Erin W. v. Charissa W. , 297 Neb. 143 ( 2017 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
08/18/2017 01:09 AM CDT
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Nebraska Supreme Court A dvance Sheets
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ERIN W. v. CHARISSA W.
Cite as 297 Neb. 143Erin W., appellee, v.
Charissa W., appellant.
___ N.W.2d ___
Filed July 7, 2017. No. S-16-958.
1. Divorce: Child Custody: Child Support: Property Division: Alimony:
Attorney Fees: Evidence: Appeal and Error. In an action for the dis-
solution of marriage, an appellate court reviews de novo on the record
the trial court’s determinations of custody, child support, property divi-
sion, alimony, and attorney fees; these determinations, however, are
initially entrusted to the trial court’s discretion and will normally be
affirmed absent an abuse of that discretion.
2. Evidence: Appeal and Error. When evidence is in conflict, an appel-
late court considers, and may give weight to, the fact that the trial judge
heard and observed the witnesses and accepted one version of the facts
rather than another.
3. Parent and Child: Paternity: Presumptions. Under Nebraska com-
mon law, later embodied in Neb. Rev. Stat. § 42-377 (Reissue 2016),
a child born during a marriage relationship is presumed to be the hus-
band’s child.
4. Parent and Child: Paternity: Presumptions: Evidence. The statutory
presumption of legitimacy under Neb. Rev. Stat. § 42-377 (Reissue
2016) may be rebutted only by clear, satisfactory, and convincing
evidence.
5. ____: ____: ____: ____. The testimony or declaration of a husband
or wife is not competent to overcome the presumption of legitimacy
under Neb. Rev. Stat. § 42-377 (Reissue 2016).
6. Parent and Child: Paternity: Presumptions. The presumption of
legitimacy was intended to protect innocent children from the stigma
attached to illegitimacy and to prevent case-by-case determinations
of paternity.
7. Divorce: Paternity: Presumptions: Evidence. When the parties fail to
submit evidence at the dissolution proceeding rebutting the presumption
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ERIN W. v. CHARISSA W.
Cite as 297 Neb. 143of legitimacy, the dissolution court can find paternity based on the pre-
sumption alone.
8. Appeal and Error. An appellate court will not consider an issue on
appeal that was not presented to or passed upon by the trial court.
9. ____. A trial court cannot commit error in resolving an issue never pre-
sented and submitted to it for disposition.
10. Divorce: Paternity: Statutes. Neb. Rev. Stat. § 43-1412.01 (Reissue
2016) appears in a series of statutes dealing with paternity of children
born out of wedlock, but it also applies to adjudicated fathers of children
born during a marriage who are seeking to disestablish paternity after a
dissolution decree.
11. Child Custody: Appeal and Error. Child custody determinations are
matters initially entrusted to the discretion of the trial court, and
although reviewed de novo on the record, the trial court’s determination
will normally be affirmed absent an abuse of discretion.
12. Child Custody. Joint physical custody should be reserved for those
cases where, in the judgment of the trial court, the parents are of such
maturity that the arrangement will not operate to allow the child to
manipulate the parents or confuse the child’s sense of direction, and will
provide a stable atmosphere for the child to adjust, rather than perpetuat-
ing turmoil or custodial wars.
Appeal from the District Court for Dodge County: Geoffrey
C. H all, Judge. Affirmed.
Melissa Lang Schutt, of Fornoff & Schutt, P.C., for
appellant.
Shane J. Placek, of Sidner Law, for appellee.
Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy,
K elch, and Funke, JJ.
Stacy, J.
Charissa W. appeals from a decree of dissolution entered
by the Dodge County District Court. Her assignments of error
all center on the trial court’s denial of her motions for court-
ordered genetic testing, which she requested in an effort to
rebut the presumption of legitimacy concerning a child born
during the marriage. Our de novo review reveals no abuse of
discretion, and we affirm.
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ERIN W. v. CHARISSA W.
Cite as 297 Neb. 143FACTS
Charissa and Erin W. were married in June 2013. Charissa
was pregnant when the parties married. Before the wedding,
Charissa told Erin the child might not be his. She explained
that in addition to having intercourse with Erin, she also had
intercourse with a man named “G.T.” around the time the child
was conceived.
Charissa and Erin married, and several months later, Charissa
gave birth to a daughter. Based on the child’s appearance at
birth, Charissa and Erin believed Erin was her father and listed
him as such on her birth certificate. As the child aged, her
appearance led Charissa to suspect Erin was not her biologi-
cal father.
