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313 Nebraska Reports

MACKIEWICZ V. MACKIEWIC

Cite as 313 Neb. 281

Kari L. Mackiewicz, now known as 

Kari L. Veleba, appellant, v. 

James A. Mackiewicz, appellee.

___ N.W.2d ___

Filed January 20, 2023. No. S-22-128.

1. Modification of Decree: Appeal and Error. Modification of a dissolution decree is a matter entrusted to the discretion of the trial court, 

whose order is reviewed de novo on the record, and will be affirmed 

absent an abuse of discretion by the trial court.

2. 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.

3. 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.

4. Divorce: Property Settlement Agreements: Final Orders. A decree is 

a judgment, and once a decree for dissolution becomes final, its meaning, including a settlement agreement incorporated therein, is determined as a matter of law from the four corners of the decree itself.

5. Divorce: Judgments: Intent. The meaning of a decree must be determined from all parts thereof, read in its entirety, and must be construed 

as a whole so as to give effect to every word and part, if possible, and 

bring all of its parts into harmony as far as this can be done by fair and 

reasonable interpretation.

6. ____: ____: ____. Effect must be given to every part of a decree, including such effect and consequences that follow the necessary legal implication of its terms, although not expressed.

7. Divorce: Modification of Decree: Alimony. A district court entering a 

decree dissolving a marriage has the power to award alimony and, where 

it is awarded, the power to modify or revoke it.

Nebraska Supreme Court Online Library

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

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MACKIEWICZ V. MACKIEWIC

Cite as 313 Neb. 281

8. Modification of Decree: Alimony: Good Cause. Where an award of 

alimony may be modified or revoked, that modification is for good 

cause shown.

9. Modification of Decree: Alimony: Good Cause: Words and Phrases.

Good cause means a material and substantial change in circumstances 

and depends upon the circumstances of each case. Good cause is demonstrated by a material change in circumstances, but any changes in 

circumstances which were within the contemplation of the parties at the 

time of the decree, or that were accomplished by the mere passage of 

time, do not justify a change or modification of an alimony order.

10. Modification of Decree: Alimony: Proof. The moving party has the 

burden of demonstrating a material and substantial change in circumstances which would justify the modification of an alimony award.

11. Modification of Decree. To determine whether there has been a material 

and substantial change in circumstances warranting modification of a 

divorce decree, a trial court should compare the financial circumstances 

of the parties at the time of the divorce decree, or last modification of 

the decree, with their circumstances at the time the modification at issue 

was sought.

Appeal from the District Court for Douglas County: W. 

Russell Bowie III, Judge. Affirmed.

John A. Kinney, Jill M. Mason, and Samantha M. Robb, of 

Kinney Mason, P.C., L.L.O., for appellant.

Robert W. Futhey and Alexander S. Arkfeld, of Fraser 

Stryker, P.C., L.L.O., for appellee.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, 

Papik, and Freudenberg, JJ.

Heavican, C.J.

INTRODUCTION

The district court found a material change in circumstances 

had occurred sufficient to warrant modification of James A. 

Mackiewicz’ alimony obligation. Kari L. Mackiewicz, now 

known as Kari L. Veleba, appeals. We affirm.
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MACKIEWICZ V. MACKIEWIC

Cite as 313 Neb. 281

BACKGROUND

James and Kari were married on December 16, 1995, and 

divorced on July 14, 2017, pursuant to a consent decree of dissolution. As relevant to the issues on appeal, that decree provided an award of alimony paid to Kari by James. Paragraph 8 

of the decree stated:

a) ALIMONY: The Defendant shall pay alimony for 

the support and maintenance of the Plaintiff to be due and 

payable on the first day of August, 2017, and said amount 

shall continue to be due on the first of each month thereafter and the payments shall be as follows:

i. Defendant shall pay alimony in the amount of 

$4,000.00 per month for the first twenty-four (24) months 

after entry of this Decree;

ii. Defendant shall then pay alimony in the amount 

of $3,500.00 per month for the next twenty-four (24) 

months;

iii. Defendant shall then pay alimony in the amount of 

$3,000.00 per month for the next forty-eight (48) months;

iv. Defendant shall then pay alimony in the amount of 

$2,000.00 per month for the next thirty-six (36) months; 

and

v. Defendant shall then pay alimony in the amount 

of $1,000.00 per month for the final twenty-four (24) 

months.

The death of the Defendant or remarriage of the 

Plaintiff shall not terminate the alimony order and it 

shall be in place until such time as it is fully satisfied. 

The Defendant shall make alimony payments through the 

Clerk of the District Court of Douglas County, Nebraska 

for disbursement to the Plaintiff.

