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307 Nebraska Reports

WINDHAM v. KROLL

Cite as 307 Neb. 947

Alyssa Lee Windham, appellee, v. 

Rebecca Diane Kroll, appellant.

___ N.W.2d ___

Filed December 11, 2020. No. S-20-095.

1. Modification of Decree: Child Custody: Visitation: Child Support.

The proper legal standard to apply when modifying provisions pertaining to custody, visitation, or support of a minor child is a question 

of law.

2. Statutes: Appeal and Error. On questions of law, an appellate court 

is obligated to reach a conclusion independent of the determination 

reached by the court below.

3. Modification of Decree: Child Custody: Visitation: Child Support: 

Appeal and Error. Modification of a judgment or decree relating to 

child custody, visitation, or support 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.

4. Parent and Child: Words and Phrases. In loco parentis is a commonlaw doctrine that gives standing to a nonparent to exercise the rights of 

a natural or adoptive parent when the evidence shows the nonparent’s 

exercise of such rights is in the child’s best interests.

5. Parent and Child. In order to stand in loco parentis, one must assume 

all obligations incident to the parental relationship.

6. ____. In loco parentis status is not equivalent to status as a parent, and 

it does not entitle a person to all the same rights that a legal parent 

would enjoy.

7. ____. In loco parentis status does not, by itself, eclipse the superior nature of the parental preference accorded to biological or adoptive parentage.

8. Modification of Decree: Parent and Child: Child Custody: Visitation: 

Child Support. Judgments establishing in loco parentis rights regarding 

the custody, visitation, and support of a minor child will ordinarily not 

be modified absent a material change in circumstances affecting the 

Nebraska Supreme Court Online Library

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

01/15/2021 09:07 AM CST
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Cite as 307 Neb. 947

best interests of the child. However, if raised by the parties, whether the 

in loco parentis relationship has changed is relevant to determining both 

whether there has been a material change in circumstances and whether 

modification is in the child’s best interests. Moreover, when modifying 

custody rights as between a natural or adoptive parent and one who 

stands in loco parentis, the parental preference doctrine applies.

9. Judgments: Words and Phrases. An abuse of discretion occurs when 

a trial court bases its decision upon reasons that are untenable or unreasonable or if its action is clearly against justice or conscience, reason, 

and evidence.

10. Modification of Decree: Child Support: Property Settlement 

Agreements. The fraud or gross inequity standard is inapplicable to 

actions involving modification of child support, even when such support 

was part of a voluntary property settlement agreement approved by the 

court and incorporated into the decree.

11. Modification of Decree: Child Support. Provisions regarding the support of minor children are properly characterized as child support for 

purposes of the legal standard to be applied in a modification action.

Appeal from the District Court for Douglas County: J. 

Michael Coffey, Judge. Affirmed.

Michael S. Kennedy, of Kennedy Law Firm, P.C., L.L.O., 

for appellant.

Jamie C. Cooper, of Johnson & Pekny, L.L.C., for appellee.

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

Papik, and Freudenberg, JJ.

Stacy, J.

The primary question in this appeal is which legal standard 

to apply when modifying a judgment establishing custody, visitation, and support of minor children based on the common-law 

doctrine of in loco parentis. The district court modified several 

provisions pertaining to the support of the minor children upon 

finding a material change in circumstances. We conclude the 

correct modification standard was applied, and we affirm the 

modification order.
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WINDHAM v. KROLL

Cite as 307 Neb. 947

I. BACKGROUND

Alyssa Lee Windham and Rebecca Diane Kroll were in 

a relationship for approximately 17 years, but never married. During their relationship, Kroll gave birth to two children, and Windham and Kroll shared parenting responsibilities. 

Windham is not biologically related to the children, nor did she 

adopt them.

The couple separated in 2011. Windham moved out of the 

shared residence, but the parties continued to share parenting duties.

1. 2012 Judgment

In January 2012, Windham filed a complaint against Kroll in 

the district court for Douglas County. The operative amended 

complaint alleged Windham stood in loco parentis to the minor 

children and asked the court to establish custody, set a parenting time schedule, allocate child-related expenses, and order 

monthly child support based on the Nebraska Child Support 

Guidelines. Kroll’s answer denied that Windham stood in loco 

parentis to the children and asked the court to award her sole 

legal and physical custody as their biological mother.

