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GOMEZ v. GOMEZ

Cite as 303 Neb. 539

Elizabeth A. Gomez, now known as Elizabeth A.

appellant, v. Patrick W. Gomez, appel

___ N.W.2d ___

Filed July 5, 2019. No. S-18-894.

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. Contracts: Evidence. Contracts found to be ambiguous present a question of fact and permit the consideration of extrinsic evidence to determine the meaning of the contract.

3. 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.

4. Evidence: Records: Appeal and Error. A bill of exceptions is the only 

vehicle for bringing evidence before an appellate court; evidence which 

is not made a part of the bill of exceptions may not be considered.

5. Visitation. A party seeking to modify visitation has the burden to 

show a material change in circumstances affecting the best interests of 

the child.

Appeal from the District Court for Douglas County: Pete

C. Bataillon, Judge. Affirmed in part, and in part vacate

Aaron F. Smeall and Jacob A. Acers, of Smith, Slusky, 

Pohren & Rogers, L.L.P., for appellant.

Adam R. Little, of Ballew Hazen, P.C., L.L.O., for appellee.

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

Papik, and Freudenberg, 

Nebraska Supreme Court Online Library

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

07/19/2019 01:06 AM CDT
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Papik, J

In the course of their divorce proceedings, Patrick W. 

Gomez and Elizabeth A. Gomez, now known as Elizabeth 

A. Tonniges, agreed to a stipulated parenting plan. That plan, 

which was later incorporated in the decree dissolving their 

marriage, gave Patrick and Elizabeth joint legal and physical custody of their two children and set forth a schedule in 

which the parents would exercise parenting time. The parenting plan also included a provision that the children “will be 

enrolled and be participants in the Catholic religion” and set 

forth several specific Catholic religious activities in which the 

children would participate. Attendance at Catholic Mass was 

not mentioned.

Years later, Patrick filed a motion alleging that Elizabeth 

was not complying with the language in the parenting plan 

regarding the children’s religious participation. In response to 

Patrick’s motion, the district court entered an order requiring 

Elizabeth either to bring the children to Catholic Mass every 

weekend in which she was exercising parenting time or to 

allow Patrick to take the children during her parenting time. It 

also required the children to attend Catholic Mass on Catholic 

“Holy Days of Obligation” and required Patrick and Elizabeth 

to coordinate to ensure their attendance on those days. We find 

that the parenting plan did not require the Mass attendance 

ordered by the district court. Accordingly, we vacate that portion of the district court’s order requiring Mass attendance. 

Because there are other parts of the order not challenged by 

Elizabeth, we otherwise affirm.

BACKGROUND

Dissolution Decree and 

Parenting Plan.

Patrick and Elizabeth were married in April 2010. During 

their marriage, the parties had two children, one born in 2011 

and the other born in 2013.
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Approximately 5 years after their marriage, Elizabeth filed 

an action for dissolution. In that action, the parties agreed 

to a stipulated parenting plan that was later approved by the 

district court and incorporated in a decree dissolving the marriage. Several provisions of that parenting plan are relevant to 

this appeal.

First, the parenting plan provided that Patrick and Elizabeth 

would have joint legal and physical custody of their children. 

With respect to their joint legal custody, the plan elaborated 

that Patrick and Elizabeth would have “mutual authority and 

responsibility for making fundamental decisions regarding 

such things as education, religion and non-emergency medical and/or dental treatment.” The plan further required that 

Patrick and Elizabeth notify each other before making any 

decision regarding school enrollment, health care, or “participation in religious activities” and that they “discuss these three 

areas with one another in an effort to reach a consensus on 

those issues.”

The parenting plan also provided details as to how Patrick 

and Elizabeth would exercise their joint physical custody of 

the children. Under the plan, Patrick and Elizabeth had equal 

parenting time with their children. In the ordinary course, 

one parent would have the children 5 days one week and 2 

days the next week and vice versa the following week. The 

parenting plan also addressed holiday and vacation parenting time.

In addition, the parenting plan included the following 

provision:

The parents agree that the children will be enrolled 

and be participants in the Catholic religion (including 

First Communion and Confirmation). Further, [Elizabeth] 

shall allow for the children to attend their formal class 

(CCD) on her Wednesday parenting time. [Elizabeth] 

will provide transportation to and from Wednesday class 

on her parenting time, and if at anytime [Elizabeth] is 
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not capable of transporting the children, she shall advise 

[Patrick] who will then provide transportation.

