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Timothy Ray Grothen, appellant, v. 

Martha Sue Grothen, appellee.

___ N.W.2d ___

Filed December 31, 2020. No. S-19-472.

1. Statutes. Statutory interpretation presents a question of law.

2. Appeal and Error. On a question of law, an appellate court is obligated 

to reach a conclusion independent of the determination reached by the 

court below.

3. 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.

4. 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.

5. Statutes. A court will construe statutes relating to the same subject matter together so as to maintain a consistent and sensible scheme, giving 

effect to every provision.

6. Modification of Decree: Alimony: Property Settlement Agreements.

Where the parties have not expressly precluded or limited modification 

of alimony pursuant to Neb. Rev. Stat. § 42-366(7) (Reissue 2016), an 

alimony provision that was agreed to by the parties as part of a property 

settlement agreement may later be modified in accordance with Neb. 

Rev. Stat. § 42-365 (Reissue 2016).

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

Under Neb. Rev. Stat. § 42-365 (Reissue 2016), alimony may be modified for good cause shown, and “good cause” means a material and substantial change in circumstances and depends upon the circumstances of 

each case.

8. Divorce: Alimony. In determining alimony, a court should consider the 

income and earning capacity of each party and the general equities of 

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

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the situation. Alimony is not a tool to equalize the parties’ income, but 

a disparity of income or potential income might partially justify an alimony award.

9. Alimony. There is no mathematical formula by which alimony awards 

can be precisely determined.

10. Modification of Decree: Words and Phrases. A material change of circumstances constituting grounds for modification of a dissolution decree 

means the occurrence of something which, had it been known to the 

dissolution court at the time of the initial decree, would have persuaded 

the court to decree differently.

11. Modification of Decree: Alimony: Good Cause. While good cause is 

demonstrated by a material change in circumstances, 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.

12. 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 with their circumstances 

at the time the modification at issue was sought.

Petition for further review from the Court of Appeals, Moore, 

Riedmann, and Welch, Judges, on appeal thereto from the 

District Court for Adams County, Stephen R. Illingworth, 

Judge. Judgment of Court of Appeals affirmed.

Richard L. Alexander, of Richard Alexander Law Office, for 

appellant.

Robert J. Parker, Jr., of Seiler & Parker, P.C., L.L.O., for 

appellee.

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

Papik, and Freudenberg, JJ.

Miller-Lerman, J.

NATURE OF CASE

On appeal to the Nebraska Court of Appeals, Timothy Ray 

Grothen claimed that the district court for Adams County erroneously denied his application for modification of his alimony 

obligation in the decree dissolving his marriage to Martha 
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Sue Grothen. The Court of Appeals affirmed the district court’s 

order denying modification and reasoned, in part, that because 

the original alimony award was agreed to by the parties as 

part of a property settlement agreement, the alimony provision 

could not be modified in the absence of fraud or gross inequity, 

which Timothy had failed to show. See Grothen v. Grothen, 28 

Neb. App. 505, 945 N.W.2d 902 (2020). We granted Timothy’s 

petition for further review.

We conclude that the district court properly used the good 

cause standard set forth in Neb. Rev. Stat. § 42-365 (Reissue 

2016) and that it did not err when it determined that, under 

that standard, modification of alimony was not appropriate. We 

further conclude that although the Court of Appeals erroneously applied a fraud or gross inequity standard to modification 

of alimony, it nevertheless reached the correct result when it 

affirmed the denial of modification of alimony. We therefore 

affirm the decision of the Court of Appeals, which affirmed the 

district court’s order denying modification.

STATEMENT OF FACTS

In August 2012, the district court filed a decree dissolving Timothy and Martha’s marriage. The decree incorporated 

the parties’ property settlement agreement, pursuant to which 

they agreed, inter alia, that Timothy would be awarded farmland that was the bulk of the marital estate and that he would 

pay Martha $600,000 in cash. The parties also agreed that 

Timothy would pay Martha alimony of $2,500 per month for 

15 years.