Eventually, Windham and Kroll reached an agreement as to 

Windham’s in loco parentis status, child custody and visitation, 

and the shared payment of certain expenses related to the children. Both parties were represented by counsel, and the minor 

children were represented by a guardian ad litem. As relevant 

to the issues on appeal, the parties agreed as follows:

•Windham stood in loco parentis to the minor children.

•The parties would share joint legal and physical custody of 

the children, and Windham would have regular parenting time 

pursuant to a stipulated parenting plan.

•Each party would pay 50 percent of any school or employmentrelated childcare expenses and 50 percent of any nonreimbursed medical, dental, and vision expenses.

•The minor children would attend private primary and secondary school, and each party would pay 50 percent of “any 

tuition, school supplies, school dues, after-school programs, 
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sports and other extracurricular activities incurred for the 

benefit of the minor children.”

•Each party would continue making monthly contributions of 

$166 to the minor children’s college savings plans.

The district court approved the parties’ settlement agreement 

and stipulated parenting plan, and it incorporated the same into 

the judgment entered on October 10, 2012. No party appealed 

from the 2012 judgment.

2. 2015 Stipulated Modification

In October 2015, the parties filed a complaint characterized as a joint stipulation for modification. They stipulated 

there had been a material change in circumstances that warranted adding a provision to the parenting plan directing that 

neither party would use or be under the influence of alcohol or controlled substances during their parenting time. The 

district court approved this stipulated modification, and no 

party appealed.

3. 2017 Complaint to Modify

In October 2017, Kroll filed a complaint to modify, seeking sole legal and physical custody of both minor children. 

She alleged there had been a material change in circumstances 

in that Windham had been charged with abusing the children 

and had used alcohol in their presence and while transporting 

them. Kroll also sought an award of monthly child support. 

Windham’s answer denied the relevant allegations.

(a) Temporary Orders

In February 2018, while Kroll’s complaint for modification was pending, the court entered a “Stipulated Temporary 

Order” reflecting the parties’ agreement to temporarily modify 

custody and parenting time and to order temporary child support. Kroll was given sole physical and legal custody of the 

children, and Windham was awarded specific parenting time. 

Windham was ordered to pay temporary child support of 

$1,300 per month, and Kroll was ordered to pay the first $480 

in nonreimbursed medical expenses, with the parties splitting 
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such expenses 50-50 thereafter. Responsibility for “school or 

employment-related expenses and tuition” was reallocated so 

that Kroll paid 60 percent and Windham paid 40 percent.

In May 2019, Windham moved to reduce her temporary child 

support payment, alleging she had lost her previous job and 

was earning less at her new job. The parties stipulated to a temporary order entered in June 2019 which reduced Windham’s 

monthly child support obligation to $1,149 and reallocated 

responsibility for nonreimbursed medical expenses exceeding 

$480 so that Windham paid 45 percent and Kroll paid 55 percent. This temporary order specifically directed that Windham 

was “no longer responsible for her portion of the minor children’s reasonable and necessary direct expenses, including, 

but not limited to, clothing and extracurricular expenses.” It 

also ordered that “until further Order of the Court, [Windham] 

shall remain responsible for her portion of the children’s school 

tuition, supplies, and dues.”

(b) Counterclaim

In August 2019, Windham was allowed to file a counterclaim for modification. The counterclaim alleged there had 

been a material change in circumstances since the entry of 

the 2012 judgment, in that Windham’s income had decreased 

and was likely to remain decreased. She asked the court to 

calculate any child support using the Nebraska Child Support 

Guidelines. She also asked the court to reduce the amount 

of her “contribution toward out-of-pocket expenses, including childcare, medical expenses, private school tuition, extracurricular expenses, and contribution to the children’s college 

savings plan.”

4. Trial on Complaint to 

Modify and Counterclaim

In November 2019, trial was held on Kroll’s complaint to 

modify and Windham’s counterclaim. The parties advised the 

court they had successfully mediated their dispute as to custody and parenting time, and they agreed Kroll should have 
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Cite as 307 Neb. 947

sole legal and physical custody of the minor children. They 

also agreed Windham should have regular parenting time pursuant to a phased schedule, and they agreed to certain safety 

and communication provisions. The parties asked the court to 

modify custody and visitation in accordance with their agreement and to approve and adopt their modified parenting plan.

The parties were unable to agree on how to modify supportrelated provisions in light of the stipulated custody change. So 

the matter proceeded to trial on Kroll’s request for monthly 

child support and Windham’s request to reduce her responsibility for certain child-related expenses.

