Sjulin v. Sjulin ( 2021 )

IN THE NEBRASKA COURT OF APPEALS
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
(Memorandum Web Opinion)
SJULIN V. SJULIN
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).
RYAN SJULIN, APPELLANT,
V.
MICKALA SJULIN, APPELLEE.
Filed December 21, 2021. No. A-21-318.
Appeal from the District Court for Otoe County: JULIE D. SMITH, Judge. Affirmed.
Ryan K. McIntosh, of Brandt, Horan, Hallstrom & Stilmock, for appellant.
Julie E. Bear, of Reinsch, Slattery, Bear, Minahan & Prickett, P.C., L.L.O., for appellee.
PIRTLE, Chief Judge, and RIEDMANN and WELCH, Judges.
RIEDMANN, Judge.
INTRODUCTION
Ryan Sjulin appeals the amended decree entered by the district court for Otoe County,
which dissolved his marriage to Mickala Sjulin, awarded custody and child support for their
children, and divided the marital estate. Finding no abuse of discretion in the district court’s
decisions, we affirm.
BACKGROUND
Ryan and Mickala were married in 1998. Their older child was born in 2003, and their
younger child was born in in 2007. Ryan filed a complaint to dissolve the marriage in September
2019. The following month, the district court entered a temporary order awarding sole legal and
physical custody of the children to Mickala and granting Ryan parenting time every other weekend
and Tuesday evenings.
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Prior to trial, Mickala submitted discovery requests to Ryan, and in his responses, he
indicated that he would supplement certain responses. When he failed to do so by February 2020,
Mickala filed a motion to compel his responses, seeking information related to certain business
debts. A few days later, Ryan’s counsel filed a motion to withdraw. The district court held a hearing
on both motions in March. Ryan did not appear, and his counsel appeared telephonically. The court
permitted his counsel to withdraw and granted Mickala’s motion to compel, ordering Ryan to
produce certain documents within 15 days of the entry of the order. It appears the order granting
the motion to compel was sent to Ryan’s counsel, who had been allowed to withdraw.
The following month, when Ryan had still not produced the ordered documents, Mickala
filed a motion for sanctions. The certificate of service indicates that the motion and notice of
hearing were sent to Ryan via two separate email addresses. Ryan did not appear at the hearing,
and the court granted the motion, ordered Ryan to pay $500 in attorney fees for Mickala, and
prohibited him from claiming that any of the debts listed in the order to compel were marital debts
or introducing evidence of them at trial. Ryan appeared at trial in January 2021 and represented
himself.
At the time of trial, Mickala had been employed as an educator for 22 years. She is an
English teacher, the high ability learner facilitator, the drug education instructor, and the track
coach. She works Monday through Friday, from 7:45 a.m. until 4 p.m.
Ryan studied landscape architecture in college and operated a landscaping business during
the marriage. It was a family business that Ryan began operating in 1996; thus, he had more than
20 years’ experience working as a landscape architect. His skill set involves planning, designing,
installing, and maintaining landscaping, but because his business operates in a smaller town, in
addition to landscaping work, his company also does concrete and other types of projects and snow
removal in the winter. He employs both high school and adult workers, and he pays his adult
employees $14 to $20 per hour, with the more skilled workers earning the higher pay. Mickala
presented evidence from the Nebraska Department of Labor that the median annual salary for a
landscape architect in Nebraska was $58,022.
The parties owned a marital home in Nebraska City, Nebraska. An appraisal completed in
March 2020 valued the home at $190,000. Mickala testified at trial that she believed that figure to
be the current fair market value of the home. In conjunction with the appraisal, Mickala refinanced
the mortgage on the home and took out $30,000, which she used to replace part of the roof on the
marital home, pay off the loan on her vehicle, and pay off marital credit card debt. The December
2020 mortgage statement showed a balance of $127,360.40.
After Ryan filed for divorce, Mickala and the children remained in the marital home, where
each of the children has his own bedroom. Ryan moved out, and after renting part of a house for a
few months, he moved to Hamburg, Iowa. Initially he lived in a camper parked near a cabin on
land his family owns and near his grandparents’ home. Once the weather turned cold, he moved
into the cabin. Thus, at the time of trial, he was residing in a 900-square-foot cabin comprised of
four rooms, including one bedroom with two beds. When the children had parenting time with
Ryan, they spent most nights at their great-grandparents’ home.
