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Gomez v. Gomez

Supreme Court of Nebraska

July 5, 2019

Elizabeth A. Gomez, now known as Elizabeth A. Tonniges, APPELLANT,
v.
PATRICK W. GOMEZ, APPELLEE.

         1. 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.

         2. Contracts: Evidence. Contracts found to be ambiguous present a question of fact and permit the consideration of extrinsic evidence to determine the meaning of the contract.

         3. Divorce: 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.

         4. Evidence: Records: Appeal and Error. A bill of exceptions is the only vehicle for bringing evidence before an appellate court; evidence which is not made a part of the bill of exceptions may not be considered.

         5. Visitation. A party seeking to modify visitation has the burden to show a material change in circumstances affecting the best interests of the child.

          Appeal from the District Court for Douglas County: Peter C. Bataillon, Judge.

          Aaron F. Smeall and Jacob A. Acers, of Smith, Slusky, Pohren & Rogers, L.L.P., for appellant.

          Adam R. Little, of Ballew Hazen, PC, L.L.O., for appellee.

          Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ.

          [303 Neb. 540] Papik, J.

         In the course of their divorce proceedings, Patrick W. Gomez and Elizabeth A. Gomez, now known as Elizabeth A. Tonniges, agreed to a stipulated parenting plan. That plan, which was later incorporated in the decree dissolving their marriage, gave Patrick and Elizabeth joint legal and physical custody of their two children and set forth a schedule in which the parents would exercise parenting time. The parenting plan also included a provision that the children "will be enrolled and be participants in the Catholic religion" and set forth several specific Catholic religious activities in which the children would participate. Attendance at Catholic Mass. was not mentioned.

         Years later, Patrick filed a motion alleging that Elizabeth was not complying with the language in the parenting plan regarding the children's religious participation. In response to Patrick's motion, the district court entered an order requiring Elizabeth either to bring the children to Catholic Mass. every weekend in which she was exercising parenting time or to allow Patrick to take the children during her parenting time. It also required the children to attend Catholic Mass. on Catholic "Holy Days of Obligation" and required Patrick and Elizabeth to coordinate to ensure their attendance on those days. We find that the parenting plan did not require the Mass. attendance ordered by the district court. Accordingly, we vacate that portion of the district court's order requiring Mass. attendance. Because there are other parts of the order not challenged by Elizabeth, we otherwise affirm.

         BACKGROUND

         Dissolution Decree and Parenting Plan.

         Patrick and Elizabeth were married in April 2010. During their marriage, the parties had two children, one born in 2011 and the other born in 2013.

          [303 Neb. 541] Approximately 5 years after their marriage, Elizabeth filed an action for dissolution. In that action, the parties agreed to a stipulated parenting plan that was later approved by the district court and incorporated in a decree dissolving the ...


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