Dycus v. Dycus ( 2020 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
12/18/2020 08:22 AM CST
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Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
DYCUS v. DYCUS
Cite as 307 Neb. 426Debra A. Dycus, appellee, v.
Michael E. Dycus, appellant.
___ N.W.2d ___
Filed October 9, 2020. No. S-19-853.
1. Constitutional Law: Statutes. The constitutionality of a statute is a
question of law.
2. Constitutional Law: Due Process. The determination of whether the
procedures afforded to an individual comport with constitutional require-
ments for procedural due process presents a question of law.
3. Divorce: Child Custody: Child Support: Property Division: Alimony:
Attorney Fees: Appeal and Error. 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. Judges: Words and Phrases. A judicial abuse of discretion exists if the
reasons or rulings of a trial judge are clearly untenable, unfairly depriv-
ing a litigant of a substantial right and denying just results in matters
submitted for disposition.
5. Appeal and Error. In order to be considered by an appellate court, the
party asserting the alleged error must both specifically assign and spe-
cifically argue it in the party’s initial brief.
6. ____. Where an appellant’s brief contains conclusory assertions unsup-
ported by a coherent analytical argument, the appellant fails to sat-
isfy the requirement to specifically assign and specifically argue the
alleged error.
7. Marriage. The State has plenary power to fix the conditions under
which the marital status may be created or terminated.
8. Divorce. To dissolve a marriage, a court need only find that a marriage
is irretrievably broken.
9. Constitutional Law: Due Process. The U.S. and Nebraska Constitutions
provide that no person shall be deprived of life, liberty, or property with-
out due process of law.
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DYCUS v. DYCUS
Cite as 307 Neb. 42610. Due Process. Due process does not guarantee an individual any particu-
lar form of state procedure.
11. Due Process: Notice. Due process requires that parties at risk of the
deprivation of liberty interests be provided adequate notice and an
opportunity to be heard, which are appropriate to the nature of the pro-
ceeding and the character of the rights that might be affected.
12. Divorce. The court’s finding as to whether a marriage is irretrievably
broken does not depend only on the will and deliberation of the plain-
tiff spouse.
13. ____. Defendants in dissolution actions in Nebraska are given their “day
in court” to litigate the question of whether the marriage is irretriev-
ably broken.
14. Constitutional Law: Due Process: Divorce. Neb. Rev. Stat. § 42-347(3)
(Reissue 2016) does not violate the procedural due process provisions of
the U.S. and Nebraska Constitutions.
15. Constitutional Law: Legislature: Divorce. The prohibition in Neb.
Const. art. III, § 18, against the Legislature granting divorces is not
implicated by a statutory scheme of general application to all persons
seeking dissolution decrees.
16. Attorney Fees. Attorney fees and expenses may be recovered only
where provided for by statute or when a recognized and accepted uni-
form course of procedure has been to allow recovery of attorney fees.
17. Divorce: Attorney Fees. A uniform course of procedure exists in
Nebraska for the award of attorney fees in dissolution cases.
18. ____: ____. In awarding attorney fees in a dissolution action, a court
shall consider the nature of the case, the amount involved in the contro-
versy, the services actually performed, the results obtained, the length of
time required for preparation and presentation of the case, the novelty
and difficulty of the questions raised, and the customary charges of the
bar for similar services.
19. Attorney Fees: Appeal and Error. 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 in its award of attorney fees.
20. Attorney Fees: Proof: Records: Appeal and Error. If the contents of
the record show the allowed attorney fees are not unreasonable, then
those fees are not untenable or an abuse of discretion.
Appeal from the District Court for Adams County: Stephen
R. Illingworth and Terri S. Harder, Judges. Affirmed.
Robert M. Sullivan, of Sullivan Shoemaker, P.C., L.L.O.,
for appellant.
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Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
DYCUS v. DYCUS
Cite as 307 Neb. 426No 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.
Freudenberg, J.