Around the spring or summer of 2020, the older child started spending additional time in
Hamburg. He would stay at his great-grandparents’ home, where he has his own bedroom, and
acted as a caretaker for them. He continued to attend his senior year of high school in Nebraska
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City, which was a 25 minute commute from Hamburg. He was tardy to school numerous times,
particularly to his first period class. His teacher contacted Mickala in October 2020 with concerns
about his frequent tardiness and said that the child appeared very tired at school and had
commented to her that he “is more like the parent at home” and that he felt “like the roles [were]
reversed.” When Ryan was asked at trial what he had done to address the child’s tardiness, he
replied, “You know, it’s going to be one of those things to where sometimes you have to be
responsible for your own actions. I mean, the school is going to come down on him for that.” The
older child was set to graduate from high school a few months after trial and had plans to attend
college in the fall of 2021 and live with friends.
Mickala testified that despite spending additional time in Hamburg, the older child
continued to spend time at her house on a regular basis. She believed that awarding her sole legal
and physical custody of both children was in their best interests because she has been their primary
caregiver, and she believed that her background as a teacher allows her to assist the children with
their academics and her work hours allow her time to be with them both after school and in the
summertime.
Mickala also expressed concerns about the children’s time with Ryan. She was concerned
about a lack of supervision, explaining that they ride four-wheelers without helmets, driving fast
and at times getting into accidents, and they are allowed to be on the lake without adult supervision.
The lack of supervision scares her. She was additionally concerned about Ryan’s temper and the
way he disciplines the children. She claimed that the children walk on eggshells around him and
that he has a history of raging, fighting, and physical violence.
Mickala had further concerns about Ryan’s alcohol consumption. She claimed that Ryan
drinks on a daily basis and has a history of drinking and driving with the children in the car.
Moreover, he was taking the older child’s ADHD medication on top of his own medication, such
that the pharmacy ultimately would allow only Mickala, and not Ryan, to pick up the child’s
medication.
After trial was completed, the district court entered an amended decree. It found that both
parties were fit parents but determined that awarding sole legal and physical custody of the children
to Mickala was in the children’s best interests. The court adopted the parenting plan Mickala
proposed, which mirrored the parenting time arrangement provided in the temporary order.
The court found that Ryan worked as a landscape architect and was capable of earning
$58,022 per year. The court recognized the fact that the older child would soon be graduating from
high school and had been choosing to stay in Iowa and not with Mickala. And while it awarded
legal and physical custody to Mickala, the court realized that the parties had not been following
the temporary order containing the same terms and that the older child was a licensed driver.
Therefore, in order to avoid an inequitable result for child support purposes, the court deviated
from the child support guidelines and ordered Ryan to pay $505 per month for two children and
the same amount for one child. Based on its pretrial discovery orders, the court found that certain
debt was the nonmarital responsibility of Ryan. Mickala was awarded the marital home valued at
$190,000 and its associated mortgage with a balance of $127,360.40. The rest of the marital estate
was divided between the parties. Ryan appeals.
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ASSIGNMENTS OF ERROR
Ryan assigns, renumbered and summarized, that the district court erred in (1) awarding
sole legal and physical custody to Mickala, (2) failing to use the split custody child support
worksheet, (3) determining his earning capacity for purposes of calculating child support, (4)
valuing the marital home and its mortgage, (5) prohibiting him from claiming business debts were
marital and presenting any evidence at trial regarding such debts, and (6) determining that certain
debts were nonmarital pursuant to the pretrial discovery orders.
STANDARD OF REVIEW
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. Burgardt v. Burgardt,
304 Neb. 356, 934 N.W.2d 488 (2019). This standard of review applies to the trial court’s
determinations regarding custody, child support, division of property, alimony, and attorney fees.
Id. In a review de novo on the record, an appellate court is required to make independent factual
determinations based upon the record, and the court reaches its own independent conclusions with
respect to the matters at issue. Id. However, when evidence is in conflict, the appellate court
considers and may give weight to the fact that the trial court heard and observed the witnesses and
accepted one version of the facts rather than another. Id. 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. Id.ANALYSIS
Custody.
Ryan assigns that the district court erred in awarding sole legal and physical custody of the
children to Mickala. We find no abuse of discretion in the court’s custody decision.
When custody of minor children is an issue in a proceeding to dissolve the marriage of the
children’s parents, custody is determined by parental fitness and the children’s best interests.
Burcham v. Burcham, 24 Neb. App. 323, 886 N.W.2d 536 (2016); Neb. Rev. Stat. § 42-364(2)
(Cum. Supp. 2020). When both parents are found to be fit, the inquiry for the court is the best
interests of the children. Burcham v. Burcham, supra. Because the district court found that Ryan
and Mickala were both fit parents, a finding that Ryan does not challenge, we consider the
children’s best interests.
