Rice v. Web ( 2014 )

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or whether statutory grounds for termination were shown.
And because we conclude that termination of Tom’s parental
rights was in error, we decline to address Tom’s arguments that
Nicole’s statements were inadmissible hearsay. An appellate
court is not obligated to engage in an analysis which is not
needed to adjudicate the controversy before it.18
VI. CONCLUSION
We affirm the county court’s order terminating Brandy’s
parental rights. But because the State did not rebut the pre-
sumption that Tom was a fit parent, the county court’s order
terminating Tom’s parental rights is reversed.
Affirmed in part, and in part reversed.
18
In re Interest of Aaron D., 269 Neb. 249, 691 N.W.2d 164 (2005).
Brenda R. Rice, appellant, v. Christina Webb,
P ersonal R epresentative of the Estate of
Dale E. Rice, deceased, appellee.
___ N.W.2d ___
Filed March 21, 2014. No. S-13-458.
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. Judgments: Divorce: Property Settlement Agreements. A dissolution decree
which approves and incorporates into the decree the parties’ property settlement
agreement is a judgment of the court itself.
3. Courts: Jurisdiction: Divorce: Property Settlement Agreements. A district
court, in the exercise of its broad jurisdiction over marriage dissolutions, retains
jurisdiction to enforce all terms of approved property settlement agreements.
4. Courts: Jurisdiction. A court that has jurisdiction to make a decision also has
that power to enforce it by making such orders as are necessary to carry its judg-
ment or decree into effect.
5. Divorce: Insurance. The general rule is that divorce does not affect a beneficiary
designation in a life insurance policy.
6. Divorce: Property Settlement Agreements: Intent. If the dissolution decree
and any property settlement agreement incorporated therein manifest the par-
ties’ intent to relinquish all property rights, then such agreement should be given
that effect.
Nebraska Advance Sheets
RICE v. WEBB 713
Cite as 287 Neb. 7127. Contracts. Ambiguity exists in a document when a word, phrase, or provision
therein has, or is susceptible of, at least two reasonable but conflicting interpreta-
tions or meanings.
8. Divorce: Intent. If the contents of a dissolution decree are unambiguous, the
decree is not subject to interpretation and construction, and the intention of the
parties must be determined from the contents of the decree.
9. Divorce. If the contents of a dissolution decree are unambiguous, the effect of the
decree must be declared in the light of the literal meaning of the language used.
10. Divorce: Modification of Decree: Property Settlement Agreements. Where
parties to a divorce action voluntarily execute a property settlement agreement
which is approved by the dissolution court and incorporated into a divorce decree
from which no appeal is taken, its provisions will not thereafter be vacated or
modified in the absence of fraud or gross inequity.
Appeal from the District Court for Lancaster County: Steven
D. Burns, Judge. Affirmed.
Robert B. Creager, of Anderson, Creager & Wittstruck, P.C.,
L.L.O., for appellant.
James A. Cada, of Cada, Cada, Hoffman & Jewson, for
appellee.
Heavican, C.J., Wright, Connolly, Stephan, McCormack,
Miller-Lerman, and Cassel, JJ.
Miller-Lerman, J.
NATURE OF CASE
Brenda R. Rice and Dale E. Rice were married in September
2001. In May 2011, Brenda filed for divorce. Brenda and Dale
entered into a property settlement agreement, and on August
8, 2011, the district court for Lancaster County filed a decree
dissolving their marriage and incorporating the property settle-
ment agreement. Dale died shortly thereafter on August 15. At
the time of his death, Dale owned two life insurance policies
and Brenda was still listed as the primary beneficiary on both
policies. After Brenda filed claims for the proceeds of the life
insurance policies, the personal representative of Dale’s estate
filed a motion to enforce the decree, arguing that under the
property settlement agreement, Brenda no longer had any legal
claim to the policies. Following the receipt of evidence, the
district court filed its “Judgment of Enforcement of Decree”
on April 23, 2013, in which it ordered Brenda to withdraw her
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claims under Dale’s life insurance policies. Brenda appeals.
We conclude that by the four corners of the property settle-
ment agreement, which was incorporated into the divorce
decree, Brenda clearly and unambiguously relinquished her
beneficiary interests in Dale’s life insurance policies, and we
therefore affirm.
STATEMENT OF FACTS
Brenda and Dale were married in September 2001. No chil-
dren were born of their marriage, but both Brenda and Dale
had children from prior marriages. Brenda filed for divorce in
May 2011. On August 6, Brenda and Dale signed a property
settlement agreement. On August 8, the district court entered
a decree dissolving the marriage, which incorporated the prop-
erty settlement agreement. Relevant portions of the property
settlement agreement are quoted below. Paragraph VI of the
property settlement agreement provided:
VI. STOCKS, BANK ACCOUNTS, LIFE
INSURANCE POLICICES [sic], PENSION PLANS
AND RETIREMENT PLANS
[Brenda] shall be awarded all interest in all pension
plans, stocks, retirement accounts, 401(k), IRA, life insur-
ance policy and checking or savings account in [Brenda’s]
name, free from any claim of [Dale] including all owner-
ship interest in the LincOne Federal Credit Union joint
account. [Dale] shall be awarded all interest in any pen-
sion plans, stocks, retirement accounts, 401(k), IRA, life
insurance policy and checking or savings account in
[Dale’s] name, free from any claim of [Brenda]. The par-
ties shall divide evenly the sums in the LincOne Credit
Union accounts.
