Erin W. v. Charissa W.
297 Neb. 143
| Neb. | 2017Background
- Charissa and Erin W. married in June 2013 while Charissa was pregnant; Charissa told Erin before the wedding that another man (G.T.) might be the child’s father.
- The child was born during the marriage; Erin was listed on the birth certificate and actively parented the child from birth.
- Parties separated in Sept. 2014; Erin filed for dissolution in 2015; Charissa moved for court-ordered genetic testing to rebut the presumption that Erin was the father.
- The district court denied Charissa’s motions for genetic testing, finding no applicable statutory basis to compel testing pre-decree and noting Erin’s consistent holding out as father.
- At trial Charissa testified she had intercourse with G.T. near conception and offered photos comparing the child to G.T.’s son; the court found this evidence insufficient to rebut the statutory presumption of legitimacy.
- The court awarded joint legal and physical custody (continuing the temporary alternating 5-day schedule) and ordered child support; Charissa appealed asserting error in denial of testing, failure to find presumption rebutted, and the custody award.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the court abused discretion by denying court-ordered genetic testing | Charissa: court should compel testing to rebut presumption of legitimacy (relied on § 43-1412.01 on appeal) | Erin: child born during marriage; presumed father; opposes testing | No abuse of discretion; § 43-1412.01 applies only to disestablishment after a legal determination of paternity, so pre-decree testing not required |
| Whether presumption of legitimacy was rebutted at trial | Charissa: her testimony about intercourse with G.T. and photographs rebut presumption | Erin: testimony is insufficient; he consistently held out as father and provided care | Presumption not rebutted; testimony of spouse/partner and photos insufficient; clear, convincing evidence required |
| Whether court erred in awarding joint custody | Charissa: joint custody inappropriate if Erin not biological father; relied on claimed entitlement to testing | Erin: joint custody appropriate based on parties’ prior agreement and parenting history | No abuse of discretion; parties had successfully operated under joint custody and court found plan in child’s best interests |
| Whether appellate court should consider arguments based on statutes not raised below | Charissa: raised § 43-1414 on appeal | Erin: issue not presented to trial court | Appellate court declines to consider issues not presented to trial court |
Key Cases Cited
- In re Guardianship & Conservatorship of Donley, 262 Neb. 282 (2001) (appellate docketing authority and related procedural reference)
- Donald v. Donald, 296 Neb. 123 (2017) (testimony of spouse insufficient to overcome presumption of legitimacy)
- Alisha C. v. Jeremy C., 283 Neb. 340 (2012) (presumption of legitimacy may be rebutted only by clear, satisfactory, and convincing evidence)
- Helter v. Williamson, 239 Neb. 741 (1989) (spousal testimony not competent to overcome presumption of legitimacy)
- Younkin v. Younkin, 221 Neb. 134 (1985) (same principle regarding spousal declarations)
- Perkins v. Perkins, 198 Neb. 401 (1978) (historical treatment of legitimacy presumption)
- Walsh v. State, 276 Neb. 1034 (2009) (issues not presented to trial court are generally not considered on appeal)
- Stacy M. v. Jason M., 290 Neb. 141 (2015) (procedural rule that appellate court will not consider issues not passed upon below)
- State on behalf of Jakai C. v. Tiffany M., 292 Neb. 68 (2015) (child-custody review standards)
- Zahl v. Zahl, 273 Neb. 1043 (2007) (guidance on when joint physical custody is appropriate)