Patrick’s Motion and District 

Court’s Order.

Approximately 2 years after the entry of the decree dissolving the marriage, Patrick filed a motion styled as a “Motion 

to Enforce Decree and Parenting Plan.” In the motion, Patrick 

alleged that Elizabeth was not complying with the provision of 

the parenting plan requiring that the children “be enrolled and 

be participants in the Catholic religion.” Patrick alleged that 

Elizabeth was violating this provision by taking the children 

to Lutheran church services and activities during her parenting 

time. He asked that the court enter an order allowing him to 

take the children to Catholic Mass during Elizabeth’s parenting 

time and prohibiting Elizabeth from allowing the children to 

participate in activities of any other religious faith.

At a hearing on Patrick’s motion, the district court stated 

that it interpreted the parenting plan’s language that the children would be “participants in the Catholic religion” to require 

the children to follow the tenets of the Catholic faith. The court 

continued, “[O]ne of the tenets according to [Patrick] is the 

children have to go to weekend . . . mass. . . . And, also, mass 

on . . . Holy Days of Obligation.”

The district court later entered a written order. In the order, 

the district court reiterated its conclusion that the language 

providing that the children would “be enrolled and be participants in the Catholic religion” required the parties to follow 

the tenets of the Catholic faith and that those tenets required 

attendance at Catholic Mass every weekend and on Holy 

Days of Obligation. Accordingly, the order provided that the 

children must attend Catholic Mass every weekend and provided that if Elizabeth was not taking the children during her 

parenting time, she was required to allow them to attend with 

Patrick. The order also required the children to attend Mass 
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on all Catholic Holy Days of Obligation and required the parents to coordinate to ensure their attendance on those days. 

Further, the order required the children to attend Catholic 

Mass while the parents were exercising holiday or vacation 

parenting time “if it is otherwise feasible to do so.” Finally, 

the order provided that neither party may “take or enroll” the 

children “in any religion other than the Catholic religion” 

during their parenting time unless agreed to in writing by 

both parties.

Elizabeth timely appealed the district court’s order.

ASSIGNMENTS OF ERROR

Elizabeth assigns, restated, that the district court erred in 

(1) interpreting the decree to require attendance at Catholic 

Mass and (2) granting relief greater than requested by Patrick’s 

motion.

STANDARD OF REVIEW

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

law. Accordingly, an appellate court reviews the interpretation 

of that decree independently of a determination reached by the 

court below. See Bayne v. Bayne, 302 Neb. 858, 925 N.W.2d 

687 (2019).

ANALYSIS

Standards Governing Interpretation 

of Decree.

Elizabeth asks us to reverse the order of the district court 

to the extent it requires the children to attend Catholic Mass 

every weekend and on Catholic Holy Days of Obligation. 

While Patrick’s motion was styled as a motion to enforce the 

decree, the district court’s order did not provide relief other 

than its interpretation of what the decree required. In doing 

so, the district court appears to have granted declaratory relief. 

We have recognized that our case law has generally permitted courts to resolve genuine disputes over the meaning of 
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language in a dissolution decree through declaratory relief. See 

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

Both parties also appear to understand the district court’s 

order as providing declaratory relief, focusing their arguments 

on whether the district court properly interpreted the decree. 

Before turning to the parties’ respective positions on that point, 

we pause to review the standards that govern the interpretation 

of the decree.

As noted above, the parenting plan was agreed to by Patrick 

and Elizabeth and presented to the district court by stipulation. We have recognized, however, that once a court, as here, 

adopts such an agreement and sets it forth as a judgment of 

the court, “the contractual character of the . . . agreement is 

subsumed into the court-ordered judgment.” Rice v. Webb, 287 

Neb. 712, 723, 844 N.W.2d 290, 298-99 (2014).

[2,3] The fact that we are reviewing a judgment as opposed 

to a contract matters. Contracts found to be ambiguous present a question of fact and permit the consideration of extrinsic evidence to determine the meaning of the contract. See 

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

(2015). Not so with decrees. See Carlson v. Carlson, supra. 