Paragraph IX of the property settlement agreement provided:
IX. PROPERTY PROVISIONS AND SETTLEMENT
OF PROPERTY RIGHTS OF PARTIES
It is expressly understood by and between the parties
hereto that the provisions of this agreement relating to
the property and liabilities of each, set aside and allocate
to each party his or her respective portions of the proper-
ties belonging to the parties and of the liabilities of the
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that the properties set aside to him or her, less the liabili-
ties so allocated to him or her, will be in full, complete
and final settlement, release and discharge, as between
themselves, of all rights, claims, interests and obligations
of each party in and to the said properties and the same
in their entirety constitute a full, fair and equitable divi-
sion and the partition of their respective rights, claims
and interests in and to the said properties of every kind
and nature.
Paragraph X of the property settlement agreement was labeled
“WAIVER AND RELEASE OF MARITAL RIGHTS.”
Subsections (a) and (b) of paragraph X contain almost identical
language, except that subsection (a) refers to Dale and subsec-
tion (b) refers to Brenda. Paragraph X provided in part:
Pursuant to Neb. Rev. Stat. Section 30-2316, the parties
hereby agree as follows:
(a) In consideration of the provisions of this agree-
ment, [Dale] waives and relinquishes any and all interest
or rights of any kind, character, or nature whatsoever,
including but not limited to all rights to elective share,
homestead allowance, exempt property, and family allow-
ance in the property of [Brenda], and renounces all ben-
efits which would otherwise pass to [Dale] from [Brenda]
by intestate succession or by virtue of the provisions
of any Will executed before this Settlement Agreement
which he, as husband, or as widower, or otherwise, has
had, now has, or might hereafter have against [Brenda],
or, in the event of her death, as an heir at law, surviving
spouse, or otherwise. [Dale] also waives and relinquishes
any and all interest, present and future, in any and all
property, real, personal, or otherwise, now owned by
[Brenda] or hereafter acquired, and including all property
set aside for her in this agreement, it being the intention
of the parties that this agreement shall be a full, final, and
complete settlement of all matters in dispute between the
parties hereto.
(b) In consideration of the provisions of this agree-
ment, [Brenda] waives and relinquishes any and all
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interest or rights of any kind, character, or nature what-
soever, including but not limited to all rights to elective
share, homestead allowance, exempt property, and fam-
ily allowance in the property of [Dale], and renounces
all benefits which would otherwise pass to [Brenda]
from [Dale] by intestate succession or by virtue of the
provisions of any Will executed before this Settlement
Agreement which she, as wife, or as widow, or other-
wise, has had, now has, or might hereafter have against
[Dale], or, in the event of his death, as an heir at law,
surviving spouse, or otherwise. [Brenda] also waives and
relinquishes any and all interest, present and future, in
any and all property, real, personal, or otherwise, now
owned by [Dale] or hereafter acquired, and including all
property set aside for him in this agreement, it being the
intention of the parties that this agreement shall be a full,
final, and complete settlement of all matters in dispute
between the parties hereto.
At the time of Dale’s death, he owned two separate life
insurance policies, one with Primerica and one with Unum.
Both life insurance policies were awarded to Dale in the prop-
erty settlement agreement. Brenda was still listed as the pri-
mary beneficiary for both policies when Dale died. Subsequent
to Dale’s death, Brenda made claims for the proceeds of the
life insurance policies.
On September 1, 2011, the personal representative of Dale’s
estate filed a motion entitled “Motion to Enforce Divorce
Decree,” which stated that Brenda had waived her status as
the beneficiary to Dale’s life insurance policies. The motion
also stated that by the property settlement agreement, Brenda
had waived all rights and claims that she had to Dale’s pension
plan, stocks, retirement accounts, 401K, IRA, life insurance
policies, and checking or saving accounts held by Dale.
On October 3, 2011, the district court filed an order grant-
ing the motion to enforce the divorce decree. The district
court’s order was vacated by the Nebraska Court of Appeals
on July 30, 2012, in case No. A-11-938. The order was
vacated, because the dissolution proceedings had not been
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Cite as 287 Neb. 712revived by Dale’s estate and therefore the district court did not
have jurisdiction.
Following the mandate, on October 1, 2012, the personal
representative of Dale’s estate filed a “Verified Motion for
Revivor” pursuant to Neb. Rev. Stat. § 25-1403 (Reissue
2008). The district court sustained this motion by order filed
January 4, 2013.
Brenda filed a motion entitled “Motion to Modify/Reform
Property Settlement Agreement” on March 8, 2013. In her
motion, Brenda asserted that as part of their dissolution pro-
ceedings, Brenda and Dale intended to keep each other as
beneficiaries on the other’s life insurance policies and that
nothing in the property settlement agreement was intended to
change that intention. Brenda sought to offer evidence to sub-
stantiate her contention. Brenda requested an order from the
court determining that the property settlement agreement did
not change the parties’ status as beneficiaries of each other’s
life insurance policies or, in the alternative, an order modify-
ing or reforming the property settlement agreement to reflect
that intention.
