1. Divorce: Child Custody: Child
Support: Property Division: Alimony: Attorney Fees: Evidence:
Appeal and Error. In an action for the dissolution
of marriage, an appellate 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 normally be affirmed absent
an abuse of that discretion.
Evidence: Appeal and Error. 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
Parent and Child: Paternity: Presumptions.
Under Nebraska common law, later embodied in Neb. Rev. Stat.
§ 42-377 (Reissue 2016), a child born during a marriage
relationship is presumed to be the husband's child.
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.
__: __: __: __ . 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
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.
Divorce: Paternity: Presumptions: Evidence.
When the parties fail to submit evidence at the dissolution
proceeding rebutting the presumption [297 Neb. 144] of
legitimacy, the dissolution court can find paternity based on
the presumption alone.
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.
__ .A trial court cannot commit error in resolving an issue
never presented and submitted to it for disposition.
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.
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.
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 perpetuating turmoil or custodial wars.
from the District Court for Dodge County: Geoffrey C. Hall,
Melissa Lang Schutt, of Fornoff & Schutt, P.C., for
J. Placek, of Sidner Law, for appellee.
Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy, Kelch,
and Funke, JJ.
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.
Neb. 145] FACTS
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.
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
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 particular authority.
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 during the marriage and that he was
presumed to be her father under Neb. Rev. Stat. § 42-377
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 marriage.
[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]