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. Bayne v. Bayne, 

supra. The parties’ subjective intentions and interpretations of 

the language or what the court entering the decree intended 

are irrelevant. See, id.; Neujahr v. Neujahr, 223 Neb. 722, 

393 N.W.2d 47 (1986). This is so even if the language of 

the decree is ambiguous. See Bayne v. Bayne, supra. See, 

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

(resolving meaning of ambiguous dissolution decree as matter 

of law).

With these standards in mind, we proceed to consider the 

interpretations of the decree offered by the parties.
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Questions Raised by District Court’s 

Interpretation of Decree.

Patrick and Elizabeth agree that the parenting plan requires 

that the children take part in those Catholic religious programs 

explicitly listed therein: “First Communion and Confirmation” 

and “CCD” classes. The parties divide on whether the parenting plan imposed additional obligations on the parents related 

to the children’s attendance at Catholic Mass. On one side is 

the interpretation advanced by Elizabeth: The decree requires 

the children to take part in those Catholic activities specifically mentioned, but does not impose additional obligations 

such as Mass attendance. Patrick counters that the language 

requiring that the children “be enrolled and be participants 

in the Catholic religion” means that the parents are obligated to raise the children in the Catholic faith and are thus 

obligated to facilitate the children’s observance of all the 

tenets thereof.

[4] Patrick’s interpretation was adopted by the district court, 

but we note that it also raises some difficult questions, both 

in the context of this case and beyond. Starting with this case, 

even if Patrick were correct that the parenting plan requires 

the children to follow all tenets of the Catholic faith, it is not 

entirely clear how the district court reached the conclusion that 

the tenets of the Catholic faith required the Mass attendance it 

ordered. At the hearing on Patrick’s motion, the district court 

suggested it credited Patrick’s view that Mass attendance every 

weekend and on Holy Days of Obligation was required under 

the Catholic faith. Patrick references an affidavit attached to 

his motion which he contends set forth his understanding of 

the tenets of the Catholic faith as it relates to Mass attendance, but that affidavit is not a part of our bill of exceptions. 

A bill of exceptions is the only vehicle for bringing evidence 

before an appellate court; evidence which is not made a part 

of the bill of exceptions may not be considered. Heineman v. 

Evangelical Luth. Good Sam. Soc., 300 Neb. 187, 912 N.W.2d 
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751 (2018). It thus does not appear there is anything in our 

record supporting the district court’s conclusion that the tenets 

of the Catholic faith require Mass attendance consistent with 

the district court’s order.

Even setting aside the question of how the district court 

determined the tenets of the Catholic faith regarding Mass 

attendance in this case, a more fundamental question remains. 

Patrick’s argument is essentially that the parenting plan requires 

the children to do all that the Catholic Church requires of its 

adherents. An inescapable consequence of this interpretation is 

that the task of deciding what a person must do to be a faithful 

Catholic is placed squarely before civil courts. Patrick hardly 

runs away from the notion that his interpretation puts courts in 

the position of determining and enforcing religious doctrine. To 

the contrary, his brief is replete with citations to Canon Law 

and he argues not only that it requires Mass attendance but 

that a failure to comply with such requirements is a mortal sin. 

Brief for appellee at 5.

While courts are regularly called upon to decide the extent 

of obligations imposed by earthly regimes, many courts have 

questioned whether they may just as readily determine what 

obligations are imposed by a religious faith. Language from 

opinions of the U.S. Supreme Court, at a minimum, raises 

questions about whether courts may pass on matters of religious doctrine. See, e.g., Employment Div., Ore. Dept. of 

Human Res. v. Smith, 494 U.S. 872, 887, 110 S. Ct. 1595, 108 

L. Ed. 2d 876 (1990) (“[r]epeatedly and in many different contexts, we have warned that courts must not presume to determine the place of a particular belief in a religion or the plausibility of a religious claim”) (superseded by statute as noted 

in Sossamon v. Texas, 563 U.S. 277, 131 S. Ct. 1651, 179 L. 

Ed. 2d 700 (2013)); Presbyterian Church v. Hull Church, 393 

U.S. 440, 450, 89 S. Ct. 601, 21 L. Ed. 2d 658 (1969) (“[test 

employed by lower court] requires the civil court to determine 

matters at the very core of a religion—the interpretation of 
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particular church doctrines and the importance of those doctrines to the religion. Plainly, the First Amendment forbids 

civil courts from playing such a role”).

