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302 Nebraska Report

BAYNE v. BAYNE

Cite as 302 Neb. 858

Mick E. Bayne, appellan

Brittney J. Bayne, appel

___ N.W.2d ___

Filed April 12, 2019. No. S-18-382.

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. 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.

3. Judgments: Final Orders. It is inherent to a judgment’s finality that all 

are bound by the original language used, and all ought to interpret the 

language the same way.

4. 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.

5. Contempt. Civil contempt requires willful disobedience as an essential element.

6. Judgments: Intent. Doubtful or ambiguous judgments are to have a 

reasonable intendment to do justice and avoid wrong.

7. Divorce: Property Settlement Agreements: Equity: Appeal and 

Error. When interpreting an ambiguous dissolution decree, an appellate court bears in mind that an action for divorce sounds in equity 

and that the division of property, specifically, is based on equitable 

principles.

8. Equity. Equity looks through forms to substance; a court of equity goes 

to the root of a matter and is not deterred by forms.

Nebraska Supreme Court Online Library

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

05/24/2019 09:08 AM CDT
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BAYNE v. BAYNE

Cite as 302 Neb. 858

9. ____. Equity seeks the real and substantial rights of the parties and 

applies the remedy in such a manner as to relieve those having the controlling equities.

Appeal from the District Court for Douglas County: Timoth

P. Burns, Judge. Affirm

John A. Kinney, of Kinney Mason, P.C., L.L.O., for appellant.

James M. Buchanan, P.C., L.L.O., for appellee.

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

Papik, and Freudenberg, J

Freudenberg, J

NATURE OF CASE

This is an appeal from a declaratory judgment action in 

which the ex-husband sought a declaration that he was entitled 

to one-half of the proceeds of a home awarded to the ex-wife 

in the divorce decree and sold approximately 2 years later 

when she decided to remarry. At issue is the meaning of a 

provision in the dissolution decree stating that the ex-wife 

would “have the home refinanced into her own name within 12 

months of entry of this decree” and that should she be “unable 

to refinance the home into her own name within 12 months, 

[the] house shall be listed for sale and the parties shall equally 

divide any costs or proc[e]eds from the sale of the home.” The 

provision also provided that it “shall be enforceable by the 

contempt powers of this court.” The ex-wife had refinanced the 

home approximately 13 months after the entry of the dissolution decree. The ex-wife was approved for refinancing within 

1 year of the entry of the dissolution decree, but the bank did 

not schedule closing on the refinance until approximately 13 

months from the entry of the dissolution decree.

BACKGROUND

Mick E. Bayne and Brittney J. Bayne were divorced on 

December 9, 2015, pursuant to a consent decree. In August 
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BAYNE v. BAYNE

Cite as 302 Neb. 858

2017, Mick brought this declaratory judgment action seeking 

a judgment declaring that he was entitled to one-half of the 

proceeds from the sale of the marital house that was awarded 

to Brittney, pursuant to a contingency refinancing provision. 

The provision stated in relevant part:

The parties agree that [Brittney] shall receive the property 

as her sole and separate property, holding [Mick] harmless from any and all claims on the property. The parties 

shall cooperate in executing any and all documentation 

to effectuate the transfer of possession of the home. 

[Brittney] shall have the home refinanced into her own 

name within 12 months of entry of this decree. This provision shall be enforceable by the contempt powers of this 

court. Should [Brittney] be unable to refinance the home 

into her own name within 12 months, [the] house shall 

be listed for sale and the parties shall equally divide any 

costs or proc[e]eds from the sale of the home.

Brittney pled the defenses of bad faith and unclean hands.

The evidence at trial demonstrated that the marital house was 

purchased for $151,500 in 2012. At the time of the divorce, the 

mortgage on the house was approximately $140,000. Brittney 

believed the house was worth approximately $150,000 to 

$160,000 at the time of the divorce. It was undisputed that 

Mick had caused damage to the house before he vacated it. 

Brittney described that Mick had “trashed” the house. Brittney 

cleaned up and paid for repairs or replacement due to the 

damage to the drywall, flooring, railings, doors, and furniture 

allegedly all caused by Mick and represented by various photographs entered into evidence.

