- 426 -

Nebraska Supreme Court Advance Sheets

307 Nebraska Reports

DYCUS v. DYCUS

Cite as 307 Neb. 426

Debra 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 requirements 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 depriving 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 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 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 without due process of law.

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

12/25/2020 12:11 AM CST
- 427 -

Nebraska Supreme Court Advance Sheets

307 Nebraska Reports

DYCUS v. DYCUS

Cite as 307 Neb. 426

10. Due Process. Due process does not guarantee an individual any particular 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 proceeding 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 plaintiff spouse.

13. ____. Defendants in dissolution actions in Nebraska are given their “day 

in court” to litigate the question of whether the marriage is irretrievably 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 uniform 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 controversy, 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.
- 428 -

Nebraska Supreme Court Advance Sheets

307 Nebraska Reports

DYCUS v. DYCUS

Cite as 307 Neb. 426

No 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 challenges 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 dissolution actions of procedural due process and that § 42-361 

constitutes special legislation in favor of plaintiffs for dissolution. 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 legislation. We affirm the decree.

II. BACKGROUND

Debra A. Dycus filed a complaint in district court for dissolution 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).
- 429 -

Nebraska Supreme Court Advance Sheets

307 Nebraska Reports

DYCUS v. DYCUS

Cite as 307 Neb. 426

peace 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, deprivation 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.”
- 430 -

Nebraska Supreme Court Advance Sheets

307 Nebraska Reports

DYCUS v. DYCUS

Cite as 307 Neb. 426

Michael 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 violations 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, marriage, 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 personal 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, 
- 431 -

Nebraska Supreme Court Advance Sheets

307 Nebraska Reports

DYCUS v. DYCUS

Cite as 307 Neb. 426

and 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 dissolution. 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 counselors 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 testified without further elaboration that Michael had threatened 

her. Debra testified that in her opinion the marriage was irretrievably 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 affidavit of Debra’s attorney and a supporting billing statement 
- 432 -

Nebraska Supreme Court Advance Sheets

307 Nebraska Reports

DYCUS v. DYCUS

Cite as 307 Neb. 426

showing 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 attorney fees, the court noting that Michael’s “only focus has been 

to have the Dissolution of Marriage Statute declared unconstitutional.” The court awarded Debra $4,000 in attorney fees, to 

be credited off her payment obligation for equalizing the property 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 attorney fees. 4

[4] 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. 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 Id.
- 433 -

Nebraska Supreme Court Advance Sheets

307 Nebraska Reports

DYCUS v. DYCUS

Cite as 307 Neb. 426

V. 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).
- 434 -

Nebraska Supreme Court Advance Sheets

307 Nebraska Reports

DYCUS v. DYCUS

Cite as 307 Neb. 426

marriage 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 irretrievably 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 structure 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 petitioning 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 allegedly 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 privilege 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.
- 435 -

Nebraska Supreme Court Advance Sheets

307 Nebraska Reports

DYCUS v. DYCUS

Cite as 307 Neb. 426

process 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 particular form of state procedure. 18 Instead, 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 proceeding and the character 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 forbids the government from infringing upon a fundamental liberty 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 appellate 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).
- 436 -

Nebraska Supreme Court Advance Sheets

307 Nebraska Reports

DYCUS v. DYCUS

Cite as 307 Neb. 426

based solely on the wife’s “‘viewpoint’” that the marriage 

was irretrievably broken, without actionable fault, thereby making 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 statutory 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 irretrievably broken upon consideration of the evidence presented 

by both parties. 26

Other courts have likewise held that no-fault divorce statutes satisfy the procedural due process requirements of notice 

and a hearing, and they have rejected arguments that a finding 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.
- 437 -

Nebraska Supreme Court Advance Sheets

307 Nebraska Reports

DYCUS v. DYCUS

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), provides 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 substitute 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 irretrievably broken is decided after a hearing in which evidence 

may be adduced by both parties, and § 42-361(2) specifically 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 prospect 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 irretrievably broken does not depend only on the will and deliberation 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.
- 438 -

Nebraska Supreme Court Advance Sheets

307 Nebraska Reports

DYCUS v. DYCUS

Cite as 307 Neb. 426

[14] We hold that § 42-347(3) does not violate the procedural 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 “marriage is not an ordinary civil contract.” 38 We explained that 

marriage is, instead, “a personal relationship subject to dissolution 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.
- 439 -

Nebraska Supreme Court Advance Sheets

307 Nebraska Reports

DYCUS v. DYCUS

Cite as 307 Neb. 426

divorce 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 nothing 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 primarily 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 nothing 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).
- 440 -

Nebraska Supreme Court Advance Sheets

307 Nebraska Reports

DYCUS v. DYCUS

Cite as 307 Neb. 426

While 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 liberty 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 marriage is irretrievably broken “depends only on the will and 

deliberation of the petitioning spouse.” 46 We have already discussed that Michael’s premise that a court does not truly adjudicate whether the marriage is irretrievably broken is groundless. 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 recovered 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).
- 441 -

Nebraska Supreme Court Advance Sheets

307 Nebraska Reports

DYCUS v. DYCUS

Cite as 307 Neb. 426

recovery of attorney fees. 48 A uniform course of procedure 

exists in Nebraska for the award of attorney fees in dissolution 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 presentation of the case, the novelty and difficulty of the questions raised, and the customary charges of the bar for similar 

services. 50 We review 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. 51

[20] 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. 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 unnecessarily 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 controversy 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.
- 442 -

Nebraska Supreme Court Advance Sheets

307 Nebraska Reports

DYCUS v. DYCUS

Cite as 307 Neb. 426

minimal. 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 litigation. 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 temporary orders took more than a nominal amount of her attorney’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 unconstitutional based upon the challenges made in this appeal. We 

affirm the dissolution decree.

Affirmed.

55 Id. at 15.