Appeal Filed against No-Fault Divorce in Nebraska

UPDATE

Sept. 27, 2019: Nebraska Rev. Stat. § 25-2730 shows the district  delays taking property from an appealing party if the appellant deposits with the clerk of court a cash bond. Public record shows “09/27/2019 Bond  2847 FILED.”

Sept. 30, 2019: Defending husband’s appellate brief is due on November 25th and wife’s appellee brief is due on December 25th.

Nov. 12, 2019: Judge orders husband leave home at noon, Dec. 6, or else “Sheriff’s Office shall assist the Plaintiff in removing the Defendant from the marital home.”

SEPTEMBER 23, 2019
A challenge against the constitutionality of no-fault divorce is being made in the Nebraska Court of Appeals. Attorney Bob Sullivan submitted his notice of appeal on September 6 against a divorce issued in the District Court of Adams County.  Public records show his repeated pleas to the lower court: Dec. 20, 2018 Motion to Dismiss; April 3, 2019 Answer to Divorce Complaint; June 20, 2019 Closing Arguments (see links below).

Husband Might be Evicted from his Own Home

On September 23, the Judge is scheduled to decide whether to have the state “exclude” Sullivan’s client, the Defendant-husband, from the marital home. The wife, who left the marital home almost a year ago, was awarded the home by the judge, though the husband worked full-time during the duration of the marriage to buy that home. The husband is charged for over half of wife’s attorney fees. In the Judge’s balance sheet, the assets were evenly split and the Judge decided the wife owes the husband $5026 to be paid at $200/month.

Attorney Robert M. Sullivan
Sullivan Shoemaker P.C.
Hastings, NE

No Right of Defense

Unilateral no-fault divorce occurs when a plaintiff sues the defendant, but there is no trial in which the defendant is accused of some illegal actions against which he can attempt to defend himself. Sullivan wrote in his Motion to Dismiss, “the divorce statute serves as a ruse that reduces divorce proceedings to non-judicial administrative actions,” and “Plaintiff lacks standing because no injury-in-fact has been pleaded.”

Viewpoint discrimination occurs in no-fault divorce when laws favor the viewpoint of the plaintiff who feels her marriage is “irretrievably broken” and courts must always rule against the viewpoint of the defendant who feels the marriage is not irretrievable broken. In Nebraska, every plaintiff who reneges on her marriage promises who invokes the no-fault divorce system must simply allege that her marriage is “irretrievably broken.” In the Motion to Dismiss, Sullivan wrote, “A ‘no-fault’ divorce relies upon the plaintiff’s private interests.” […] “[I]t grants to a private individual an exclusive privilege and immunity to procure a divorce without legal challenge.”

Some who support no-fault divorce on demand say we must have unilateral no-fault divorce to protect abused women.  However, if all laws were tailored to waive the obligation of proof for every accuser, we could end up with laws that reward all accusers to the detriment of the accused and harm the common good. For example, what if all the car dealers got legislation passed that allowed them to repossess any car after making the sentimental accusation, “we feel the purchase/loan agreement is irretrievably broken”?  A customer who always makes his monthly car payments would be treated the same as the customer who hadn’t made payments for years because the court has no interest in who is at fault. All would have their cars repossessed.

No-fault Divorce Interferes with Religious Liberty

Sullivan is representing a Defendant-husband who entered marriage with the Plaintiff in the Catholic Rite of Marriage. The husband, Michael Dycus, says both he and his wife still profess to be practicing Catholics. The Nebraska civil statutes show that parties can be married by a Catholic priest and parties marry “according to the rites and customs of the society to which they belong” (Neb. Rev. Stat. § 42-115). Moreover, if a Catholic priest were to solemnized a marriage without parties getting the required state marriage license, the priest would be guilty of a Class I misdemeanor (Neb. Rev. Stat. § 42-104 & 113). Sullivan argues that the divorce statute implicates the free exercise of religion clause of the Nebraska and U.S. Constitutions. About the husband and wife, Sullivan says in his April 2019 answer to the divorce complaint, “Their vows constituted an explicit waiver of dissolution without a finding that the marriage was invalid, or without an allegation and finding that one of the parties had engaged in behavior which warranted relief.” For Catholics, civil divorce is nothing more than a case of separation of spouses and the Catholic fault based grounds for separation are in the Code of Canon Law (canons 1151-1155).

Judge’s Divorce Decree Avoided Ruling on Constitutionality

District Court Judge Terri Harder issued on February 1, 2019 an order overruling the Defendant’s Motion to Dismiss without giving any reasons. In the August divorce decree, called a “Decree of Dissolution,” District Court Judge Stephen Illingworth did not rule on whether the no-fault divorce statute was unconstitutional. Instead, he wrote that Sullivan’s argument did not meet the Defendant’s burden of proof.   Judge Illingworth made no findings addressing any of the specific constitutional issues raised by Sullivan, and instead said, “The burden of challenging the unconstitutionality of a statue is on the one attacking its validity.”  Sullivan says the opposite in the Motion to Dismiss; because the statute directly interferes with fundamental rights of marriage, privacy, religious belief and religious exercise, the burden of proof is on the state, and the strict scrutiny standard must be applied. “The State must, therefore, prove that the divorce statute serves a compelling State interest; that the statute is narrowly tailored to effectuate the compelling State interest; and that the statute is the least restrictive means for achieving the compelling State interest” (Dec. 20, 2018 Motion to Dismiss).

In Sullivan’s closing argument that he submitted during the June 20 divorce trial, he described the social experiment that is underway:

The-Insiders-Guide-to-the-Nebraska-Appellate-Courts, show that the court reporter is to file the transcripts of the trial proceedings within seven weeks after its request, and the appellant brief is due one month after the transcripts are due. So, Sullivan’s Appellant Brief would be due in late November.

Many issues challenging the constitutionality of no-fault divorce are preserved in the record. In his divorce decree, Judge Illingworth acknowledged that, “No fault divorce was enacted in Nebraska in 1972 and the Court is unaware of any case law where the law has been challenged as unconstitutional.” He knows that it has never been challenged and found to be constitutional.

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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.