In the property division of the dissolution decree, approving 

Brittney and Mick’s settlement agreement, Brittney’s retirement account was split equally and the marital debt was 

divided between Brittney and Mick. Mick kept several dirt 

bikes worth $4,000 in total and a truck with approximately 

$12,000 in equity. Brittney kept her car that was worth $3,000 
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Cite as 302 Neb. 858

and was given the house pursuant to the provision set forth 

above. Brittney had obtained approval for refinancing within 

12 months after entry of the dissolution decree, but did not 

close on the refinancing until January 13, 2017, approximately 

1 month after the 1-year anniversary of the dissolution decree. 

Brittney testified that she did not set the closing date, which 

was set by the bank.

Brittney explained that she began the process of refinancing in August 2016. She explained that the delay from August 

2016 to January 2017 was due to the need to improve her 

credit score before the bank would approve her application 

to refinance. According to Brittney, her credit score had been 

damaged by Mick’s failure to make payments on a credit card 

account in both their names, which account had been assigned 

to Mick in the dissolution decree. From August until closing, 

Brittney was in weekly contact with her mortgage broker. It 

was not until December that her credit score finally qualified 

her for refinancing.

At the time of closing for the refinancing, the house was 

appraised to be worth $170,000, and it was refinanced for what 

was owed at that time, which was $136,000. Brittney incurred 

$4,510.64 in closing costs for the refinance.

In addition to repairing damage caused by Mick, after the 

divorce, Brittney made several other repairs and improvements, which she opined had “increased the value of the house 

massively.” In total, Brittney spent approximately $25,000 on 

repairs and updates for the house. She replaced all the appliances; made various cosmetic improvements, such as painting and adding new flooring; and added a bedroom and a 

bathroom to the house. The repairs of the damage caused by 

Mick, as well as the bedroom and bathroom additions, were 

completed before Brittney refinanced. Brittney apparently paid 

all mortgage payments and repairs to the house from the time 

of the divorce.
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BAYNE v. BAYNE

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Brittney testified that she informed Mick of the refinance 

sometime around January 18, 2017, and there was evidence 

that Mick acknowledged the refinance through a social media 

posting on that date. Despite this, in April 2017, Mick filed 

a contempt action to enforce the refinance provision of the 

dissolution decree. According to Brittney, the court dismissed 

the contempt action on the ground that the house was already 

refinanced. That order is not in the record, and Brittney did not 

plead or argue issue preclusion.

Around the same time as the contempt action, Brittney 

became engaged to be married. Brittney and her fiance determined that the house would not accommodate all of their respective children, and they decided to sell the house. The house 

sold in June 2017 for $194,000. After deducting $12,385.81 

in closing costs and adding $1,817.05 in adjustments for taxes 

already paid, Brittney received $44,998.39 from the sale.

The district court declared that Brittney had timely refinanced the house and that therefore, Mick was not entitled 

to one-half of the proceeds from its later sale. The court reasoned that nothing in the decree indicated that time was of the 

essence and that the provision “[s]hould [Brittney] be unable to 

refinance the home into her own name within 12 months” does 

not mean that she had to have the refinance “completed” within 

a year. Brittney, the court noted, was able to obtain approval 

for the refinance within 1 year of the decree and was able to 

close on the refinancing a little over a year after the decree. 

Mick appeals.

ASSIGNMENTS OF ERROR

Mick assigns that the district court erred (1) by construing 

the language of the decree in a manner other than its plain 

meaning and (2) by failing to declare that the decree could only 

be interpreted from the four corners of the documents, that 

there was no ambiguity, and that Mick was entitled to one-half 

of the proceeds from the sale of the property.
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BAYNE v. BAYNE

Cite as 302 Neb. 858

STANDARD OF REVIEW

[1] The meaning of a divorce decree presents a question 

of law, in connection with which we reach a conclusion independent of the determination reached by the court below.1

ANALYSIS

Mick asserts that the district court looked outside the four 

corners of the dissolution decree and, regardless, that it erred 

in its interpretation of the refinance provision. Mick did not 

assert below and does not assert on appeal that Brittney failed 

to obtain refinancing within a reasonable time of the specified 

12-month deadline, that her failure to refinance by the 1-year 

anniversary of the dissolution decree was willful, or that he 

was damaged by the 1-month delay. Nor does he challenge the 

district court’s finding that Brittney was able to refinance the 

home into her own name within 1 year of the decree.