The parties separated in September 2014. One year later,
Erin filed a complaint for dissolution of marriage in the Dodge
County District Court. Shortly after the dissolution action was
filed, Charissa filed a motion for genetic testing seeking “an
order requiring [Erin] and [Charissa] to participate in genetic
testing to determine the paternity of [the child].” Charissa’s
motion for genetic testing did not cite or rely upon any particu-
lar authority.
Erin responded by filing what he termed “Plaintiff’s
Resistance to Defendant’s Motion for Genetic Testing.” In it,
Erin asserted, among other things, that the child was born dur-
ing the marriage and that he was presumed to be her father
under Neb. Rev. Stat. § 42-377 (Reissue 2016).
After a hearing and briefing, the court overruled Charissa’s
motion for genetic testing. The court reasoned:
[T]he child was born during the course of the mar-
riage. [Erin] acknowledged paternity, has always held
himself out to be the father of this child, and he resists
[Charissa’s] motion [for genetic testing]. [Charissa]
placed [Erin’s] name on the birth certificate and the
parties were legally married prior to the child’s birth
confirming to the world that this child was their issue.
Further, [Charissa] failed to challenge [Erin’s] paternity
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ERIN W. v. CHARISSA W.
Cite as 297 Neb. 143of the child for a period of approximately two years.
Finally, [Charissa] has failed or refused to name some
other person that she alleges to be the purported father
of the child.
The case proceeded to trial.
At trial, Charissa testified she began to question whether
Erin was the child’s father when, at 6 months of age, the
child’s appearance began to change. Charissa believed G.T.
was the child’s father based on the time of conception and
the fact that G.T. has a son who “looks identical” to the child.
Charissa was asked why she had not asked G.T. to submit to a
private paternity test, and she replied, “I just [didn’t] want him
a part of [the child’s] life. He hasn’t been in [her] life since
birth . . . .” Charissa also testified that she wanted to prove
Erin was not the child’s biological father so that Charissa’s
current boyfriend could eventually adopt her. When asked why
she thought it was in the child’s best interests to prove Erin
was not her father, Charissa testified: “Well, when she gets
older, she’s going to ask questions, wondering why she [does
not look like] both of us, and I just don’t want to . . . I don’t
know, lessen the confusion.”
At trial, Charissa took somewhat inconsistent positions
regarding custody and child support. Regarding custody, she
testified that “in the event that the Court finds [Erin] is the
father,” she was “agreeable to having the [court order] joint
custody.” But Charissa requested that if the court determined
she had rebutted the presumption of legitimacy, the court
award her full custody of the child, while still giving Erin
overnight visitation every other weekend. Charissa asked that
Erin be ordered to pay child support for the child regardless of
whether the presumption of legitimacy was rebutted.
Erin testified that he never questioned whether he was the
child’s father and did not want genetic testing. Erin testified
that he signed the child’s birth certificate when she was born
and has actively parented her ever since.
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ERIN W. v. CHARISSA W.
Cite as 297 Neb. 143The evidence at trial showed that both Charissa and Erin
held Erin out as the child’s father and that Erin was actively
involved in her upbringing. He changed her diapers, fed her,
bathed her, and put her to sleep. He provided financial assist­
ance, child care, and health insurance for her. When the par-
ties separated in 2014, they agreed to share parenting time
by exchanging the child every 2 to 3 days. After the dis-
solution action was filed in 2015, the parties agreed to the
entry of a temporary order that granted them joint legal and
physical custody of the child and equal parenting time on an
alternating 5-day schedule. Charissa testified that Erin was
a good father, loved the child, and provided appropriate care
for her.
During trial, Charissa renewed her request for genetic test-
ing, again without citation to any particular statute. The court
again overruled the motion for the reasons set out in its ear-
lier order.
After trial, the court entered a decree that found Charissa
had not rebutted the statutory presumption of legitimacy, and
the court made an express finding that Erin was the child’s
father. The court awarded the parties joint legal and physical
custody of the child and adopted Erin’s proposed parenting
plan, which continued the same alternating 5-day parenting
schedule the parties had followed throughout the pendency
of the divorce. Erin was ordered to pay child support in the
amount of $198 per month.
Charissa timely appealed, and we moved the case to our
docket on our own motion pursuant to our statutory authority
to regulate the dockets of the appellate courts of this state.1
ASSIGNMENTS OF ERROR
Charissa assigns, restated, that the district court erred in
(1) denying her requests for court-ordered genetic testing,
1
In re Guardianship & Conservatorship of Donley, 262 Neb. 282, 631
N.W.2d 839 (2001).
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ERIN W. v. CHARISSA W.
Cite as 297 Neb. 143(2) finding the presumption of legitimacy was not rebutted
by the evidence presented, and (3) ordering joint custody
of the child despite evidence that Erin is not her biologi-
cal father.
