Erin W. v. Charissa W.
297 Neb. 143
| Neb. | 2017Background
- Charissa and Erin W. married in June 2013 while Charissa was pregnant; their daughter was born during the marriage and Erin was listed on the birth certificate.
- Before and after the marriage Charissa told Erin she had also had intercourse with a man named G.T. around the time of conception and later suspected G.T. was the biological father based on the child’s appearance.
- Parties separated in September 2014; Erin filed for dissolution in 2015 and Charissa moved to compel genetic testing to determine paternity. Charissa did not seek to establish paternity in another man at the time of the motion.
- The district court denied Charissa’s motions to order genetic testing, relying on the presumption of legitimacy for children born during marriage and the absence of competent evidence rebutting it.
- At trial the court found Erin to be the child’s father, awarded joint legal and physical custody on the alternating 5-day schedule the parties had used, and ordered Erin to pay child support.
- Charissa appealed, arguing the court erred by denying genetic testing, failing to find the presumption of legitimacy rebutted, and awarding joint custody despite alleged lack of biological relationship.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the court should order genetic testing over Erin’s objection | Charissa: court should compel testing to determine biological paternity | Erin: child born during marriage; he is presumptively father and opposes testing | Denied — court didn’t abuse discretion; Charissa offered no statutory basis pre-decree and sought to illegitimize child while Erin opposed testing |
| Whether the presumption of legitimacy was rebutted | Charissa: her testimony and photos showing appearance changes and similarity to G.T.’s son rebut presumption | Erin: presumption stands; Charissa’s testimony uncorroborated and incompetent to overcome statute | Rebuttal failed — evidence not clear, satisfactory, and convincing; spouse’s testimony alone is incompetent to rebut presumption |
| Whether joint legal and physical custody was improper | Charissa: joint custody inappropriate if Erin not biological father; court should have ordered testing or awarded her sole custody if presumption rebutted | Erin: has acted as father since birth; existing joint custody temporary order worked for nearly a year | Affirmed — no abuse of discretion; parties previously agreed to and successfully used joint custody; plan found in child’s best interests |
Key Cases Cited
- Donald v. Donald, 296 Neb. 123 (Neb. 2017) (review of dissolution matters de novo on the record but trial court’s discretion respected)
- Alisha C. v. Jeremy C., 283 Neb. 340 (Neb. 2012) (statutory presumption of legitimacy may be rebutted only by clear, satisfactory, and convincing evidence; spouse testimony is not competent to rebut)
- Helter v. Williamson, 239 Neb. 741 (Neb. 1991) (spouse testimony insufficient to overcome presumption of legitimacy)
- Younkin v. Younkin, 221 Neb. 134 (Neb. 1985) (same principle regarding legitimacy presumption)
- Perkins v. Perkins, 198 Neb. 401 (Neb. 1978) (same principle regarding legitimacy presumption)
- Donley (In re Guardianship & Conservatorship of Donley), 262 Neb. 282 (Neb. 2001) (appellate docketing authority cited)
- Stacy M. v. Jason M., 290 Neb. 141 (Neb. 2015) (appellate preservation of issues; custody review standard)
- Zahl v. Zahl, 273 Neb. 1043 (Neb. 2007) (standards for joint physical custody)
- Walsh v. State, 276 Neb. 1034 (Neb. 2009) (discussed in context of illegitimizing a child without establishing another father)