The district court conducted an evidentiary hearing on the
motion to enforce the divorce decree and the motion to modify
or reform the property settlement agreement on April 10,
2013. Prior thereto, the district court entered a pretrial confer-
ence order on March 21. In the pretrial conference order, the
parties described several legal issues presented by the case,
including whether the district court had authority to enforce
the decree and whether the property settlement agreement
was ambiguous.
The parties stipulated to the following facts:
1. That on August 8, 2011, the Court entered a Decree
and approved the Property Settlement Agreement entered
into by Brenda . . . and Dale . . . and signed by them on
the date indicated.
2. That Dale . . . died on August 15, 2011.
3. That Christina Webb was appointed Personal
Representative of the Estate of Dale . . . pursuant to
Neb.Rev.Stat. § 25-1403 et seq.
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4. That this Court has jurisdiction over the subject mat-
ter and parties.
5. That Christina Webb is the Personal Representative
of the Estate of Dale . . . and as an heir and oldest child,
appears on behalf of the heirs of Dale . . . .
6. That at the time of his death, Dale was the owner of
certain life insurance policies with Primerica and Unum
which policies were awarded to [Dale] in the Property
Settlement Agreement.
7. That at the time of his death Brenda was listed as
the primary beneficiary of the Primerica and Unum life
insurance polic[ies].
8. That at the time of his death, Dale was the owner of
a LincOne account.
9. That at the time of his death, . . . Brenda was the
joint owner of the . . . LincOne account.
10. That at the time of his death, Dale was the owner
of a 401(k) retirement account with Vanguard which
account was awarded to him in the Property Settlement
Agreement.
11. That at the time of his death, Brenda was listed
as the primary beneficiary of the Vanguard retirement
account.
12. That Brenda directly relinquished her survivor
claim to the Vanguard retirement account which was
then awarded to her son who was the contingent/alternate
beneficiary.
13. That upon his death, Brenda made application to
receive the proceeds of the Primerica life insurance policy.
14. That by agreement of the parties, the proceeds from
the death benefit of the Primerica policy are being held in
escrow pending resolution of [this] case.
At the hearing, Dale’s estate offered exhibits 15 and 16,
which the district court received without objection. Exhibit 15
is a stipulation of facts as to what the attorney representing
Brenda during the divorce proceedings, Terrance A. Poppe,
would testify to if he were called. Exhibit 15 states:
1) That . . . Poppe . . . is an attorney, licensed to prac-
tice law in the State of Nebraska[.]
Nebraska Advance Sheets
RICE v. WEBB 719
Cite as 287 Neb. 7122) That Poppe was counsel to Brenda . . . in the divorce
proceeding styled and captioned Brenda Rice v. Dale Rice
in the District Cou[rt] of Lancaster County, Nebraska,
CI 11-2081.
3) That . . . Dale . . . was not represented by counsel in
that proceeding.
4) That all dealings that Poppe had concerning the
agreement of the parties with respect to their property
settlement agreement were with his client Brenda . . . .
5) That Poppe had no conversations, discussions or
other communications with Dale . . . concerning the terms
of the parties[’] property settlement agreement, prior to
the drafting and execution of the agreement.
6) That at no time during the discussions leading up to
the preparation and execution of the property settlement
agreement that Poppe prepared, was Poppe informed by
Brenda that the parties had an agreement that they would
retain their status as beneficiary of the other’s life insur-
ance and other accounts.
7) To the best of Poppe’s recollection, the issue of the
parties’ beneficiary status was not discussed.
8) That at no time did Poppe discuss with Brenda . . .
that the provisions of the property settlement agreement,
as drafted, could affect the parties’ status as beneficiary of
the other’s life insurance policy or accounts.
9) That attached hereto and marked Exhibit A is a true
and correct copy of . . . Poppe’s billing records showing
the dates of conferences and meetings with Brenda . . . .
Exhibit 16 was also a stipulation of facts, in which the par-
ties stipulated that “in addition to an agree facts [sic] set forth
in the Pretrial Order, the following facts are true and may be
relied upon by the Court in its disposition of this matter.” The
stipulation of facts in exhibit 16 states in relevant part:
Dale’s Primerica Life Insurance Policy
11. Prior to his marriage to Brenda, Dale was the
owner of a term life insurance policy with Primerica with
a death benefit of $250,000.00.
12. When the original policy was issued in 1992,
his former wife Peggy was the primary beneficiary
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and his “children of the marriage” were the contingent
beneficiaries.
13. On or about January 3, 1997, after his divorce
from Peggy, Dale identified his primary beneficiaries as
Christina Rice, David E. Rice and Cynthia Rice [Dale’s
three children].
14. On or about January 17, 1997 Dale identified his
contingent beneficiary as Loren Huddle [Dale’s mother].
15. That on or about January 26, 2001, before his mar-
riage to Brenda, Dale identified Brenda as his primary
beneficiary and [Dale’s three children] as his contin-
gent beneficiaries.
16. Dale did not further change the beneficiary desig-
nation of the Primerica policy prior to his death.
17. At the time of the divorce, Dale still owned the
Primerica policy.
