Mitchell v. Mitchell
| Decision Date | 20 March 2018 |
| Docket Number | No. A-17-295.,A-17-295. |
| Parties | JAMES L. MITCHELL, APPELLEE, v. DEBRA J. MITCHELL, APPELLANT. |
| Court | Nebraska Court of Appeals |
(Memorandum Web Opinion)
Appeal from the District Court for Sarpy County: GEORGE A. THOMPSON, Judge. Affirmed as modified.
Debra J. Mitchell, pro se.
Andrew M. Ferguson, of Carlson & Burnett, L.L.P., for appellee.
Debra J. Mitchell appeals from a decree of dissolution entered by the district court for Sarpy County that dissolved her marriage to James L. Mitchell, divided their property and debts, and awarded her alimony. On appeal, Debra assigns error to various pre-trial motions; certain conduct by the trial court in relation to her status as a self-represented litigant; and the court's order concerning property division, income tax filings, alimony, and attorney fees. We find the district court erred in directing the parties to file a joint income tax return in 2016, and we modify the decree to eliminate this provision. Finding no other abuse of discretion, we affirm the remainder of the district court's decree.
Debra and James were married in October of 1987. They have one adult child. James filed a complaint on August 10, 2015, asking the court to dissolve his marriage with Debra, equitably divide their property and debts, order nonmarital assets be retained by their respective owner, and for other relief as the court may deem just and equitable. On August 27, Debra, through her first attorney, filed an answer and counter complaint for dissolution of marriage, asking the court to award her temporary alimony and restrain the parties from incurring additional debt or selling marital property. The next day, the court entered a stipulated temporary mutual restraining order, prohibiting the sale of property or incurring additional debt. The record does not contain any order with regard to Debra's request for temporary alimony. On December 15, Debra's first attorney filed a motion to withdraw as her counsel, which the court granted.
On April 22, 2016, the court entered an order requiring the parties to either file a "notice of prove-up" or a certificate of readiness within 30 days, in order to avoid dismissal for want of prosecution. James filed a certificate of readiness on April 25, alleging the dissolution action was ready for trial and that a pre-trial conference was unnecessary. On June 3, Debra served her first set of requests for production of documents and interrogatories on James. James objected to the interrogatories, claiming that they were overly broad and unduly burdensome and that they asked for both work product and information protected by the attorney-client privilege.
The matter came on for trial on July 7, 2016. James was represented by counsel and Debra appeared pro se. Debra orally moved for a continuance, arguing she had been unable to complete discovery due to James' noncompliance. Debra acknowledged receiving James' certificate of readiness but indicated that she did not know what it meant. She explained that she broke her hip in January and was unable to work on her case or find a new attorney for several months thereafter. The court granted Debra's motion to continue, and set trial for September 21. James filed a notice of serving discovery documents on August 31, showing that he responded to Debra's interrogatories and requests for production of documents.
On September 12, 2016, a second attorney filed an entry of appearance for Debra, together with a motion to continue trial and a motion to compel and for sanctions. On September 14, James filed an objection to Debra's motion to continue and a response to her motion to compel, which contained several supplemental responses to Debra's discovery requests. On September 20, the court granted Debra's motion to continue, rescheduling the trial for October 6. The court denied her motions to compel and for sanctions. On October 3, Debra's second attorney filed another motion to continue due to counsel's scheduling conflict. The record does not contain a ruling on that motion, but trial did not occur on October 6.
On November 23, 2016, Debra's second attorney filed a motion to withdraw as counsel. On November 28, Debra filed a praecipe for subpoenas, directing six witnesses to attend the dissolution trial, which at that point was scheduled for November 30. The same day, the court held a hearing on counsel's motion to withdraw. At the hearing, Debra again asked the court to reschedule the trial to give her time to prepare to represent herself. Debra's second attorney told the court that Debra's case was prepared and that Debra had all the required work product in her possession. The court granted counsel's motion to withdraw but overruled Debra's motion to continue the trial.
The dissolution trial was held on November 30 and December 7, 2016. James was represented by counsel and Debra represented herself. James testified first regarding his work history. For the past 10 years, he has worked as a program manager for Harris Corporation. Prior to that he was a weather officer in the U.S. Air Force for over 21 years. James and his family moved around the country and to Germany during his tenure with the Air Force. In 2015, James received a salary of $133,000 from his employment at Harris Corporation. Additionally, he received a total of $47,000 as a military pension. At the time of trial, his income remained the same as in 2015. James pays each month for a survivor benefit plan that would allow Debra to receive half of his military pension after he dies. He asked the court to divide his pension evenly between him and Debra, but he also requested the court require Debra to pay the survivor benefit plan premium. James receives disability from the military, which he asked the court to award him separately.
Although James moved out of the marital house in September of 2015, Debra continues to live there. The parties also own a rental house. During the pendency of the divorce, James has paid (or given Debra funds to pay) the monthly mortgage on the marital house, homeowners' association fees, car payments, Debra's cell phone service, and other expenses, totaling approximately $3,600 each month. James reduced his contribution to these expenses in the 2 months preceding trial.
James requested that the court not grant alimony to Debra. He explained that Debra is a licensed esthetician and real estate agent. James testified that Debra worked "quite a bit" at the beginning of the marriage but then "not a lot in later years." According to James, Debra stated she worked in 2013, 2014, and 2015, but he did not know whether she had any sales in those years. The 2014 federal income tax return shows no business income and the 2015 return shows business income of $155 although there is no Schedule C attached. James agreed that Debra's income as a realtor has fluctuated "dramatically" and that the only time she was successful as a realtor was when she worked selling newly constructed homes. James was aware that Debra did not work in 2016 due to an accident in January. He also noted that she had an accident in 2014. James testified and submitted exhibits about the assets and debts accumulated during the marriage, together with their values and amounts. He also proposed a division of the assets and debts to the court. James admitted to accumulating significant credit card debt during the marriage, which at the time of trial amounted to $86,246.80. Other than a trip to Europe with his father and brother, which he admitted using one of the cards to finance, he testified that all of the purchases he made using credit card debt were for marital purposes. He asked the court to award all of the debts to him. On cross examination, Debra questioned James regarding various purchases James made with his credit cards.
Debra testified that she is self-employed as a real estate agent. Although she lost her real estate certifications during the past several months, she admitted that the certifications are not necessary to be a licensed real estate agent. She broke her leg on January 5, 2016, which keeps her from walking long distances. She was not certain if she would make a full recovery. Debra did not apply for disability because she did not believe she would qualify. She was also injured in a car accident in February of 2014 for which she was not at fault. Debra testified that she has not sued anyone for compensation for lost work from her injury because she is "still broken." She described how physically taxing selling new houses is and opined that she would not be able to do this workdue to her injuries. However, she admitted to taking a role in a musical after at least one of her injuries and that she was able to "power through" practices and rehearsals despite her condition.
Debra requested the court order the parties to sell the rental property and split the profits because she does not have the money to upkeep the property. She observed that the monthly mortgage payment on the rental property is currently $200 higher than the property's monthly rental income. Debra testified that she believed the court should consider James' credit card debt as nonmarital. But she admitted that James may have made purchases for the family on each of the credit cards. She also requested the court grant her $8,550 in attorney fees from three attorneys, one of whom was never her attorney of record in this matter. She further asked the court to order James to pay $2,700 each month in alimony.
Debra called other witnesses to testify about James' spending habits. Although the witnesses confirmed that James made extravagant purchases, the witnesses also indicated that Debra used and enjoyed at least some...
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