Appeal Argument Submitted: Challenge No-Fault in Nebraska

By Bai Macfarlane
Attorney, Bob Sullivan, submitted his appeal argument challenging the constitutionality of Nebraska’s no-fault divorce statute. The statute shows that every plaintiff who makes the allegation that the marriage is irretrievably broken has grounds for dissolution of marriage (Neb. Rev. St. §42-361). Thereafter, the divorce judge ostensibly takes full control over any minor children, all the property, and all the future income of the parties.

Bob Sullivan

Sullivan is working on behalf of a defendant-husband who entered Catholic marriage with  plaintiff-wife in 1986. As a bride, she promised to be true to her husband in good times and in bad, in sickness and in health, and to love and honor him all the days of her life (see Rite of Marriage).  Catholic marriage entails fault-based grounds for separation and for invalidity (i.e. annulment).

The appeal brief says the Nebraska statute is unconstitutional and the court made multiple errors: denying the husband’s motion to dismiss the case, finding that the marriage was irretrievably broken, dividing property, granting the wife the sole ownership of the marital home, and ordering the defendant to pay wife’s attorney fees. Find the Brief of Appellant filed December 23, 2019 in list of Court Events below. Mary’s Advocates publicized the video the husband made on December 6th when he was evicted from his home by the divorce judge and the sheriff.

No-fault divorce violates the defendant’s constitutional right to due process and equal protection under the law, says Sullivan.  Because the appeal deals with a constitutional question, Sullivan asked the case to be decided by the Nebraska Supreme Court, not the intermediate Court of Appeals (see flow chart of NE courts).

Violation of Due Process and Equal Protection

The power of states’ legislatures is limited by the U.S. Constitution, so when states interfere with fundamental liberties, there are principles that must be followed; otherwise, the law is unconstitutionally violating one’s right to due process.  If the state law takes someone’s property or deprives him of a fundamental liberty, the state must adhere to principles of strict scrutiny. Regarding marriage, for example, anyone (who is counting on his spouse to uphold her marriage promises) can ask the state to prove how it serves the state’s interest to deprive him of much of the marital property and everyday access to his children just because his wife reneges on her marriage promises.  Sullivan discusses strict scrutiny standards in his appeal brief:

Sullivan cites two recent US Supreme Court decisions to support his argument that marriage entails property rights and is a “fundamental right inherent in the liberty of the person” (p. 9). He cites the 2015 Obergefell Supreme Court decision that secured same-sex marriage, and the 2013 Windsor decision that secured a widow’s rights of inheritance in same-sex marriage.

Unconstitutional to have “special legislation” for “private individual”

If a law is unconstitutional, it is void law and should not be enforced, says Sullivan. When a statute is unconstitutional, jurisdiction of the court over the issues in the case is absent. The brief explains that the divorce statute “does not regulate behavior.”  The allegation of irretrievable breakdown “depends only on the will and deliberation of the petitioning spouse.” Because the assertion is based on opinion, feeling, and emotion, there are no facts that defendant-husband can assert to win the case and prevent the plaintiff from being granted her divorce.

Moreover, Sullivan argues that no-fault “confers an exclusive privilege and immunity to the plaintiff, a private individual. This is a violation of prohibited legislation granting exclusive privileges and immunities to private individuals (Neb. Const. art. III, §18).” In the early 1800’s, a petitioning husband could get his state’s legislators to vote affirming a special law, relevant only to his marriage, and enact his bill of divorce. Yale Law School Professor Simeon E. Baldwin published in 1914 the article  Legislative Divorce and the 14th Amendment and he describes how a husband “could sue before the legislature without notifying her, and secure the divorce when she had no knowledge of the proceeding and no opportunity to appear in opposition” (p. 702).  The Nebraska constitution in 1875 established that this practice was unconstitutional. The impossibility of opposing a divorce is a constitutional violation. Sullivan says, “The notion that a divorce can be contested in a no-fault state, is pure legal fiction” (p. 15).

What’s Next

Sullivan’s Brief of Appellant was filed with the Nebraska Court of Appeals on December 23 and the plaintiff-wife (appellee) brief is due within one month thereafter (source, Insider’s Guide to NE Appellate Courts).

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COURT EVENTS

Nov. 12, 2018  – Wife’s Complaint for Divorce
Dec. 20, 2018 – Husband’s Motion to Dismiss
Feb. 1, 1019 – District Judge Harder Court Overrules Motion to Dismiss
April 3, 2019 – Husband’s Answer to Divorce Complaint
June 20, 2019 – Trial, Mary’s Advocate obtained Defendant’s Closing Arguments.
June 20, 2019 – Husband notify Nebraska Attorney General and US A.G.
Aug. 28, 2019 –  District Judge Illingworth Court Divorce Decree of Dissolution
Sept. 6, 2019 – Husband Notice of Appeals
Sept. 6, 2019 – Court of Appeals Received and Assign Case Number
Sept. 12, 2019 – Wife’s Motion to Exclude husband from home
Sept. 17, 2019 – Hearing Schedule for Sept. 23 to decide whether to Exclude (evict).
Nov. 12, 2019 – Judge orders husband leave home on Dec. 6 w/ Sheriff enforcement
Dec. 23, 2019 – Husband asks Nebraska Supreme Court to decide case
Dec. 23, 2019 – Husband submits his argument, Brief of Appellant