18. Although not specifically mention[ed] in the prop-
erty settlement agreement, it was the intention of the par-
ties that Dale was awarded his Primerica policy.
19. At the time of his death, Brenda was still listed as
the primary beneficiary and [Dale’s three children] as the
contingent beneficiaries.
20. After his death, Brenda made application for the
death benefit as the primary beneficiary.
Dale’s Unum Life Insurance Policy
21. At the time of the divorce Dale owned a term life
insurance policy with Unum Insurance with a death ben-
efit of $50,000.00.
22. At the time of the divorce Brenda was the primary
beneficiary of the Unum policy and John Kelch [Brenda’s
son] was the contingent beneficiary.
23. Although not specifically mention[ed] in the prop-
erty settlement agreement, it was the intention of the par-
ties that Dale was awarded the Unum policy.
24. At the time of his death Brenda remained the pri-
mary beneficiary of the Unum policy and [Brenda’s son]
was the contingent beneficiary.
Brenda testified at the hearing, primarily regarding con-
versations she and Dale had had regarding their statuses as
Nebraska Advance Sheets
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Cite as 287 Neb. 712beneficiary of the other’s life insurance policies. The attorney
representing Dale’s estate objected “based on hearsay, not
the best evidence, no probative value, and in violation of the
parole [sic] evidence rule.” The district court granted a stand-
ing objection. Brenda offered exhibit 17, a transcript of tele-
phone voice messages between Brenda and Dale, and exhibit
18, a transcript of text messages between Brenda and Dale.
The attorney representing Dale’s estate reiterated the standing
objection, and the district court received exhibits 17 and 18 and
took the objections under advisement.
The district court filed its “Judgment of Enforcement of
Decree” on April 23, 2013, in which it agreed with the per-
sonal representative of Dale’s estate that Brenda had relin-
quished her beneficiary interest in Dale’s life insurance poli-
cies, and it rejected Brenda’s contentions to the contrary. The
district court relied on Pinkard v. Confederation Life Ins. Co.,
264 Neb. 312, 647 N.W.2d 85 (2002), and concluded that
the property settlement agreement was clear and unambig­
uous. The court determined that under the property settlement
agreement, Brenda and Dale intended to relinquish their ben-
eficiary and ownership interests in each other’s life insurance
policies and retirement accounts. The court rejected Brenda’s
arguments that the property settlement agreement was ambig-
uous, that parol evidence could be employed to determine
Brenda’s and Dale’s intent on this issue, and that the property
settlement agreement should be reformed. The court ordered
Brenda to withdraw her claims under Dale’s life insurance
policies and to renounce her rights to any property or interest
in Dale’s estate and proceeds from any insurance policies on
Dale’s life.
Brenda appeals.
ASSIGNMENTS OF ERROR
Brenda generally assigns, restated, that the district court
erred when it (1) determined that the terms of the property
settlement agreement were unambiguous and that by its terms,
Brenda waived her status as the designated beneficiary of Dale’s
life insurance policies; (2) failed to award her the proceeds
of Dale’s life insurance policies; and (3) granted the motion
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of Dale’s estate to enforce the decree by removing her as the
designated beneficiary of Dale’s life insurance policies.
STANDARD OF REVIEW
[1] The meaning of a divorce decree presents a ques-
tion of law, in connection with which we reach a conclusion
independent of the determination reached by the court below.
Hohertz v. Estate of Hohertz, 19 Neb. App. 110, 802 N.W.2d
141 (2011).
ANALYSIS
At issue in this appeal is the meaning of the portions of
the decree for dissolution which touch on the disposition of
two life insurance policies on Dale’s life. The district court
determined that under the decree, which incorporated the par-
ties’ property settlement agreement, Brenda had relinquished,
renounced, and waived any right, title, or interest in and to any
property interest in the proceeds from any insurance policies
on Dale’s life. To enforce the decree, Brenda was ordered to
withdraw her claims made against the Dale’s estate and to the
life insurance policies.
Dale’s estate contends that the property settlement agree-
ment is clear and unambiguous and that, by the language of
the property settlement agreement, Brenda relinquished her
beneficiary interests in Dale’s life insurance policies as the
district court determined. In contrast, Brenda contends that
the district court erred. Brenda first asserts that she did not
relinquish her beneficiary interests in Dale’s life insurance
policies under the terms of the property settlement agreement.
Second, Brenda asserts that the property settlement agreement
is ambiguous and that parol evidence would show that Brenda
and Dale intended that they each remain the designated ben-
eficiary on each other’s life insurance policies. Third, Brenda
asserts that if it is determined that the property settlement
agreement is unambiguous, it should nevertheless be reformed
to reflect such intent. We find no merit to Brenda’s arguments,
and we affirm.
[2] We set forth some preliminary matters which are useful
to our analysis. We have long held that a dissolution decree
Nebraska Advance Sheets
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Cite as 287 Neb. 712which approves and incorporates into the decree the parties’
property settlement agreement is “a judgment of the court
itself.” Chamberlin v. Chamberlin, 206 Neb. 808, 818, 295
N.W.2d 391, 397 (1980). See Strunk v. Chromy-Strunk, 270
Neb. 917, 708 N.W.2d 821 (2006). It has been observed that
once the court adopts the agreement and sets it forth as a
judgment of the court with corresponding ordering language,
the contractual character of the property settlement agreement
is subsumed into the court-ordered judgment. Henderson v.