I. NATURE OF CASE
In an appeal from a dissolution decree, the defendant chal-
lenges 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 dis-
solution actions of procedural due process and that § 42-361
constitutes special legislation in favor of plaintiffs for dis-
solution. 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 legis-
lation. We affirm the decree.
II. BACKGROUND
Debra A. Dycus filed a complaint in district court for disso-
lution 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
1
See Else v. Else, 219 Neb. 878, 367 N.W.2d 701 (1985).
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DYCUS v. DYCUS
Cite as 307 Neb. 426peace 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.
1. Motion to Dismiss
Michael, through counsel, responded with a four-page motion
to dismiss. He alleged insufficient service of process, depriva-
tion 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.
2. Overruling of Motion to Dismiss
and Issuance of Temporary Orders
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.
3. Answer
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.”
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DYCUS v. DYCUS
Cite as 307 Neb. 426Michael 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 vio-
lations 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, mar-
riage, privacy, religious belief and religious exercise without
a compelling State interest.” He asserted that the court lacked
subject matter jurisdiction.
4. Discovery
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 per-
sonal 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,
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DYCUS v. DYCUS
Cite as 307 Neb. 426and 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.
5. Decree of Dissolution
After a final hearing, the court entered a decree of dissolu-
tion. 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 coun-
selors 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 testi-
fied without further elaboration that Michael had threatened
her. Debra testified that in her opinion the marriage was irre-
trievably 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 affi-
davit of Debra’s attorney and a supporting billing statement
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DYCUS v. DYCUS
Cite as 307 Neb. 426showing 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 attor-
ney fees, the court noting that Michael’s “only focus has been
to have the Dissolution of Marriage Statute declared unconsti-
tutional.” The court awarded Debra $4,000 in attorney fees, to
be credited off her payment obligation for equalizing the prop-
erty division. Michael appealed the decree.
III. ASSIGNMENTS OF ERROR
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.
IV. STANDARD OF REVIEW
[1] The constitutionality of a statute is a question of law. 2
[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
[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 attor-
ney fees. 4
[4] A judicial abuse of discretion exists if the reasons or rul-
ings 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
2
Bryan M. v. Anne B., 292 Neb. 725, 874 N.W.2d 824 (2016).
3
In re Application No. OP-0003, 303 Neb. 872, 932 N.W.2d 653 (2019).
4
Doerr v. Doerr, 306 Neb. 350, 945 N.W.2d 137 (2020).
5
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Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
DYCUS v. DYCUS
Cite as 307 Neb. 426V. ANALYSIS
[5,6] 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
1. Facial Constitutional
Challenges to § 42-361
Michael asserts that by virtue of establishing no-fault
divorce, § 42-361 deprives defendants in dissolution actions of
procedural due process and that, for the same reason, § 42-361
is special legislation “‘granting divorces.’” 8 We note that
we need not address his conclusory statement, insufficiently
argued, that § 42-361 violates the Equal Protection Clauses of
the U.S. and Nebraska Constitutions.
[7,8] The State has plenary power to fix the conditions
under which the marital status may be created or terminated. 9
Section 42-347(3) provides in relevant part that “[d]issolution
of marriage means the termination of a marriage by decree
of a court of competent jurisdiction upon a finding that the
6
See U.S. Pipeline v. Northern Natural Gas Co., 303 Neb. 444, 930 N.W.2d
460 (2019).
7
See, e.g., Hauptman, O’Brien v. Turco, 277 Neb. 604, 764 N.W.2d 393(2009); State v. Sanders, 190 Neb. 625, 211 N.W.2d 412 (1973).
8
Brief for appellant at 15, quoting Neb. Const. art. III, § 18.
9
See Buchholz v. Buchholz, 197 Neb. 180, 248 N.W.2d 21 (1976).
