Erin W. v. Charissa W.

297 Neb. 143

897 N.W.2d 858

ERIN W., appellee,

v.CHARISSA W., appellant.

No. S-16-958.

Supreme Court of Nebraska.

Filed July 7, 2017

Melissa Lang Schutt, of Fornoff & Schutt, P.C., Fremont, for appellant.

Shane J. Placek, of Sidner Law, Fremont, 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.

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 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.

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, (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

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

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."

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

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).

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 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.

Section 43-1412.01 is the statute governing disestablishment of paternity. It provides in relevant...