Henderson, 307 N.C. 401, 298 S.E.2d 345 (1983). “At that
point the court and the parties are no longer dealing with a
mere contract between the parties.” Id. at 407, 298 S.E.2d at
350. Thus, in the present case, we are considering the meaning
of a judgment rather than a contract.
The decree dissolving a marriage becomes final and opera-
tive on the date of death of one of the parties to the dissolution
if such death occurs before 30 days have passed after entry of
the decree. Neb. Rev. Stat. § 42-372.01(1) (Reissue 2008). See,
also, Neb. Rev. Stat. § 42-372 (Reissue 2008). Thus, in the
present case, the marital status of Brenda and Dale was fixed
as divorced persons upon the happening of Dale’s death.
[3,4] We have held that the district court, in the exercise of
its broad jurisdiction over marriage dissolutions, retains juris-
diction to enforce all terms of approved property settlement
agreements. Strunk v. Chromy-Strunk, supra. A court that has
jurisdiction to make a decision also has that power to enforce it
by making such orders as are necessary to carry its judgment or
decree into effect. Id. The obligations of the decree involved in
this case concern property rights. The district court revived the
action at the request of Dale’s estate, which sought to enforce
the terms of the property settlement agreement. Thus, in the
present case, “the action taken by the district court [was] noth-
ing more and nothing less than enforcing that portion of the
decree which obligated” the parties regarding Dale’s life insur-
ance policies. See Dennis v. Dennis, 6 Neb. App. 461, 465, 574
N.W.2d 189, 192 (1998).
In Nebraska, appellate courts have repeatedly considered
the meaning of a dissolution decree after the death of one of
the parties particularly as to the terms of the decree pertaining
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to life insurance policies. E.g., Hohertz v. Estate of Hohertz,
19 Neb. App. 110, 802 N.W.2d 141 (2011) (considering mean-
ing of provisions in decree regarding scope of deceased former
husband’s obligations to name former wife as beneficiary of
death benefits). See, also, Trueblood v. Roberts, 15 Neb. App.
579, 732 N.W.2d 368 (2007) (considering meaning of provi-
sions in decree regarding former wife’s status as beneficiary
of deceased former husband’s life insurance policy). In doing
so, we have applied the principles we articulated in Pinkard
v. Confederation Life Ins. Co., 264 Neb. 312, 647 N.W.2d
85 (2002).
[5] Under Nebraska law, the general rule is that divorce
does not affect a beneficiary designation in a life insurance
policy. Id. This rule is based on the notion that the benefi-
ciary’s claim to the proceeds evolves from the terms of the
policy rather than the status of the marital relationship. Id. But
a spouse may waive such a beneficiary interest in a divorce
decree. See id. See, also, Strong v. Omaha Constr. Indus.
Pension Plan, 270 Neb. 1, 701 N.W.2d 320 (2005), abrogated
in part, Kennedy v. Plan Administrator for DuPont Sav. and
Investment Plan, 555 U.S. 285, 129 S. Ct. 865, 172 L. Ed. 2d
662 (2009).
[6] In this case, the trial court determined that although
the beneficiary forms for Dale’s life insurance policies still
listed Brenda as the designated beneficiary of the policies at
the time of his death, Brenda had unambiguously relinquished
her beneficiary rights in the life insurance policies by virtue
of the terms of the property settlement agreement. In mak-
ing this determination, the trial court relied on the principles
explained in Pinkard. In Pinkard, we followed the waiver rule
and explained that under the waiver rule, the focus of whether
a spouse has waived such a beneficiary interest
should be upon the language of the dissolution decree
and any agreement which sets forth the intentions of
the parties concerning property rights. If the dissolution
decree and any property settlement agreement incorpo-
rated therein manifest the parties’ intent to relinquish
all property rights, then such agreement should be given
that effect. We make no distinction among IRA’s, life
Nebraska Advance Sheets
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Cite as 287 Neb. 712insurance proceeds, or other types of annuities that
designate the beneficiary in the event of the death of
the payee.
264 Neb. at 318, 647 N.W.2d at 89.
A competing rule, the document rule, has been discussed
but not adopted in our case law. The relative merits of each
rule have been compared. See Strong v. Omaha Constr. Indus.
