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.
- Charissa told Erin before marriage she had intercourse with another man (G.T.) around conception; she later suspected Erin was not the biological father based on the child’s changing appearance.
- Parties separated in 2014; Erin filed for dissolution in 2015. Charissa moved for court-ordered genetic testing (to rebut paternity presumption); Erin resisted testing and contended he was the presumed father under § 42-377.
- The district court denied Charissa’s motions for genetic testing, held the statutory presumption of legitimacy was not rebutted, adjudicated Erin as the child’s father, and awarded joint legal and physical custody with Erin paying child support.
- Charissa appealed, arguing the court erred by denying genetic testing, failing to find the presumption rebutted, and awarding joint custody despite alleged nonpaternity.
Issues
| Issue | Plaintiff's Argument (Charissa) | Defendant's Argument (Erin) | Held |
|---|---|---|---|
| Whether court erred by denying court-ordered genetic testing | Court should compel testing to determine biological paternity | Testing unnecessary because child born during marriage; Erin is presumed father and opposes testing | Denial not an abuse of discretion; Charissa offered no statutory/discovery basis and sought to illegitimize a marital child while Erin opposed testing |
| Whether statutory presumption of legitimacy was rebutted | Evidence (Charissa’s testimony of intercourse with G.T. and photos) suffices to rebut presumption | Testimony of spouse and uncorroborated evidence insufficient; presumption stands | Presumption not rebutted; clear, satisfactory, and convincing evidence lacking; spouse’s testimony alone is incompetent to overcome presumption |
| Applicability of § 43-1412.01 (disestablishment statute) pre-decree | Charissa relied on statute to justify testing before decree | § 43-1412.01 applies only after a final judgment or other legal determination of paternity | § 43-1412.01 inapplicable pre-decree; disestablishment provisions presuppose an existing legal paternity determination |
| Whether joint custody award was erroneous given alleged nonpaternity | Joint custody inappropriate if Erin not biological father | Joint custody appropriate based on parties’ prior joint arrangement and child’s best interests | No abuse of discretion in awarding joint custody; parties had successfully operated under joint custody and court found plan in child’s best interests |
Key Cases Cited
- Donald v. Donald, 296 Neb. 123, 892 N.W.2d 100 (discussing standards for family-law determinations on appeal)
- Alisha C. v. Jeremy C., 283 Neb. 340, 808 N.W.2d 875 (statutory presumption of legitimacy requires clear, satisfactory, and convincing evidence to rebut; spouse testimony insufficient)
- Helter v. Williamson, 239 Neb. 741, 478 N.W.2d 6 (spouse testimony inadequate to overcome presumption of legitimacy)
- Zahl v. Zahl, 273 Neb. 1043, 736 N.W.2d 365 (standards and considerations for awarding joint physical custody)
- In re Guardianship & Conservatorship of Donley, 262 Neb. 282, 631 N.W.2d 839 (procedural authority regarding appellate docketing)