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DYCUS v. DYCUS
Cite as 307 Neb. 426marriage is irretrievably broken.” This language was adopted
in 1972 to eliminate “the entire conceptual structure of fault as
a requisite for a divorce” by eliminating the requirement that
plaintiffs make specific complaint about the other spouse’s
misconduct. 10 Instead, the allegation that a marriage is irre-
trievably broken is the sole allegation necessary for dissolution
of a marriage. 11 To dissolve a marriage, a court need only find
that a marriage is irretrievably broken. 12
Michael asserts that by eliminating the conceptual struc-
ture of fault, defendants in dissolution actions are necessarily
precluded from any defense to the dissolution itself, as the
outcome “depends only on the will and deliberation of the peti-
tioning spouse.” 13 Michael claims that “[l]ittle or no procedural
protections exist” for defendants in dissolution actions, because
“there are no facts to examine other than the fact that one party
wanted the divorce and the other party did not.” 14 This alleg-
edly deprives defendants of their “day in court,” in violation of
procedural due process protections of the Nebraska and U.S.
Constitutions. 15 This also allegedly “confers an exclusive privi-
lege and immunity to the plaintiff, a private individual,” 16 in
violation of the prohibition against special legislation “granting
divorces” found in Neb. Const. art. III, § 18.
(i) Procedural Due Process
[9-11] We find no merit to Michael’s assertion that under
Nebraska’s no-fault dissolution statutes, unwilling defend­
ants in dissolution actions are being deprived, without due
10
Else v. Else, supra note 1, 219 Neb. at 880, 367 N.W.2d at 703.
11
See id.12
See id.13
Brief for appellant at 15.
14
Id. at 11.
15
Id. at 13.
16
Id. at 15.
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DYCUS v. DYCUS
Cite as 307 Neb. 426process of law, of a liberty interest in marriage. The U.S.
and Nebraska Constitutions provide that no person shall be
deprived of life, liberty, or property without due process of
law. 17 Due process does not guarantee an individual any par-
ticular form of state procedure. 18 Instead, due process requires
that parties at risk of the deprivation of liberty interests be pro-
vided adequate notice and an opportunity to be heard, which
are appropriate to the nature of the proceeding and the charac-
ter of the rights that might be affected. 19 This has been referred
to as the people’s right to their “day in court.” 20
Michael’s appeal to a “strict scrutiny” analysis of the no-fault
divorce procedure is misplaced. 21 Substantive due process for-
bids the government from infringing upon a fundamental lib-
erty interest—no matter what process is involved—unless the
infringement is narrowly tailored to serve a compelling state
interest. 22 But Michael does not refer specifically in his appel-
late brief to substantive due process. Nor does he argue that
defendants cannot be deprived of a fundamental liberty interest
in remaining married, regardless of the process involved, in
dissolution actions brought by plaintiffs no longer wishing to
remain married to defendants. Instead, Michael’s argument is
that § 42-347(3) deprives defendants of adversarial procedures
essential to procedural due process.
A similar procedural due process argument was recently
addressed in Pankoe v. Pankoe. 23 The husband argued that
no-fault divorce deprived him of due process because it was
17
U.S. Const. amends. V and XIV; Neb. Const. art. I, § 3.
18
Fetherkile v. Fetherkile, 299 Neb. 76, 907 N.W.2d 275 (2018).
19
See id. See, also, e.g., State v. Norman, 282 Neb. 990, 808 N.W.2d 48(2012).
20
See, e.g., McGavock v. City of Omaha, 40 Neb. 64, 58 N.W. 543 (1894).
21
Brief for appellant at 10.
22
See, e.g., Citizens for Eq. Ed. v. Lyons-Decatur Sch. Dist., 274 Neb. 278,
739 N.W.2d 742 (2007).
23
Pankoe v. Pankoe, 222 A.3d 443 (Pa. Super 2019).
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Cite as 307 Neb. 426based solely on the wife’s “‘viewpoint’” that the marriage
was irretrievably broken, without actionable fault, thereby mak-
ing the decree merely a ministerial act. 24 The court disagreed.