Pension Plan, supra (Connolly, J., dissenting; Stephan, J.,
joins). In Nebraska, pursuant to U.S. Supreme Court prec-
edent, the document rule is limited to benefit plans governed
by the Employee Retirement Income Security Act of 1974, 29
U.S.C. § 1001 et seq. (2006 & Supp. V 2011), and therefore,
it does not apply to the present case. See Kennedy v. Plan
Administrator for DuPont Sav. and Investment Plan, supra(abrogating in part Strong v. Omaha Constr. Indus. Pension
Plan, supra).[7-9] A decree is a judgment, and once a decree for dissolu-
tion becomes final, its meaning, including the settlement agree-
ment incorporated therein, is determined as a matter of law
from the four corners of the decree itself. See Metropolitian
Life Ins. Co. v. Beaty, 242 Neb. 169, 493 N.W.2d 627 (1993);
Hohertz v. Estate of Hohertz, 19 Neb. App. 110, 802 N.W.2d
141 (2011). In Hohertz, the Court of Appeals summarized the
applicable principles as follows:
The principles of law regarding the meaning of a
judgment are well settled. Ambiguity exists in a docu-
ment when a word, phrase, or provision therein has, or
is susceptible of, at least two reasonable but conflicting
interpretations or meanings. Strunk v. Chromy-Strunk, 270
Neb. 917, 708 N.W.2d 821 (2006). If the contents of a
dissolution decree are unambiguous, the decree is not
subject to interpretation and construction, and the inten-
tion of the parties must be determined from the contents
of the decree. Boyle v. Boyle, 12 Neb. App. 681, 684
N.W.2d 49 (2004). In such a case, the effect of the decree
must be declared in the light of the literal meaning of the
language used. See Bokelman v. Bokelman, 202 Neb. 17,
272 N.W.2d 916 (1979).
19 Neb. App. at 115, 802 N.W.2d at 145.
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The trial court’s order quotes the language of the property
settlement agreement at length and concludes that the decree
is unambiguous and that Brenda waived and relinquished her
interest in Dale’s life insurance policies. We have quoted the
property settlement agreement language above and need not
repeat it at length here. We note, however, that paragraph VI
of the property settlement agreement provided that Dale “shall
be awarded all interest in any pension plans, stocks, retire-
ment accounts, 401(k), IRA, life insurance policy and checking
or savings account in [Dale’s] name, free from any claim of
[Brenda].” (Emphasis supplied.)
Paragraph IX of the property settlement agreement provides
that “each party acknowledges that the properties set aside to
him or her . . . will be [a] release and discharge, as between
themselves, of all rights, claims, interests and obligations of
each party in and to the said properties.” Furthermore, para-
graph X(b) of the property settlement agreement provides
that Brenda
waives and relinquishes any and all interest or rights
of any kind, character, or nature whatsoever, . . . and
renounces all benefits which would otherwise pass to
[Brenda] from [Dale] by intestate succession or by vir-
tue of the provisions of any Will executed before this
Settlement Agreement which she, as wife, or as widow,
or otherwise, has had, now has, or might hereafter have
against [Dale], or, in the event of his death, as an heir
at law, surviving spouse, or otherwise. [Brenda] waives
and relinquishes any and all interest, present and future,
in any and all property, real, personal, or otherwise, now
owned by [Dale] or hereafter acquired, and including all
property set aside for him in this agreement . . . .
We find no ambiguity in the decree. Under paragraph VI,
the life insurance policies in Dale’s name were awarded to
Dale, and under paragraphs IX and X(b), Brenda waived and
relinquished all interest in property set aside to Dale. Similar
waiver language was at issue in Pinkard v. Confederation
Life Ins. Co., 264 Neb. 312, 647 N.W.2d 85 (2002), and
we concluded that the former wife therein waived her ben-
eficiary interest in an annuity by entering into a property
Nebraska Advance Sheets
RICE v. WEBB 727
Cite as 287 Neb. 712settlement agreement and that although the former husband
had not changed the beneficiary designation after the divorce,
the waiver was effective. Upon our independent review, we
conclude as a matter of law that under the terms of the
decree, Brenda unambiguously waived her beneficiary interest
in Dale’s life insurance policies. The district court was correct
when it so concluded.
[10] In this case, Brenda filed a “Motion to Modify/
Reform Property Settlement Agreement.” And in the “Pre-
Trial Conference Order,” Brenda contended that parol evidence
would clarify the parties’ intent in what she claimed was an
ambiguous property settlement agreement or, in the alternative,
serve as a basis to modify and reform the property settlement
agreement to reflect her version of the parties’ intentions. In
Nebraska, we have stated that where parties to a divorce action
voluntarily execute a property settlement agreement which
is approved by the dissolution court and incorporated into a
divorce decree from which no appeal is taken, its provisions
will not thereafter be vacated or modified in the absence of
fraud or gross inequity. Strunk v. Chromy-Strunk, 270 Neb.
917, 708 N.W.2d 821 (2006). Elsewhere, it is generally con-
sidered appropriate for a court to modify or vacate a decree
after the death of a party for the limited purpose of establishing
property rights where there has been fraud or lack of process.
See 27A C.J.S. Divorce § 401 (2005). In this case, no appeal
was taken regarding property rights awarded in the decree, and
Brenda has not alleged that there was a fraud or gross inequity
in connection with the entry of the decree.
Brenda’s contentions that we consider parol evidence or
modify the property settlement agreement are founded on the
proposition that the property settlement agreement is ambig­
uous, a proposition we have already rejected. Under the unam-
biguous terms of the property settlement agreement, Brenda
relinquished her beneficiary rights to Dale’s life insurance
policies. Where the language used in the property settlement
agreement is unambiguous, we are bound to consider such lan-
guage from the four corners of the agreement itself, and what
the parties thought the agreement meant is irrelevant. Strunk v.
