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CARLSON v. CARLSON

Cite as 299 Neb. 526

Mark Alan Carlson, appellant

Karen Sue Carlson, appel

___ N.W.2d ___

Filed April 6, 2018. No. S-17-064.

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.

Nebraska Supreme Court Online Library

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

06/01/2018 09:08 AM CDT
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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: Leig

Ann Retelsdorf, Judge. Affir

Adam E. Astley and Kathryn D. Putnam, of Astley Putnam, 

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

Benjamin M. Belmont and Wm. Oliver Jenkins, of Brodkey, 

Peebles, Belmont & Line, L.L.P., for appellee.
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Heavican, C.J., Miller‐Lerman, Cassel, Stacy, 

Funke, J

Stacy, 

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.

FACTS

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 
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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.

Incorporat

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 
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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 Modi

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 
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expressly provided that all provisions of the decree and PSA 

“not specifically altered by this Order shall remain in full force 

and effect.”

Contempt Proceed

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 complaint for declaratory judgment which 

is at issue in this appeal.

Complaint and Counterc

for Declaratory Judgm

Karen’s complaint sought a declaration of the rights, duties, 

and obligations of the parties under the dissolution decree as it 

regarded post-majority child support. Specifically, she sought 

a declaration that under the PSA incorporated into the decree, 

Mark had an obligation to continue paying child support past 

the age of majority for a child attending college.

In a counterclaim, Mark also sought a declaratory judgment regarding post-majority child support. As relevant to the 

issues on appeal, Mark sought a declaration that the provisions 

regarding post-majority child support were unenforceable or, 

in the alternative, that any obligation to pay post-majority 

child support was “completely discretionary on the part of 

the person paying it.” Alternatively, Mark sought modification of the decree to relieve him of any post-majority child 

support obligation, alleging there had been a material change 

in circumstances.

Both parties moved for summary judgment on their requests 

for declaratory judgment. The trial court denied both motions 

and set the matter for trial.
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Tria

By the time of trial, two of the parties’ children had reached 

the age of majority, and each was a full-time college student. 

At trial, the parties were allowed to present extrinsic evidence 

as to the meaning of the PSA incorporated into the decree. 

Neither party had a clear recollection of how the language 

regarding post-majority child support came to be in the PSA. 

According to Karen, the mediator brought up the issue of 

supporting the children through college, and Mark had no 

disagreement, so the provisions regarding post-majority support were included in the PSA with “no discussion.” Mark 

testified he intended the agreement to be flexible and “leave[] 

the door open” to paying post-majority child support if Karen 

was unable to return to employment as a physician after the 

divorce. The attorney who mediated the property settlement 

agreement invoked the statutory privilege1 and refused to testify about mediation communications.

Ultimately, the district court concluded that the decree 

and incorporated PSA obligated Mark to pay post-majority 

child support for any child regularly attending college, trade 

school, or graduate school, until the child attained the age of 

27 or graduated, whichever first occurred. Regarding Mark’s 

complaint to modify, the court noted the agreement to pay 

post-majority child support was contained in the parties’ PSA 

which had been approved by the court and incorporated into 

the decree. It thus reasoned the approved PSA could not be 

vacated or modified in the absence of fraud or gross inequity. 

The court found Mark had neither alleged nor offered evidence of fraud or gross inequity, and it denied his complaint 

to modify.

The court entered an order granting Karen’s request for 

declaratory judgment, denying Mark’s counterclaims, and 

awarding Karen attorney fees and costs in the amount of 

$3,500. Mark filed this timely appeal, which we removed to 

1 See Neb. Rev. Stat. § 25-2933 (Reissue 2016).
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our docket pursuant to our authority to regulate the caseloads 

of the appellate courts of this state.2

ASSIGNMENTS OF ERROR

Mark assigns that the district court erred in (1) finding the 

decree was ambiguous, (2) interpreting the decree and property 

settlement to require post-majority child support, (3) granting 

declaratory relief to Karen, (4) failing to consider his request 

for modification of the post-majority support obligation, and 

(5) awarding $3,500 in attorney fees to Karen.

