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297 Nebraska Reports

ERIN W. v. CHARISSA W.

Cite as 297 Neb. 143

Erin 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 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 

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

07/27/2017 12:10 AM CDT
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ERIN W. v. CHARISSA W.

Cite as 297 Neb. 143

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 courtordered 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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Nebraska Supreme Court Advance Sheets

297 Nebraska Reports

ERIN W. v. CHARISSA W.

Cite as 297 Neb. 143

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] failed to challenge [Erin’s] paternity 
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ERIN W. v. CHARISSA W.

Cite as 297 Neb. 143

of 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. 143

The 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 assistance, child care, and health insurance for her. When the parties separated in 2014, they agreed to share parenting time 

by exchanging the child every 2 to 3 days. After the dissolution 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 testing, again without citation to any particular statute. The court 

again overruled the motion for the reasons set out in its earlier 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 biological father.

STANDARD OF REVIEW

[1,2] 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

 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 presumed 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 rebutted only by clear, satisfactory, and convincing evidence.4

 This 

court has long held that the testimony or declaration of a husband 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. 143

We 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 determinations of paternity. . . .”’”6

 When the parties fail to submit evidence at the dissolution proceeding rebutting the presumption 

of legitimacy, the dissolution court can find paternity based on 

the presumption alone.7

Denial of Genetic Testing Was Not

Abuse of Discretion

Charissa sought to overcome the statutory presumption 

that Erin is the child’s father by asking the court to compel 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 presented 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 testing 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. 143

was 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 disestablishment 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 reliable genetic test performed in accordance with sections 

43-1401 to 43-1418 establishes the exclusion of the individual named as a father in the legal determination.

Even though § 43-1412.01 appears in a series of statutes dealing 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 determination 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 discovery 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. 143

and 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

Rebutted at Trial

Charissa next argues that even in the absence of genetic testing, “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 presumption 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 appearance 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 correctly 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. 143

the 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 convincing to rebut the statutory presumption. Charissa’s second 

assignment of error lacks merit.

No Abuse of Discretion in

Awarding Joint Custody

In her final assignment of error, Charissa asserts the district 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 determination 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 atmosphere 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 arrangement 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. 143

suggesting 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 overcome 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 assignment of error is meritless.

CONCLUSION

For the foregoing reasons, we affirm the judgment of the 

district court.

Affirmed.