Chromy-Strunk, supra.Nebraska Advance Sheets
728 287 NEBRASKA REPORTS
Many of the arguments and supporting authorities urged
upon us for consideration in this case are taken from cases
where contracts or other documents were at issue. These
topics include parol evidence and reformation. As noted,
the property settlement agreement once approved and incor-
porated into the decree becomes a judgment rather than a
contract. Id. And the meaning of the judgment is a question
of law. Hohertz v. Estate of Hohertz, 19 Neb. App. 110, 802
N.W.2d 141 (2011). The district court considered but rejected
the contract concepts in its order; however, we believe these
concepts are not suited to the central issue in this case. Thus,
although our reasoning differs somewhat from that of the
district court, we find no reversible error in its refusal to con-
sider evidence other than the decree and its refusal to modify
the decree.
CONCLUSION
Because we conclude as a matter of law that Brenda relin-
quished all rights to Dale’s life insurance policies in the par-
ties’ property settlement agreement, which was incorporated
into the decree, the district court did not err when it enforced
the dissolution decree and ordered Brenda to withdraw claims
to Dale’s life insurance policies.
Affirmed.
Cassel, J., concurring.
The majority opinion, which I join, is entirely correct
under existing law. But existing law relies upon the general
rule that divorce does not affect a beneficiary designation in
a life insurance policy. This in turn requires close examina-
tion of the judgment dissolving the marriage. This frame-
work lacks certainty, contradicts ordinary expectations, and
encourages litigation. These flaws could easily be remedied
by legislation, and I suggest a simple approach to accomplish
this change.
The basic practical problem is that after a marriage is
dissolved, the former spouses frequently do not change pre­
existing beneficiary designations in life insurance policies and
similar contractual arrangements. Sometimes there is only a
Nebraska Advance Sheets
RICE v. WEBB 729
Cite as 287 Neb. 712brief interval between the dissolution and the policyholder’s
death.1 That circumstance applies to the case before us. Other
times, the policy owner overlooks the policy’s existence.
Or perhaps the owner encounters bureaucratic difficulties in
changing the beneficiary. For whatever reason, beneficiary
designations often go unchanged. Human experience teaches
that most policyholders would prefer a death benefit pass to
someone other than a former spouse. Of course, a few may
feel otherwise.
A beneficiary’s claim to the proceeds of a life insurance
policy evolves from the terms of the policy rather than the
status of the marital relationship.2 The Nebraska Probate
Code3 recognizes that a provision for a nonprobate transfer
on death in an insurance policy is nontestamentary.4 This
focus on the policy leads to the general rule that divorce
does not affect a beneficiary designation in a life insur-
ance policy.5
While the general rule is correct on a theoretical level,
in practice it breaks down, because it operates contrary to
ordinary human expectations. The response of most courts,
including this one, is to scrutinize the marital dissolution
documents searching for a “waiver” of the beneficiary desig-
nation by the surviving former spouse. Sometimes the court
will find a waiver.6 Other times, no waiver can be found.7 As
Justices Connolly and Stephan recognized in the context of
the federal Employee Retirement Income Security Act of 1974
1
See Larsen v. Northwestern Nat. Life Ins., 463 N.W.2d 777 (Minn. App.
1990).
2
See Pinkard v. Confederation Life Ins. Co., 264 Neb. 312, 647 N.W.2d 85(2002), citing Larsen v. Northwestern Nat. Life Ins., supra note 1.
3
Neb. Rev. Stat. §§ 30-2201 to 30-2902, 30-3901 to 30-3923, and 30-4001
to 30-4045 (Reissue 2008, Cum. Supp. 2012 & Supp. 2013).
4
See § 30-2715(a).
5
See Pinkard, supra note 2.
6
See, e.g., id.; Sorensen v. Nelson, 342 N.W.2d 477 (Iowa 1984).
7
See, e.g., Trueblood v. Roberts, 15 Neb. App. 579, 732 N.W.2d 368(2007); Lynch v. Bogenrief, 237 N.W.2d 793 (Iowa 1976).
Nebraska Advance Sheets
730 287 NEBRASKA REPORTS
(ERISA),8 whether a waiver has occurred often depends upon
hairline distinctions.9
Under ERISA, Congress has implemented a scheme employ-
ing a document rule that looks solely to the beneficiary desig-
nation in the plan documents.10 “[B]y giving a plan participant
a clear set of instructions for making his own instructions
clear, ERISA forecloses any justification for enquiries into
nice expressions of intent, in favor of the virtues of adhering
to an uncomplicated rule.”11 A document rule “yield[s] simple
administration, avoid[s] double liability, and ensure[s] that
beneficiaries get what’s coming quickly, without the folderol
essential under less-certain rules.”12
But courts have favored the waiver rule because they per-
ceive that the document rule will lead to windfalls where
the surviving former spouse intended to waive the interest.13
Ultimately, this is a policy decision. And by inaction, our
Legislature has acquiesced in the waiver rule applied in this
court’s jurisprudence.14 Thus, while I favor the document rule
as a matter of policy, I recognize that this court should not
judicially implement a document rule.