At the outset, we note that Brittney, for her part, has not 

challenged whether declaratory judgment was the proper remedy for Mick to enforce the refinance provision. We will 

assume, without deciding, that it was proper for the district 

court to entertain Mick’s request for declaratory judgment.2

[2,3] 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.3 It is inherent to a judgment’s finality that all are bound by the original 

language used, and all ought to interpret the language the 

same way.4

Even when our determination involves “interpretation” of 

the judgment or decree,5 its meaning is determined, as a 

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

2 See Carlson v. Carlson, 299 Neb. 526, 909 N.W.2d 351 (2018).

3 Rice v. Webb, supra note 1.

4 See Kerndt v. Ronan, 236 Neb. 26, 458 N.W.2d 466 (1990).

5 See Blaine v. Blaine, 275 Neb. 87, 744 N.W.2d 444 (2008).
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matter of law, by its contents.6 Unlike disputes over the meaning of an ambiguous contract, the parties’ subjective interpretations and intentions are wholly irrelevant to a court’s 

declaration, as a matter of law, as to the meaning of an 

ambiguous decree.7 The Nebraska Court of Appeals’ opinion 

in Boyle v. Boyle 8 is disapproved to the extent that it holds 

differently.

We find no merit to Mick’s assertion that the district court 

looked outside the four corners of the dissolution decree and 

improperly considered the parties’ subjective intentions and 

interpretations. While there was testimony submitted by both 

parties, without objection, pertaining to the negotiations leading up to the property settlement agreement, there is no indication the court relied on such testimony in reaching its conclusion. Moreover, even if the district court had improperly 

relied on the parties’ subjective understandings of the decree, 

it would be of little consequence on appeal, as we reach our 

conclusion as to the meaning of the decree as a matter of law 

independently from the reasoning below.9

[4] We also find no merit to Mick’s assertion that the district court wrongly interpreted the decree. 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.10 Effect must be given to every part 

thereof, including such effect and consequences that follow 

6 See Kerndt v. Ronan, supra note 4.

7 See Carlson v. Carlson, supra note 2.

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

9 See Rice v. Webb, supra note 1.

10 See 50 C.J.S. Judgments § 742 (2009). See, also, Whaley v. Matthews, 136 

Neb. 767, 287 N.W. 205 (1939); Hays v. Christiansen, 114 Neb. 764, 209 

N.W. 609 (1926); 27A C.J.S. Divorce § 458 (2016).
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the necessary legal implication of its terms, although not 

expressed.11

The real property provision of the decree provided in relevant part that Brittney “shall have the home refinanced into 

her own name within 12 months of entry of this decree,” that 

“[t]his provision shall be enforceable by the contempt powers 

of the court,” and “[s]hould [Brittney] be unable to refinance 

the home into her own name within 12 months, [the] house 

shall be listed for sale and the parties shall equally divide any 

costs or proc[e]eds from the sale of the home.” The district 

court found that the forced sale provision of the decree did 

not apply, because Brittney was “able” to refinance and was 

approved for refinancing within 12 months.

We cannot say that the district court erred by finding that 

Mick was not entitled to relief under the forced sale provision. As the district court pointed out, the forced sale provision 

applied only if Brittney was “unable” to refinance the house 

into her own name within 1 year. The district court found 

Brittney was “able” to refinance the house into her own name, 

and Mick does not challenge this determination on appeal.

Instead, Mick responds that the decree makes logical sense 

only if the forced sale provision was triggered by Brittney’s 

failure to actually complete the refinancing of the home into 

her own name within 1 year. Mick contends that if the decree 

is not read in this way, Brittney could have refused to refinance the home into her own name and he would have been 

left without recourse so long as she was “able” to refinance. 

This, Mick argues, would render the requirement that Brittney 

refinance the home into her own name within 12 months 

meaningless.

11 See, Klinginsmith v. Wichmann, 252 Neb. 889, 567 N.W.2d 172 (1997), 

overruled on other grounds, Smeal Fire Apparatus Co. v. Kreikemeier, 

279 Neb. 661, 782 N.W.2d 848 (2010), and disapproved on other grounds, 

Hossaini v. Vaelizadeh, 283 Neb. 369, 808 N.W.2d 867 (2012); Whaley v. 