The court in Pankoe observed that the legislature had
enacted its no-fault provisions “‘for good reason: to avoid,
where possible, a contested divorce, the raw searing battle that
some commentators have likened to guerrilla warfare.’” 25 It
rejected any contention that courts, under the no-fault statu-
tory scheme, simply accept in a ministerial manner a plaintiff’s
position that the marriage is irretrievably broken. The court
explained that defendants in no-fault divorce actions are given
opportunities to object and present contrary evidence, and the
court makes a factual determination that the marriage is irre-
trievably broken upon consideration of the evidence presented
by both parties. 26
Other courts have likewise held that no-fault divorce stat-
utes satisfy the procedural due process requirements of notice
and a hearing, and they have rejected arguments that a find-
ing of an irretrievable breakdown of the marriage is merely
perfunctory. 27 The courts in In re Marriage of Franks 28 and
Ryan v. Ryan 29 noted that a finding of irretrievable breakdown
is no more perfunctory, vague, or incapable of definition than
those states’ prior fault grounds for divorce. In In re Marriage
of Franks, the grounds included having committed “‘extreme
cruelty,’” 30 and in Ryan, the grounds included having become
24
Id. at 449.
25
Id.26
See id. See, also, e.g., In re Marriage of Franks, 189 Colo. 499, 542 P.2d
845 (1975).
27
See, In re Marriage of Franks, supra note 26; Dickson v. Dickson, 238 Ga.
672, 235 S.E.2d 479 (1977); Saltarelli v. Saltarelli, 670 S.W.2d 785 (Tex.
App. 1984).
28
In re Marriage of Franks, supra note 26.
29
Ryan v. Ryan, 277 So. 2d 266 (Fla. 1973).
30
Id. at 270.
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Cite as 307 Neb. 426“‘extremely and repeatedly cruel,’” a “‘habitual drunkard,’” or
“‘impotent through immoral conduct.’” 31
The statutory scheme governing dissolution, Neb. Rev. Stat.
§§ 42-347 to 42-381 (Reissue 2016 & Cum. Supp. 2018), pro-
vides for notice to the defendant, both by providing that certain
matters must be contained in the complaint and by requiring
that a summons be served by either personal service or substi-
tute service under the conditions specified in Neb. Rev. Stat.
§ 25-517.02 (Reissue 2016). 32 Section 42-356 provides for
hearings in open court upon the oral testimony of witnesses
or upon the depositions of such witnesses. Section 42-363
provides for a waiting period such that no suit for divorce
shall be heard or tried until 60 days after perfection of service
of process.
The determinative question of whether the marriage is irre-
trievably broken is decided after a hearing in which evidence
may be adduced by both parties, and § 42-361(2) specifi-
cally provides:
If one of the parties has denied under oath or affirmation
that the marriage is irretrievably broken, the court shall
consider all relevant factors, including the circumstances
that gave rise to the filing of the complaint and the pros-
pect of reconciliation, and shall make a finding whether
the marriage is irretrievably broken.
In sum, the court is not called upon to simply determine
whether one of the parties wants a divorce.
[12,13] The court’s finding as to whether a marriage is irre-
trievably broken does not depend only on the will and delibera-
tion of the plaintiff spouse. Defendants in dissolution actions in
Nebraska are given their “day in court” to litigate the question
of whether the marriage is irretrievably broken.
31
In re Marriage of Franks, supra note 26, 189 Colo. at 507, 542 P.2d
at 851.
32
§§ 42-352 and 42-353. See, also, § 42-355.
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Cite as 307 Neb. 426[14] We hold that § 42-347(3) does not violate the pro-
cedural due process provisions of the U.S. and Nebraska
Constitutions. The recent U.S. Supreme Court decisions in
Obergefell v. Hodges 33 and United States v. Windsor 34 do not,
as Michael asserts, change this result.
Michael argues that in Obergefell and Windsor, the U.S.
Supreme Court identified new property interests in marriage. 35
He does not elaborate on what those property interests are,
merely repeating the conclusory statement that no-fault divorce
is “an illegal taking.” 36 We observe that an illegal taking is
a concept falling under the Fifth Amendment to the U.S.
Constitution and article 1, § 21, of the Nebraska Constitution,
and neither of these constitutional provisions are specifically
raised in this appeal.
