Dycus v. Dycus
| Decision Date | 09 October 2020 |
| Docket Number | No. S-19-853.,S-19-853. |
| Citation | 949 N.W.2d 357,307 Neb. 426 |
| Parties | Debra A. DYCUS, appellee, v. Michael E. DYCUS, appellant. |
| Court | Nebraska Supreme Court |
Robert M. Sullivan, of Sullivan Shoemaker, P.C., L.L.O., Hastings, for appellant.
No appearance for appellee.
Michael McHale and Matthew F. Heffron, of Thomas More Society, for amicus curiae Donald Paul Sullins.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ.
In an appeal from a dissolution decree, the defendant challenges the constitutionality of Neb. Rev. Stat. § 42-361 (Reissue 2016), through which in 1972 the Legislature eliminated the conceptual structure of fault as a requisite for a divorce.1 The defendant asserts that § 42-361 deprives all defendants in dissolution actions of procedural due process and that § 42-361 constitutes special legislation in favor of plaintiffs for dissolution. According to the defendant, the district court lacked subject matter jurisdiction over the proceedings below that resulted in the dissolution decree because it was exercising jurisdiction allegedly conferred by such unconstitutional legislation. We affirm the decree.
Debra A. Dycus filed a complaint in district court for dissolution of her marriage to Michael E. Dycus. In her complaint, Debra alleged there had been a breakdown in the marital relationship of the parties to the extent that the marriage was irretrievably broken. She alleged that efforts by the parties at reconciliation had wholly failed and that further attempts at reconciliation would be fruitless. There are four adult children of the marriage. There are no minor children.
Debra also sought an ex parte temporary order restraining and enjoining Michael from disposing of marital property except in the usual course of business or for the necessities of life, for an order restraining Michael from disturbing the peace wherever Debra resided, and for attorney fees. Debra filed an affidavit in support of the motion. Michael filed an affidavit contesting Debra's averments, and Debra filed a rebuttal affidavit.
Michael, through counsel, responded with a four-page motion to dismiss. He alleged insufficient service of process, deprivation of a constitutional right to adversarial proceedings, lack of a case or controversy, and lack of standing. He further alleged that "[t]he divorce statute," later identified by the court as Neb. Rev. Stat. § 42-347 (Reissue 2016), was unconstitutional on its face because it allegedly violated, among other things, the prohibition against special legislation found in article III, § 18, of the Nebraska Constitution and procedural due process under the U.S. Constitution.
The court held a hearing on Debra's motion for temporary orders and on Michael's motion to dismiss. There is no record of the hearing other than the notation that four exhibits were entered into evidence. Following the hearing, the court ordered temporary alimony, issued a mutual restraining order against transferring or concealing property, and awarded $1,000 in temporary attorney fees. The court overruled Michael's motion to dismiss and denied Debra's motion to exclude Michael from the marital residence.
In his answer, Michael denied that the marriage was valid. Alternatively, if valid, Michael denied that the marriage was irretrievably broken. Further, he denied there had been any meaningful attempts to reconcile and denied "the implication that the logical, appropriate, and default conclusion to marital struggles is divorce."
Michael alleged as affirmative defenses violations of the provisions of the U.S. Constitution relating to due process, equal protection, the Establishment Clause, bills of attainder, and takings of private property for public use. He alleged violations of both article III, § 18, and article 1, §§ 17 and 21, of the Nebraska Constitution. And he alleged that the Nebraska statutes governing no-fault divorce "implicate the separation of powers doctrine, nondelegation doctrine, the establishment clause, free exercise of religion clause, due process clause, and equal protection clause of the Nebraska and U.S. Constitutions by interfering with the fundamental rights of conscious, marriage, privacy, religious belief and religious exercise without a compelling State interest." He asserted that the court lacked subject matter jurisdiction.