Additionally, many other courts have declined to resolve 

disputes that would require the resolution of questions of religious doctrine. See, e.g., Wallace v. ConAgra Foods, Inc., 920 

F. Supp. 2d 995, 996 (D. Minn. 2013) (dismissing case alleging that food manufacturer misrepresented that its food products were “‘100% Kosher’” because it would require court to 

decide questions of religious doctrine), vacated and remanded 

on other grounds 747 F.3d 1025 (8th Cir. 2014); Abdelhak v. 

Jewish Press Inc., 411 N.J. Super. 211, 985 A.2d 197 (2009) 

(affirming dismissal of defamation claim premised on alleged 

statements that plaintiff did not comply with religious requirements because resolution of claim would require court to 

pass on matters of religious doctrine); Pielech v. Massasoit 

Greyhound, Inc., 423 Mass. 534, 542, 668 N.E.2d 1298, 1304 

(1996) (holding statute was unconstitutional because it would 

require courts “to determine what actions and beliefs are 

required of adherents to the Roman Catholic faith”); Zumno 

v. Zumno, 394 Pa. Super. 30, 574 A.2d 1130 (1990) (declining 

to enforce prenuptial agreement that children would be raised 

Jewish because, among other reasons, it would excessively 

entangle court in religious matters); Lynch v. Uhlenhopp, 248 

Iowa 68, 78 N.W.2d 491 (1956) (declining to enforce language in divorce decree that children shall be raised in Roman 

Catholic religion as void for uncertainty). See, also, Jared A. 

Goldstein, Is There a “Religious Question” Doctrine? Judicial 

Authority to Examine Religious Practices and Beliefs, 54 Cath. 

U.L. Rev. 497 (2005) (collecting similar cases).

At oral argument, Patrick contended that this court has previously held that a court may consider religious questions in 

the context of a marital dissolution action, citing LeDoux v. 

LeDoux, 234 Neb. 479, 452 N.W.2d 1 (1990). LeDoux, however, held merely that a court may find that a religious practice 
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poses a threat to a child’s “temporal well-being” and fashion 

relief to protect the child from that threat. 234 Neb. at 486, 

452 N.W.2d at 5. Unlike the cases from other jurisdictions 

cited above, LeDoux did not implicate a question of religious 

doctrine. Furthermore, at least one reported Nebraska appellate 

decision, Hornung v. Hornung, 1 Neb. App. 6, 485 N.W.2d 

335 (1992), has language suggesting a court should not decide 

whether a practice is required by a religion in the context of a 

dissolution dispute. In Hornung, the Nebraska Court of Appeals 

reversed a district court order requiring a father to attend 

Catholic Mass with his children and observed that the district 

court order was “tantamount to a judicial seal of approval on 

the mother’s belief that it is sinful for the children not to attend 

Mass every weekend.” Id. at 10, 485 N.W.2d at 337.

As it turns out, we need not resolve the difficult questions 

raised by the interpretation advanced by Patrick and adopted by 

the district court. As we will explain, we conclude this interpretation is not consistent with the four corners of the decree 

itself. But while we need not address the questions discussed 

above, we note them for the consideration of practitioners or 

courts considering a parenting plan that would require judicial 

resolution of questions of religious doctrine.

Interpretation of Decree.

As we have noted, it is Patrick’s position that Elizabeth 

was required by the decree to take the children to Mass on 

weekends and Catholic Holy Days of Obligation when she 

was exercising parenting time or to give up her parenting 

time and allow Patrick to take them. Patrick contends that this 

requirement flows from the language that the children are to 

“be enrolled and be participants in the Catholic religion.” We 

disagree with Patrick’s reading.

Initially, we note that we are not presented with any argument or evidence that the terms “enrolled” and “participants” 

are used as either legal or religious terms of art. We are thus 
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left to interpret those words in their ordinary, literal sense. See 

Shade v. Kirk, 227 Neb. 775, 777, 420 N.W.2d 284, 286 (1988) 

(decree must be interpreted “in light of the literal meaning of 

the language used”). In its ordinary sense, the word “enrolled” 

suggests only that the children must be registered in some 

sense in the Catholic faith. See, The New Oxford American 

Dictionary 566 (2001) (defining “enroll” as “officially register as a member of an institution or a student on a course”); 

Merriam-Webster’s Collegiate Dictionary 385 (10th ed. 2001) 

(defining “enroll” as “to insert, register, or enter in a list, catalog, or roll”). We do not understand how the requirement that 

the children be registered as Catholics in some way also compels the Mass attendance ordered by the district court.

