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special proceeding invoked by a motion to compel arbitration, 

the order would not be final or affect any substantial right. 

Finally, a court’s temporary injunction or stay that merely preserves the status quo pending a further order is not an order 

that amounts to a dismissal of the action or that permanently 

denies relief to a party.20 So the stay here was not a final order 

in an action that effectively determines the action and prevents 

a judgment under § 25-1902(1). We conclude that the court’s 

temporary injunction and stay is an interlocutory order that is 

not appealable.

We recognize that Applied and AUCRA contend they are 

entitled to have the AAA arbitrators decide which contract provision governs the arbitration process. But they are not prejudiced by waiting to appeal that issue until the court issues a 

final judgment in the declaratory judgment action. Accordingly, 

we dismiss this appeal.

Appeal dismissed.

20 See Pennfield Oil Co., supra note 11.

Debra S. Ryder, appellant, v. 

Rocky R. Ryder, appellee.

___ N.W.2d ___

Filed April 10, 2015. No. S-14-294.

1. Motions to Vacate: Proof: Appeal and Error. An appellate court will reverse a 

decision on a motion to vacate or modify a judgment only if the litigant shows 

that the district court abused its discretion.

2. Judges: Words and Phrases. A judicial abuse of discretion exists when 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: Property Settlement Agreements. If the terms of a property settlement 

agreement with respect to real and personal property and maintenance are not 

found unconscionable, the agreement is binding upon the dissolution court and 

the initial decree must carry such agreement into effect.

4. Judgments: Divorce: Property Settlement Agreements. A dissolution decree 

which approves and incorporates into the decree the parties’ property settlement 

agreement is a judgment of the court itself.
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5. Contracts. Ambiguity exists in a document when a word, phrase, or provision 

therein has, or is susceptible of, at least two reasonable but conflicting interpretations or meanings. In other words, a document is ambiguous if, after application 

of the pertinent rules for construction, there is uncertainty concerning which of 

two or more reasonable meanings represents the intention of the parties.

6. Divorce: 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 will not thereafter be vacated or 

modified in the absence of fraud or gross inequity.

7. Divorce: Judgments. The meaning of a dissolution decree presents a question 

of law.

Appeal from the District Court for Cheyenne County: Derek

C. Weimer, Judge. Vacated in part and remanded with direction.

Joel B. Jay for appellant.

No appearance for appellee.

Heavican, C.J., Wright, Connolly, Stephan, McCormack, 

Miller-Lerman, and Cassel, JJ.

Cassel, J.

INTRODUCTION

In a marital dissolution proceeding, the parties’ property 

settlement agreement required the husband to “assist” the wife 

in obtaining a bank loan to purchase a residence. The dissolution decree adopted the agreement. Later, the bank declined to 

make the loan without the husband’s cosignature. On the husband’s motion, the district court vacated the assistance clause 

as ambiguous. The wife appeals.

We conclude that in the absence of fraud or gross inequity, 

the district court abused its discretion in vacating the portion 

of the decree implementing the assistance clause. We vacate 

the portion of its order purporting to do so. Because the district 

court did not determine whether the assistance clause had been 

satisfied, we remand with direction that it do so.

BACKGROUND

Debra S. Ryder and Rocky R. Ryder’s marriage was dissolved 

via a decree entered in June 2013. Prior to the decree, Debra 
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and Rocky entered into a “Property Settlement Agreement and 

Parenting Plan,” providing for the disposition of various items 

of property. Rocky was granted the marital residence, which 

was his before the marriage. Thus, the agreement required 

Debra to leave the marital home.

Anticipating her need for different housing, the parties 

signed an agreement with a third party to acquire a residence 

on Ash Street in Sidney, Nebraska. The agreement is not in 

the record. Thus, the record is unclear whether the purchase 

agreement was signed before or after the signing of the property settlement, although Debra testified that she was the last 

to sign and that she did so in August 2013—which would have 

been after the property settlement agreement was signed and 

the decree was entered.