In April 2018, Timothy filed an application to modify his 

alimony obligation. He alleged that his income, which came 

mainly from growing corn and soybeans on the farmland 

he owned and on other farmland he rented, had decreased 

significantly since 2012. At a hearing on the application in 

March 2019, Timothy presented evidence that he was no longer 

farming two of four rented quarter sections he had farmed in 

2012, that rent he paid on the two quarter sections he was still 

farming had doubled since 2012, and that crop prices for corn 
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and soybeans in 2018 were half of what they had been in 2012. 

The property settlement in 2012 had been determined based in 

part on Timothy’s 2011 tax return which reported farm income 

of $167,955; Timothy’s 2018 tax return reported a farm loss 

of $3,973. Conversely, Timothy’s annual financial statements 

showed that his net worth in 2012 was $1.553 million and that 

by 2018, it had increased to $1.82 million, the bulk of which 

was farmland valued at $1.76 million.

Martha cross-examined Timothy regarding efforts he could 

undertake to continue making alimony payments, such as finding additional farmland to rent or obtaining an operating loan 

using the farmland he owned as collateral. Timothy testified 

that he always kept his “radar out” but had not specifically 

sought to replace the rented quarter sections, and although he 

admitted he had not asked the bank about a loan, he testified 

that it was the bank’s policy to give loans based only on ability to repay and not on assets or equity. Timothy also testified 

that he had not been able to save his earnings from the “boom” 

years of 2011 and 2012 because he had taken out a loan to pay 

the $600,000 property settlement obligation to Martha and that 

the money he might otherwise have saved had been applied to 

that loan.

Martha also presented evidence regarding her current financial circumstances. Martha had stayed home during the marriage to raise the parties’ three children, but at some point, 

she had begun working at a small gift shop the parties owned. 

She continued working at the gift shop after the divorce, but 

she testified that the business was not profitable. She also testified that since the divorce, she had had various medical issues 

that increased her expenses and limited her ability to obtain 

employment other than working in the gift shop where she had 

more control over her activities.

After the hearing, the court entered an order denying 

Timothy’s application for modification of alimony. The court 

began its analysis by citing § 42-365, which provides in part 

that alimony may be modified or revoked for “good cause” 
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shown. The court cited Metcalf v. Metcalf, 278 Neb. 258, 

265, 769 N.W.2d 386, 391 (2009), for the proposition that for 

purposes of § 42-365, “[g]ood cause means a material and 

substantial change in circumstances and depends upon the circumstances of each case.” The court noted that Martha argued 

that because the decree of dissolution in this case incorporated 

a property settlement agreement, it was a “consent decree 

[that] is accorded greater force than ordinary judgments and 

ordinarily will not be modified over [the] objection[s] of 

one of the parties.” However, the court’s modification analysis focused on whether there had been a material change 

in circumstances.

The court concluded that Timothy had not shown a material change in circumstances that warranted modification of 

alimony. In reaching this conclusion, the court cited precedent 

regarding factors that should be considered with regard to a 

request to modify alimony. Factors the court stated it considered were as follows: that a change in circumstances does not 

warrant modification if the change was in the contemplation of 

the parties at the time of the decree (citing Metcalf v. Metcalf, 

supra); that in determining whether there has been a material 

change in circumstances, the court should compare the financial 

circumstances of the parties at the time of the decree with their 

financial circumstances at the time modification is requested 

(also citing Metcalf v. Metcalf, supra); and that in determining 

whether alimony is appropriate, a court should consider the 

fact that one of the parties has been awarded all the incomeproducing property from the marriage (citing Grams v. Grams, 

9 Neb. App. 994, 624 N.W.2d 42 (2001)). The court determined 

that each of these considerations weighed against modification 

of alimony in this case.

The court stated that Timothy relied on changes in the farm 

economy to argue that there had been a material change in 

circumstances with respect to his income, but the court reasoned that an experienced farmer would know that farm prices 

are cyclical and that therefore, a fluctuation in commodity 
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prices was something that would have been in the contemplation of the parties at the time the decree was entered in 

2012. The court rejected Timothy’s contention that because of 

decreased income, he could not make the alimony payments. 