(a) Kroll’s Testimony

The children were in eighth and sixth grade at the time of 

trial. Kroll testified that both children had attended a private 

religious grade school since kindergarten and that their tuition 

was approximately $3,000 per year for each child. Kroll estimated tuition for a private religious high school would be 

approximately $11,000 per year each. But she testified that 

actual tuition would depend on the amount of financial aid 

awarded by the school, which considered the children’s academic achievements, the parents’ financial resources, and the 

children’s willingness to engage in workstudy programs.

Kroll acknowledged she was seeking monthly child support 

from Windham based on their agreement that Kroll should 

have sole custody, and Kroll expected that as the primary 

physical custodian, she would be 100 percent responsible for 

the children’s clothing and daily food needs. But Kroll asked 

the court not to modify Windham’s responsibility for other 

child-related expenses under the 2012 judgment, reasoning that 

provisions regarding school tuition and expenses, college savings, and extracurricular activities were “outside the province 

of child support.”

(b) Windham’s Testimony

Windham asked the court to approve the mediated agreement giving Kroll sole legal and physical custody. She also 
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asked the court to order her to pay monthly child support based 

on the Nebraska Child Support Guidelines. But Windham asked 

the court to modify the expense-sharing provisions of the 2012 

judgment so that she was no longer responsible for 50 percent 

of the children’s school tuition and no longer required to pay 

$166 per month into the children’s college savings accounts.

Windham acknowledged that she had stipulated to these 

provisions in the 2012 judgment, but claimed they should be 

modified because of the change in custody and because her 

financial circumstances had changed. With respect to the latter, 

she testified she had been terminated from her previous job and 

earned less money at her new job. Windham submitted a proposed child support calculation to the court that would require 

her to pay $1,050 per month for two children. Windham testified that if ordered to pay this amount of monthly child support, she could not also afford to pay half the expenses related 

to school tuition or contribute to the children’s college savings 

plans at the same level she had in the past.

5. 2020 Order of Modification

On January 6, 2020, the court entered an order of modification. The order approved and incorporated the parties’ mediated parenting plan, finding it was in the children’s best interests. Pursuant to that plan, Kroll was awarded sole legal and 

physical custody of the minor children, subject to Windham’s 

regular parenting time.

The court found the agreed-upon changes to custody and 

parenting time amounted to a material change in circumstances 

supporting modification of several support-related provisions, 

and it modified the 2012 judgment to (1) order Windham to 

pay monthly child support of $1,050 for two children and 

$763.80 per month when only one child remains entitled to 

support, (2) eliminate the provision requiring monthly contributions to the children’s college savings plans, and (3) 

reallocate responsibility for the children’s “tuition and educational expenses” so that Windham would pay 331

⁄3 percent of 

such expenses and Kroll would pay 662⁄3 percent. The order of 
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modification also stated that any term of the 2012 judgment 

“not modified herein or by subsequent order” would remain in 

full force and effect.

Kroll filed this timely appeal, which we moved to our 

docket on our own motion.

II. ASSIGNMENTS OF ERROR

Kroll assigns that the district court erred by modifying the 

terms of the October 2012 judgment relating to (1) allocation 

of school tuition and expenses and (2) contributions to the children’s college savings funds.

Kroll’s primary argument on appeal is that the district 

court applied the wrong legal standard when it modified these 

provisions based on a material change in circumstances. She 

contends that because the provisions were voluntarily agreed 

to by the parties and incorporated into a consent judgment 

from which neither party appealed, the provisions could not be 

modified absent a showing of fraud or gross inequity. 1

III. STANDARD OF REVIEW

[1,2] The proper legal standard to apply when modifying 

provisions pertaining to custody, visitation, or support of a 

minor child is a question of law. 2 On questions of law, an 

appellate court is obligated to reach a conclusion independent 

of the determination reached by the court below. 3

[3] Modification of a judgment or decree relating to child 

custody, visitation, or support 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. 4

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

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

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

3 Benjamin M. v. Jeri S., ante p. 733, 950 N.W.2d 381 (2020).

4 See, Tilson v. Tilson, ante p. 275, 948 N.W.2d 768 (2020); Whilde v. 

Whilde, 298 Neb. 473, 904 N.W.2d 695 (2017); State on behalf of Jakai C. 