This leaves the word “participants.” It is Patrick’s position 

that the children will be “participants” in the Catholic religion 

only if they adhere to all its required observances. We certainly 

understand that if the children did so, they would qualify as 

“participants.” But our focus is on what the decree required. 

And the word “participant” on its own suggests only that a 

person take part in something to some degree. See The New 

Oxford American Dictionary at 1246 (defining “participant” as 

“a person who takes part in something”). Indeed, it would not 

be uncommon for persons to be described as “participants” in 

a given activity even if they do not take part to the fullest. It is 

only with qualifying language not present here such as “full” 

that the word “participants” communicates the level of participation Patrick argues the decree required.

To be sure, the children must take part in the Catholic religion to some degree if they are to be fairly described as “participants.” But, as we have noted, the parenting plan explicitly requires the children to participate in “First Communion 

and Confirmation,” as well as “CCD” classes, and Elizabeth 

concedes that she is obligated to facilitate their involvement in those activities. We do not, however, understand the 

language of the parenting plan to require Elizabeth to also 
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facilitate their attendance at Catholic Mass as ordered by the 

district court.

We find additional support for our interpretation in the 

decree’s complete silence as to the children’s attendance at 

Catholic Mass. The decree specifically sets forth a detailed 

2-week rotation regarding the regular exercise of parenting 

time. It also sets forth a holiday parenting time arrangement, covering various enumerated holidays. Additionally, the 

decree has specific language requiring Elizabeth to take the 

children to CCD classes on her parenting time. Nowhere, 

however, is there any mention of a requirement that the parties either have the children attend Catholic Mass on each 

parent’s parenting time or give up that time to the other parent for the other parent to do so. And despite specific allocation of parenting time on a number of holidays, there is no 

reference to Catholic Holy Days of Obligation as such or a 

requirement that the parent exercising parenting time on those 

days bring the children to Mass on those days. In our view, 

given its silence on these points, the decree is most reasonably 

interpreted as not addressing attendance at Catholic Mass. See 

Bayne v. Bayne, 302 Neb. 858, 864, 925 N.W.2d 687, 693 

(2019) (decree is to be interpreted to, if possible, “bring all of 

its parts into harmony as far as this can be done by fair and 

reasonable interpretation”).

Finally, we note that at oral argument, Patrick’s counsel 

contended that the children will be able to participate in the 

activities specifically mentioned in the decree only if they 

attend Mass as ordered by the court. We discern nothing in our 

record indicating that is the case and thus do not consider that 

argument here.

Disposition of Appeal.

[5] As explained above, we conclude that by requiring 

Elizabeth to either bring the children to Catholic Mass or give 

up her parenting time, the district court imposed obligations 
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that were not present in the original decree. The district 

court’s order thus constituted a modification of the decree as 

opposed to a proper order interpreting it. The party seeking to 

modify visitation has the burden to show a material change 

in circumstances affecting the best interests of the child. See, 

e.g., Fine v. Fine, 261 Neb. 836, 626 N.W.2d 526 (2001). 

There is no such evidence here. Accordingly, the portions 

of the district court’s order regarding Mass attendance must 

be vacated.

We note, however, that the district court’s order enforcing 

the decree addressed other issues, which Elizabeth did not 

appeal. This would include the portion of the district court’s 

order that the parties not allow for the children’s participation 

in religious activities outside the Catholic religion without the 

written permission of the other parent. Elizabeth did not argue 

that portion of the district court’s order was erroneous and 

explicitly stated in her reply brief she was not challenging it. 

As the rest of the order enforcing the decree is not challenged, 

we affirm in part.

CONCLUSION

We find that the parties’ parenting plan did not require the 

children to attend Catholic Mass. Accordingly, we vacate those 

portions of the decree ordering such attendance, but otherwise affirm.

Affirmed in part, and in part v