STANDARD OF REVIEW

[1,2] 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.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

[3] 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.5

ANALYSIS

Before addressing the assignments of error we address two 

threshold issues.

2 Neb. Rev. Stat. § 24-1106(3) (Supp. 2017).

3 Vlach v. Vlach, 286 Neb. 141, 835 N.W.2d 72 (2013); American 

Amusements Co. v. Nebraska Dept. of Rev., 282 Neb. 908, 807 N.W.2d 

492 (2011).

4 Rice v. Webb, 287 Neb. 712, 844 N.W.2d 290 (2014).

5 Board of Trustees v. City of Omaha, 289 Neb. 993, 858 N.W.2d 186 

(2015); Davenport Ltd. Partnership v. 75th & Dodge I, L.P., 279 Neb. 

615, 780 N.W.2d 416 (2010).
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Use of Declaratory Judg

to Construe Dec

Both parties sought a declaratory judgment interpreting their 

rights and obligations under the consent decree and incorporated PSA. Our case law has generally permitted the use of 

declaratory judgment actions to resolve genuine disputes over 

the meaning of language in a dissolution decree.6 But parties 

have also resolved similar issues via complaints to modify,7

contempt proceedings,8 motions to enforce the judgment,9 and 

motions to determine amounts due under the decree.10 Without 

endorsing any particular procedure, we observe the general 

rule that an action for declaratory judgment does not lie where 

another equally serviceable remedy is available.11 In this case, 

no party has challenged the availability of declaratory relief 

or alleged that a more serviceable remedy is available. We 

therefore assume, without deciding, that it was proper for 

the district court to entertain the parties’ requests for declaratory judgment.

Parties’ Subjective

Is Irrelev

In addressing the parties’ dispute over the meaning of the 

decree and incorporated PSA, the district court and the parties 

6 Buhrmann v. Buhrmann, 231 Neb. 831, 835, 438 N.W.2d 481, 484 (1989) 

(“[w]here there is a genuine controversy between the parties as to the 

meaning of language in a decree of dissolution, and the appeal period has 

passed, a proper method to resolve the controversy is by a separate action 

for declaratory relief”). See, Jensen v. Jensen, 275 Neb. 921, 750 N.W.2d 

335 (2008); Hohertz v. Estate of Hohertz, 19 Neb. App. 110, 802 N.W.2d 

141 (2011).

7 Boyle v. Boyle, 12 Neb. App. 681, 684 N.W.2d 49 (2004).

8 Blaine v. Blaine, 275 Neb. 87, 744 N.W.2d 444 (2008).

9 Rice v. Webb, supra note 4.

10 Strunk v. Chromy‐Strunk, 270 Neb. 917, 708 N.W.2d 821 (2006).

11 Mansuetta v. Mansuetta, 295 Neb. 667, 890 N.W.2d 485 (2017); Northwall 

v. State, 263 Neb. 1, 637 N.W.2d 890 (2002).
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relied, in part, on traditional contract principles. For example, 

the court found the PSA was ambiguous regarding the payment 

of post-majority child support, and it thus allowed the admission of extrinsic evidence of the parties’ intent. As a general 

matter, if a contract is ambiguous, the meaning of the contract 

is a question of fact and a court may consider extrinsic evidence to determine the meaning of the contract.12 But in the 

present case, we are not dealing with a contract; we are dealing 

with a judgment.

The intentions of the parties regarding the PSA may have 

been relevant when the dissolution court was examining the 

agreement to determine whether it was fair and reasonable, not 

unconscionable, and in the childrens’ best interests. But once 

the PSA was approved by the court and incorporated into the 

decree, it became a judgment of the court.13 Thereafter, the parties’ subjective interpretations and intentions were irrelevant to 

the court’s declaration of the meaning of the decree.14

[4] In both Ryder v. Ryder15 and Rice v. Webb,

16 this court 

specifically disapproved of the application of contract principles to a PSA that had been incorporated into a dissolution 

decree. In Ryder, we held:

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.’”

12 David Fiala, Ltd. v. Harrison, 290 Neb. 418, 860 N.W.2d 391 (2015).

13 See, Ryder v. Ryder, 290 Neb. 648, 861 N.W.2d 449 (2015); Rice v. Webb, 

supra note 4.