v. Tiffany M., 292 Neb. 68, 871 N.W.2d 230 (2015); Caniglia v. Caniglia, 

285 Neb. 930, 830 N.W.2d 207 (2013).
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WINDHAM v. KROLL

Cite as 307 Neb. 947

IV. ANALYSIS

1. Modification of In Loco Parentis 

Custody, Visitation, and Support

Most of our appellate decisions involving the modification 

of child custody, visitation, and support arise in the context of 

dissolution and paternity actions, where it is well-established 

that provisions in a decree or order relating to custody, visitation, and support may be modified upon a showing of a material change in circumstances affecting the best interests of the 

child. 5 The instant modification did not arise in a dissolution 

or a paternity action; instead, it arose in an action to establish 

custody, support, and visitation rights based on Windham’s 

common-law status as one who stood in loco parentis to the 

minor children.

[4-7] In loco parentis is a common-law doctrine that gives 

standing to a nonparent to exercise the rights of a natural or 

adoptive parent when the evidence shows the nonparent’s 

exercise of such rights is in the child’s best interests. 6 In order 

to stand in loco parentis, one must assume all obligations incident to the parental relationship. 7 In loco parentis status is not 

equivalent to status as a parent, however, and it does not entitle 

a person to all the same rights that a legal parent would enjoy. 8

Moreover, in loco parentis status does not, by itself, eclipse the 

superior nature of the parental preference accorded to biological or adoptive parentage. 9

The parties’ briefing generally assumes that once a judgment 

is entered establishing the custody, visitation, and support 

5 See, e.g., Tilson, supra note 4; State on behalf of Fernando L. v. Rogelio L., 

299 Neb. 329, 907 N.W.2d 920 (2018).

6 See, State on behalf of Tina K. v. Adam B., ante p. 1, 948 N.W.2d 182 

(2020); Windham v. Griffin, 295 Neb. 279, 887 N.W.2d 710 (2016); Latham 

v. Schwerdtfeger, 282 Neb. 121, 802 N.W.2d 66 (2011), disapproved on 

other grounds, Windham, supra note 6.

7 State on behalf of Tina K., supra note 6.

8 Id.

9 Id.
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rights and responsibilities of one who stands in loco parentis, 

any subsequent modification of that judgment will be governed 

by the same legal standards and principles that govern modification of similar provisions in a dissolution or paternity decree. 

With two important caveats, we agree.

In dissolution, separation, and paternity actions, issues 

regarding the custody, visitation, and support of minor children 

are governed largely by statute. 10 There currently is no statutory scheme governing the rights and responsibilities of one 

who stands in loco parentis. But this court has consistently 

held that even absent statutory authorization, a district court 

has equitable jurisdiction to determine the rights and responsibilities of one who stands in loco parentis to a child, including 

custody, visitation, and support. 11 And once such rights and 

responsibilities have been established by a district court, we 

have recognized they can be modified. 12 But our cases make 

clear that when modifying the rights and responsibilities of one 

who stands in loco parentis, courts may also need to consider 

whether the in loco parentis relationship has changed 13 and 

whether the parental preference doctrine applies. 14

10 See, Neb. Rev. Stat. §§ 42-341 to 42-381 (Reissue 2016 & Cum. Supp. 

2018) (dissolution); Neb. Rev. Stat. §§ 43-1401 to 43-1418 (Reissue 2016, 

Cum. Supp. 2018 & Supp. 2019) (paternity).

11 See, Windham, supra note 6 (one who stands in loco parentis has right 

to seek custody and visitation, but parental preference doctrine still 

applies); Latham, supra note 6 (common-law doctrine of in loco parentis 

confers standing to seek custody and visitation when in best interests of 

child). See, also, Charleen J. v. Blake O., 289 Neb. 454, 855 N.W.2d 

587 (2014) (holding Nebraska common law recognizes action in equity 

for custody). Accord Weinand v. Weinand, 260 Neb. 146, 616 N.W.2d 1 

(2000), disapproved on other grounds, Windham, supra note 6 (no basis to 

order ex-stepparent to pay child support because he did not currently stand 

in loco parentis to minor child).