In the property settlement agreement, Rocky agreed that he

shall assist [Debra] in obtaining a loan from Points West 

Bank in Sidney for up to Ninety-four Thousand Dollars 

($94,000.00) in order to purchase the residence located at 

. . . Ash Street, Sidney, NE[,] and will do the work necessary to place the home in marketable condition, as determined by a Sidney realtor, prior to [Debra] moving into 

said home. [Rocky] shall have said house in marketable 

condition no later than December 31, 2013.

In the dissolution decree, the district court acknowledged 

the above provision of the property settlement agreement and 

ordered Rocky to comply with his obligations as to the Ash 

Street residence.

On December 19, 2013, Rocky filed a “Motion for an Order 

to Vacate and Modify Divorce Decree or in the Alternative 

to Deem Judgment Satisfied,” pursuant to Neb. Rev. Stat. 

§ 25-2001 (Reissue 2008). Rocky alleged that he had assisted 

Debra in obtaining a loan from Points West Bank, but that 

Debra was unwilling to enter into the loan agreement. And he 

further claimed that due to Debra’s refusal, the purchase agreement for the Ash Street residence had expired.

However, in an effort to comply with his obligations under 

the dissolution decree, Rocky explained that he had purchased 

the Ash Street residence and had offered Debra a loan to purchase the residence from him. But Debra refused to agree to 
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the arrangement. He therefore requested that the district court 

vacate or modify the decree or find that he had satisfied his 

obligations as to the Ash Street residence.

A hearing was conducted, and both Rocky and Debra testified. Rocky explained that he had been contacted by a representative from Points West Bank concerning a loan for the Ash 

Street residence. The representative first informed Rocky that 

the representative believed he would be able to assist Debra 

in obtaining a loan. However, Rocky was later informed that 

he would need to cosign the loan. And the bank required additional collateral from Rocky, because he would not be living in 

the Ash Street residence.

After learning of the terms of the loan, Rocky approached 

Debra with a “side” agreement. Under the agreement, Debra 

would execute a quitclaim deed conveying the Ash Street 

residence to Rocky. The deed would be held in escrow, and 

upon Debra’s failure to make a loan payment for 60 days, 

the deed would be filed with the “Register of Deeds.” Rocky 

would then make any necessary loan payments and place the 

residence on the market for sale. In his testimony, Rocky confirmed that the agreement was a way to protect himself from 

having to pay Debra’s loan. And he also sought to protect 

his credit score and his collateral if Debra failed to make the 

loan payments.

Debra, however, told Rocky that she would not sign the 

agreement. And the purchase agreement for the Ash Street residence subsequently expired. The purchase agreement with the 

third party apparently allowed the buyers to make repairs and 

improvements to the property prior to closing. Rocky testified 

that he had invested $20,000 to $30,000 in the residence and 

that if the purchase was not completed, those amounts would 

have been lost. Because of this investment, he obtained a loan 

and purchased the residence himself.

After signing the loan documents and closing on the Ash 

Street residence, Rocky approached Debra with another agreement. He offered Debra a loan to purchase the residence from 

him under the same terms as the loan he had obtained from 

Points West Bank. Rocky testified that he would not have 

made any money under the arrangement, but that it would 
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“just . . . resolve the situation.” But Debra did not want to sign 

the agreement.

As to his obligations regarding the Ash Street residence, 

Rocky testified that he believed he was required to “help 

[Debra] obtain a loan and a fair contract between both of us.” 

And he confirmed that there had been no discussion that he 

would offer additional collateral and no agreement that he 

would make any loan payments. He indicated that he would 

have been willing to cosign a loan with Debra, but under terms 

that “were fair and equal” and that “protect[ed] both sides.” He 

further confirmed that he believed he had fulfilled his obligation to assist Debra in obtaining a loan.

Additionally, Rocky testified that he was no longer willing 

to provide Debra with a loan to purchase the Ash Street residence. He and Debra were already “having problems,” and the 

loan arrangement would “cause more problems.”

