Rosberg v. Rosberg

• Decision Date: 30 April 2019
• Docket Number: No. A-17-909.,A-17-909.
• Parties: KELLY R. ROSBERG, APPELLEE, v. PAUL A. ROSBERG, APPELLANT.
• Court: Nebraska Court of Appeals

KELLY R. ROSBERG, APPELLEE, v. PAUL A. ROSBERG, APPELLANT.

No. A-17-909.

NEBRASKA COURT OF APPEALS

April 30, 2019

MEMORANDUM OPINION AND JUDGMENT ON APPEAL

(Memorandum Web Opinion)

NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).

Appeal from the District Court for Knox County: PAUL J. VAUGHAN, Judge. Affirmed as modified.

Paul A. Rosberg, pro se.

Kelly R. Rosberg, pro se.

MOORE, Chief Judge, and RIEDMANN and BISHOP, Judges.

BISHOP, Judge.

The marriage of Kelly R. Rosberg and Paul A. Rosberg was dissolved by decree in July 2017. Paul, pro se, appeals from the decree entered by the Knox County District Court. We affirm as modified.

I. BACKGROUND

Kelly and Paul were married in 1996 and had seven children during their marriage, six of whom were still living at the time Kelly filed for divorce in August 2014. Paul also had seven children from a previous marriage, six of whom were still living. Kelly had other children as well, one from a previous relationship and one from a previous marriage.

When Kelly filed for divorce, Paul was incarcerated in federal prison. Kelly asked that sole legal and physical custody of the parties' six children be awarded to her. She also asked for child support, alimony, and attorney fees. A temporary order was entered on November 21, 2014, granting Kelly temporary physical custody of the children and ordering Paul to pay $3,778 per month in child support. Child support was calculated using an income capacity of $1,256.67 gross per month for Kelly and "[b]ased upon [Kelly's] representations and familiarity with [Paul's] earnings that [Paul] earns approximately $250,000.00 per year." No temporary spousal support was awarded "due to the minimal financial documentation provided to the Court." Kelly was awarded $1,500 in attorney fees. Later, in December 2016, the district court awarded Kelly temporary spousal support of $3,000 per month.

Repeatedly throughout these divorce proceedings, Paul filed motions and requested to have the divorce matter conducted via a trial by jury; all requests were denied. Additionally, Paul repeatedly filed motions asking the trial judges to recuse themselves (because Paul filed various lawsuits naming the judges as defendants). The initial trial judge recused himself in November 2015 and a new judge was appointed. The second trial judge initially recused himself but then rescinded his earlier recusal order and continued to preside over the case. Further motions by Paul for the second trial judge to recuse himself were denied.

Numerous pretrial motions and hearings took place between the time the divorce was filed in August 2014 and the time of trial in May 2017. Although the parties each had counsel off and on since 2014, they were both pro se at the time of trial. The trial took place over the course of 4 days in May 2017. We will discuss the trial evidence relevant to the errors assigned in our analysis below. A decree dissolving the marriage was entered by the district court on July 28. As noted by the district court in its decree,

The record in this case is voluminous. [Paul] filed over 100 pretrial motions and offered numerous exhibits at every hearing. [Kelly] responded with approximately 30 pretrial motions, mostly in response to [Paul's] motions. Over 130 exhibits were received by the Court before trial in this matter.

[Paul] filed motions to reconsider following the entry of almost every pretrial order. [Paul] filed three appeals in this case before final appealable orders had been entered.

The parties were unable to agree on any issues before trial, so the trial involved the disputed issues of child custody, parenting plan, visitation, child support, property division, alimony and the validly of a prenuptial agreement.

(Emphasis in original.)

In the decree, the district court determined that the parties' prenuptial agreement was invalid and unenforceable because Kelly had not signed it voluntarily. The court dissolved the parties' marriage and divided the marital estate. The court entered judgment against Paul in the amount of $579,935 in favor of Kelly to equalize the marital estate; Paul was to pay the judgment in five equal payments of $115,987, payable on September 1 each year from 2017 to 2021.

