Mackiewicz v. Mackiewicz ( 2023 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
01/20/2023 09:05 AM CST
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Nebraska Supreme Court Advance Sheets
313 Nebraska Reports
MACKIEWICZ V. MACKIEWICZ
Cite as 313 Neb. 281Kari L. Mackiewicz, now known as
Kari L. Veleba, appellant, v.
James A. Mackiewicz, appellee.
___ N.W.2d ___
Filed January 20, 2023. No. S-22-128.
1. Modification of Decree: Appeal and Error. Modification of a dis-
solution decree is a matter entrusted to the discretion of the trial court,
whose order is reviewed de novo on the record, and will be affirmed
absent an abuse of discretion by the trial court.
2. Judges: Words and Phrases. A judicial abuse of discretion exists if the
reasons or rulings of a trial judge are clearly untenable, unfairly depriv-
ing a litigant of a substantial right and denying just results in matters
submitted for disposition.
3. 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.
4. Divorce: Property Settlement Agreements: Final Orders. A decree is
a judgment, and once a decree for dissolution becomes final, its mean-
ing, including a settlement agreement incorporated therein, is deter-
mined as a matter of law from the four corners of the decree itself.
5. Divorce: Judgments: Intent. The meaning of a decree must be deter-
mined from all parts thereof, read in its entirety, and must be construed
as a whole so as to give effect to every word and part, if possible, and
bring all of its parts into harmony as far as this can be done by fair and
reasonable interpretation.
6. ____: ____: ____. Effect must be given to every part of a decree, includ-
ing such effect and consequences that follow the necessary legal impli-
cation of its terms, although not expressed.
7. Divorce: Modification of Decree: Alimony. A district court entering a
decree dissolving a marriage has the power to award alimony and, where
it is awarded, the power to modify or revoke it.
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Nebraska Supreme Court Advance Sheets
313 Nebraska Reports
MACKIEWICZ V. MACKIEWICZ
Cite as 313 Neb. 2818. Modification of Decree: Alimony: Good Cause. Where an award of
alimony may be modified or revoked, that modification is for good
cause shown.
9. Modification of Decree: Alimony: Good Cause: Words and Phrases.
Good cause means a material and substantial change in circumstances
and depends upon the circumstances of each case. Good cause is dem-
onstrated by a material change in circumstances, but any changes in
circumstances which were within the contemplation of the parties at the
time of the decree, or that were accomplished by the mere passage of
time, do not justify a change or modification of an alimony order.
10. Modification of Decree: Alimony: Proof. The moving party has the
burden of demonstrating a material and substantial change in circum-
stances which would justify the modification of an alimony award.
11. Modification of Decree. To determine whether there has been a material
and substantial change in circumstances warranting modification of a
divorce decree, a trial court should compare the financial circumstances
of the parties at the time of the divorce decree, or last modification of
the decree, with their circumstances at the time the modification at issue
was sought.
Appeal from the District Court for Douglas County: W.
Russell Bowie III, Judge. Affirmed.
John A. Kinney, Jill M. Mason, and Samantha M. Robb, of
Kinney Mason, P.C., L.L.O., for appellant.
Robert W. Futhey and Alexander S. Arkfeld, of Fraser
Stryker, P.C., L.L.O., for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Heavican, C.J.
INTRODUCTION
The district court found a material change in circumstances
had occurred sufficient to warrant modification of James A.
Mackiewicz’ alimony obligation. Kari L. Mackiewicz, now
known as Kari L. Veleba, appeals. We affirm.
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Nebraska Supreme Court Advance Sheets
313 Nebraska Reports
MACKIEWICZ V. MACKIEWICZ
Cite as 313 Neb. 281BACKGROUND
James and Kari were married on December 16, 1995, and
divorced on July 14, 2017, pursuant to a consent decree of dis-
solution. As relevant to the issues on appeal, that decree pro-
vided an award of alimony paid to Kari by James. Paragraph 8
of the decree stated:
a) ALIMONY: The Defendant shall pay alimony for
the support and maintenance of the Plaintiff to be due and
payable on the first day of August, 2017, and said amount
shall continue to be due on the first of each month there-
after and the payments shall be as follows:
i. Defendant shall pay alimony in the amount of
$4,000.00 per month for the first twenty-four (24) months
after entry of this Decree;
ii. Defendant shall then pay alimony in the amount
of $3,500.00 per month for the next twenty-four (24)
months;
iii. Defendant shall then pay alimony in the amount of
$3,000.00 per month for the next forty-eight (48) months;
iv. Defendant shall then pay alimony in the amount of
$2,000.00 per month for the next thirty-six (36) months;
and
v. Defendant shall then pay alimony in the amount
of $1,000.00 per month for the final twenty-four (24)
months.