The best interests of a child require a parenting arrangement “for a child’s safety, emotional
growth, health, stability, and physical care and regular and continuous school attendance and
progress.” Neb. Rev. Stat. § 43-2923(1) (Reissue 2016). The best interests of a child also require
that
the child’s families and those serving in parenting roles remain appropriately active and
involved in parenting with safe, appropriate, continuing quality contact between children
and their families when they have shown the ability to act in the best interests of the child
and have shared in the responsibilities of raising the child.
§ 43-2923(3). Section 43-2923(6) further provides:
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In determining custody and parenting arrangements, the court shall consider the best
interests of the minor child, which shall include, but not be limited to, consideration of the
foregoing factors and:
(a) The relationship of the minor child to each parent prior to the commencement
of the action or any subsequent hearing;
(b) The desires and wishes of the minor child, if of an age of comprehension but
regardless of chronological age, when such desires and wishes are based on sound
reasoning;
(c) The general health, welfare, and social behavior of the minor child;
(d) Credible evidence of abuse inflicted on any family or household member[;] and
(e) Credible evidence of child abuse or neglect or domestic partner abuse.
Here, at the time of trial, Mickala remained in the marital home, where each child has his
own bedroom, and Ryan was residing in a camper and/or a 900-square-foot cabin, which has one
bedroom with two beds. The parties agreed that around spring or summer 2020, the older child
began spending additional time in Iowa. The majority of the time he is there, he is at his
great-grandparents’ home, not with Ryan. Mickala testified, however, that the older child
continued to spend time at her house on a regular basis.
Mickala opined that awarding her sole legal and physical custody would be in the
children’s best interests because she has been their primary caregiver and has concerns when the
children are with Ryan, including a lack of supervision, his temper, and his excessive drinking.
She explained that Ryan has a history of violence and drinking and driving with the children in the
car. He was also taking the older child’s ADHD medication on top of his own medication.
Mickala expressed additional concern that the older child had been tardy to school on so
many occasions while commuting from Hamburg to Nebraska City and that he told a teacher that
he felt more like the parent at home and felt that he was raising himself. When asked about the
child’s tardiness, Ryan responded, “You know, it’s going to be one of those things to where
sometimes you have to be responsible for your own actions. I mean, the school is going to come
down on him for that.” Mickala further believed that her background as a teacher allows her to
assist the children with their academics, and her work hours allow her time to be with them both
after school and in the summers.
We understand Ryan’s perspective that the older child was a senior in high school at the
time of trial, a few months’ shy of graduating, and regardless of the court’s custody order, it would
likely be difficult to require him to reside somewhere he did not want to be. And based on the
evidence that he planned to attend college and live with friends after graduating high school and
the timing of this opinion, it is likely that his primary residence is no longer with either parent.
However, he has not yet reached the age of majority and the question before us is whether the
district court abused its discretion in awarding custody of both children to Mickala. Given the
evidence presented at trial and summarized above, we conclude that it did not.
We note that Mickala raises the issue of removal in her brief, noting that Ryan never
requested permission to remove the children to Iowa. Having affirmed the district court’s decision
to award sole physical custody to Mickala, however, we need not address whether a removal
analysis was necessary here. See Rommers v. Rommers, 22 Neb. App. 606, 858 N.W.2d 607 (2014)
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(trial court should first enter order regarding custody and then conduct removal analysis, if
necessary).
Child Support.
Ryan raises two issues related to child support. He claims that the district court erred in
failing to use the split custody worksheet and that it erred in determining his earning capacity for
purposes of calculating child support.
With regard to the appropriate child support worksheet, Ryan claims that using the split
custody worksheet would recognize the contributions by the parties and the fact that the older child
will not be returning to Mickala’s home. Having affirmed the award of sole physical custody to
Mickala above, we decline to find that using the sole custody worksheet was improper or remand
the matter for recalculation of child support. We also note that the district court recognized that
the parties had not been following the temporary custody order containing the same terms as those
set forth in the decree and that the older child was a licensed driver. Therefore, in order to avoid
an inequitable result for child support purposes, the court deviated from the child support
guidelines and ordered Ryan to pay $505 per month for two children, which was the same amount
he would pay for one child.
We also find no abuse of discretion in the earning capacity the court imputed to Ryan. In
general, child support payments should be set according to the Nebraska Child Support Guidelines.