Matthews, supra note 10.
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BAYNE v. BAYNE

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[5] Even if we could ignore the fact that Mick’s argument 

is not supported by the terms of the decree, we are not persuaded by his argument that it is illogical or unfair for the 

forced sale provision to apply only if Brittney was unable to 

refinance. The decree set forth three provisions with respect 

to refinancing the home into Brittney’s name: (1) that Brittney 

was required to do so within 12 months, (2) that this requirement was enforceable by the contempt powers of the court, and 

(3) that if Brittney was unable to refinance within 12 months, 

the forced sale provision applied. When these three terms and 

the fact that civil contempt requires willful disobedience as an 

essential element12 are considered together, it becomes clear 

that the decree is neither illogical nor unfair to Mick.

If after 12 months, Brittney was willfully refusing to refinance the home into her own name despite being able to do 

so, Mick could bring an action for contempt, and the court 

could, on pain of contempt, order her to refinance. The contempt remedy would obviously be of no help if Brittney, for 

whatever reason, did not refinance because she was unable to 

do so, and that is where the forced sale provision comes into 

play. If Brittney was unable to refinance within 12 months, 

the house could be sold and the proceeds split. Together, these 

provisions would accomplish the obvious goal of removing 

Mick’s responsibility for the debt on the home in a reasonably 

timely fashion.

Perhaps uncertainty could have been avoided if the decree 

had been explicit that the court could use its contempt powers to compel Brittney to refinance if she willfully refused 

to do so. Instead, the forced sale provision was limited to 

situations where Brittney was unable to refinance. Even so, 

we see no basis to find that this decree required a forced sale 

merely because Brittney did not complete refinancing within 

12 months.

12 See McCullough v. McCullough, 299 Neb. 719, 910 N.W.2d 515 (2018).
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[6-9] Even if we were to find the decree ambiguous as to 

what “refinance,” “unable,” or other terms might mean, it 

would not be construed differently. “Doubtful or ambiguous 

judgments are to have a reasonable intendment to do justice 

and avoid wrong.”13 When interpreting an ambiguous dissolution decree, we bear in mind that an action for divorce sounds 

in equity14 and that the division of property, specifically, is 

based on equitable principles.15 Equity looks through forms to 

substance; a court of equity goes to the root of a matter and is 

not deterred by forms.16 Equity seeks the real and substantial 

rights of the parties and applies the remedy in such a manner 

as to relieve those having the controlling equities.17

As explained by the court in Mihalyak v. Mihalyak,

18 delays 

in refinancing of the marital home are frequent and, if reasonable in duration, are generally tolerated. As illustrated by 

the facts of this case, the process of refinancing can become 

complicated by factors outside the applicant’s control and the 

applicant cannot unilaterally set the closing date. Thus, the 

court in Mihalyak held that a sale penalty was not triggered 

despite the fact that the decree stated the wife “‘shall’” pay the 

husband a certain amount representing his share of the equity 

in the house awarded to the wife, “‘on or before’” a set date 

after the wife’s refinancing of the mortgage, and the wife paid 

the husband his share after that date.19

Brittney has the controlling equities in this case. There was 

no evidence that Brittney willfully failed to complete the refinance of the home within 12 months. Instead, Brittney made 

13 50 C.J.S., supra note 10, § 742 at 68.

14 Hall v. Hall, 238 Neb. 686, 472 N.W.2d 217 (1991).

15 Medlock v. Medlock, 263 Neb. 666, 642 N.W.2d 113 (2002).

16 Miller v. School Dist. No. 69, 208 Neb. 290, 303 N.W.2d 483 (1981).

17 National Mortgage Loan Co. v. Hurst, 120 Neb. 37, 231 N.W. 519 (1930).

18 Mihalyak v. Mihalyak, 11 Conn. App. 610, 529 A.2d 213 (1987).

19 Id. at 612, 529 A.2d at 215.
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a good faith effort to complete refinancing within 12 months. 

She was approved for the refinancing within 12 months and 

was not in that sense “unable” to refinance her home within 12 

months of the decree. Brittney did not control the closing date, 

and there was no evidence that Mick incurred any harm as a 

result of the 1-month delay in closing.

It would offend both the plain language of the real property 

provision of the decree as well as equity and justice to construe 

it as requiring the sale of the house and equal division of the 

proceeds under these facts.

CONCLUSION

For the foregoing reasons, we affirm the judgment below.

Affirm