14 See Neujahr v. Neujahr, 223 Neb. 722, 393 N.W.2d 47 (1986) (once 

decree becomes final, what parties thought it meant is irrelevant; meaning 

of decree is question of law determined from four corners of decree).

15 Ryder v. Ryder, supra note 13.

16 Rice v. Webb, supra note 4.
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. . . [W]hen a decree is ambiguous, “the parties must 

bring some form of action which raises the issue and 

thereby requires the court before whom the matter is then 

pending to resolve the issue as a matter of law in light of 

the evidence and meaning of the decree as it appears.”17

Thus, in the present case, we are considering the meaning of a 

judgment rather than a contract.18

[5] 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.19 With this standard in mind, 

we address the assignments of error.

No Error in Fi

Decree Ambigu

Mark assigns error to the trial court’s finding that the terms 

of the decree and incorporated PSA were ambiguous. He concedes the documents are poorly drafted but suggests that “after 

reviewing the document five or six times, a single meaning 

becomes clear.”20 Mark suggests that “when read in a vacuum 

[the language of the decree] is susceptible to only one meaning, which is that child support ends when each child reaches 

the age of majority under Nebraska law, becomes emancipated, 

becomes self-supporting, marries or dies, or until further order 

of the court.”21 We understand this argument to suggest that if 

the decree is construed without reference to the language of 

the incorporated PSA, there is no ambiguity. But we reject the 

invitation to construe the decree without considering the terms 

of the PSA that was expressly incorporated into the decree at 

the parties’ request.

17 Ryder v. Ryder, supra note 13, 290 Neb. at 656-57, 861 N.W.2d at 456.

18 See Rice v. Webb, supra note 4.

19 Id.

20 Brief for appellant at 17.

21 Id. at 16.
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[6,7] 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.22

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.23

[8] We agree with the district court that the decree and 

incorporated PSA are ambiguous regarding the parties’ rights 

and obligations concerning payment of post-majority child 

support. The fact that the parties advance differing interpretations does not, by itself, compel the conclusion that the PSA is 

ambiguous.24 But we agree that the conflicting interpretations 

advanced by Mark and Karen illustrate an ambiguity in the 

PSA which necessitated construction.

As it regards the payment of post-majority child support, the 

operative language in the PSA provides:

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.

Mark argues the phrase “may continue” indicates that payment of post-majority support is discretionary and allows him 

the flexibility to decide whether such support is necessary 

under the circumstances. Karen argues the language creates 

an affirmative obligation to pay post-majority child support 

so long as the conditions of college attendance are satisfied. 

Although we ultimately reject Mark’s interpretation, we agree 

the operative language of the PSA is susceptible to at least 

two reasonable but conflicting interpretations, and we thus 

22 Friedman v. Friedman, 290 Neb. 973, 863 N.W.2d 153 (2015).

23 See Rice v. Webb, supra note 4.

24 See Strunk v. Chromy‐Strunk, supra note 10.
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agree with the district court that it is ambiguous.25 Mark’s first 

assignment has no merit.

[9] We also reject as incorrect the suggestion in Mark’s 

briefing that the presence or absence of ambiguity in a decree 

affects our standard of review. This court has long held that the 

meaning of a dissolution decree presents a question of law,26

and we recently clarified that even if ambiguity exists in a dissolution decree, its meaning nevertheless presents a question of 

law that we review de novo.27

No Error in Construing 

Mark’s main contention on appeal is that the district court 

erred in construing the decree and incorporated PSA to require 

him to pay post-majority child support under certain circumstances. Mark contends the court should have interpreted the 

decree to provide that his obligation to pay child support ends 

when the children reach the age of 19 and that any continued 

payment of support post-majority is entirely discretionary. The 

district court rejected this construction. After our independent 

review of the four corners of the decree and incorporated 

PSA,28 we do too.