STANDARD OF REVIEW
[1,2] In an action for the dissolution of marriage, an appel-
late court reviews de novo on the record the trial court’s
determinations of custody, child support, property division,
alimony, and attorney fees; these determinations, however, are
initially entrusted to the trial court’s discretion and will nor-
mally be affirmed absent an abuse of that discretion.2 When
evidence is in conflict, an appellate court considers, and may
give weight to, the fact that the trial judge heard and observed
the witnesses and accepted one version of the facts rather
than another.3
ANALYSIS
[3] Under Nebraska common law, later embodied in
§ 42-377, a child born during a marriage relationship is pre-
sumed to be the husband’s child. Section 42-377 provides in
relevant part: “Children born to the parties, or to the wife, in a
marriage relationship . . . shall be legitimate unless otherwise
decreed by the court, and in every case the legitimacy of all
children conceived before the commencement of the suit shall
be presumed until the contrary is shown.”
[4-7] The statutory presumption of legitimacy may be rebut-
ted only by clear, satisfactory, and convincing evidence.4 This
court has long held that the testimony or declaration of a hus-
band or wife is not competent to overcome this presumption.5
2
Donald v. Donald, 296 Neb. 123, 892 N.W.2d 100 (2017).
3
Id.4
See Alisha C. v. Jeremy C., 283 Neb. 340, 808 N.W.2d 875 (2012).
5
Id.; Helter v. Williamson, 239 Neb. 741, 478 N.W.2d 6 (1991); Younkin v.
Younkin, 221 Neb. 134, 375 N.W.2d 894 (1985); Perkins v. Perkins, 198
Neb. 401, 253 N.W.2d 42 (1977).
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ERIN W. v. CHARISSA W.
Cite as 297 Neb. 143We have reasoned that “‘“[t]he presumption [of legitimacy]
was intended to protect innocent children from the stigma
attached to illegitimacy and to prevent case-by-case determina-
tions of paternity. . . .”’”6 When the parties fail to submit evi-
dence at the dissolution proceeding rebutting the presumption
of legitimacy, the dissolution court can find paternity based on
the presumption alone.7
Denial Genetic Testing Was Not
of
A buse of Discretion
Charissa sought to overcome the statutory presumption
that Erin is the child’s father by asking the court to com-
pel genetic testing, against Erin’s wishes. And although she
sought to rebut Erin’s presumed paternity, she did not seek
to establish paternity in another man. Simply put, Charissa
sought to illegitimize the child through court-ordered genetic
testing, and Erin opposed such testing. The question pre-
sented is whether, under these circumstances, the district
court abused its discretion in denying Charissa’s motions for
court-ordered testing.
We begin by noting that Charissa’s motions for genetic test-
ing were not premised on any particular statute or discovery
rule. However, in her briefing to this court, Charissa argues
the district court should have granted her motions under either
Neb. Rev. Stat. § 43-1412.01 (Reissue 2016) or Neb. Rev. Stat.
§ 43-1414 (Reissue 2016).
[8,9] Our de novo review of the record shows Charissa
relied to some extent on § 43-1412.01 at trial, so we will
address the applicability of that statute on appeal. But we can
find nothing in the record indicating Charissa ever relied on
§ 43-1414 as support for her motions to order genetic testing.
An appellate court will not consider an issue on appeal that
6
State on behalf of Hopkins v. Batt, 253 Neb. 852, 863, 573 N.W.2d 425,
434 (1998).
7
Stacy M. v. Jason M., 290 Neb. 141, 858 N.W.2d 852 (2015).
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ERIN W. v. CHARISSA W.
Cite as 297 Neb. 143was not presented to or passed upon by the trial court.8 This
is because the trial court cannot commit error in resolving
an issue never presented and submitted to it for disposition.9
Because Charissa never presented the issue to the trial court,
we decline to address whether § 43-1414 has any application
on these facts.
[10] Section 43-1412.01 is the statute governing disestab-
lishment of paternity. It provides in relevant part:
An individual may file a complaint for relief and the
court may set aside a final judgment . . . or any other
legal determination of paternity if a scientifically reli-
able genetic test performed in accordance with sections
43-1401 to 43-1418 establishes the exclusion of the indi-
vidual named as a father in the legal determination.
Even though § 43-1412.01 appears in a series of statutes deal-
ing with paternity of children born out of wedlock, we have
expressly held that § 43-1412.01 also applies to adjudicated
fathers of children born during a marriage who are seeking to
disestablish paternity after a dissolution decree.10
In this case, Charissa sought to rely upon § 43-1412.01
before a decree had been entered. But the disestablishment
provisions of § 43-1412.01 presuppose a legal determina-
tion of paternity and are not applicable until after a final
judgment or other legal determination of paternity has been
entered. The provisions of § 43-1412.01 were inapplicable
prior to the decree and did not require the district court to order
genetic testing.