Debra testified that her understanding of Rocky’s obligations as to the Ash Street residence was that he would cosign 

a loan and make any required downpayment. And in order to 

purchase the residence, she had signed a purchase agreement 

and loan documents from Points West Bank. However, when 

she contacted Rocky about the loan documents, he “gave [her] 

the run around.” And approximately 1 week later, he sent her 

paperwork for another agreement.

Debra confirmed that at the time of the dissolution decree, 

she and Rocky had never discussed an additional agreement. 

She told Rocky that she was not going to sign the agreement, 

because she believed that it was unnecessary and controlling. 

However, she confirmed that she was both willing to enter into 

a loan from Points West Bank and able to make the loan payments. But when asked what recourse Rocky would have if she 

failed to make the loan payments, Debra responded, “That I 

pay him back?”

As to Rocky’s offer to extend her a loan to purchase the Ash 

Street residence, Debra testified that she “did not want [Rocky] 

to be [her] loan officer for 20 years.” She had attempted to 

obtain a loan on her own, but she was unable to purchase the 

residence from Rocky.
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The district court entered a written order granting Rocky’s 

request to modify the dissolution decree. The court first 

determined that Rocky had fulfilled his obligation to place 

the Ash Street residence in marketable condition. However, 

it concluded that his obligation to assist Debra in obtaining a 

loan was “too vague to be enforceable.” It observed that both 

parties had divergent beliefs as to the nature of the obligation and that Debra believed Rocky was required to “meet 

and accept whatever conditions the bank may have put on the 

loan.” And she could not identify any recourse Rocky would 

have if she failed to pay the loan. Thus, the court concluded 

that the obligation “ought to have [been] more fully explained 

or defined in the [property settlement agreement].” It therefore vacated Rocky’s obligation to assist Debra in obtaining 

a loan.

Debra filed a timely notice of appeal. We moved the case to 

our docket pursuant to statutory authority.1

ASSIGNMENT OF ERROR

Debra assigns, restated, that the district court abused its 

discretion in modifying the dissolution decree by vacating the 

provision requiring Rocky to assist her in obtaining a loan to 

purchase the Ash Street residence.

Debra does not attack the portion of the district court’s 

order determining that Rocky had fulfilled his obligation to 

place the Ash Street residence in marketable condition. Thus, 

that portion of the order is not affected by our resolution of 

the appeal.

STANDARD OF REVIEW

[1,2] An appellate court will reverse a decision on a 

motion to vacate or modify a judgment only if the litigant 

shows that the district court abused its discretion.2 A judicial 

abuse of discretion exists when reasons or rulings of a trial 

judge are clearly untenable, unfairly depriving a litigant of a 

1 See Neb. Rev. Stat. § 24-1106(3) (Reissue 2008).

2 Eihusen v. Eihusen, 272 Neb. 462, 723 N.W.2d 60 (2006).
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substantial right and denying just results in matters submitted 

for disposition.3

ANALYSIS

Debra assigns that the district court erred in vacating the 

provision of the dissolution decree requiring Rocky to assist 

her in obtaining a loan to purchase the Ash Street residence. 

She asserts that the provision was based upon the parties’ property settlement agreement and that their agreement should have 

been binding upon the court. She further claims that Rocky’s 

obligation to assist her was not ambiguous.

[3] Debra’s assertion as to the binding effect of the property 

settlement agreement is well taken. Neb. Rev. Stat. § 42-366(1) 

(Reissue 2008) provides that parties to a dissolution of marriage may enter into a written property settlement agreement 

containing provisions for, among other things, “the disposition 

of any property owned by either of them.” And in applying 

§ 42-366, we have held that if the terms of a property settlement agreement with respect to real and personal property and 

maintenance are not found unconscionable, the agreement is 

binding upon the dissolution court and the initial decree must 

carry such agreement into effect.4

[4] Rocky’s obligation to assist Debra in obtaining a loan 

was not found to be unconscionable by the dissolution court. 

And his obligation was incorporated into the dissolution decree. 

Upon entry of the decree, Rocky’s obligation to assist Debra 

became a judgment of the dissolution court. We have long held 

that a dissolution decree which approves and incorporates into 

the decree the parties’ property settlement agreement is a judgment of the court itself.5

 Thus, Rocky was required by judgment to assist Debra in obtaining a loan to purchase the Ash 

Street residence.