At the time of the parties’ divorce, James was employed 

in the financial services field in Omaha, Nebraska, at a salary of approximately $162,000 per year. Kari was a graduate 

student, studying for her doctorate in education. Subsequent 

to the divorce, Kari earned her doctorate and obtained 
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MACKIEWICZ V. MACKIEWIC

Cite as 313 Neb. 281

employment in administration at a local school district at a 

salary of $73,345 per year. In 2019, James left his employment in Omaha—where by that time he earned approximately 

$185,000 per year with additional bonus potential—for a new 

employment opportunity in Austin, Texas. At this new job, 

James earned approximately $200,000 per year, with additional bonus potential.

About 6 months into his new employment, James’ employment was terminated for “unsatisfactory work performance.” 

James returned to Omaha and attempted to obtain new employment. He testified that he looked for a job that matched 

his education and talents and found two. He unsuccessfully 

applied for both. At this point, James began looking at different opportunities and began his own consulting business. As 

of the time of trial, James had not made any income at this 

new endeavor.

On August 11, 2020, James filed a motion for modification of his alimony obligation, alleging a material change in 

circumstances. He alleged his loss of employment and the 

subsequent starting of his consulting firm, as well as Kari’s 

increased income, as changes in circumstance. Shortly thereafter, Kari filed a motion to hold James in contempt for failing to 

keep current on his alimony obligation, alleging that he was in 

arrears in the amount of $10,522.73 and that he had also failed 

to provide proof that he continued to carry the life insurance 

policy required of him under the decree.

Multiple orders were entered by the district court in advance 

of trial. Pertinent to this appeal was the district court’s denial of 

Kari’s motion to dismiss for lack of subject matter jurisdiction 

or, in the alternative, for failure to state a claim. Kari alleged 

that the alimony award was nonmodifiable and that thus, the 

district court lacked subject matter jurisdiction to entertain 

James’ motion to modify, or, alternatively, that because the 

alimony award was nonmodifiable, James had failed to state a 

claim upon which relief could be granted.
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MACKIEWICZ V. MACKIEWIC

Cite as 313 Neb. 281

The district court denied the motion, concluding that it 

had subject matter jurisdiction over the motion because “the 

Decree does not expressly preclude modification of the alimony 

award.” The district court relied upon Grothen v. Grothen 1 to 

support its conclusion, noting the fact that the award was 

agreed to by the parties did not affect the court’s analysis. The 

district court also used the fact that it found the award not to 

specifically preclude modification to deny Kari’s motion to 

dismiss for failure to state a claim.

Following a trial, the district court found a material change 

in circumstances as alleged by James, denied Kari’s motion to 

find James in contempt, and entered a new alimony schedule 

that required James to pay $700 a month in alimony beginning 

September 1, 2020, through the end of the year 2025. Kari 

has appealed.

ASSIGNMENTS OF ERROR

Kari assigns, renumbered, that the district court erred in 

modifying James’ alimony obligation because (1) the parties 

had entered into a consent decree dissolving their marriage, 

(2) the alimony award as written was nonmodifiable, and (3) 

James’ income was reduced following his voluntarily leaving 

his well-paid job in Omaha.

STANDARD OF REVIEW

[1,2] Modification of a dissolution decree is a matter 

entrusted to the discretion of the trial court, whose order is 

reviewed de novo on the record, and will be affirmed absent 

an abuse of discretion by the trial court. 2 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. 3

1 Grothen v. Grothen, 308 Neb. 28, 952 N.W.2d 650 (2020).

2 Id.

3 Id.
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MACKIEWICZ V. MACKIEWIC

Cite as 313 Neb. 281

[3] 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. 4

ANALYSIS

In this case, the district court modified Kari’s award of alimony. This appeal raises issues of whether the parties’ alimony 

award was modifiable under the terms of the decree and, if 

so, whether the district court’s modification was otherwise an 

abuse of discretion. We find that the alimony award was modifiable and that the district court did not abuse its discretion in 

its modification.