The court reasoned that Timothy could borrow $30,000 to pay 

the alimony. Noting Timothy’s net worth of $1.82 million, the 

court specifically discredited Timothy’s testimony that he could 

not borrow $30,000.

Regarding the parties’ comparative financial circumstances, 

the court noted that Timothy was awarded the bulk of the 

marital estate and that his net worth was much greater than 

Martha’s. The court determined that the $600,000 payment 

from Timothy to Martha was not sufficient to equalize the parties’ relative financial circumstances and that therefore, it was 

clear that alimony was awarded to Martha to make the equities 

as between the parties closer to a 50-50 split. The court finally 

reasoned that if it were to reduce or terminate Timothy’s alimony obligation, it would be unfair to Martha and a windfall 

to Timothy because Timothy’s net worth was substantially 

greater than Martha’s and Timothy had been awarded the main 

income-producing property in the dissolution.

In its order, the district court also cited precedent to the 

effect that the doctrine of unclean hands will bar an application 

for modification of child support or alimony if the applicant 

has not satisfied existing obligations and the failure to pay is 

found to be willful. The court stated that Timothy had failed to 

pay monthly alimony since April 2018, when he filed his application for modification, and the court found that Timothy’s 

failure to pay alimony was “willful because he had the financial ability to borrow the money and chose instead to pay nothing for a year after having previously been found in contempt.” 

In addition to denying Timothy’s application for modification, 

the court ordered Timothy to pay Martha’s attorney fees and to 

pay costs of the action.

Timothy appealed the denial of his application for modification of alimony to the Court of Appeals. He claimed that 

the district court erred when it (1) denied his application 
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to modify alimony, (2) determined that his failure to pay alimony was willful and therefore the doctrine of unclean hands 

precluded him from obtaining a modification of alimony, and 

(3) awarded attorney fees to Martha. The Court of Appeals 

concluded that the district court did not abuse its discretion 

when it denied the application for modification on its merits. Because of this conclusion, the Court of Appeals stated 

that it need not consider the alternative basis for denying the 

application based on the unclean hands doctrine. The Court of 

Appeals also concluded that the district court did not abuse its 

discretion when it awarded attorney fees to Martha. The Court 

of Appeals therefore affirmed the district court’s order, which 

denied Timothy’s application to modify alimony and awarded 

attorney fees to Martha.

With regard to the merits of the application for modification, the Court of Appeals began its analysis by noting that the 

original alimony award was entered pursuant to the parties’ 

property settlement agreement. The Court of Appeals then cited 

this court’s decision in Carlson v. Carlson, 299 Neb. 526, 909 

N.W.2d 351 (2018), for the proposition 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 as to real 

and personal property and maintenance will not thereafter be vacated or modified in the absence of fraud or 

gross inequity.

Grothen v. Grothen, 28 Neb. App. 505, 511, 945 N.W.2d 902, 

907 (2020). The Court of Appeals stated that because there was 

no allegation of fraud in the present case, the only issue was 

whether modification of alimony was necessary to prevent a 

gross inequity.

The Court of Appeals analyzed this case under the gross 

inequity standard. The Court of Appeals acknowledged that 

the decrease in income alleged by Timothy was a circumstance that could be considered in determining whether alimony should be modified. But the Court of Appeals also 
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noted precedent to the effect that a change in one party’s 

financial circumstances should be considered in conjunction 

with changes in the other party’s situation and that such consideration was not limited to comparing the parties’ respective 

incomes, but also included consideration of property owned by 

the parties. In this regard, the Court of Appeals noted that in 

addition to considering the decrease in Timothy’s income, the 

district court also considered the following factors: that since 

the decree was entered, Timothy’s net worth had increased 

approximately $300,000 to $1.8 million; that Timothy had 

been awarded the income-producing marital property; and 

that Timothy had the ability to borrow funds should it be 

necessary. The Court of Appeals noted that in comparing the 

parties’ circumstances, the district court had observed that 

although Martha had received a $600,000 equalization payment pursuant to the decree of dissolution, her net worth had 

decreased, partially due to Timothy’s failure to pay alimony, 

and that Martha had health issues that made it difficult for her 

to obtain employment.