[5] However, contrary to Debra’s argument, Rocky’s obligation was ambiguous. We have stated that ambiguity exists in a 

document when a word, phrase, or provision therein has, or is 

3 Simpson v. Simpson, 275 Neb. 152, 744 N.W.2d 710 (2008).

4 See Reinsch v. Reinsch, 259 Neb. 564, 611 N.W.2d 86 (2000).

5 See Rice v. Webb, 287 Neb. 712, 844 N.W.2d 290 (2014).
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susceptible of, at least two reasonable but conflicting interpretations or meanings.6

 In other words, a document is ambiguous 

if, after application of the pertinent rules for construction, there 

is uncertainty concerning which of two or more reasonable 

meanings represents the intention of the parties.7

As the district court observed, the parties possessed divergent understandings of the nature of Rocky’s obligation. Debra 

testified that she believed Rocky was required to cosign a loan 

and to make any required downpayment. But Rocky’s obligation could reasonably be interpreted as requiring only one such 

action or neither. Rocky could also assist Debra in obtaining 

a loan in a myriad of other ways, such as providing copies of 

the parties’ income tax returns or other financial documents. 

We therefore agree that the nature of Rocky’s obligation was 

ambiguous and that it should have been more fully explained 

or defined in the property settlement agreement.

[6] But the ambiguity of Rocky’s obligation did not provide 

grounds to vacate it from the dissolution decree. We have consistently stated that 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 will not thereafter be vacated or modified in the absence of fraud or gross 

inequity.8 In his motion, Rocky did not allege the existence of 

fraud or gross inequity. And no evidence of such was received 

by the district court. Thus, no grounds permitting modification 

of the decree were established before the district court.

Although Rocky’s motion invoked the district court’s inherent authority to vacate or modify its decisions within term,9

this does not affect the outcome. Rocky’s motion was filed 

within the same term as the dissolution decree.10 And although 

6 See Strunk v. Chromy-Strunk, 270 Neb. 917, 708 N.W.2d 821 (2006).

7 Id.

8 See, Whitesides v. Whitesides, 290 Neb. 116, 858 N.W.2d 858 (2015); 

Rice, supra note 5; Strunk, supra note 6.

9 See Jarrett v. Eichler, 244 Neb. 310, 506 N.W.2d 682 (1993).

10 See Rules of Dist. Ct. of 12th Jud. Dist. 12-0 (rev. 2010) (providing for 

calendar year as regular term of court).
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the district court did not issue its modification order until after 

the term expired, it retained the inherent authority to do so.11

However, the court’s inherent authority did not permit the 

partial modification of the terms of Debra and Rocky’s property settlement agreement. As previously discussed, a property 

settlement agreement with respect to real and personal property 

and maintenance is binding upon the dissolution court unless 

its terms are found to be unconscionable.12 And if unconscionable, the dissolution court may request that the parties 

revise the agreement or proceed to make its own division of 

the marital property.13 The court is not free to selectively vacate 

a provision of the agreement on the basis of ambiguity as was 

done in this case.

In vacating Rocky’s obligation for ambiguity, the district 

court apparently misconstrued the nature of the underlying 

property settlement agreement. A contract may be found to 

be unenforceable due to a lack of definite or certain terms or 

a binding mutual understanding between the parties.14 But in 

Rice v. Webb,

15 we specifically disapproved of the application of contract principles to a property settlement agreement 

that had been incorporated into a dissolution decree. 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.16 “‘At that point the 

court and the parties are no longer dealing with a mere contract 

between the parties.’”17

Ambiguity as to a party’s obligation under a dissolution 

decree does not provide grounds for vacation or modification 

11 See Jarrett, supra note 9.

12 See Reinsch, supra note 4.

13 See, § 42-366(3); Prochazka v. Prochazka, 198 Neb. 525, 253 N.W.2d 407 

(1977).

14 See MBH, Inc. v. John Otte Oil & Propane, 15 Neb. App. 341, 727 

N.W.2d 238 (2007).