12 See, State on behalf of Tina K., supra note 6; Whilde, supra note 4.

13 Whilde, supra note 4.

14 State on behalf of Tina K., supra note 6; Windham, supra note 6.
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In Whilde v. Whilde,

 15 we reviewed an order modifying the 

custody and visitation rights of one who stood in loco parentis 

to a minor child born during an unmarried same-sex relationship. In doing so, we recited the well-established modification 

standard from our dissolution and paternity cases, noting:

Ordinarily, custody of a minor child will not be modified 

unless there has been a material change in circumstances 

showing that the custodial parent is unfit or that the best 

interests of the child require such action. . . . First, the 

party seeking modification must show a material change 

in circumstances, occurring after the entry of the previous custody order and affecting the best interests of the 

child. . . . Next, the party seeking modification must 

prove that changing the child’s custody is in the child’s 

best interests. 16

The biological mother in Whilde claimed her former partner’s in loco parentis status had ended. We recognized this 

argument when considering whether there had been a material 

change in circumstances, reasoning:

[A]n individual standing in loco parentis, which is temporary in nature, is not the functional equivalent of a lawful parent for all purposes or in all contexts. We believe 

that modification of custody is a context in which one 

who obtained rights as a result of in loco parentis status 

will be considered differently from one who is a lawful 

parent; therefore, whether one has maintained the sort 

of relationship with the child that gave rise to in loco 

parentis status is relevant to modification of custody and 

visitation rights, both in determining whether there has 

been a material change in circumstances and whether a 

modification of custodial and visitation rights is in the 

child’s best interests. 17

15 Whilde, supra note 4.

16 Id. at 487, 904 N.W.2d at 705 (citations omitted).

17 Id. at 488, 904 N.W.2d at 705.
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In State on behalf of Tina K. v. Adam B., 18 the biological 

mother of a minor child appealed from a modification order 

giving sole custody to a woman who stood in loco parentis to 

the child. The mother claimed her status as the natural parent 

entitled her to custody. We emphasized that because natural 

and adoptive parents have a fundamental right to make decisions concerning the care, custody, and control of their minor 

children which is constitutionally protected, custody disputes 

between a natural or adoptive parent and a nonparent are 

governed by the parental preference doctrine. 19 That doctrine 

establishes a rebuttable presumption that the best interests of 

a minor child are served by placing custody of the child with 

his or her parent and, absent proof that a parent is unfit or 

has forfeited the right to custody, a parent may not ordinarily 

be deprived of the custody of a minor child. 20 In prior cases, 

we suggested it may be possible to overcome the parental 

preference doctrine by showing “the best interests of the 

child lie elsewhere,” 21 but we described such circumstances 

as “exceptional.” 22 In State on behalf of Tina K., we explained 

that in order for such exceptional circumstances to negate the 

parental preference doctrine, there must be proof of serious 

physical or psychological harm to the child or a substantial 

likelihood of such harm. 23 We therefore reversed the order 

modifying custody and remanded the matter for reconsideration of the parental preference doctrine.

So while we generally agree with the parties that the 

legal standards governing modification of in loco parentis 

18 State on behalf of Tina K., supra note 6.

19 Id. See, also, Windham, supra note 6 (holding parental preference doctrine 

applies in custody dispute between natural or adoptive parent and one who 

stands in loco parentis).

20 State on behalf of Tina K., supra note 6.

21 Windham, supra note 6, 295 Neb. at 288, 887 N.W.2d at 717.

22 Id. at 290, 887 N.W.2d at 718.

23 State on behalf of Tina K., supra note 6.
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custody, visitation, and support are similar to the standards 

governing custody and support modifications in a dissolution 

or paternity action, the standards are not identical. Whilde

demonstrates that consideration may also need to be given to 

whether the in loco parentis status has changed, and State on 

behalf of Tina K. teaches that when modifying custody rights 

as between a natural or adoptive parent and one who stands in 

loco parentis, the parental preference doctrine applies.

[8] We therefore hold that judgments establishing in loco 

parentis rights regarding the custody, visitation, and support of 

a minor child will ordinarily not be modified absent a material change in circumstances affecting the best interests of the 

child. 24 However, if raised by the parties, whether the in loco 

parentis relationship has changed is relevant to determining 

both whether there has been a material change in circumstances 

and whether modification is in the child’s best interests. 25

Moreover, when modifying custody rights as between a natural 

or adoptive parent and one who stands in loco parentis, the 

parental preference doctrine applies. 26

On this record, the district court applied the correct legal 

standard to the requested modifications to custody, visitation, 

and support of one who stands in loco parentis. The parties did 

not dispute Windham’s continued in loco parentis status, and 

Kroll did not assert the parental preference doctrine in seeking 

to modify the joint custody arrangement. To the contrary, the 

parties’ mediated agreement to modify custody continued to 

describe Windham as a parent to the minor children, and the 

parties agreed that Windham should continue to have regular 

weekly parenting time with the children. Finding it was in 

the children’s best interests, the court approved the mediated modification agreement giving Kroll, the natural parent, 

sole custody and adjusting Windham’s regular parenting time. 

