Mitchell v. Mansfield

COLLEEN E. MITCHELL, APPELLEE, v. C. HUGHSON MANSFIELD, APPELLANT.

No. A-15-1118.

NEBRASKA COURT OF APPEALS

November 29, 2016

MEMORANDUM OPINION AND JUDGMENT ON APPEAL

(Memorandum Web Opinion)

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).

Appeal from the District Court for Dawes County: TRAVIS P. O'GORMAN, Judge. Affirmed.

Terrance O. Waite and Kortnei N. Hoeft, of Waite, McWha & Heng, for appellant.

Andrea D. Miller, of Simmons Olsen Law Firm, P.C., for appellee.

MOORE, Chief Judge, and RIEDMANN and BISHOP, Judges.

MOORE, Chief Judge.

I. INTRODUCTION

C. Hughson Mansfield appeals from the order of the district court for Dawes County, which dissolved his marriage to Colleen E. Mitchell. Hughson assigns error to certain aspects of the court's determination, valuation, and division of the marital estate; the calculation of child support; the award of attorney fees; and the admission of certain evidence. He also assigns error to certain procedural rulings, or the lack thereof, by the district court and argues that he was denied procedural due process. For the reasons set forth herein, we affirm.

II. BACKGROUND

The parties were married on October 2, 1993. They have two children, one born in January 1996 and one born in February 1999. The parties separated sometime between 2008 and January 2010.

Hughson is employed as an "HVAC" (heating, ventilation, air conditioning) installer. He also has an electrical license. In January 2005, the parties formed Mansfield Enterprises, Inc. (MEI), in which they each had a one-half interest. During the marriage Colleen worked for Hughson's HVAC business in various capacities, both before and after its incorporation as MEI, and she was an officer and director of MEI. In December 2009, the parties signed a shareholder agreement, and Colleen resigned her position as a director and secretary of MEI. Eventually, Hughson agreed to sell his one-half interest in MEI to John Lecher Zapata for $14,500, although his stock had not yet been transferred on the corporate books to Zapata at the time of trial. After agreeing to sell his interest in MEI to Zapata, Hughson opened a new HVAC business called Fire and Ice.

Colleen is a veterinarian. During the marriage, in addition to working for MEI, she owned and operated a veterinary practice called Animal Care Clinic. In January 2014, Colleen was diagnosed with and subsequently underwent treatment for cancer. At the time of trial, Colleen was working as a college instructor teaching veterinary technology. Since taking this job, the amount of business conducted by Animal Care Clinic has "definitely gone down."

In 2010, Hughson filed a complaint for dissolution of marriage in the district court (the first divorce case). On January 24, 2014, Hughson dismissed the first divorce case. On February 3, Colleen filed a complaint for dissolution of marriage in the district court (the second divorce case). Hughson filed an answer and counterclaim and later filed a motion seeking temporary custody of the children.

On February 28, 2014, the district court entered an order, awarding Colleen temporary legal and physical custody of the children. The court ordered Hughson to pay temporary child support of $3,000 per month, reduced to $1,500 per month for one child. The court stated that Colleen was to continue to receive $2,500 in monthly rental income. The court ordered the parties to not "transfer, encumber, hypothecate, conceal, or in any way dispose of real or personal property except in the usual course of business or for the necessaries of life" and to not "molest or disturb the peace of the other."

Hughson's attorney was permitted to withdraw on September 24, 2014, and Hughson appeared pro se at trial, which was held before the district court on April 27-28, 2015. By the time of trial, the parties had agreed to a parenting plan that provided Colleen would have sole legal and physical custody of the parties' remaining minor child. The parties had also reached an agreement with regard to the division of their personal property, but Colleen testified that Hughson had not given her certain property and asked the court to award her $600 to equalize that division. As pertinent to this appeal, the court heard evidence on the issues of child support and the valuation and division of the parties' remaining property. The record is voluminous, and for the sake of brevity, we have set forth the evidence relevant to each of Hughson's assignments of error on appeal in the corresponding argument sections below.

