting aside the 2001 paternity decree, it also erred in
finding that Todd was Fianna’s father. Under these circum-
stances, a genetic test establishing that Todd was Fianna’s
biological father does not compel a legal determination that
Todd should be allowed to intervene or that the 2001 paternity
21 Sack v. Castillo, 278 Neb. 156, 768 N.W.2d 429 (2009); Soto v. State, 269
Neb. 337, 693 N.W.2d 491 (2005), modified on other grounds 270 Neb.
40, 699 N.W.2d 819.
22 See Ferer v. Aaron Ferer & Sons, 278 Neb. 282, 770 N.W.2d 608 (2009).
23 See Lincoln Bonding & Ins. Co., supra note 5.
JEFFREy B. v. AMy L. 	951
Cite as 283 Neb. 940

decree should be set aside. Todd, who did nothing to inves-
tigate whether Amy was pregnant with his child, cannot now
seek equitable relief to intervene and set aside the paternity
decree in this action, especially when doing so negates the
effect of statutes duly enacted by the Legislature.
CONCLUSION
Todd attempted to intervene in the pending action to modify
the 2001 paternity decree. The trial court erred in relying upon
§ 25-2001 in order to permit Todd to intervene and set aside
the 2001 decree of paternity that Jeffrey is Fianna’s father. For
the foregoing reasons, we conclude the trial court abused its
discretion in allowing Todd to intervene and in setting aside the
paternity decree of 2001.
The judgment of the trial court is reversed, and the cause is
remanded with directions to dismiss Todd from the action and
to proceed on Amy’s request to modify the paternity decree.
reversed and remanded With directions.
mutual of omaha BanK, appellee , v.
patricK J. K asseBaum and april m.
K asseBaum , appellants , and
timothy r. engler , appellee .
814 N.W.2d 731
Filed June 1, 2012. 	No. S-11-749.
1. Judgments: Appeal and Error. An appellate court reviews questions of law
independently of the lower court’s conclusion.
2. Judgments: Moot Question: Appeal and Error. When a party voluntarily com-
plies with the mandate of the trial court, satisfying the judgment, the appeal no
longer presents an actual controversy, but an abstract question.
3. ____: ____: ____. Where the payment of a judgment compelled by law is not
voluntary, payment will not render an appeal moot.
4. Torts: Claims: Assignments: Death: Abatement, Survival, and Revival. The
common-law rule regarding the assignability of tort claims is that such a right of
action is not assignable where the tort causes a strictly personal injury and does
not survive the death of the person injured.
5. ____: ____: ____: ____: ____. The prohibition against the assignability of a
tort claim is grounded on two principles: (1) that prior to more recent statutory
952 	283 NEBRASkA REPORTS