The parties’ primary disagreement relates to the proper interpretation of the phrase “may continue” as used in the operative 

provision of the PSA:

(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 

25 See Rice v. Webb, supra note 4.

26 See Strunk v. Chromy‐Strunk, supra note 10.

27 Ryder v. Ryder, supra note 13.

28 See id.
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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 including summer vacations, without being understood to be 

emancipated.[)]

Mark suggests the term “may” is permissive and affords him 

the discretion to pay post-majority child support if he thinks 

it is needed. We reject this construction not only because it 

invites construing the judgment to be conditional upon Mark’s 

decision to pay,29 but because there is no support for such a 

construction within the four corners of the judgment.

Instead, considering the entirety of the decree and incorporated PSA, we find the parties agreed to an affirmative 

obligation to pay post-majority child support so long as the 

agreed-upon conditions precedent are satisfied. Those conditions include that the child be regularly attending college, trade 

school, or graduate school and not have attained the age of 27. 

This construction is compelled by several provisions within 

the judgment.

Section 3.01(2) of the PSA recognizes that child support 

generally terminates when the child turns 19 “unless the parties agree otherwise.” Section 3.01(4) then reflects the parties’ agreement that the children “will not be determined to 

be emancipated and child support may continue past the age 

of 19” under specific enumerated circumstances. Within this 

framework, the phrase “child support may continue past age 

19” in § 3.01(4) is not permissive or discretionary; rather, it 

reflects the prior acknowledgment that ordinarily child support 

terminates at age 19.

That the payment of post-majority support is not discretionary is further supported by language in the PSA acknowledging the possibility that payment of post-majority child 

29 See Strunk v. Chromy‐Strunk, supra note 10.
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support will overlap with the separate obligation to contribute 

to college expenses under the agreement. In that regard, the 

PSA provides:

3.03 Educational Expenses: Trade School or College 

Education Costs and Expenses

(1) The parties agree that should any of the children 

desire to attend college (trade or vocational school after 

high school) and be accepted to a school, the parties 

shall be responsible to provide for the costs and expenses 

of that education in an amount no more than the cost 

of an education at the primary state college or university (University of Nebraska-Lincoln) in the state where 

the children may reside at the time the child has been 

accepted, regardless of where he/she may attend school 

or college.

(2) This Agreement contemplates a four-year undergraduate college education that may extend beyond the 

age of majority as long as the child is in good standing as a student, but in no event beyond the child’s 23rd

birthday.

. . . .

(5) The parties understand that amounts paid for the 

college educations of the children still may not fully cover 

other child care expenses including car insurance, clothing, recreation, or time spent at home during vacations. 

Alternatively, the amounts being paid in child support 

by one party to the other party may duplicate amounts 

being paid for college room and board. The parties agree 

to negotiate, or if necessary, mediate the balance between 

payment of child support and college costs and expenses 

if and when a child attends college.

(6) These provisions are intended to set out the minimum amounts obliged to be paid by a parent to assure 

that the children obtain further training or an undergraduate college education, should the children be capable 

and desire to so do. These provisions are not intended to 
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limit the additional contribution either parent may voluntarily make toward a child’s undergraduate or graduate 

school education.

These provisions not only acknowledge the potential for 

duplication between payment of post-majority child support 

and payment of college expenses, but also express the intent 

of the parties to “set out the minimum amounts obliged to be 

paid” to continue supporting a child beyond the age of majority 

who wishes to pursue further education.

We hold that the decree and incorporated PSA affirmatively 

obligate Mark to pay post-majority child support so long as the 

conditions set forth in § 3.01(4) of the PSA are met. We find 

this construction is supported by the language of the judgment, 

can be harmonized with the standard child support language 

set out in the decree, and results in a sensible construction that 

is consistent with the best interests of the children.

No Error in De

Complaint to Modi

In a counterclaim, Mark sought to modify the decree based 

on a material change in circumstances in the event the court 

determined he was obligated to pay post-majority child support. The district court denied his request to modify. It reasoned that the post-majority child support was agreed to in 

a PSA that had been approved by the court and incorporated 

into the decree and as such it could be vacated or modified 

only upon a showing of fraud or gross inequity.30 The court 

concluded Mark had failed to allege or prove fraud or gross 

inequity, and it denied the modification.