In summation, the Court of Appeals acknowledged that, 

whether changes in Timothy’s farm income were foreseeable 

in 2012, Timothy’s financial circumstances had changed since 

the entry of the decree. However, the Court of Appeals again 

cited our decision in Carlson v. Carlson, supra, to state that 

“because alimony was originally ordered pursuant to an agreement between the parties, the issue is not whether there has 

been a material change in circumstances, but, rather, whether 

the continued alimony results in a gross inequity.” Grothen v. 

Grothen, 28 Neb. App. at 513, 945 N.W.2d at 909. The Court 

of Appeals read the district court’s reasoning that modification of alimony would be unfair to Martha and a windfall to 

Timothy as a recognition by the district court that declining 

to modify alimony would not result in a gross inequity. The 

Court of Appeals therefore concluded that the district court did 

not abuse its discretion when it denied Timothy’s application 

for modification of alimony.
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We granted Timothy’s petition for further review of the 

Court of Appeals’ decision.

ASSIGNMENTS OF ERROR

Timothy claims that the Court of Appeals erred when it 

applied a “‘gross inequity’” standard rather than the “‘good 

cause’” standard set forth in § 42-365 for modification of an 

award of alimony. He also claims that the Court of Appeals 

erred when it affirmed the district court’s determination that 

the change in his income since the entry of the decree did not 

justify a modification of alimony. Timothy specifically claims 

that the Court of Appeals and district court both erred when 

they failed to evaluate alimony as being determined primarily 

by a party’s income rather than his or her assets.

STANDARDS OF REVIEW

[1,2] Statutory interpretation presents a question of law.

Benjamin M. v. Jeri S., 307 Neb. 733, 950 N.W.2d 381 (2020). 

On a question of law, an appellate court is obligated to reach 

a conclusion independent of the determination reached by the 

court below. Id.

[3,4] 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. Jones v. Jones, 305 

Neb. 615, 941 N.W.2d 501 (2020). 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. Id.

ANALYSIS

Court of Appeals Erroneously Applied Gross 

Inequity Standard to Modification 

of Alimony Provision.

Timothy first claims that the Court of Appeals erred when 

it applied a gross inequity standard to modification of the 

award of alimony. Timothy asserts that the proper standard 
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is that set forth in § 42-365, which allows modification of alimony for “good cause.” We have interpreted “good cause” to 

mean a material and substantial change in circumstances, and 

it depends upon the circumstances of each case. See Metcalf 

v. Metcalf, 278 Neb. 258, 769 N.W.2d 386 (2009). We conclude that the Court of Appeals misread our precedent when 

it determined that a gross inequity standard should be applied 

to modification of alimony when the alimony provision in the 

original decree of dissolution was agreed to by the parties as 

part of a property settlement agreement and the alimony provision has not been designated as nonmodifiable under Neb. Rev. 

Stat. § 42-366(7) (Reissue 2016). That is, unless the parties’ 

agreement specifically provides that alimony may not be modified, modification of alimony is governed by the “good cause” 

provision in § 42-365.

The Court of Appeals’ decision in this case relied largely on

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

Carlson, we stated the proposition regarding modification of 

provisions of a property settlement agreement as follows:

[W]here 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.

299 Neb. at 543, 909 N.W.2d at 363 (emphasis supplied). The 

Court of Appeals understandably relied on the inclusion of 

the word “maintenance” in this standard when it understood 

“maintenance” to include “alimony” and conclude that an 

alimony provision that is agreed to by the parties as part of a 

property settlement agreement cannot be vacated or modified 

in the absence of fraud or gross inequity.

