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Erin W. v. Charissa W.

Supreme Court of Nebraska

July 7, 2017

Erin W., Appellee,
v.
Charissa W., Appellant.

          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.

         2. 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 than another.

         3. 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.

         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 [297 Neb. 144] of legitimacy, the dissolution court can find paternity based on the presumption 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 presented 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 perpetuating turmoil or custodial wars.

         Appeal from the District Court for Dodge County: Geoffrey C. Hall, 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, Kelch, 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.

         [297 Neb. 145] FACTS

         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 biological 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 particular 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 during 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 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] ...

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