[4] In reaching these conclusions, we begin with a review 

of the statutes and our case law regarding divorce decrees and 

alimony awards. A decree is a judgment, and once a decree for 

dissolution becomes final, its meaning, including a settlement 

agreement incorporated therein, is determined as a matter of 

law from the four corners of the decree itself. 5

[5,6] The meaning of a decree must be determined from all 

parts thereof, read in its entirety, and must be construed as a 

whole so as to give effect to every word and part, if possible, 

and bring all of its parts into harmony as far as this can be 

done by fair and reasonable interpretation. 6 Effect must be 

given to every part thereof, including such effect and consequences that follow the necessary legal implication of its terms, 

although not expressed. 7

[7] A district court entering a decree dissolving a marriage 

has the power to award alimony and, where it is awarded, 

the power to modify or revoke it. Neb. Rev. Stat. § 42-365 

(Reissue 2016) provides:

4 Vyhlidal v. Vyhlidal, 311 Neb. 495, 973 N.W.2d 171 (2022).

5 Id.

6 Id.

7 Id.
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MACKIEWICZ V. MACKIEWIC

Cite as 313 Neb. 281

When dissolution of a marriage is decreed, the court 

may order payment of such alimony by one party to the 

other and division of property as may be reasonable, 

having regard for the circumstances of the parties, duration of the marriage, a history of the contributions to 

the marriage by each party, including contributions to 

the care and education of the children, and interruption 

of personal careers or educational opportunities, and 

the ability of the supported party to engage in gainful 

employment without interfering with the interests of 

any minor children in the custody of such party. . . . A 

proceeding to modify or revoke an order for alimony for 

good cause shall be commenced by filing a complaint 

to modify. . . . Amounts accrued prior to the date of 

filing of the complaint to modify may not be modified 

or revoked. A decree may not be modified to award alimony if alimony was not allowed in the original decree 

dissolving a marriage. A decree may not be modified 

to award additional alimony if the entire amount of alimony allowed in the original decree had accrued before 

the date of filing of the complaint to modify. Except as 

otherwise agreed by the parties in writing or by order of 

the court, alimony orders shall terminate upon the death 

of either party or the remarriage of the recipient.

While the criteria for reaching a reasonable division of 

property and a reasonable award of alimony may overlap, 

the two serve different purposes and are to be considered 

separately. The purpose of a property division is to distribute the marital assets equitably between the parties. 

The purpose of alimony is to provide for the continued 

maintenance or support of one party by the other when 

the relative economic circumstances and the other criteria 

enumerated in this section make it appropriate.

Pursuant to Neb. Rev. Stat § 42-366 (Reissue 2016), the parties may also agree to alimony as follows:
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Cite as 313 Neb. 281

(1) To promote the amicable settlement of disputes 

between the parties to a marriage attendant upon their 

separation or the dissolution of their marriage, the parties 

may enter into a written property settlement agreement 

containing provisions for the maintenance of either of 

them,[ 8] the disposition of any property owned by either 

of them, and the support and custody of minor children.

. . . .

(7) Except for terms concerning the custody or support 

of minor children, the decree may expressly preclude or 

limit modification of terms set forth in the decree.

Interpretation of Decree.

These propositions lead us to the first issue presented by this 

appeal—whether the parties’ decree included language indicating that the alimony award was nonmodifiable. Kari contends 

that the district court erred in modifying the decree because 

she and James agreed upon that decree, and it was not imposed 

upon them by the court, and also because the language of the 

decree itself states that it is not modifiable. Both contentions 

were rejected by the district court. We now address each in turn 

and find both to be without merit.

In support of her assertion that the decree is entitled to 

more force than decrees entered by a court, Kari directs us 

to Desjardins v. Desjardins. 9 We agree with Kari that the 

Desjardins court states the proposition she relies upon. We 

nevertheless find the case inapplicable. In Desjardins and in 

the cases cited therein, the question of whether alimony was 

properly modified was analyzed to determine whether there 

was “a material and substantial change of circumstances not 

contemplated by the parties at the time of the decree” 10—the 

same standard normally utilized when examining petitions 

8 See Grothen v. Grothen, supra note 1.

9 Desjardins v. Desjardins, 239 Neb. 878, 479 N.W.2d 451 (1992).

10 Id. at 882, 479 N.W.2d at 454.
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MACKIEWICZ V. MACKIEWIC

Cite as 313 Neb. 281

seeking modification—and not the higher “gross inequity” 

standard which applies where a decree is nonmodifiable. 11

Moreover, we explicitly noted in Euler v. Euler 12 that “dissolution decrees may be modified with reference to alimony by the 

plain language of the statutes even if they are based on property settlement agreements, so long as the parties or the court 

have not provided otherwise in writing.”

We turn next to the issue of whether the alimony award was 

nonmodifiable by its terms. Both parties point to language in 

the decree supporting their respective positions. James directs 

us to the portion of paragraph 8 of the decree that provides:

t) WAIVER OF BREACH: No waiver of any breach 

by either party of the terms of this Decree shall be 

deemed a waiver of any subsequent breach. No modifications of this Decree shall be binding upon either of the 

parties unless reduced to writing and subscribed to by 

both parties unless otherwise ordered by the Court.

