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.
- After separating, Erin filed for dissolution in 2015; Charissa sought court-ordered genetic testing during the dissolution to challenge Erin’s paternity, claiming another man (G.T.) was the biological father.
- Charissa did not cite a statutory basis for testing at the district court; she later relied in part on Neb. Rev. Stat. § 43-1412.01 on appeal.
- The district court denied Charissa’s motions to compel genetic testing, found the statutory presumption of legitimacy unrebutted, adjudicated Erin as the child’s father, and awarded joint legal and physical custody with an alternating 5-day schedule.
- Charissa appealed, arguing the court erred by denying genetic testing, by finding the presumption of legitimacy unrebutted, and by awarding joint custody despite alleged nonpaternity.
Issues
| Issue | Plaintiff's Argument (Charissa) | Defendant's Argument (Erin) | Held |
|---|---|---|---|
| Whether the court abused its discretion by denying Charissa’s motions to compel genetic testing | Court should order testing to determine paternity; testing is necessary to rebut presumption | Child was born during marriage; Erin resists testing and is presumed father under § 42-377 | No abuse of discretion; motions denied because Charissa sought to illegitimize a child born in marriage without statutory basis pre-decree |
| Whether Charissa rebutted the statutory presumption of legitimacy | She testified she had intercourse with another man (G.T.) and offered photos suggesting resemblance | Presumption stands; Charissa’s testimony is uncorroborated and insufficient | Presumption not rebutted; testimony of spouse or parent alone is incompetent to overcome presumption |
| Applicability of § 43-1412.01 (disestablishment statute) pre-decree | § 43-1412.01 should authorize testing/disestablishment | § 43-1412.01 applies only after a final judgment or other legal determination of paternity | § 43-1412.01 not applicable pre-decree; disestablishment provisions presuppose an existing legal determination |
| Whether joint custody order was an abuse of discretion given disputed paternity | Joint custody inappropriate if Erin is not biological father; testing refusal undermines custody award | Parents previously shared joint custody successfully; Erin is the legal father and primary caregiver | No abuse of discretion; joint custody continued consistent with prior temporary order and child’s best interests |
Key Cases Cited
- Donald v. Donald, 296 Neb. 123 (Neb. 2017) (testimony of spouse insufficient to rebut presumption of legitimacy)
- 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 incompetent)
- Helter v. Williamson, 239 Neb. 741 (Neb. 1991) (spousal testimony cannot overcome legitimacy presumption)
- In re Guardianship & Conservatorship of Donley, 262 Neb. 282 (Neb. 2001) (appellate docketing/procedural authority cited)
- Zahl v. Zahl, 273 Neb. 1043 (Neb. 2007) (standards and considerations for awarding joint physical custody)