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Carlson v. Carlson

Supreme Court of Nebraska

April 6, 2018

Mark Alan Carlson, appellant,
Karen Sue Carlson, appellee.

         1. Declaratory Judgments. An action for declaratory judgment is sui generis; whether such action is to be treated as one at law or one in equity is to be determined by the nature of the dispute.

         2. Divorce: Judgments: Appeal and Error. The meaning of a divorce decree presents a question of law, in connection with which an appellate court reaches a conclusion independent of the determination reached by the court below.

         3. Declaratory Judgments: Appeal and Error. When a declaratory judgment action presents a question of law, an appellate court has an obligation to reach its conclusion independently of the conclusion reached by the trial court with regard to that question.

         4. Divorce: Judgments: Property Settlement Agreements: Contracts. Once a property settlement agreement has been incorporated into a dissolution decree, the contractual character of the agreement is subsumed into the court-ordered judgment. At that point, the court and the parties are no longer dealing with a mere contract between the parties.

         5. Divorce: Judgments: Property Settlement Agreements: Final Orders. A decree is a judgment, and once a decree for dissolution becomes final, its meaning, including the settlement agreement incorporated therein, is determined as a matter of law from the four corners of the decree itself.

         6. Judgments: Appeal and Error. Whether a judgment is ambiguous is a question of law for which the appellate court has an obligation to reach a conclusion independent from the lower court's conclusion.

         7. Judgments: Words and Phrases. Ambiguity in a judgment exists when a word, phrase, or provision therein has, or is susceptible of, at least two reasonable but conflicting interpretations or meanings.

         8. Judgments: Parties. The fact that the parties advance differing interpretations does not, by itself, compel the conclusion that a judgment is ambiguous.

         [299 Neb. 527] 9. Divorce: Judgments: Appeal and Error. Even if ambiguity exists in a dissolution decree, its meaning nevertheless presents a question of law that an appellate court reviews de novo.

         10. Courts: Child Support: Minors. As a general rule, absent agreement of the parties, a Nebraska district court cannot order a party to pay child support beyond the age of majority.

         11. Courts: Divorce: Jurisdiction:

         Property Settlement Agreements: Child Support: Minors. In the exercise of its broad jurisdiction over marriage dissolutions, a district court retains jurisdiction to enforce all the terms of approved property settlement agreements, including agreements made to support children of the marriage past the age of majority.

         12. Courts: Property Settlement Agreements: Child Support: Minors. If the parties voluntarily include a provision for post-majority child support in an approved property settlement agreement, a district court has the authority to enforce that provision.

         13. Modification of Decree: Property Settlement Agreements: Child Support: Minors. A provision for post-majority child support in an approved property settlement agreement can be modified either as agreed to by the parties in the agreement or according to the general standard for modifying an approved property settlement agreement under Nebraska law.

         14. Divorce: Motions to Vacate: Modification of Decree: Property Settlement Agreements. Where parties to a divorce action voluntarily execute a property settlement agreement which is approved by the dissolution court and incorporated into a divorce decree from which no appeal is taken, its provisions as to real and personal property and maintenance will not thereafter be vacated or modified in the absence of fraud or gross inequity.

         15. Divorce: Attorney Fees: Appeal and Error. In an action for the dissolution of marriage, the award of attorney fees is discretionary with the trial court, is reviewed de novo on the record, and will be affirmed in the absence of an abuse of discretion.

          Appeal from the District Court for Douglas County: Leigh Ann Retelsdorf, Judge. Affirmed.

          Adam E. Astley and Kathryn D. Putnam, of Astley Putnam. PC, L.L.O., for appellant.

          Benjamin M. Belmont and Wm. Oliver Jenkins, of Brodkey, Peebles, Belmont & Line, L.L.P, for appellee.

         [299 Neb. 528] Heavican, C.J., Miller-Lerman, Cassel, Stacy, Kelch, and Funke, JJ.

          Stacy, J.

         This appeal arises from a dispute over the meaning of provisions in a divorce decree and incorporated property settlement agreement (PSA) regarding payment of post-majority child support. The district court construed the decree and incorporated PSA to require the father to pay post-majority child support if certain conditions were met, and it denied the father's request to modify such support. Finding no error, we affirm.