Johnson v. Johnson, 290 Neb. 838, 862 N.W.2d 740 (2015). The guidelines provide that if
applicable, earning capacity may be considered in lieu of a parent’s actual, present income and
may include factors such as work history, education, occupational skills, and job opportunities. Id.Earning capacity is not limited to wage-earning capacity, but includes moneys available from all
sources. Id. Use of earning capacity to calculate child support is useful when it appears that the
parent is capable of earning more income than is presently being earned. Id. Generally, earning
capacity should be used to determine a child support obligation only when there is evidence that
the parent can realize that capacity through reasonable efforts. Id.In the present case, the record shows that Ryan went to community college where he
studied landscape architecture and that he has been a landscape architect for more than 20 years.
He operated a landscaping business during the marriage, and his skill set involves planning,
designing, installing, and maintaining landscaping. In addition to landscaping work, his company
also does concrete and other types of projects and snow removal in the winter.
The parties’ 2017 and 2018 tax returns were received into evidence at trial, which include
the landscaping business’ income and expenses. However, Mickala testified that it was difficult to
value Ryan’s earnings based upon the tax returns and that it was common for him to receive
payments in cash. On appeal, Ryan does not claim that the court erred in basing his income on
earning capacity instead of actual earnings or that the court should have used the figures included
on the tax returns as his income for child support purposes. Rather, he asks that we remand the
matter to the district court with instructions to determine his actual earning capacity.
There was little evidence presented at trial related to Ryan’s income. He testified that his
landscaping crew includes both high school and adult workers and that he pays his adult employees
$14 to $20 per hour, with the more skilled workers earning $20. He questioned Mickala as to
difficulties the landscaping business experienced in 2011, but she also testified that it was “pretty
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rare” that they struggled financially, explaining to him, “You did well. You did very well.” She
acknowledged, however, that they lived beyond their means during their marriage and that there
were months where they struggled a bit for money. In his own testimony, Ryan claimed that he
was “not going to do landscaping anymore.” He did not elaborate on any future employment plans.
Based on the foregoing, we find no abuse of discretion in the court’s decision regarding
Ryan’s earning capacity. He has more than 20 years’ experience in the landscaping business. He
pays his experienced workers $20 per hour, which equates to an annual salary of $41,600 for
full-time work. According to Mickala, the parties’ tax returns are not an accurate representation of
Ryan’s earnings, it was not uncommon for him to receive cash payments, and the business did
“very well.” The limited evidence related to income that was presented to the court established
that the median annual income in Nebraska for a landscape architect was $58,022. We therefore
affirm the decision to impute to Ryan an annual income of $58,022.
Marital Home.
Ryan asserts that the district court erred in its valuation of the marital home and its
mortgage. We disagree.
Under Neb. Rev. Stat. § 42-365 (Reissue 2016), the equitable division of property is a
three-step process. The first step is to classify the parties’ property as marital or nonmarital, setting
aside the nonmarital property to the party who brought that property to the marriage. The second
step is to value the marital assets and marital liabilities of the parties. The third step is to calculate
and divide the net marital estate between the parties in accordance with the principles contained in
§ 42-365. Rohde v. Rohde, 303 Neb. 85, 927 N.W.2d 37 (2019).
The issue before us concerns the second step of the process, the proper valuation of the
marital home and its mortgage. Ryan argues that the appraisal of the home, upon which the district
court based its valuation, was completed before Mickala refinanced the mortgage and had the roof
repaired and that the district court’s decision accounted for neither the $30,000 in cash nor the
increased value of the home.
With respect to the value of the home, Ryan’s assertion that replacing part of the roof
increased its value is speculative, because he did not introduce any evidence as to the value of the
home after the roof repair was complete. And neither party was asked whether the improvements
to the roof increased its value. To the contrary, Mickala opined that $190,000 remained the current
fair market value at the time of trial. A landowner is qualified to testify to the fair market value of
his or her own property. Eicher v. Mid America Fin. Invest. Corp., 275 Neb. 462, 748 N.W.2d 1(2008). The district court, therefore, did not abuse its discretion in determining that the home’s
value was $190,000.
As to the $30,000, Mickala explained that in addition to the roof repair, she used the money
to pay off marital debt including credit cards and her vehicle’s loan. The mortgage statement
introduced at trial was dated December 2020 and, thus, accounted for the $30,000 increase in the
balance. Therefore, the total balance of the marital debt remained the same, but instead of owing
more on credit cards and a vehicle loan, the debt shifted to the mortgage. As such, we reject Ryan’s
argument that the district court’s valuations failed to properly account for the roof repair and the
mortgage refinance.
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Discovery Sanction Related to Business Debts.
