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 raised the child.
- Before and after the wedding, Charissa told Erin she had intercourse with another man ("G.T.") around conception and later suspected G.T. might be the biological father based on the child’s changing appearance.
- Parties separated in Sept. 2014; Erin filed for dissolution in 2015. Charissa moved for court-ordered genetic testing to determine paternity; Erin opposed testing and asserted the statutory presumption that the child is his.
- The trial court denied Charissa’s motions for genetic testing, found Charissa had not rebutted the presumption of legitimacy, adjudicated Erin the child’s father, and awarded joint legal and physical custody with a continuing alternating 5-day schedule; Erin was ordered to pay child support.
- Charissa appealed, arguing (1) the court abused its discretion by denying genetic testing, (2) the evidence rebutted the presumption of legitimacy, and (3) joint custody was improper if Erin was not the biological father.
Issues
| Issue | Plaintiff's Argument (Charissa) | Defendant's Argument (Erin) | Held |
|---|---|---|---|
| Whether court abused discretion by denying court-ordered genetic testing | Charissa sought testing to rebut presumption of legitimacy and requested the court compel testing | Erin opposed testing; child was born during the marriage and presumed his; no statutory basis required testing pre-decree | Denial affirmed — no abuse of discretion; motions not grounded in an applicable statute pre-decree and request would illegitimize a child over the father’s objection |
| Whether the statutory presumption of legitimacy was rebutted | Charissa relied on her testimony about intercourse with G.T. and photographs of resemblance to G.T.’s son | Erin pointed to birth during marriage, his acknowledgment and long-term parenting, and statutory presumption requiring clear, satisfactory, convincing evidence to rebut | Presumption not rebutted — Charissa’s uncorroborated testimony and photos insufficient; spouse’s testimony is incompetent to overcome presumption |
| Applicability of Neb. Rev. Stat. § 43-1412.01 pre-decree | Charissa argued on appeal § 43-1412.01 supports testing/disestablishment | Erin and court noted § 43-1412.01 applies to setting aside an existing legal determination of paternity after a final judgment | § 43-1412.01 inapplicable before a final paternity determination; it presupposes an existing legal determination |
| Whether joint custody was improper given paternity dispute | Charissa asserted joint custody was erroneous if Erin was not biological father | Erin and record showed existing joint custody worked, parties agreed to temporary joint custody, and Erin was an active parent | Joint custody affirmed — no abuse of discretion; arrangement was stable, had operated successfully, and Charissa had agreed to joint custody if presumption not overcome |
Key Cases Cited
- Donald v. Donald, 296 Neb. 123 (Neb. 2017) (discusses competency of spouse testimony to rebut legitimacy presumption)
- Alisha C. v. Jeremy C., 283 Neb. 340 (Neb. 2012) (holds statutory presumption of legitimacy can be rebut only by clear, satisfactory, and convincing evidence and spouse testimony is not competent)
- Helter v. Williamson, 239 Neb. 741 (Neb. 1991) (addressing limits on evidence to overcome legitimacy presumption)
- Younkin v. Younkin, 221 Neb. 134 (Neb. 1984) (same principle on presumption of legitimacy)
- Perkins v. Perkins, 198 Neb. 401 (Neb. 1978) (historic treatment of legitimacy presumption)
- Zahl v. Zahl, 273 Neb. 1043 (Neb. 2007) (standards for awarding joint physical custody)
- Stacy M. v. Jason M., 290 Neb. 141 (Neb. 2015) (procedural/appellate standards in family law review)
- In re Guardianship & Conservatorship of Donley, 262 Neb. 282 (Neb. 2001) (Nebraska Supreme Court docketing/procedural authority cited)