The death of the Defendant or remarriage of the
Plaintiff shall not terminate the alimony order and it
shall be in place until such time as it is fully satisfied.
The Defendant shall make alimony payments through the
Clerk of the District Court of Douglas County, Nebraska
for disbursement to the Plaintiff.
At the time of the parties’ divorce, James was employed
in the financial services field in Omaha, Nebraska, at a sal-
ary of approximately $162,000 per year. Kari was a graduate
student, studying for her doctorate in education. Subsequent
to the divorce, Kari earned her doctorate and obtained
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Nebraska Supreme Court Advance Sheets
313 Nebraska Reports
MACKIEWICZ V. MACKIEWICZ
Cite as 313 Neb. 281employment in administration at a local school district at a
salary of $73,345 per year. In 2019, James left his employ-
ment in Omaha—where by that time he earned approximately
$185,000 per year with additional bonus potential—for a new
employment opportunity in Austin, Texas. At this new job,
James earned approximately $200,000 per year, with addi-
tional bonus potential.
About 6 months into his new employment, James’ employ-
ment was terminated for “unsatisfactory work performance.”
James returned to Omaha and attempted to obtain new employ-
ment. He testified that he looked for a job that matched
his education and talents and found two. He unsuccessfully
applied for both. At this point, James began looking at differ-
ent opportunities and began his own consulting business. As
of the time of trial, James had not made any income at this
new endeavor.
On August 11, 2020, James filed a motion for modifica-
tion of his alimony obligation, alleging a material change in
circumstances. He alleged his loss of employment and the
subsequent starting of his consulting firm, as well as Kari’s
increased income, as changes in circumstance. Shortly thereaf-
ter, Kari filed a motion to hold James in contempt for failing to
keep current on his alimony obligation, alleging that he was in
arrears in the amount of $10,522.73 and that he had also failed
to provide proof that he continued to carry the life insurance
policy required of him under the decree.
Multiple orders were entered by the district court in advance
of trial. Pertinent to this appeal was the district court’s denial of
Kari’s motion to dismiss for lack of subject matter jurisdiction
or, in the alternative, for failure to state a claim. Kari alleged
that the alimony award was nonmodifiable and that thus, the
district court lacked subject matter jurisdiction to entertain
James’ motion to modify, or, alternatively, that because the
alimony award was nonmodifiable, James had failed to state a
claim upon which relief could be granted.
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Nebraska Supreme Court Advance Sheets
313 Nebraska Reports
MACKIEWICZ V. MACKIEWICZ
Cite as 313 Neb. 281The district court denied the motion, concluding that it
had subject matter jurisdiction over the motion because “the
Decree does not expressly preclude modification of the alimony
award.” The district court relied upon Grothen v. Grothen 1 to
support its conclusion, noting the fact that the award was
agreed to by the parties did not affect the court’s analysis. The
district court also used the fact that it found the award not to
specifically preclude modification to deny Kari’s motion to
dismiss for failure to state a claim.
Following a trial, the district court found a material change
in circumstances as alleged by James, denied Kari’s motion to
find James in contempt, and entered a new alimony schedule
that required James to pay $700 a month in alimony beginning
September 1, 2020, through the end of the year 2025. Kari
has appealed.
ASSIGNMENTS OF ERROR
Kari assigns, renumbered, that the district court erred in
modifying James’ alimony obligation because (1) the parties
had entered into a consent decree dissolving their marriage,
(2) the alimony award as written was nonmodifiable, and (3)
James’ income was reduced following his voluntarily leaving
his well-paid job in Omaha.
STANDARD OF REVIEW
[1,2] Modification of a dissolution decree is a matter
entrusted to the discretion of the trial court, whose order is
reviewed de novo on the record, and will be affirmed absent
an abuse of discretion by the trial court. 2 A judicial abuse
of discretion exists if the reasons or rulings of a trial judge
are clearly untenable, unfairly depriving a litigant of a sub-
stantial right and denying just results in matters submitted
for disposition. 3
1
Grothen v. Grothen, 308 Neb. 28, 952 N.W.2d 650 (2020).