In any event, we have already held, in Buchholz v. Buchholz 37
that the Nebraska no-fault divorce statutes do not deprive
defendants of a substantial vested property interest, as “mar-
riage is not an ordinary civil contract.” 38 We explained that
marriage is, instead, “a personal relationship subject to dis-
solution on terms fixed by state law.” 39 In other words, one’s
status as a married person is not property within the purview
of the Due Process Clause of the 14th Amendment to the
U.S. Constitution. After Buchholz, we stated in Roberts v.
Roberts 40 that the spouse’s challenge to Nebraska’s no-fault
33
Obergefell v. Hodges, 576 U.S. 644, 135 S. Ct. 2584, 192 L. Ed. 2d 609(2015).
34
United States v. Windsor, 570 U.S. 744, 133 S. Ct. 2675, 186 L. Ed. 2d
808 (2013).
35
Obergefell v. Hodges, supra note 33; United States v. Windsor, supra
note 34.
36
Brief for appellant at 11.
37
Buchholz v. Buchholz, supra note 9, 197 Neb. at 182, 248 N.W.2d at 22.
38
See, also, Roberts v. Roberts, 200 Neb. 256, 263 N.W.2d 449 (1978).
39
Buchholz v. Buchholz, supra note 9, 197 Neb. at 183, 248 N.W.2d at 23.
40
Roberts v. Roberts, supra note 38, 200 Neb. at 258, 263 N.W.2d at 450.
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Cite as 307 Neb. 426divorce statutes under the Due Process and Equal Protection
Clauses of the U.S. and Nebraska Constitutions “border[ed] on
the frivolous” and “merit[ed] little discussion.” We find noth-
ing referring to property interests in Obergefell or Windsor that
changes our holdings in Buchholz or Roberts. Notably, neither
U.S. Supreme Court case redefines the contract of marriage as
a property interest.
Michael’s procedural due process argument rests primar-
ily on the liberty interest in choice of identity discussed by
the U.S. Supreme Court in Obergefell before it held that the
fundamental “right to marry” 41 is held equally by same-sex
and opposite-sex couples. Michael specifically relies on the
Court’s statements in Obergefell that the liberties protected
by the Due Process Clause of the 14th Amendment include
“intimate choices that define personal identity and beliefs” 42
and “certain specific rights that allow persons, within a lawful
realm, to define and express their identity.” 43 Michael asserts
that he “has defined and expressed his identity as the spouse of
[Debra],” which is therefore a liberty interest protected by the
14th Amendment. 44
Michael fails to acknowledge that by bringing this action,
Debra expressed her own intimate choice to identify herself
as a person who is not married to Michael. There is noth-
ing in the recent U.S. Supreme Court decisions on the “right
to marry” suggesting a liberty interest in forcing a plaintiff
to stay in a broken marriage because the defendant was not
at “fault.” Nor did the Court suggest that such compulsion
would be “within a lawful realm.” To the contrary, the Court
in Obergefell pointed out that its holding was limited to “the
rights of two consenting adults.” 45
41
Obergefell v. Hodges, supra note 33, 576 U.S. at 665.
42
Id., 576 U.S. at 663.
43
Id., 576 U.S. at 651-52.
44
Brief for appellant at 8.
45
Obergefell v. Hodges, supra note 33, 576 U.S. at 679 (emphasis supplied).
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DYCUS v. DYCUS
Cite as 307 Neb. 426While the notice and opportunity to be heard must, under
procedural due process, be appropriate to both the nature of
the proceeding and the character of the rights that might be
affected, we find no merit to Michael’s argument that the lib-
erty interests recognized in Obergefell and Windsor require
something procedurally different than what is provided under
the Nebraska no-fault divorce statutes.
(ii) Special Legislation
We also disagree with Michael’s argument that § 42-347(3)
constitutes special legislation granting divorces. Neb. Const.
art. III, § 18, states in relevant part: “The Legislature shall not
pass local or special laws in any of the following cases, that is
to say: For granting divorces.”
