A Bad Day: the Nebraska Supreme Court Refuses to Recognize Claims for Misrepresented Paternity in Day v. Heller

JurisdictionNebraska,United States,Federal
CitationVol. 37
Publication year2022


Creighton Law Review

Vol. 37


Nationwide, biological fathers owe over $92.3 billion in unpaid child support.(fn1) Nearly eighteen million children in the United States are without the child support that is due.(fn2) Adam Day ("Adam") could have been among these children.(fn3) Adam's parents divorced before he was four years old.(fn4) For twelve years, Robert Day ("Robert") believed he was Adam's father.(fn5) Then, several years after he divorced Adam's mother, Robert learned that his ex-wife had an affair at the beginning of their marriage and Adam was not his child.(fn6) Upon learning this, Robert sued Adam's mother for fraud, assumpsit, and intentional infliction of emotional distress.(fn7)

In Day v. Heller,(fn8) the Supreme Court of Nebraska refused to recognize claims in tort or assumpsit against an ex-wife and mother who misrepresented to her ex-husband their child's true biological paternity.(fn9) The court reasoned public policy barred all of Robert's claims.(fn10) The court maintained having a close and loving parent-child relationship imposed on an ex-husband was not the type of harm the law should seek to remedy, even if that relationship was imposed by an ex-wife's misrepresentation of the child's biological paternity.(fn11) The court determined that, if forced to decide between adopting a tort that brings with it all the negative consequences of a custody dispute or asking a deceived ex-husband to go without compensation for his emo-tional injury, the court would ask the ex-husband to go without compensation.(fn12)

As this Note will demonstrate, the Day court's decision undermined prior decisions that put the onus to pay child support directly on the biological father.(fn13) This Note will discuss the problems in the Supreme Court of Nebraska's ruling in Day, based on prior paternity and child support cases.(fn14) This Note will begin by explaining the facts and holding of Day.(fn15) Next, this Note will review prior Nebraska paternity and child support cases, wherein the court placed the responsibility on the biological father to pay child support and allowed the biological mother to obtain retroactive support years after the child's birth or the couple's divorce.(fn16) This Note will also review other jurisdictions' decisions and secondary authority which have addressed this issue.(fn17) This Note will then explain how the Day court ignored prior case law which emphasized the importance of the biological father and prior case law, which would have permitted Robin to seek retroactive child support from Adam's true biological father.(fn18) This Note will contend that, in effect, the Day court forced Robert to stand in loco parentis to Adam, even though he had not chosen to do so.(fn19) This Note will further contend the court misconstrued secondary authority and relied on the wrong cases instead of using its own prior precedent.(fn20) Finally, this Note will argue, had the court used its own prior precedent, the court should have found public policy did not bar Robert's claim.(fn21) Thus, the conclusion of this Note will discuss why the court's decision in Day sent the wrong message.(fn22)


In Day v. Heller,(fn23) Robert Day ("Robert") and Robin Heller ("Robin") married on August 30, 1986.(fn24) Robin gave birth to a boy, Adam Day ("Adam"), on July 14, 1987.(fn25) Nearly four years later, the district court dissolved Robert and Robin's marriage.(fn26) The court granted custody of Adam to Robin and gave Robert visitation rights.(fn27) The court ordered Robert to make monthly child support payments to Robin and to pay for Adam's medical insurance.(fn28) The court later ordered Robert to increase his child support payments and to pay for half of Adam's daycare expenses.(fn29) In total, Robert estimated that he paid $56,000 in support of Adam.(fn30)

Robert eventually remarried and, in July 1997, Robert's wife gave birth to their daughter.(fn31) Following his daughter's birth, Robert became suspicious of the fact Adam was born three weeks after Robin's supposed due date.(fn32) Robert was advised by his wife's doctor that ordinarily there would be no reason for a physician to let a healthy infant and mother go over term in a pregnancy.(fn33) Upon hearing this, Robert began to count back in time.(fn34) As he counted back from the date of Adam's birth to the probable date of Adam's conception, Robert realized Adam likely was conceived on a date that Robert and Robin were apart.(fn35) In April 1999, DNA testing determined Robert was not Adam's father.(fn36) Subsequently, Robin's new husband, Patrick Heller, adopted Adam with Robert's consent.(fn37)