Ryan asserts that the district court abused its discretion in prohibiting him from claiming
that his business debts were marital and preventing him from presenting any evidence at trial
regarding such debts. The court’s order was the result of Ryan’s failure to respond to discovery
and to a motion to compel and was thus entered as a discovery sanction pursuant to Neb. Ct. R.
Disc. § 6-337.
The main purpose of the discovery process is to narrow the factual issues in controversy
so that the trial is efficient and economical. Hill v. Tevogt, 293 Neb. 429, 879 N.W.2d 369 (2016).
The discovery process helps the litigants conduct an informed cross-examination and avoid tactical
surprise, a circumstance which might lead to a result based more on legal maneuvering than on the
merits of the case. Id.If the parties fall short of their discovery obligations, § 6-337 allows the court to sanction
them. Hill v. Tevogt, supra. Section 6-337 provides that if a party fails to obey an order to provide
or permit discovery, the court in which the action is pending may make such orders in regard to
the failure as are just, including an order prohibiting the disobedient party from introducing
designated matters in evidence. § 6-337(b)(2)(B).
Sanctions under § 6-337 exist not only to punish those whose conduct warrants a sanction
but to deter those, whether a litigant or counsel, who might be inclined or tempted to frustrate the
discovery process by their ignorance, neglect, indifference, arrogance, or, much worse, sharp
practice adversely affecting a fair determination of a litigant’s rights or liabilities. Eddy v. Builders
Supply Co., 304 Neb. 804, 937 N.W.2d 198 (2020). An appropriate sanction under § 6-337 is
determined in the factual context of a particular case and is initially left to the discretion of the
trial court, whose ruling on a request for sanction or a sanction imposed will be upheld in the
absence of an abuse of discretion. Eddy v. Builders Supply Co., supra. Even if the court imposes a
discovery sanction that amounts to a “death sentence,” we review the court’s decision for an abuse
of discretion. Hill v. Tevogt, 293 Neb. at 436, 879 N.W.2d at 374.
The appropriate sanction under § 6-337 depends on the facts. Hill v. Tevogt, supra.
Relevant factors include the prejudice or unfair surprise suffered by the party seeking sanctions,
the importance of the evidence which is the root of the misconduct, whether the court warned the
sanctioned party about the consequences of its misconduct, whether the court considered less
drastic sanctions, the sanctioned party’s history of discovery abuse, and whether the sanctioned
party acted willfully or in bad faith. Id.
In the present case, Ryan argues that he did not receive notices related to this discovery
matter. While the record indicates that the original order granting Mickala’s motion to compel was
sent to Ryan’s counsel who had been given leave to withdraw, Mickala’s motion for sanctions and
notice of hearing were served on Ryan at two separate email addresses. So regardless of whether
Ryan received notice of the order compelling him to produce certain documents, he was served
with the subsequent motion for sanctions. He failed to appear at the hearing, and the order granting
the motion was mailed to Ryan at the marital home. He acknowledged in his testimony at trial that
he did not change his address with the court from the marital home to his residence in Iowa. We
recognize that after Ryan’s counsel withdrew in March 2020, he proceeded pro se throughout the
duration of the proceedings. However, a pro se litigant is held to the same standards as one who is
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represented by counsel. See Friedman v. Friedman, 290 Neb. 973, 863 N.W.2d 153 (2015). Thus,
he was required to personally complete tasks that counsel would typically handle such as respond
to discovery, follow court orders, and communicate with Mickala’s counsel and the court.
At the hearing on the motion for sanctions, Mickala asserted that the discovery had initially
been served on Ryan in September 2019, and therefore at that point, it had been 7 months and she
had yet to receive responses. Ryan initially responded to the discovery in December, but indicated
that he would supplement his responses related to business debts. Allowing Ryan to present
evidence at trial that he failed to disclose to Mickala in discovery would have resulted in prejudice
or unfair surprise to her. In a hierarchy of harshness, the exclusion of evidence lies somewhere
between the payment of expenses caused by the misconduct and dismissal or default judgment.
Hill v. Tevogt, 293 Neb. 429, 879 N.W.2d 369 (2016). We find no abuse of discretion in the court’s
decision to exclude evidence of business debt at trial as a discovery sanction when the information
was never disclosed to Mickala prior to trial. Based on our resolution of this issue, we need not
address Ryan’s other assigned errors claiming that the district court erred in determining that his
business debts were nonmarital property pursuant to the pretrial discovery orders.
CONCLUSION
We find no abuse of discretion in the district court’s decisions relating to custody of the
parties’ children, child support, valuation of the marital home, or discovery sanctions. We therefore
affirm.
AFFIRMED.
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