15 See Rice, supra note 5.

16 See id.

17 Id. at 723, 844 N.W.2d at 299, quoting Henderson v. Henderson, 307 N.C. 

401, 298 S.E.2d 345 (1983).
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of the decree. Rather, we have stated that when 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 the meaning of the decree as 

it appears.”18

Rocky raised the issue of the dissolution decree’s ambiguity, and the district court received testimony on that issue. But 

rather than resolving the matter, the court vacated the provision 

from the decree. And without a basis for doing so, the court’s 

modification constituted an abuse of discretion. We therefore 

vacate that portion of the court’s order purporting to modify 

the decree.

[7] Ultimately, the issue presented by Rocky’s motion was 

his compliance with his obligation to assist Debra in obtaining 

a loan. Because the meaning of a dissolution decree presents a 

question of law,19 we may address the issue in the first instance. 

We reject Debra’s interpretation of the assistance clause. The 

clause required Rocky to “assist” Debra. But it did not require 

him to “obtain” the loan in his own behalf by a cosignature or 

to provide a downpayment, as Debra advocates.

And the required assistance could take many forms. Because 

the district court erroneously vacated the assistance clause, it 

did not decide whether Rocky had fully complied. And because 

this is a task that the district court should undertake in the first 

instance, and which we would review for abuse of discretion, 

we remand the cause with direction to the district court to 

decide this issue.

CONCLUSION

The district court determined that Rocky had fulfilled his 

obligation to place the Ash Street residence in marketable 

condition. Our decision does not affect that portion of the 

court’s order.

Although Rocky’s obligation to assist Debra in obtaining a 

loan was ambiguous, such ambiguity did not provide a basis 

18 Neujahr v. Neujahr, 223 Neb. 722, 728, 393 N.W.2d 47, 51 (1986).

19 See Strunk, supra note 6.
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to modify the dissolution decree. Without evidence of fraud 

or gross inequity, modification of the decree was an abuse of 

discretion. We vacate the portion of the district court’s order 

purporting to do so.

Finally, we address the portion of Rocky’s motion seeking 

an order determining that he had performed his obligation 

under the assistance clause. Because the district court did not 

determine whether, based on the evidence before it, Rocky had 

fully complied with the assistance clause, we remand the cause 

with direction that the court do so.

Vacated in part and remanded with direction.

Donald Peterson, appellant, v. Kings Gate

Partners - Omaha I, L.P., and Picerne

Kings Gate, LLC, appellees.

___ N.W.2d ___

Filed April 10, 2015. No. S-14-383.

1. Motions to Dismiss: Appeal and Error. A district court’s grant of a motion to 

dismiss is reviewed de novo.

2. Motions to Dismiss: Pleadings: Appeal and Error. When reviewing an order 

dismissing a complaint, the appellate court accepts as true all facts which are 

well pled and the proper and reasonable inferences of law and fact which may be 

drawn therefrom, but not the plaintiff’s conclusion.

3. Motions to Dismiss: Pleadings. To prevail against a motion to dismiss for failure 

to state a claim, a plaintiff must allege sufficient facts, accepted as true, to state a 

claim to relief that is plausible on its face. In cases in which a plaintiff does not 

or cannot allege specific facts showing a necessary element, the factual allegations, taken as true, are nonetheless plausible if they suggest the existence of the 

element and raise a reasonable expectation that discovery will reveal evidence of 

the element or claim.

4. Statutes: Appeal and Error. To the extent an appeal calls for statutory interpretation or presents questions of law, an appellate court must reach an independent 

conclusion irrespective of the determination made by the court below.

5. Negligence: Proof. In order to recover in a negligence action, a plaintiff must 

show a legal duty owed by the defendant to the plaintiff, a breach of such duty, 

causation, and damages.

6. Negligence. The question whether a legal duty exists for actionable negligence is 

a question of law dependent on the facts in a particular situation.

7. ____. The existence of a duty generally serves as a legal conclusion that an actor 

must exercise that degree of care as would be exercised by a reasonable person 

under the circumstances.