However, Carlson was not a case involving alimony, and 

we have not in modern times applied a fraud or gross inequity standard in a case involving modification of alimony. But 
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see Williams v. Williams, 119 Neb. 8, 226 N.W. 798 (1929) 

(referring in syllabus of court to fraud and also change in circumstances). The present case requires us to clarify the proper 

standard to review an application for modification of an alimony provision that was agreed to by the parties in connection 

with a property settlement agreement. As explained below, we 

conclude that statutory and case law authority does not support 

a fraud or gross inequity standard and instead the statutory 

“good cause” standard set forth in § 42-365 for modification of 

alimony and cases thereunder such as Metcalf v. Metcalf, supra, 

should apply. Our use of the word “maintenance” in Carlson 

v. Carlson, supra, should not be read as having changed our 

standard for evaluating requests to modify alimony.

In cases discussing the fraud and gross inequity proposition in connection with modification, we have also referred 

to § 42-366, which controls the initial decree and contains the 

requirement that real and personal property and maintenance in 

the initial decree must not be unconscionable. E.g., Reinsch v. 

Reinsch, 259 Neb. 564, 611 N.W.2d 86 (2000). In some cases, 

we set forth the proposition as applying to provisions of a 

property settlement agreement without further specifying the 

nature of those provisions within the proposition. See, Ryder 

v. Ryder, 290 Neb. 648, 861 N.W.2d 449 (2015); Whitesides 

v. Whitesides, 290 Neb. 116, 858 N.W.2d 858 (2015). In other 

cases, we have specified that the proposition applies to “‘provisions dealing with division of real and personal property, 

division of pension benefits, and division of stock.’” See Peter 

v. Peter, 262 Neb. 1017, 1027, 637 N.W.2d 865, 874 (2002). 

See, also, Davis v. Davis, 265 Neb. 790, 794, 660 N.W.2d 162, 

165 (2003) (referring only to “‘property provisions’”); Gruber 

v. Gruber, 261 Neb. 914, 919, 626 N.W.2d 582, 586 (2001) 

(referring only to “provisions dealing with division of pension 

benefits”). Regardless of the language in which the standard 

has been articulated, the cases in which we applied the fraud 

or gross inequity standard involved provisions to divide property or provisions related to the division of property. As noted, 
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this was true even when we stated the proposition as applying 

generally to “provisions” without specifying “property provisions.” See, Ryder v. Ryder, supra (provision requiring one 

former spouse to assist other former spouse in obtaining loan to 

buy new residence); Whitesides v. Whitesides, supra (provision 

regarding division of one former spouse’s interest in partnership); Strunk v. Chromy-Strunk, 270 Neb. 917, 708 N.W.2d 

821 (2006) (provision requiring one former spouse to pay other 

spouse additional $75,000 if certain conditions met).

As noted above, Carlson v. Carlson, 299 Neb. 526, 909 

N.W.2d 351 (2018), did not involve alimony; instead, it 

involved post-majority child support. We reasoned that, as 

compared to support for minor children, post-majority child 

support was not statutorily mandated and, therefore, the appropriate standard for a request to modify a provision for postmajority child support should be the fraud or gross inequity 

standard we apply to property provisions of an agreed-upon 

property settlement agreement. Although we used the general term “maintenance” in the proposition, the holding in 

Carlson should be read as applying to the facts of the case 

concerning post-majority child support and not be read as 

governing modification of other types of “maintenance” such 

as alimony.

Our rationale for extending the fraud or gross inequity 

standard to post-majority child support in Carlson was 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.” 299 Neb. at 

543, 909 N.W.2d at 362 (citing rationale from other states that 

held similarly with regard to modification of post-majority 

child support). That same rationale does not apply to alimony, 

which the court could impose in the first instance and which 

a court could later vacate or modify under the authority of 

§ 42-365. In this regard, alimony is more similar to child 

support for minor children, and in Reinsch v. Reinsch, 259 

Neb. 564, 569, 611 N.W.2d 86, 90 (2000), we held that the 
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“‘fraud or gross inequity’” standard did not apply to modification of child support, and we noted instead that “we have consistently held that a party seeking to modify a child support 

order must show a material change in circumstances which 

has occurred subsequent to the entry of the original decree or 

a previous modification and was not contemplated when the 

decree was entered.”