24 See, id.; Whilde, supra note 4.

25 Whilde, supra note 4.

26 See, State on behalf of Tina K., supra note 6; Windham, supra note 6.
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On appeal, no party challenges the modifications to custody 

or parenting time and no party challenges Windham’s in loco 

parentis status.

Instead, as noted earlier, Kroll assigns error only to the district court’s modification of the provisions relating to the allocation of school tuition expenses and mandatory contributions 

to the children’s college savings funds. The court modified 

these support-related provisions after finding that a material 

change in circumstances resulted from the parties’ agreement 

to change from a joint custody arrangement to a sole custody 

arrangement. After reviewing this de novo on the record, we 

find no abuse of discretion.

[9] An abuse of discretion occurs when a trial court bases its 

decision upon reasons that are untenable or unreasonable or if 

its action is clearly against justice or conscience, reason, and 

evidence. 27 Here, the district court reasoned that changing from 

a joint custody arrangement, where Kroll and Windham shared 

child-related expenses equally, to an arrangement where Kroll 

had sole legal and physical custody, was a material change in 

circumstances warranting modification of the support-related 

provisions concerning the minor children. There was also evidence that Windham’s financial circumstances had changed 

since the 2012 judgment.

On this record, the district court did not abuse its discretion in finding that a material change in circumstances justified modifying support-related provisions concerning the minor 

children. To the extent Kroll’s appellate briefing can be understood to argue there was insufficient evidence of a material 

change in circumstances, the argument is without merit.

But in fairness to Kroll, her appellate briefing does not focus 

on the material change in circumstances standard, because her 

primary contention on appeal is that a higher modification 

standard should have been applied. We consider that argument 

next, and reject it.

27 Schrag v. Spear, 290 Neb. 98, 858 N.W.2d 865 (2015).
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2. No Merit to Kroll’s Claim That 

Provisions Could Not Be Modified 

Absent Fraud or Gross Inequity

Kroll argues that because the provisions regarding allocation of tuition expenses and college savings contributions were 

voluntarily agreed to by the parties and incorporated into a 

consent judgment from which neither party appealed, those 

provisions can be modified only upon a showing of fraud or 

gross inequity. 28 We addressed and rejected a similar argument 

in Reinsch v. Reinsch.

 29

In that case, a 1986 divorce decree incorporated a property 

settlement agreement in which the father agreed to pay $200 

in monthly child support until the child reached the age of 18. 

The mother later sought to modify the support and extend it 

to the age of 19. The district court granted the modification, 

finding the enactment of certain child support statutes was a 

material change in circumstances justifying modification of 

the duration of child support. The father appealed, arguing the 

trial court had applied the wrong standard to modify support. 

He claimed that since the parties had agreed to the duration of 

child support in their property settlement agreement, the duration could be modified only upon a showing of fraud or gross 

inequity. We soundly rejected this argument.

We acknowledged, but distinguished, a line of cases holding 

as follows:

[W]here a party to a divorce action voluntarily executes 

a property settlement agreement which is approved by 

the dissolution court and incorporated into a divorce 

decree from which no appeal is taken, provisions dealing with division of real and personal property, division of pension benefits, and division of stock will not 

28 See, generally, Carlson, supra note 1; Strunk, supra note 1.

29 Reinsch, supra note 2.
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thereafter be vacated or modified in the absence of fraud 

or gross inequity. 30

We noted this higher modification standard was premised on 

§ 42-366. That statute is intended to promote amicable settlement of disputes attendant to divorce and separation, and it permits parties to enter into a “written property settlement agreement containing provisions for the maintenance of either of 

them, the disposition of any property owned by either of them, 

and the support and custody of minor children.” 31 Reinsch 

recognized that our cases applying § 42-366 had generally 

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.” 32

But Reinsch expressly found this heightened modification 

standard was inapplicable to provisions in a property settlement agreement regarding the custody and support of minor 

children. We reasoned that under § 42-366(2), agreements 

regarding the custody and support of minor children are not 

binding on the dissolution court, 33 and we noted that despite 

agreements to the contrary, “child support orders are always 

subject to review and modification.” 34

30 Id. at 568-69, 611 N.W.2d at 90, citing Hoshor v. Hoshor, 254 Neb. 743, 

580 N.W.2d 516 (1998); Pascale v. Pascale, 229 Neb. 49, 424 N.W.2d 

890 (1988); Colson v. Colson, 215 Neb. 452, 339 N.W.2d 280 (1983); and 

Klabunde v. Klabunde, 194 Neb. 681, 234 N.W.2d 837 (1975).