(Emphasis supplied.) Kari primarily relies on the portion of the 

language of the alimony award that states that the award “shall 

be in place until such time as it is fully satisfied.” She further 

argues that the modification language relied upon by James is 

not specifically applicable to the alimony award set forth in 

the decree.

We conclude that the alimony award is modifiable. It is 

apparent from paragraph 8(t) of the decree that the parties envisioned a possibility of the decree’s being modified.

And we find the language Kari relies upon—that the alimony award as set forth in paragraph 8(a) of the decree was 

to be in place until such time as it was fully satisfied—not 

to set an absolute bar to modification. Rather, we read it in 

conjunction with the rest of that same sentence, which notes 

that remarriage or death has no effect on the payment of alimony. This language contemplates termination of the alimony 

11 See Grothen v. Grothen, supra note 1, 308 Neb. at 34, 952 N.W.2d at 657.

12 Euler v. Euler, 207 Neb. 4, 9-10, 295 N.W.2d 397, 400 (1980).
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Cite as 313 Neb. 281

award, but termination is not the same as modification. Should 

the parties have intended to absolutely bar modification of the 

decree or the alimony award itself, there are more direct ways 

to effect such a result.

We find no error in the district court’s determination that the 

decree, and in turn the alimony award, was modifiable. Kari’s 

assignments of error to the contrary are without merit.

Change in Circumstances.

In her final assignment of error, Kari assigns that the district 

court erred in finding a material change in circumstances sufficient to modify the alimony award.

[8-10] We begin with familiar propositions. Where an award 

of alimony may be modified or revoked, that modification is 

for good cause shown. 13 Good cause means a material and substantial change in circumstances and depends upon the circumstances of each case. 14 Good cause is demonstrated by a material change in circumstances, but any changes in circumstances 

which were within the contemplation of the parties at the time 

of the decree, or that were accomplished by the mere passage 

of time, do not justify a change or modification of an alimony 

order. 15 The moving party has the burden of demonstrating a 

material and substantial change in circumstances which would 

justify the modification of an alimony award. 16

[11] To determine whether there has been a material and 

substantial change in circumstances warranting modification 

of a divorce decree, a trial court should compare the financial 

circumstances of the parties at the time of the divorce decree, 

or last modification of the decree, with their circumstances at 

the time the modification at issue was sought. 17

13 See Metcalf v. Metcalf, 278 Neb. 258, 769 N.W.2d 386 (2009).

14 Id.

15 Id.

16 Id.

17 Id.
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MACKIEWICZ V. MACKIEWIC

Cite as 313 Neb. 281

In this case, James has the burden of demonstrating a material change in circumstances. We conclude that he has met 

his burden. In reaching this conclusion, we examine James’ 

and Kari’s financial circumstances at the time of the decree 

and now, and we note that James is making significantly less 

income and Kari is making a higher income.

Kari argues that James’ lower income is due to his leaving 

a high-paying Omaha job and relocating to a different job with 

a startup company and that he should not be allowed to rely 

on those actions to pay her less in alimony. We disagree on 

this record.

There is no evidence in the record to show that James’ 

decision to relocate for a higher-paying job was unreasonable. 

There is nothing in the record to suggest that James’ employment was terminated due to the risky nature of the startup company he began to work for; indeed, the record at the modification hearing suggests that the company was still operating at 

that time. Instead, the record shows only that James’ employment was terminated for “unsatisfactory work performance.” 

The nature of that apparently unsatisfactory performance is 

not set forth in the record, with James’ testifying that he never 

received any negative feedback and Kari’s testifying that she 

lacked firsthand knowledge as to why James’ employment 

was terminated.

Kari also testified that she did not know firsthand what 

efforts James had made to find new employment upon his 

return to Omaha. The only evidence on that point is James’ 

testimony that he was unable to get hired back at his old job 

and that he applied for two other openings in his field but was 

not hired. As a result, James began his consulting company. 

There is no evidence in the record that James failed to make 

reasonable efforts to find comparable employment or that his 

choice to begin a consulting company was made in an attempt 

to avoid his alimony obligation.

We do agree that Kari’s employment and higher salary were 

contemplated by the parties at the time of the decree, but that 
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fact does not affect the result in this case. James’ income, at 

least for now, has been significantly reduced due to the loss of 

his job and inability to find a comparable new job. This was a 

material change in circumstances not contemplated by the parties at the time of the decree.

In such instances, we review the decision of the district 

court de novo but will reverse only for an abuse of discretion. 

While a different judge might have reached a different result, 

we see no abuse of the discretion given to the district court. 

Kari’s third and final assignment of error is without merit.

CONCLUSION

The decision of the district court is affirmed.

Affirmed.