         Mark Alan Carlson and Karen Sue Carlson married in 1994 and divorced in March 2008. Three children were born during the marriage. At the time of the divorce, the children were 6, 8, and 10. Mark and Karen are both physicians, but Karen did not actively practice medicine during most of their marriage.

         The parties represented themselves during their divorce. Through mediation, they reached an agreement on the division of their assets and debts, the custody and support of their children, and the payment of alimony. The mediator drafted the parties' PSA and the dissolution decree. The record on appeal does not include the hearing at which the parties proved up their PSA and asked the court to approve it, but it does contain the signed and notarized PSA, as well as the consent decree entered by the court.

         As relevant here, the parties agreed they would have joint legal custody of the children and Karen would have physical custody. Mark agreed to pay both child support and alimony. The decree addressed child support as follows:

[Mark] shall pay . . . child support . . . commenc[ing] on the first day of the first month following the entry of the decree and shall continue to [pay] each month thereafter, until the child reaches the age of majority under Nebraska law, becomes emancipated, becomes [299 Neb. 529] self-supporting, marries or dies, or until further order of the court.

         The decree also recited that the parties had negotiated a PSA which the court had examined and "found to be fair and reasonable and conscionable." According to the decree, a signed copy of the PSA had been filed with the clerk and the agreement was "incorporated [in the decree] with the same force and effect as if set forth in this decree in its entirety." The decree further recited that the "parties' [PSA] shall be enforced by all remedies available for the enforcement of a judgment, including contempt proceedings." No party appealed from the entry of the decree.

         Incorporated PSA

         Section 3 of the PSA is titled "Child Support and Expenses, Educational Expenses, Health Insurance and Care Expenses and Life Insurance." It provides in relevant part:

3.01 Terms and Definitions.
(2) Age of Majority The age of majority for most legal purposes is 19 and generally defines when child support is terminated unless the parties agree otherwise, or circumstances set by law apply.
(4) Support Past Age 19: A child will not be determined to be emancipated and child support may continue past age 19 in the following circumstances:
a. If a child attends college or vocational training, child support may continue until age 27 or graduation from college, trade school, or graduate school, whichever occurs first. (The child must be regularly attending college (enrolled in 12 or more credit hours of course work per semester) or a vocational school. (However, the parties intend to allow some flexibility in the child's college attendance, therefore a child may have up to two (2) semester[s] of nonattendance at school, not [299 Neb. 530] including summer vacations, without being understood to be emancipated.[)]
3.02 Child Support
(1) MARK shall pay to KAREN the amount of $2, 400.00 per month for the support of three children, $2, 089.00 per month when two children remain eligible for support and $1, 468.00 per month when only one child is eligible for child support. Child support will be payable until each child reaches majority, becomes emancipated, marries or dies or until further order of the court as provided by law.

         For the sake of completeness, we note the PSA contains a definition of "emancipation" which does not expressly reference post-majority child support. Neither party suggests that provision is determinative of the issues presented, so we do not address it. We also note the PSA addressed payment of post-majority child support if a child becomes mentally or physically incapacitated, but the parties did not seek a declaratory judgment regarding the interpretation of such provisions so we express no opinion thereon.

         Complaint to Modify

         In March 2010, Mark filed a complaint to modify the decree as it regarded post-majority child support, alimony, health care expenses, and college expenses. He claimed, inter alia, that the court lacked jurisdiction to order child support after a child attained the age of majority, and he claimed he should not be required to pay both post-majority child support and college expenses for the same child.

         In January 2011, the parties stipulated to an order modifying the decree to, among other things, reduce Mark's alimony payment and increase his monthly child support obligation. The stipulated order reflected that Mark had withdrawn "without prejudice" his request for an order terminating his obligation to pay post-majority child support. And the stipulated order [299 Neb. 531] expressly provided that all provisions of the decree and PSA "not specifically altered by this Order shall remain in full force and effect."

         Contempt Proceedings

         In January 2015, the parties' oldest child turned 19. She was a full-time college student at the time. Mark stopped paying child support for this child, and Karen filed an application to show cause why Mark should not be held in contempt of court for willfully failing to pay post-majority child support.

         At the show cause hearing, both Mark and Karen were represented by counsel. After a meeting in chambers between the court and counsel, Karen withdrew her contempt application and instead filed the ...

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