31 See § 42-366.

32 Reinsch, supra note 2, 259 Neb. at 568, 611 N.W.2d at 90, citing 

Prochazka v. Prochazka, 198 Neb. 525, 253 N.W.2d 407 (1977).

33 § 42-366(2) (expressly excepting “terms providing for the support and 

custody of minor children” from rule that provisions of property settlement 

agreement shall be binding on court absent unconscionability).

34 Reinsch, supra note 2, 259 Neb. at 568, 611 N.W.2d at 90. See, also, 

§ 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”).
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[10] Reinsch makes clear that the higher fraud or gross 

inequity standard is inapplicable to actions involving modification of child support, even when such support was part of a 

voluntary property settlement agreement approved by the court 

and incorporated into the decree. 35

Kroll seeks to avoid the holding in Reinsch by arguing that 

the provisions regarding allocation of school tuition expenses 

and college savings contributions are “outside of traditional 

[c]hild support related expenses.” 36 She argues, without citation, that provisions “relating to tuition and college expenses” 37

are not properly characterized as child support. Our cases support the opposite conclusion.

In Caniglia v. Caniglia,

 38 a dissolution decree required 

the father to be responsible for paying monthly child support and half of the “extracurricular activities, education . . . 

and other extraordinary expenses” of the minor child. When 

the father lost his job, he moved to modify both his monthly 

child support obligation and his obligation to pay half of 

the other child-related expenses. The mother contended only 

the award of monthly child support was modifiable, and we 

rejected her argument. In doing so, we noted that § 42-364.17 

requires divorce and paternity decrees to incorporate provisions 

addressing responsibility for certain child-related expenses, 

including “‘medical, dental, and eye care, medical reimbursements, day care, extracurricular activity, education, and other 

extraordinary expenses of the child and calculation of child 

support obligations.’” 39 We specifically held that provisions 

in a dissolution decree related to child-related expenses listed 

in § 42-364.17 are modifiable when there has been a material 

change in circumstances, reasoning that such expenses “are 

35 Reinsch, supra note 2.

36 Brief for appellant at 9.

37 Id. at 10.

38 Caniglia v. Caniglia, 285 Neb. 930, 932, 830 N.W.2d 207, 210 (2013).

39 Id. at 933, 830 N.W.2d at 211.
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merely an incident of the parents’ responsibility to support 

their child” 40 and are a “subset of child support.” 41 Caniglia

found “no persuasive reason” 42 for treating the modification 

of child-related expenses any differently than other provisions 

relating to children.

In Lenz v. Lenz,

 43 the parties’ minor child had profound hearing loss, and a provision in the dissolution decree required the 

father to pay “‘all of the expenses for the minor child’s special 

schooling.’” When the father failed to pay, the mother brought 

an action to modify and enforce the decree. We characterized 

the obligation to pay for special schooling as an expense “in 

the nature of child support,” which could be modified prospectively, but not retrospectively. 44

In Coffey v. Coffey,

 45 the dissolution decree referenced two 

bank accounts the parties had established for the minor children. It awarded the father control of one account and the 

mother control of the other. It directed the funds to be used primarily for the children’s college education, but it allowed them 

to be used for extraordinary medical expenses or parochial high 

school tuition expenses if needed. The mother subsequently 

brought a complaint to modify custody, and the court changed 

the custody arrangement from joint custody to primary physical custody with the father. In doing so, it also modified child 

support and gave the father control of both accounts.

