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.”) around conception.
- Child was born during the marriage; Erin was listed on the birth certificate and actively acted as the child’s father (parenting, financial support, health insurance).
- Parties separated in 2014; Erin filed for dissolution in 2015; Charissa repeatedly moved for court-ordered genetic testing to determine paternity, without citing a specific statute at the trial-court level.
- The district court denied Charissa’s motions for genetic testing, held the statutory presumption of legitimacy applied, found Erin to be the child’s father, and awarded joint legal and physical custody with an alternating 5-day schedule; Erin ordered to pay child support.
- Charissa appealed, arguing the court erred in denying genetic testing, that she rebutted the presumption of legitimacy, and that joint custody was improper.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the court abused its discretion by denying Charissa’s requests for court-ordered genetic testing | Charissa sought testing to rebut presumed paternity and alleged the court should compel testing (invoking § 43-1412.01 on appeal) | Erin opposed testing; child was born during marriage and Erin had held himself out as father, invoking the presumption of legitimacy | No abuse of discretion: § 43-1412.01 applies only to disestablishment after a legal determination; Charissa’s motions were not grounded in an applicable statute or rule, and testing was properly denied |
| Whether Charissa rebutted the statutory presumption of legitimacy | Charissa testified to intercourse with G.T., produced photos of the child and G.T.’s son, and argued that appearance and timing rebut presumption | Erin pointed to birth during marriage, his continuous parenting, and Charissa’s failure to produce competent, corroborating evidence or to call G.T. | Presumption not rebutted: rebuttal requires clear, satisfactory, and convincing evidence; spouse’s testimony alone and photos were insufficient |
| Whether joint legal and physical custody was an abuse of discretion given paternity dispute | Charissa argued custody award was improper if Erin is not biological father and reiterated request for testing | Erin and record showed longstanding joint custody arrangement (temporary order) that functioned well; child’s best interests supported joint custody | No abuse: court properly awarded joint custody based on parties’ agreement, functioning parenting plan, and best interests of the child |
Key Cases Cited
- Donald v. Donald, 296 Neb. 123 (discusses de novo standard and trial-court discretion in dissolution matters)
- Alisha C. v. Jeremy C., 283 Neb. 340 (presumption of legitimacy requires clear, satisfactory, and convincing evidence to rebut; spouse’s testimony insufficient)
- Helter v. Williamson, 239 Neb. 741 (spouse’s testimony cannot overcome presumption of legitimacy)
- Younkin v. Younkin, 221 Neb. 134 (same rule on competency of spouse testimony to rebut legitimacy presumption)
- Perkins v. Perkins, 198 Neb. 401 (historical authority on presumption of legitimacy)
- Zahl v. Zahl, 273 Neb. 1043 (standards for awarding joint physical custody)
- Stacy M. v. Jason M., 290 Neb. 141 (procedural law on appellate review and issues not presented below)