[15] Michael asserts that § 42-347(3) is a law “‘granting
divorces,’” because the decisive question of whether the mar-
riage is irretrievably broken “depends only on the will and
deliberation of the petitioning spouse.” 46 We have already dis-
cussed that Michael’s premise that a court does not truly adju-
dicate whether the marriage is irretrievably broken is ground-
less. Furthermore, the constitutional prohibition against special
laws granting divorces refers to the legislative act of granting
divorces to specific persons. 47 The prohibition in Neb. Const.
art. III, § 18, against the Legislature granting divorces is not
implicated by a statutory scheme of general application to all
persons seeking dissolution decrees.
2. Attorney Fees
[16,17] Lastly, we address Michael’s challenge to the award
of attorney fees. Attorney fees and expenses may be recov-
ered only where provided for by statute or when a recognized
and accepted uniform course of procedure has been to allow
46
Brief for appellant at 15.
47
See, e.g., Jones v. Jones, 95 Ala. 443, 11 So. 11 (1892); State v. Duket,
90 Wis. 272, 63 N.W. 83 (1895); Justin R. Long, State Constitutional
Prohibitions on Special Laws, 60 Clev. St. L. Rev. 719 (2012).
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DYCUS v. DYCUS
Cite as 307 Neb. 426recovery of attorney fees. 48 A uniform course of procedure
exists in Nebraska for the award of attorney fees in dissolu-
tion cases. 49
[18,19] In awarding attorney fees in a dissolution action, a
court shall consider the nature of the case, the amount involved
in the controversy, the services actually performed, the results
obtained, the length of time required for preparation and pre-
sentation of the case, the novelty and difficulty of the ques-
tions raised, and the customary charges of the bar for similar
­services. 50 We review the case de novo on the record to deter-
mine whether there has been an abuse of discretion by the trial
judge in its award of attorney fees. 51
[20] A judicial abuse of discretion exists if the reasons or
rulings of a trial judge are clearly untenable, unfairly depriv-
ing a litigant of a substantial right and denying just results in
matters submitted for disposition. 52 If the contents of the record
show the allowed fees are not unreasonable, then those fees are
not untenable or an abuse of discretion. 53 We find no abuse of
discretion in the court’s award.
Michael asserts he gave Debra full access to their financial
information and did not file frivolous motions or pleadings
that caused unnecessary work, while Debra’s counsel unnec-
essarily sought a restraining order when Michael allegedly
had “never harassed or bothered [Debra] at any time before
or during the pendency of the case.” 54 Michael concludes
that if these things had been properly considered, the trial
court would have noted the amount involved in the contro-
versy was slight and the services actually performed were
48
Moore v. Moore, 302 Neb. 588, 924 N.W.2d 314 (2019).
49
Id.50
Garza v. Garza, 288 Neb. 213, 846 N.W.2d 626 (2014).
51
See Doerr v. Doerr, supra note 4.
52
Id.53
See Garza v. Garza, supra note 50.
54
Brief for appellant at 14.
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Cite as 307 Neb. 426minimal. According to Michael, the length of time required for
preparation and presentation of the case was little more than
necessary for the typical uncontested divorce, since the court
never “showed any indication that it was going to consider
[Michael’s] constitutional questions.” 55
The affidavit admitted below in support of attorney fees
reflected the time Debra’s legal team actually spent on the liti-
gation. The affidavit described in detail the nature of the legal
work performed and also set forth hourly rates. In our de novo
review, we find that the amount of time spent and rates charged
are not unreasonable. Even if we were to accept Michael’s
characterization that he had never harassed Debra, we find no
evidence that this contested portion of Debra’s motion for tem-
porary orders took more than a nominal amount of her attor-
ney’s time. The court granted other requests in the motion, and
we do not find that it was frivolous.
VI. CONCLUSION
For the foregoing reasons, we decline to find the no-fault
divorce statutory scheme found at §§ 42-347 to 42-381 uncon-
stitutional based upon the challenges made in this appeal. We
affirm the dissolution decree.
Affirmed.
55
Id. at 15.