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.
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.
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.
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.
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
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.
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.
Judgments: Parties. The fact that the
parties advance differing interpretations does not, by
itself, compel the conclusion that a judgment is ambiguous.
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.
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.
Courts: Divorce: Jurisdiction:
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.
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.
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.
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.
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.
from the District Court for Douglas County: Leigh Ann
Retelsdorf, Judge. Affirmed.
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.
Neb. 528] Heavican, C.J., Miller-Lerman, Cassel, Stacy,
Kelch, and Funke, JJ.
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.
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.
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.
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
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.
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.
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.
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.
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
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
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 ...