And without addressing the perceptions of fairness underly-
ing the waiver rule, the document rule would merely substitute
one flawed approach for another. The appellant in the case
8
29 U.S.C. § 1001 et seq. (2006 & Supp. V 2011).
9
See Strong v. Omaha Constr. Indus. Pension Plan, 270 Neb. 1, 701
N.W.2d 320 (2005) (Connolly, J., dissenting; Stephan, J., joins), abrogated
in part, Kennedy v. Plan Administrator for DuPont Sav. and Investment
Plan, 555 U.S. 285, 129 S. Ct. 865, 172 L. Ed. 2d 662 (2009).
10
See Kennedy, supra note 9.
11
Id., 555 U.S. at 301.
12
Fox Valley & Vic. Const. Wkrs. Pension F. v. Brown, 897 F.2d 275, 283
(7th Cir. 1990) (Easterbrook, Circuit Judge, dissenting; Bauer, Chief
Judge, and Manion, Circuit Judge, join), abrogated in part, Kennedy,
supra note 9.
13
See Strong, supra note 9 (Connolly, J., dissenting; Stephan, J., joins).
14
See Spady v. Spady, 284 Neb. 885, 824 N.W.2d 366 (2012) (when appellate
court has judicially construed statute and construction has not evoked
amendment, presumed that Legislature acquiesced in determination of
Legislature’s intent).
Nebraska Advance Sheets
RICE v. WEBB 731
Cite as 287 Neb. 712before us does not go so far as to suggest adoption of the
document rule. Rather, she urges us to expand the scope of
our examination under the waiver rule. Instead of focusing on
only the dissolution decree and the property settlement agree-
ment incorporated into it, she would have us look to extrinsic
evidence of all of the surrounding circumstances. Thoughtful
judges have advocated this approach.15 But I disagree, because
the expansive waiver rule would move further away from the
simplicity, speed, efficiency, and cost savings promised by the
document rule.
In my view, the best solution is a twofold legislative
approach: (1) adoption of a general rule that divorce automati-
cally revokes a prior designation of a former spouse as a ben-
eficiary in a life insurance policy or similar nontestamentary
transfer upon death and (2) subject to the automatic revocation
upon divorce, adoption of the document rule.
The first recommendation is easily accomplished—indeed,
there is an existing model in the Nebraska Probate Code.
Section 30-2333 revokes a disposition of property by will to a
former spouse, unless the will specifically provides otherwise.
In other words, a provision for a former spouse in a will made
before dissolution of the marriage will not result in property
going to the former spouse. Instead, the property will pass as if
the former spouse died first.
In the context of a life insurance policy or other nontesta-
mentary transfer, the statute could simply state that a divorce
or dissolution of marriage revokes any designation of the
former spouse as a beneficiary where the designation was
made before the date of the dissolution decree. This would
permit a life insurance policyholder to retain a former spouse
as a beneficiary by express conduct. It would merely require
the owner to reinstate the beneficiary designation after the
divorce. And in most cases, it would automatically effectuate
the policyholder’s intent that the death benefit not go to the
former spouse. The automatic revocation rule, coupled with
the document rule, would allow policyholders to effectuate
their intent and enable beneficiaries and issuing companies to
15
See Trueblood v. Roberts, supra note 7 (Sievers, Judge, concurring).
Nebraska Advance Sheets
732 287 NEBRASKA REPORTS
maximize speed and efficiency of distributions while minimiz-
ing expenses.
Thus, the court today correctly declines the appellant’s invi-
tation to expand its review under the waiver rule to evidence
outside of the divorce decree and the associated property
settlement agreement. But a better approach is available, and I
commend it to the Legislature.
Paul D. Potter, appellant, v. Board of R egents of the
University of Nebraska et al., appellees.
___ N.W.2d ___
Filed March 21, 2014. No. S-13-544.
1. Summary Judgment: Appeal and Error. An appellate court will affirm a lower
court’s grant of summary judgment if the pleadings and admitted evidence show
that there is no genuine issue as to any material facts or as to the ultimate infer-
ences that may be drawn from the facts and that the moving party is entitled to
judgment as a matter of law.
2. Public Officers and Employees: Immunity: Liability. Qualified immunity pro-
tects government officials acting in their individual capacities from civil damages
insofar as their conduct does not violate clearly established statutory or constitu-
tional rights of which a reasonable person would have known.
3. ____: ____: ____. Qualified immunity gives government officials breathing
room to make reasonable but mistaken judgments and protects all but the plainly
incompetent or those who knowingly violate the law.
4. Constitutional Law: Civil Rights: Actions. A private right of action to vindicate
violations of rights, privileges, or immunities secured by the Constitution and
laws of the United States is created by 42 U.S.C. § 1983 (2006).
5. Constitutional Law: Due Process: Tort-feasors. The 14th Amendment’s Due
Process Clause does not extend to citizens a right to be free of injury wherever
the State may be characterized as the tort-feasor.
6. Due Process. Procedural due process limits the ability of the government to
deprive people of interests that constitute “liberty” or “property” interests within
the meaning of the Due Process Clause and requires that parties deprived of such
interests be provided adequate notice and an opportunity to be heard.
7. Due Process: Termination of Employment. Neither liberty nor property inter-
ests are at stake when an at-will employee loses a job but remains as free as
before to seek another.
8. Due Process: Libel and Slander. Standing alone, stigma to one’s reputation
through defamatory statements is not sufficient to invoke the procedural protec-
tion of the Due Process Clause.