The district court awarded legal and physical custody of the parties' minor children to Kelly, subject to Paul's rights of parenting time as set forth in the court-created parenting plan attached to and incorporated into the decree. The parenting plan provided parenting time for Paul every other weekend from 6 p.m. Friday to 6 p.m. Sunday, 2 continuous weeks during the school summer vacation, and it established a holiday parenting time schedule. Paul was ordered to pay Kelly child support in the amount of $2,453 per month for the five children who were still minors commencing August 1, 2017, as well as 78 percent of any noncovered medical expenses andwork-related daycare expenses for the minor children. Paul was also ordered to pay Kelly alimony of $500 per month for 36 months commencing August 1.

Paul filed a motion for reconsideration, and in an order filed on August 11, 2017, the district court made one amendment to the decree, now acknowledging that Paul had completed "Attachment 1" and filed it with the clerk on February 22. However, the court pointed out that Paul failed to provide that document as an exhibit during trial, and therefore the filing was "simply a pleading and not evidence which the court can consider in this matter."

Paul timely appealed.

II. ASSIGNMENTS OF ERROR

Paul assigns, summarized, reordered, and restated, that the district court erred in (1) denying his request for a trial by jury, (2) denying his motions for the judge to recuse himself, (3) not allowing him the opportunity to fully present his evidence at trial and refusing to allow all issues to be heard, (4) determining that the stipulation agreement entered by the parties in case No. CI 13-57 was not valid and enforceable, (5) determining the prenuptial agreement was not valid and enforceable, (6) awarding legal and physical custody of the children to Kelly, (7) calculating temporary and permanent child support and spousal support, (8) determining the value of the marital assets, (9) ordering him to pay attorney fees, and (10) ordering him to jail without a trial by jury.

We note that Paul argues, but did not assign as error, a number of other issues. However, to be considered by an appellate court, an alleged error must be both specifically assigned and specifically argued in the brief of the party asserting the error. Fetherkile v. Fetherkile, 299 Neb. 76, 907 N.W.2d 275 (2018). See, also, Friedman v. Friedman, 290 Neb. 973, 863 N.W.2d 153 (2015) (pro se litigant will receive same consideration as if he or she had been represented by attorney, and, concurrently, litigant is held to same standards as one who is represented by counsel).

III. 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. Donald v. Donald, 296 Neb. 123, 892 N.W.2d 100 (2017).

Parenting time determinations are also 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. Aguilar v. Schulte, 22 Neb. App. 80, 848 N.W.2d 644 (2014).

An abuse of discretion occurs when a trial court bases its decision upon reasons that are untenable or unreasonable or if its action is clearly against justice or conscience, reason, and evidence. Flores v. Flores-Guerrero, 290 Neb. 248, 859 N.W.2d 578 (2015).

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. Donald v. Donald, supra.

IV. ANALYSIS

We note that the record on appeal in this case is voluminous. The transcript was more than 1,300 pages. The bill of exceptions contained more than 1,200 pages of testimony and more than 100 exhibits. The trial at times was difficult to follow as both pro se parties jumped from topic to topic and from exhibit to exhibit, often without a logical flow. We address the relevant evidence from trial in the appropriate sections of the analysis.

1. TRIAL BY JURY

Repeatedly throughout these divorce proceedings, Paul filed motions and requested to have the divorce matter conducted via a trial by jury; all requests were denied. Paul relies on Neb. Const. art. V, § 9, which states, "The district courts shall have both chancery and common law jurisdiction, and such other jurisdiction as the Legislature may provide; and the judges thereof may admit persons charged with felony to a plea of guilty and pass such sentence as may be prescribed by law." Black's Law Dictionary 280 (10th ed. 2009) defines "chancery" as, "A court of equity[.]" Paul also cites to Neb. Const. art. I, § 6 ("right of trial by jury shall remain inviolate") and U.S. Const. amend. VII ("[i]n Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved"). Paul argues that the Nebraska Constitution specifically states that district courts have common law jurisdiction and that he noticed all parties, the clerk, and the court that he wanted to convene a "common law jury" and that "[t]he case was to be decided in a common law court, NOT IN AN EQITY OR CHANCERY COURT OR BY A JURY IN EQUITY." Brief for appellant at 10-11 (emphasis in original).

In Eihusen v. Eihusen, 272 Neb. 462, 466-67, 723 N.W.2d 60, 63 (2006), the Nebraska Supreme...