On appeal, Mark argues the court applied the wrong legal 

standard. He claims that rather than being required to show 

fraud or gross inequity, he should have been permitted to modify the terms of his post-majority child support upon showing 

a material change in circumstances. In making this argument, 

30 See Ryder v. Ryder, supra note 13.
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Mark relies on the statutory provisions31 and case law32 governing modification of statutory child support for minors.

But the present case does not involve modification of statutory child support for a minor and requires us to answer a different question: Under what circumstances can a party seek to 

vacate or modify an approved PSA that requires payment of 

post-majority child support? To answer this question, we look 

to our jurisprudence on post-majority child support.

[10-12] 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.33 In Zetterman v. 

Zetterman,

34 however, we held that a court can enforce an 

approved PSA voluntarily entered into by the parties which 

provides for post-majority child support. We held that a 

district court, “in the exercise of its broad jurisdiction over 

marriage dissolutions, 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.”35 Thus, pursuant to Zetterman, if the parties 

voluntarily include a provision for post-majority child support in an approved PSA, a district court has the authority to 

enforce that provision.

We have not yet addressed whether a district court has the 

authority to modify such a provision and, if it does, what 

standard applies to the modification. The general consensus of 

other jurisdictions that, like Nebraska, hold that a court lacks 

authority to impose an obligation to pay post-majority child 

support but can enforce an agreement to pay such support 

31 See Neb. Rev. Stat. § 42-364 (Reissue 2016).

32 See, State on behalf of B.M. v. Brian F., 288 Neb. 106, 846 N.W.2d 257 

(2014); Caniglia v. Caniglia, 285 Neb. 930, 830 N.W.2d 207 (2013).

33 See Foster v. Foster, 266 Neb. 32, 662 N.W.2d 191 (2003).

34 Zetterman v. Zetterman, 245 Neb. 255, 512 N.W.2d 622 (1994).

35 Id. at 261, 512 N.W.2d at 625.
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made via an approved PSA is that post-majority child support 

can be modified using either the standard adopted by the parties in their agreement or the standard applied in that jurisdiction to modify an approved PSA.36 The rationale for such a 

rule is that the court could not have imposed the post-majority 

child support obligation in the first instance, so it lacks the 

authority to modify it as a child support obligation.37

[13] We agree with this rationale and find it is consistent 

with our holding in Zetterman.

38 We thus hold that a provision 

for post-majority child support in an approved PSA can be 

modified either as agreed to by the parties in the agreement39

or according to the general standard for modifying an approved 

PSA under Nebraska law.

In this case, neither the decree nor the incorporated PSA 

contained provisions for modifying post-majority child support. Thus, Mark’s request for modification of post-majority 

support will be governed by the general standard for modifying 

an approved PSA under Nebraska law.

[14] This court has consistently held that where parties to 

a divorce action voluntarily execute a PSA 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.40

36 See, Van Camp v. Van Camp, 333 Ark. 320, 969 S.W.2d 184 (1998); Miner 

v. Miner, 48 Conn. App. 409, 709 A.2d 605 (1998); Katz v. Katz, 258 Ga. 

184, 366 S.E.2d 766 (1988); Helms v. Schultze, 161 N.C. App. 404, 588 

S.E.2d 524 (2003).

37 Id.

38 Zetterman v. Zetterman, supra note 34.

39 See, also, Neb. Rev. Stat. § 42-366(7) (“[e]xcept 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”).

40 Ryder v. Ryder, supra note 13; Whitesides v. Whitesides, 290 Neb. 116, 858 

N.W.2d 858 (2015).
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The district court correctly applied this standard to Mark’s 

complaint to modify the post-majority child support provision 

and properly found he had not met his burden of proof in that 

regard. Mark’s arguments to the contrary are without merit.

No Error in Aw

of Attorney F

[15] The district court awarded Karen $3,500 in attorney 

fees and costs. Mark assigns this as 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.41

Having reviewed the parties’ arguments and the record, we find 

no abuse of discretion in the award of attorney fees.

CONCLUSION

For the foregoing reasons, we affirm the judgment of the 

district court.

Affirmed

Kelch, J., not participating in the decisio

Wright, J., not participating

41 Vlach v. Vlach, supra note 3.