Charissa’s motions for court-ordered genetic testing were
not premised on any applicable statutory provisions or dis-
covery rules. As observed earlier, Charissa was requesting
court-ordered testing in an effort to illegitimize a child born
during the marriage without establishing paternity in another,
8
Walsh v. State, 276 Neb. 1034, 759 N.W.2d 100 (2009).
9
Id.10
Stacy M. v. Jason M., supra note 7.
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ERIN W. v. CHARISSA W.
Cite as 297 Neb. 143and Erin opposed such testing. Under these circumstances,
we find no abuse of discretion in the trial court’s decision
to overrule Charissa’s motions for genetic testing. Her first
assignment of error has no merit.
Presumption of Legitimacy Was Not
R ebutted at Trial
Charissa next argues that even in the absence of genetic test-
ing, “she has successfully rebutted th[e] presumption” that Erin
is the child’s father.11 We disagree.
As noted earlier, the statutory presumption of legitimacy
may be rebutted only by clear, satisfactory, and convincing
evidence.12 The testimony or declaration of a husband or wife
is not competent to overcome this presumption.13 And when
the parties fail to submit competent evidence at the dissolution
proceeding sufficient to rebut the presumption of paternity,
the dissolution court can find paternity based on the presump-
tion alone.14
Charissa’s evidence at trial consisted of her own testimony
that she had intercourse with G.T. around the time the child
was conceived and photographs purporting to show the change
in the child’s appearance over time and similarity in appear-
ance to G.T.’s son. The district court found that G.T. was not
called to testify and that Charissa’s uncorroborated testimony
was not competent under our case law. It further found that
the photographs of the child were not sufficient to rebut the
presumption that Erin was her father.
Our de novo review convinces us the district court cor-
rectly found that the evidence at trial was not sufficient to
rebut the presumption of legitimacy. Charissa’s uncorroborated
testimony of G.T.’s paternity is not competent evidence, and
11
Brief for appellant at 17.
12
Alisha C. v. Jeremy C., supra note 4.
13
Id.
14
Id.
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ERIN W. v. CHARISSA W.
Cite as 297 Neb. 143the only other evidence offered on the issue—photographs
purporting to show the child’s change in appearance and her
physical similarity to G.T.’s son—was not sufficiently con-
vincing to rebut the statutory presumption. Charissa’s second
assignment of error lacks merit.
No A buse of Discretion in
Awarding Joint Custody
In her final assignment of error, Charissa asserts the dis-
trict court erred in awarding Charissa and Erin joint legal
and physical custody of the child. Her argument is largely a
reiteration of her nonmeritorious claim that the court erred in
not compelling Erin to submit to genetic testing. Our de novo
review of the record reveals no abuse of discretion in the
court’s joint custody award.
[11,12] Child custody determinations are matters initially
entrusted to the discretion of the trial court, and although
reviewed de novo on the record, the trial court’s determina-
tion will normally be affirmed absent an abuse of discretion.15
We have held that joint physical custody should be reserved
for those cases where, in the judgment of the trial court, the
parents are of such maturity that the arrangement will not
operate to allow the child to manipulate the parents or confuse
the child’s sense of direction, and will provide a stable atmos­
phere for the child to adjust, rather than perpetuating turmoil
or custodial wars.16
During the pendency of this divorce action, Charissa and
Erin agreed to the entry of a temporary order granting them
joint legal and physical custody of the child and providing
equal parenting time on an alternating 5-day schedule. The
parties operated successfully under this joint custody arrange-
ment for nearly a year, and there is nothing in the record
15
State on behalf of Jakai C. v. Tiffany M., 292 Neb. 68, 871 N.W.2d 230(2015).
16
Zahl v. Zahl, 273 Neb. 1043, 736 N.W.2d 365 (2007).
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ERIN W. v. CHARISSA W.
Cite as 297 Neb. 143suggesting the parties or the child experienced difficulty with
the arrangement. The parenting plan ultimately adopted by the
district court and included in the decree continued the same
joint custody and the same parenting time schedule the parties
had agreed to previously; the court expressly found the plan
was in the child’s best interests.
At trial, Charissa testified that Erin was a good father, loved
the child, and provided appropriate care for her. She further
conceded that if the court were to find she had failed to over-
come the presumption of Erin’s paternity, she was “agreeable
to having the [court order] joint custody.”
On this record, we find no abuse of discretion in the district
court’s decision to award joint custody. Charissa’s third assign-
ment of error is meritless.
CONCLUSION
For the foregoing reasons, we affirm the judgment of the
district court.
A ffirmed.