Property settlement agreements in a dissolution action are 

authorized by § 42-366. Although § 42-366 authorizes property 

settlement provisions for disposition of property owned by the 

parties, neither § 42-366 nor another statute appears to set forth 

standards for modifying such property terms at a later date. 

Instead, the fraud or gross inequity standard set forth above for 

modification of property terms agreed to as part of a property 

settlement was developed in case law.

[5] In contrast to modification of property, § 42-365 not 

only authorizes an order of alimony in a decree of dissolution, but it further provides for modification of alimony for 

“good cause” shown. Section 42-366(1) allows for a property 

settlement agreement to include, inter alia, “provisions for the 

maintenance of either [party],” and § 42-366(6) provides that 

“[a]limony may be ordered in addition to a property settlement award.” (Emphasis supplied.) Thus, both § 42-365 and 

§ 42-366 pertain to alimony. A court will construe statutes 

relating to the same subject matter together so as to maintain 

a consistent and sensible scheme, giving effect to every provision. Archer Daniels Midland Co. v. State, 290 Neb. 780, 

861 N.W.2d 733 (2015). We therefore read §§ 42-365 and 

42-366 together and give each statute effect when determining 

the proper standard for modification of an alimony provision 

that was agreed to by the parties as part of a property settlement agreement.

We addressed the interplay between §§ 42-365 and 42-366 

in Euler v. Euler, 207 Neb. 4, 295 N.W.2d 397 (1980). In 

Euler, one party argued that § 42-365 was not applicable where 

the parties had entered into a property settlement agreement 
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under § 42-366. We disagreed and noted § 42-366(7), which 

provides, “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.” We concluded 

that where there was no provision expressly precluding or 

limiting modification of the terms of the decree, the provisions 

of § 42-366(7) can and should be read in conjunction with the 

provisions of § 42-365, with effect being given to each statute. 

We concluded 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.” Euler v. Euler, 207 Neb. at 9-10, 295 N.W.2d at 400.

Consistent with Euler, we stated in Cooper v. Cooper, 219 

Neb. 64, 67, 361 N.W.2d 202, 204 (1985), that “this court’s 

power to modify the alimony award is not affected by the 

fact that the decree is based on an agreement of the parties.” 

See, also, Annot., 166 A.L.R. 675, § II at 676 (1947) (stating that majority of courts hold that “‘where a court has the 

general power to modify a decree for alimony or support, 

the exercise of that power is not affected by the fact that the 

decree is based on an agreement entered into by the parties to 

the action’”).

We recognize that in Desjardins v. Desjardins, 239 Neb. 

878, 881, 479 N.W.2d 451, 454 (1992), a case involving a 

request for modification of the alimony provision in a consent 

decree, we cited authority for the proposition that a “‘“consent 

decree is usually treated as an agreement between the parties 

[and] is accorded greater force than ordinary judgments and 

ordinarily will not be modified over objection of one of the 

parties.”’” However, notwithstanding our narrative regarding 

consent decrees generally, in Desjardins, we did not apply 

the fraud or gross inequity standard; instead, we adhered to 

statute and stated that “[a]limony awards entered pursuant 

to a consent decree may be modified pursuant to § 42-365, 

which provides that such orders may be revoked or modified 
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‘for good cause shown,’” which we stated was “demonstrated 

by a material change in circumstances.” 239 Neb. at 880, 479 

N.W.2d at 453.

[6,7] We conclude that our statutory and case law supports the conclusion that where the parties have not expressly 

precluded or limited modification of alimony pursuant to 

§ 42-366(7), an alimony provision that was agreed to by the 

parties as part of a property settlement agreement may later 

be modified in accordance with § 42-365. Under § 42-365, 

alimony may be modified for good cause shown, and “good 

cause” means a material and substantial change in circumstances and depends upon the circumstances of each case. 

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

Court of Appeals therefore erroneously determined that a gross 

inequity standard applied to Timothy’s request for modification 

of the alimony provision in this case.