During the course of discovery, Debra moved to compel Michael to respond to her first set of interrogatories and first set of requests for production of documents, due to the fact that more than 30 days had passed without a response, and Michael's counsel had informed Debra's counsel that Michael would not be responding to discovery requests. In an attached email, Michael's counsel stated that he would "try to work with you the best I can, but without Mike's cooperation, it is going to be messy if you insist on formal responses to the discovery." Debra moved for costs and attorney fees.
Subsequently, Michael responded to the discovery requests. For many of the requests, however, Michael simply stated:
[Debra] has access to all of the files in our home, and she has full access to all of our bank accounts, both personal and business. I know that Debra has been in our house while I'm not there, so she may already have this information. I also know that Debra keeps an eye on our bank accounts, therefore, she can continue to gather such information as she deems necessary. I have done little or no bookkeeping personally or with the painting business, and I do not know where any of these items are or what they might look like.
Debra, in her affidavit in support of the motion to compel, stated that Michael was residing in the marital residence and that she did not have access to the files or the safe located inside. She denied that Michael was uninvolved and ignorant of the business’ bookkeeping. She also stated that she lacked access to certain bank accounts. Michael did not conduct any discovery.
Following a hearing, the court sustained in part the motion to compel. The court ordered that Michael vacate the marital home on a specific date and time to allow Debra access and retrieval of documents. The court also ordered Michael to make an accounting of all business equipment and assets and to produce his tax returns.
After a final hearing, the court entered a decree of dissolution. Michael did not attend the hearing but was represented by his counsel.
Debra testified at the hearing that over the course of their 30-year marriage, she and Michael had seen five or six counselors and various pastors and priests in order to address their marital difficulties. On cross-examination, Debra classified the marital difficulties as abuse and described that the abuse included "name calling" and demeaning statements. She testified without further elaboration that Michael had threatened her. Debra testified that in her opinion the marriage was irretrievably broken.
The court found that the marriage was irretrievably broken and that efforts at reconciliation would not be beneficial. The court concluded that Michael had failed to sustain his burden to show that § 42-347 is unconstitutional.
The court found that Debra had demonstrated she had incurred $8,216.81 in attorney fees. In evidence was the affidavit of Debra's attorney and a supporting billing statement showing the number of hours worked and describing in detail what was worked on for each of those hours, as well as the hourly rates. Michael had not presented any evidence of attorney fees, the court noting that Michael's "only focus has been to have the Dissolution of Marriage Statute declared unconstitutional." The court awarded Debra $4,000 in attorney fees, to be credited off her payment obligation for equalizing the property division. Michael appealed the decree.
Michael assigns that the trial court erred in (1) denying his motion to dismiss, (2) applying an unconstitutional statute, (3) finding that the marriage was irretrievably broken, (4) dividing the parties’ property and granting Debra sole ownership of the marital residence, and (5) ordering attorney fees.
The constitutionality of a statute is a question of law.2
The determination of whether the procedures afforded to an individual comport with constitutional requirements for procedural due process presents a question of law.3
In a marital dissolution action, an appellate court reviews the case de novo on the record to determine whether there has been an abuse of discretion by the trial judge. This standard of review applies to the trial court's determinations regarding custody, child support, division of property, alimony, and attorney fees.4
A judicial abuse of discretion exists if the reasons or rulings of a trial judge are clearly untenable, unfairly depriving a litigant of a substantial right and denying just results in matters submitted for disposition.5
Michael asks this court to vacate the dissolution decree on the ground that it was rendered under authority conferred by a statute he claims is unconstitutional on its face. In the event we disagree, Michael's only challenge to the decree specifically assigned and argued is the amount of attorney fees awarded to Debra. Michael does not specifically argue his assigned error concerning the court's division of the parties’ property; therefore, we do not address it. In order to be considered by an appellate court, the party asserting the alleged error must both specifically assign and specifically argue it in the party's initial brief.6 Where an appellant's brief contains conclusory assertions unsupported by a coherent analytical argument, the appellant fails to satisfy this requirement.7
Michael asserts that by...
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