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 marriage she had also had intercourse with another man (G.T.) near conception.
- Child was born during the marriage; Erin was listed on the birth certificate and acted as the child’s father (care, financial support, shared parenting).
- Parties separated in 2014; Erin filed for dissolution in 2015. Charissa moved to compel court-ordered genetic testing to challenge Erin’s paternity; Erin opposed testing.
- Trial court denied Charissa’s motions for genetic testing, found the statutory presumption of legitimacy unrebutted, adjudicated Erin the child’s father, and awarded joint legal and physical custody with a 5-day rotating schedule and child support.
- Charissa appealed, arguing the court erred by denying genetic testing, by finding the presumption of legitimacy unrebutted, and by awarding joint custody despite alleged biological nonpaternity.
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 prove Erin not biological father | Erin opposed testing; child born during marriage and he is presumed father | Court did not abuse discretion; testing not compelled where it would illegitimize a child born in marriage and opposing parent resists |
| Whether presumption of legitimacy was rebutted without genetic testing | Charissa argued her testimony and photos raised clear, convincing evidence that G.T. is the father | Erin relied on statutory presumption, his longstanding holding out, and lack of competent corroboration | Presumption not rebutted: Charissa’s uncorroborated testimony and photos insufficient under clear, satisfactory, and convincing standard |
| Whether § 43‑1412.01 required pre-decree testing or relief | Charissa relied on § 43‑1412.01 to justify testing before decree | Erin argued § 43‑1412.01 applies to disestablishment after a legal determination (post-judgment) | § 43‑1412.01 applies to disestablishment after a final judgment; it did not mandate pre-decree testing here |
| Whether joint custody was an abuse of discretion given alleged nonpaternity | Charissa argued custody should favor her if paternity disproved; she objected to joint custody pending testing | Erin and record supported ongoing joint custody arrangement the parties had followed | No abuse of discretion: parties had successfully shared custody under the plan, and court found joint custody in child’s best interest |
Key Cases Cited
- Donald v. Donald, 296 Neb. 123, 892 N.W.2d 100 (statutory presumption of legitimacy; competency of spousal testimony)
- Alisha C. v. Jeremy C., 283 Neb. 340, 808 N.W.2d 875 (clear, satisfactory, and convincing evidence required to rebut legitimacy presumption)
- Helter v. Williamson, 239 Neb. 741, 478 N.W.2d 6 (spousal testimony insufficient to overcome legitimacy presumption)
- Younkin v. Younkin, 221 Neb. 134, 375 N.W.2d 894 (same principle regarding presumption of legitimacy)
- Perkins v. Perkins, 198 Neb. 401, 253 N.W.2d 42 (historical treatment of legitimacy presumption)
- In re Guardianship & Conservatorship of Donley, 262 Neb. 282, 631 N.W.2d 839 (appellate docketing/procedural authority)
- Stacy M. v. Jason M., 290 Neb. 141, 858 N.W.2d 852 (issues not raised below will not be considered on appeal)
- Walsh v. State, 276 Neb. 1034, 759 N.W.2d 100 (procedural posture on statutory reliance)
- State on behalf of Jakai C. v. Tiffany M., 292 Neb. 68, 871 N.W.2d 230 (standard of review for custody)
- Zahl v. Zahl, 273 Neb. 1043, 736 N.W.2d 365 (factors supporting joint physical custody)