District Court Applied Proper Standard and Did 

Not Abuse Its Discretion, and Court of Appeals 

Did Not Err When It Affirmed District Court’s 

Order Denying Modification.

Timothy next claims that the Court of Appeals erred when 

it affirmed the district court’s determination that the change 

in his income did not justify a modification of the alimony 

provision. We determine that the district court properly applied 

the standard under § 42-365 to its consideration of Timothy’s 

request for modification of the alimony provision and that 

the district court did not abuse its discretion when it rejected 

his request. We therefore conclude that although the Court 

of Appeals erroneously applied a gross inequity standard, it 

did not err when it affirmed the district court’s order which 

denied Timothy’s request for modification of the alimony 

provision.

Timothy argues that the district court and the Court of 

Appeals both erroneously determined the propriety of his alimony obligation based on his assets rather than his income. 
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GROTHEN v. GROTHEN

Cite as 308 Neb. 28

Timothy argues that this violated § 42-365, and he relies on the 

portion of § 42-365 that provides as follows:

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.

Timothy argues that this portion of § 42-365 indicates that consideration of alimony should focus on income rather than assets 

because assets are the focus of a property division. Timothy 

contends that because he showed a significant decrease in his 

income, his alimony obligation should have been reduced.

In support of his argument that alimony should be determined based on income without regard for assets, Timothy 

quotes a portion of Hotz v. Hotz, 301 Neb. 102, 111, 917 

N.W.2d 467, 475 (2018), in which we stated that “the relative 

economic circumstances of the parties are to be tested based 

on the income available after child support obligations, if any, 

have been accounted for.” Timothy reads this to mean that 

determinations regarding alimony should focus on income to 

the exclusion of other aspects of the parties’ economic circumstances. Timothy reads Hotz too broadly. The focus of Hotz

was calculation of child support, and we held that the Nebraska 

Child Support Guidelines exclude “alimony between parents 

from their total monthly incomes for the purpose of calculating child support obligations for their children in modification 

proceedings.” 301 Neb. at 111, 917 N.W.2d at 475. We were 

not concerned with determination or modification of alimony 

in Hotz, and we merely noted that to the extent income is a 

consideration in determining alimony, a court considers only 

“income available after child support obligations” and that 

“alimony [is] determined with [child support] obligations in 
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308 Nebraska Reports

GROTHEN v. GROTHEN

Cite as 308 Neb. 28

mind.” 301 Neb. at 111, 917 N.W.2d at 475. Timothy therefore 

misreads Hotz as limiting the consideration of “economic circumstances” under § 42-365 to a consideration of income, and 

we reject his reading.

We further note that Timothy’s assertion that only income 

should be considered in determining alimony is inconsistent 

with both the language of § 42-365 and our precedent applying it. Although § 42-365 makes a distinction between the 

purposes of property division and alimony, it does not state 

that alimony is to be determined based solely on the parties’ 

respective incomes. To the contrary, as quoted above, § 42-365 

states that the purpose of alimony is to provide for support and 

maintenance of one party by the other when circumstances, 

including “the relative economic circumstances” of the parties, 

make it appropriate. Section 42-365 therefore contemplates 

that economic circumstances other than income are relevant to 

the determination of alimony.

[8,9] In case law, we have stated that consideration of the 

relative economic circumstances of the parties includes consideration of not only income, but also other relevant factors. We 

have said that in determining alimony, “a court should consider 

the income and earning capacity of each party and the general 

equities of the situation. Alimony is not a tool to equalize the 

parties’ income, but a disparity of income or potential income 

might partially justify an alimony award.” Dooling v. Dooling, 

303 Neb. 494, 515, 930 N.W.2d 481, 500 (2019) (emphasis 

supplied). We have further stated that in contrast to the calculation of child support under the governing guidelines, “there is 

no mathematical formula by which alimony awards can be precisely determined.” Binder v. Binder, 291 Neb. 255, 261, 864 

N.W.2d 689, 694 (2015). This precedent and the requirement in 

§ 42-365 to consider “relative economic circumstances” of the 

parties contradict Timothy’s assertion that alimony should be 

determined based solely on the income of the parties. Instead, 

income is an important, but not an exclusive, consideration, 

and alimony should be based not only on income, but also 
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Nebraska Supreme Court Advance Sheets

308 Nebraska Reports

GROTHEN v. GROTHEN

Cite as 308 Neb. 28

on the general equities of the situation considering the relative 

economic circumstances of the parties.