On February 15, 2000, Robert sued Robin in the District Court of Sarpy County, Nebraska, claiming fraud, assumpsit, and intentional infliction of emotional distress.(fn38) Under these three causes of action, Robert sought damages for the amounts he paid directly for Adam's care and general damages for emotional distress.(fn39) In his allegation of fraud, Robert argued Robin had purposely and willfully deceived him by concealing the fact that he was not Adam's biological father.(fn40) Robert claimed Robin misrepresented Adam's true paternity with the purpose that Robert would rely on it, and Robert did in fact rely on it.(fn41) Robert also claimed Robin's concealment directly and proximately caused him to suffer damages.(fn42) In his allegation of assumpsit, Robert argued he had paid for child support, daycare expenses, and medical insurance for Adam since the marriage ended in 1991.(fn43) Robert claimed these payments unjustly enriched Robin because Robert was not Adam's biological father.(fn44) In his allegation of intentional infliction of emotional distress, Robert argued Robin purposely and recklessly misrepresented to him for twelve years that he was Adam's father, all along knowing this was untrue.(fn45) Robert claimed that Robin's conduct went beyond all possible bounds of decency because it was so outrageous in character and extreme in degree.(fn46) Given his emotional bond with Adam, Robert claimed he suffered lasting emotional distress.(fn47)

Robin argued that, under claim and issue preclusion, the announcement of paternity in their dissolution decree barred all three of Robert's claims.(fn48) Though the court rejected Robin's argument, the court concluded Robert's claims raised no genuine issues of material fact.(fn49) As such, Sarpy County District Court Judge George Thompson granted Robin's motion for summary judgment.(fn50)

Robert appealed the decision of the district court to the Court of Appeals of Nebraska, arguing the trial court erred in granting Robin's motion for summary judgment.(fn51) Robert contended the trial court erred in holding that he failed to state a cause of action based on fraud, assumpsit, or intentional infliction of emotional distress.(fn52) The court of appeals reversed the district court's decision.(fn53) Chief Judge John Irwin, writing for the court, determined the trial court had attempted to decide the factual issues of the case instead of deciding whether any legitimate issues of material fact existed.(fn54) The court also determined neither claim nor issue preclusion barred Robert's ac-tion.(fn55) The court observed the issue of whether a plaintiff could bring a tort claim against a former spouse after the completion of marriage dissolution proceedings was an issue of first impression in Nebraska.(fn56)

Robin appealed the decision of the court of appeals to the Supreme Court of Nebraska, arguing the court of appeals erred in deciding claim and issue preclusion did not bar Robert's claims and in finding factual issues remained, which precluded summary judgment.(fn57) The Supreme Court of Nebraska reversed the decision of the court of appeals, concluding Robert's fraud, assumpsit, and intentional infliction of emotional distress claims were contrary to public policy.(fn58) Justice William Connelly, writing for a unanimous court, declared the case did not turn on the first impression question of whether a tort action against a former or current spouse was prohibited.(fn59) Instead, the court believed the case turned on the question of whether Nebraska would recognize a tort or assumpsit claim against a mother for misrepresentation and concealment of her child's parentage.(fn60) According to the supreme court, the court of appeals had implicitly acknowledged that a party could maintain actions of tort and assumpsit against a mother who had misrepresented a child's biological paternity.(fn61)

The court divided Robert's argument into two parts: (1) his fraud and assumpsit claims and (2) his intentional infliction of emotional distress claim.(fn62) The court determined the first part of Robert's argument involved recovery for the creation of a parent-child relationship between Robert and Adam.(fn63) The court interpreted the second part of Robert's claim as involving recovery for the emotional injury he suffered due to Robin's misrepresentation of biological fatherhood, which threatened the destruction of the parent-child relationship.(fn64)

The court initially addressed Robert's claims of fraud and assumpsit and concluded the claims were contrary to public policy.(fn65) The court noted Robert's...

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