On August 7, 2015, the district court entered a decree dissolving the parties' marriage. Pursuant to the parties' agreement, the court granted Colleen sole legal and physical custody of the parties' remaining minor child, an arrangement the court found to be in the child's best interests. Also pursuant to the parties' agreement, the court did not grant Hughson specific visitation rights, but ordered that he may contact the child as he chooses and that Colleen may notrestrict his ability to attempt to contact the child and reestablish a relationship with her. The court ordered Hughson to pay child support of $1,750 per month.

With respect to division of the marital estate, the court awarded personal property pursuant to the parties' agreement and awarded Colleen a judgment of $600 to equalize that division. The court awarded Colleen real property totaling $1,205,000. This included ranch property located in Sioux County, which the court considered entirely marital property and valued at $665,000. The court awarded Hughson real property valued at $30,000. The court determined that Colleen's current residence was nonmarital property as it was purchased after the date of separation with nonmarital funds. The court divided the parties' interest in certain Alaskan property equally. Each party was awarded whatever retirement accounts, bank accounts, investment accounts and life insurance that were in his or her own name, free and clear of any claim by the other party. The court valued Hughson's accounts at $915,000 and Colleen's at $210,000. After taking into consideration premarital amounts set aside to Colleen, the court valued the veterinary practice at $52,500 and awarded it to her. The court valued MEI at $1,649,000 and awarded it to Hughson. The court awarded each party any and all motor vehicles currently in his or her possession together with any associated debt, and it ordered certain insurance proceeds to be split equally by the parties. In addition to the personal property awarded, which the court did not specifically value beyond specifying the $600 equalization payment, the court awarded Hughson marital property totaling $2,594,000 and Colleen marital property totaling $1,476,500. Accordingly, it ordered Hughson to make an equalization payment to Colleen of $600,000 for the non-personal property.

In addition to the equalization payments set forth above, the district court awarded Colleen $175,000 for K-1 income from MEI she did not receive from 2010-2013 and $13,500 as reimbursement for half the appraisal fees she incurred. The court awarded Colleen attorney fees of $30,000 and denied her request for alimony. The total money judgment awarded to Colleen against Hughson was $819,100.

After trial, Hughson retained new counsel, and his attorney filed a motion for new trial on August 14, 2015. The district court denied Hughson's motion, and Hughson subsequently perfected his appeal to this court.

III. ASSIGNMENTS OF ERROR

Hughson asserts, reordered and restated, that the district court erred in (1) denying him due process and the right to a fair trial; (2) classifying the parties' property as marital or nonmarital and in valuing and dividing the marital estate; (3) calculating Colleen's income for child support purposes; and (4) determining its award of attorney fees to Colleen.

IV. STANDARD OF REVIEW

In actions for dissolution of marriage, 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. Sellers v. Sellers, 294 Neb. 346, 882 N.W.2d 705 (2016). This standard of review applies to the trial court's determinations regarding custody, child support, division of property, alimony, and attorney fees. Id. A judicial abuse of discretion exists if the reasons or rulings of a trial judge are clearlyuntenable, unfairly depriving a litigant of a substantial right and denying just results in matters submitted for disposition. Stanosheck v. Jeanette, 294 Neb. 138, 881 N.W.2d 599 (2016).

An appellate court reviews a trial court's ruling on a motion for a new trial for abuse of discretion. Hartley v. Metropolitan Util. Dist., 294 Neb. 870, 885 N.W.2d 675 (2016).

V. ANALYSIS

1. DUE PROCESS CLAIMS

Hughson asserts that the district court erred in denying him due process and the right to a fair trial. While the concept of due process defies precise definition, it embodies and requires fundamental fairness. Linda N. v. William N., 289 Neb. 607, 856 N.W.2d 436 (2014). Generally, procedural due process requires parties whose rights are to be affected by a proceeding to be given timely notice, which is reasonably calculated to inform the person concerning the subject and issues involved in the proceeding; a reasonable opportunity to refute or defend against a charge or accusation; a reasonable opportunity to confront and cross-examine adverse witnesses and present evidence on the charge or accusation; representation by counsel, when such representation is required by constitution or statute; and a hearing before an impartial decisionmaker. Id.

(a) Testimony by Colleen's Attorney/Cross-Examination

Hughson argues that he was denied due process because the district court allowed Colleen's counsel to testify as a witness and denied him the opportunity to cross-examine both Colleen and her attorney.

At the start of trial,...