[10,11] The district court in this case considered income and 

other relevant economic circumstances when it determined that 

Timothy had not shown a material change in circumstances justifying modification of alimony. The district court first determined that the change in Timothy’s income was contemplated 

at the time of the original decree, because as an experienced 

farmer, Timothy would have known that farm prices are cyclical and a fluctuation in commodity prices was to be expected. 

We have said that a material change of circumstances constituting grounds for modification of a dissolution decree means 

the occurrence of something which, had it been known to the 

dissolution court at the time of the initial decree, would have 

persuaded the court to decree differently. Collett v. Collett, 

270 Neb. 722, 707 N.W.2d 769 (2005). We have also said that 

while good cause is demonstrated by a material change in circumstances, 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. Metcalf 

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

the district court did not abuse its discretion in this case when 

it determined that future fluctuations in Timothy’s farm income 

were within the contemplation of the parties at the time of the 

original decree and that the decrease in farm income was not 

a potential occurrence that was not known at the time of the 

initial decree.

[12] The district court also considered the relative financial 

circumstances of both Timothy and Martha when it determined 

that modification of alimony was not warranted. As we stated 

above, the determination of alimony is not based solely on 

income and instead focuses on the relative economic circumstances of the parties. We have further said that to determine 

whether there has been a material and substantial change in 

circumstances warranting modification of a divorce decree, 
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Nebraska Supreme Court Advance Sheets

308 Nebraska Reports

GROTHEN v. GROTHEN

Cite as 308 Neb. 28

a trial court should compare the financial circumstances of 

the parties at the time of the divorce decree with their circumstances at the time the modification at issue was sought. 

See Metcalf v. Metcalf, supra. Therefore, it was appropriate 

for the district court to consider that although Timothy had 

experienced a change in income, Martha had also experienced 

changes in her economic circumstances. The court appropriately considered that Timothy’s net worth at the time of 

the request for modification was substantially greater than 

Martha’s, even after the equalization payment that was part 

of the property division. Because the parties’ relative earning 

capacity is part of the evaluation of relative economic circumstances, the court properly noted that Timothy’s net worth 

included significant income-producing property. We therefore 

conclude that the district court did not abuse its discretion 

when it concluded that although Timothy had experienced a 

change in income, a modification of his alimony obligation 

was not justified when considering the relative economic circumstances of the parties.

We conclude that the district court applied the correct standard for modification of alimony under § 42-365, and we further conclude that the district court did not abuse its discretion 

when it determined that Timothy had not shown a material 

change in circumstances that justified modification of alimony. 

Therefore, although the Court of Appeals applied an incorrect 

standard to review the district court’s decision, we conclude 

that the Court of Appeals did not err when it affirmed the 

district court’s denial of Timothy’s request for modification 

of alimony.

CONCLUSION

We conclude that when the parties have not agreed that an 

alimony provision may not be modified, an alimony provision that was agreed to by the parties as part of a property 

settlement agreement may later be modified for “good cause” 

in accordance with § 42-365, which allows for modification 
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Nebraska Supreme Court Advance Sheets

308 Nebraska Reports

GROTHEN v. GROTHEN

Cite as 308 Neb. 28

of alimony when a party has shown a material change in circumstances that justifies modification. We further conclude 

that the district court applied the correct standard and that it 

did not abuse its discretion when it concluded that Timothy had 

not shown a material change in circumstances justifying modification of alimony. Therefore, although the Court of Appeals 

erroneously reviewed the district court’s decision under a gross 

inequity standard, the Court of Appeals did not err when it 

affirmed the district court’s order denying modification. We 

therefore affirm the decision of the Court of Appeals.

Affirmed.