On appeal, the mother claimed the court erred in modifying 

control of these accounts because the issue of their ownership 

was not placed at issue by the parties’ pleadings. The Nebraska 

Court of Appeals disagreed, reasoning:

40 Id. at 931, 830 N.W.2d at 210.

41 Id. at 935, 830 N.W.2d at 212.

42 Id. at 936, 830 N.W.2d at 212.

43 Lenz v. Lenz, 222 Neb. 85, 85, 382 N.W.2d 323, 324-25 (1986).

44 Id. at 88, 382 N.W.2d at 326.

45 Coffey v. Coffey, 11 Neb. App. 788, 661 N.W.2d 327 (2003).
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The control of these accounts, as provided for in the 

decree, was closely related to the joint custody arrangement and child support provisions therein, as opposed to 

being part of the distribution of real and personal property. By the parties’ petitions to modify, the parties placed 

the custody and support of their children as issues before 

the trial court. Given that the trial court awarded custody 

of the children to [the father], we find no error in the portion of the order of modification granting [him] control of 

the children’s accounts. 46

Coffey thus suggests that provisions in a decree regarding 

financial accounts intended to provide for the educational 

expense of minor children are properly characterized as support and are modifiable based upon a material change in 

circumstances.

[11] The reasoning in Caniglia, Lenz, and Coffey demonstrates that the provisions at issue here, which allocated school 

tuition expenses for the minor children and required contributions to the children’s college savings accounts, pertain to the 

support of the minor children. 47 And when provisions pertain to 

the support of minor children, they are properly characterized 

as child support for purposes of the legal standard to be applied 

in a modification action. The fraud or gross inequity standard 

urged by Kroll was therefore inapplicable, and the district court 

correctly determined the support provisions were modifiable 

upon a showing of a material change in circumstances affecting 

the best interests of the children. 48

3. Carlson v. Carlson

Inapplicable

Lastly, Kroll argues that our recent opinion in Carlson v. 

Carlson 49 required application of the fraud or gross inequity 

46 Id. at 815, 661 N.W.2d at 350-51.

47 See, Caniglia, supra note 38; Lenz, supra note 43; Coffey, supra note 45.

48 See, State on behalf of Tina K., supra note 6; Whilde, supra note 4.

49 Carlson, supra note 1.
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standard to the modification in this case. But as we explain, the 

rule announced in Carlson has no application to the modification of provisions regarding the support of minor children.

In Carlson, the parties entered into a property settlement 

agreement that divided marital property, established custody 

and support of the minor children, and required the father 

to pay monthly child support beyond the age of majority so 

long as the child was attending college. The property settlement agreement was approved by the court and incorporated 

into the decree. When the father later sought to modify the 

post-majority child support provision, it was a question of first 

impression whether such a provision could be modified and, if 

so, what standard to apply.

The father in Carlson urged that the provision to pay postmajority support should be characterized as “child support” 50

and therefore was subject to modification upon showing a 

material change in circumstances. 51 We disagreed, reasoning 

that such a provision did not pertain at all to the support of 

minor children, but, rather, pertained to the support of adult 

children. We noted that absent agreement of the parties, a 

dissolution court in Nebraska cannot order payment of child 

support beyond the age of majority, but can enforce such 

provisions if contained in an approved property settlement 

agreement incorporated into a decree. 52 Agreeing with the 

general consensus from other jurisdictions, Carlson ultimately 

held that a provision obligating a parent to pay post-majority 

child support could be modified, but not upon a showing of a 

material change in circumstances. Instead, Carlson held that 

when modifications to property settlement agreements do not 

pertain to the custody or support of minor children, they are 

governed either by the modification standard set out in the 

50 Id. at 542, 909 N.W.2d at 362.

51 See, e.g., Tilson, supra note 4.

52 Carlson, supra note 1. See, Foster v. Foster, 266 Neb. 32, 662 N.W.2d 191 

(2003); Zetterman v. Zetterman, 245 Neb. 255, 512 N.W.2d 622 (1994).
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property settlement agreement or, if the agreement contains no 

such standard, by the general standard under Nebraska law for 

modifying provisions in a property settlement agreement. 53

We adhere to the rule announced in Carlson as it regards 

post-majority support, but find it has no application here. 

Unlike the post-majority support provisions in Carlson, the 

provisions allocating responsibility for primary and secondary school tuition and requiring contributions to college savings funds during the children’s minority related exclusively 

to the support of minor children. As such, the district court 

applied the correct legal standard when it concluded the support provisions were modifiable upon finding a material change 

in circumstances. 54

V. CONCLUSION

For the foregoing reasons, the district court’s modification 

order is affirmed.

Affirmed.

53 Carlson, supra note 1.

54 See, State on behalf of Tina K., supra note 6; Whilde, supra note 4.