Erin W. v. Charissa W.
297 Neb. 143
| Neb. | 2017Background
- Charissa and Erin W. married in June 2013 while Charissa was pregnant; the child was born during the marriage and Erin was listed on the birth certificate and held out as the child’s father.
- Charissa told Erin before marriage she had intercourse with another man, “G.T.,” around the time of conception and later suspected Erin was not the biological father based on the child’s appearance.
- The parties separated in 2014; Erin filed for dissolution in 2015. Charissa moved (pre- and intra-trial) for court-ordered genetic testing to rebut the presumption that Erin was the father; Erin opposed testing.
- The district court denied Charissa’s motions for testing, found Charissa had not rebutted the statutory presumption of legitimacy, adjudicated Erin the child’s father, and awarded joint legal and physical custody with a continuing alternating 5-day schedule and child support.
- Charissa appealed, arguing denial of genetic testing, failure to rebut the presumption of legitimacy, and error in awarding joint custody.
Issues
| Issue | Plaintiff's Argument (Charissa) | Defendant's Argument (Erin) | Held |
|---|---|---|---|
| Whether the court abused its discretion by denying Charissa’s motions for court-ordered genetic testing | Court should compel testing to determine paternity and rebut presumption | Child was born during marriage; presumption applies and Erin opposes testing | Denial was not an abuse of discretion; motions not grounded in an applicable statute or discovery rule pre-decree |
| Whether Charissa rebutted the statutory presumption of legitimacy (that child born in marriage is husband’s) | Evidence (Charissa’s testimony she had intercourse with G.T. and photos) suffices to rebut presumption | Presumption requires clear, satisfactory, and convincing evidence; Charissa’s testimony is uncorroborated and incompetent to rebut | Presumption not rebutted; Charissa’s testimony alone and photos insufficient under Nebraska law |
| Whether Neb. Rev. Stat. § 43-1412.01 required pre-decree testing | § 43-1412.01 allows disestablishment by genetic exclusion and thus should permit testing now | § 43-1412.01 applies after a final judgment or legal determination of paternity, not pre-decree | § 43-1412.01 inapplicable pre-decree; statute presupposes an existing legal determination of paternity |
| Whether awarding joint custody was an abuse of discretion given paternity dispute | Joint custody improper if Erin is not biological father; Charissa sought sole custody if presumption rebutted | Parties had successfully shared joint custody during pendency; joint plan stable and in child’s best interest | No abuse of discretion; trial court properly upheld joint custody based on history and best-interest findings |
Key Cases Cited
- Donald v. Donald, 296 Neb. 123 (statutory presumption of legitimacy and standard for rebuttal)
- Alisha C. v. Jeremy C., 283 Neb. 340 (spouse testimony insufficient to overcome presumption of legitimacy)
- Helter v. Williamson, 239 Neb. 741 (presumption of legitimacy; spouse testimony not competent to rebut)
- Younkin v. Younkin, 221 Neb. 134 (same principle regarding presumption)
- Perkins v. Perkins, 198 Neb. 401 (historical articulation of presumption’s purpose)