2
Id.3
Id.- 286 -
Nebraska Supreme Court Advance Sheets
313 Nebraska Reports
MACKIEWICZ V. MACKIEWICZ
Cite as 313 Neb. 281[3] 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. 4
ANALYSIS
In this case, the district court modified Kari’s award of ali-
mony. This appeal raises issues of whether the parties’ alimony
award was modifiable under the terms of the decree and, if
so, whether the district court’s modification was otherwise an
abuse of discretion. We find that the alimony award was modi-
fiable and that the district court did not abuse its discretion in
its modification.
[4] In reaching these conclusions, we begin with a review
of the statutes and our case law regarding divorce decrees and
alimony awards. A decree is a judgment, and once a decree for
dissolution becomes final, its meaning, including a settlement
agreement incorporated therein, is determined as a matter of
law from the four corners of the decree itself. 5
[5,6] The meaning of a decree must be determined from all
parts thereof, read in its entirety, and must be construed as a
whole so as to give effect to every word and part, if possible,
and bring all of its parts into harmony as far as this can be
done by fair and reasonable interpretation. 6 Effect must be
given to every part thereof, including such effect and conse-
quences that follow the necessary legal implication of its terms,
although not expressed. 7
[7] A district court entering a decree dissolving a marriage
has the power to award alimony and, where it is awarded,
the power to modify or revoke it. Neb. Rev. Stat. § 42-365(Reissue 2016) provides:
4
Vyhlidal v. Vyhlidal, 311 Neb. 495, 973 N.W.2d 171 (2022).
5
Id.6
Id.7
Id.- 287 -
Nebraska Supreme Court Advance Sheets
313 Nebraska Reports
MACKIEWICZ V. MACKIEWICZ
Cite as 313 Neb. 281When dissolution of a marriage is decreed, the court
may order payment of such alimony by one party to the
other and division of property as may be reasonable,
having regard for the circumstances of the parties, dura-
tion of the marriage, a history of the contributions to
the marriage by each party, including contributions to
the care and education of the children, and interruption
of personal careers or educational opportunities, and
the ability of the supported party to engage in gainful
employment without interfering with the interests of
any minor children in the custody of such party. . . . A
proceeding to modify or revoke an order for alimony for
good cause shall be commenced by filing a complaint
to modify. . . . Amounts accrued prior to the date of
filing of the complaint to modify may not be modified
or revoked. A decree may not be modified to award ali-
mony if alimony was not allowed in the original decree
dissolving a marriage. A decree may not be modified
to award additional alimony if the entire amount of ali-
mony allowed in the original decree had accrued before
the date of filing of the complaint to modify. Except as
otherwise agreed by the parties in writing or by order of
the court, alimony orders shall terminate upon the death
of either party or the remarriage of the recipient.
While the criteria for reaching a reasonable division of
property and a reasonable award of alimony may overlap,
the two serve different purposes and are to be considered
separately. The purpose of a property division is to dis-
tribute the marital assets equitably between the parties.
The purpose of alimony is to provide for the continued
maintenance or support of one party by the other when
the relative economic circumstances and the other criteria
enumerated in this section make it appropriate.
Pursuant to Neb. Rev. Stat § 42-366 (Reissue 2016), the par-
ties may also agree to alimony as follows:
- 288 -
Nebraska Supreme Court Advance Sheets
313 Nebraska Reports
MACKIEWICZ V. MACKIEWICZ
Cite as 313 Neb. 281(1) To promote the amicable settlement of disputes
between the parties to a marriage attendant upon their
separation or the dissolution of their marriage, the parties
may enter into a written property settlement agreement
containing provisions for the maintenance of either of
them,[ 8] the disposition of any property owned by either
of them, and the support and custody of minor children.
....
(7) Except for terms concerning the custody or support
of minor children, the decree may expressly preclude or
limit modification of terms set forth in the decree.
Interpretation of Decree.
These propositions lead us to the first issue presented by this
appeal—whether the parties’ decree included language indicat-
ing that the alimony award was nonmodifiable. Kari contends
that the district court erred in modifying the decree because
she and James agreed upon that decree, and it was not imposed
upon them by the court, and also because the language of the
decree itself states that it is not modifiable. Both contentions
were rejected by the district court. We now address each in turn
and find both to be without merit.
In support of her assertion that the decree is entitled to
more force than decrees entered by a court, Kari directs us
to Desjardins v. Desjardins. 9 We agree with Kari that the
Desjardins court states the proposition she relies upon. We
nevertheless find the case inapplicable. In Desjardins and in
the cases cited therein, the question of whether alimony was
properly modified was analyzed to determine whether there
was “a material and substantial change of circumstances not
contemplated by the parties at the time of the decree” 10—the
same standard normally utilized when examining petitions
8
See Grothen v. Grothen, supra note 1.
9
Desjardins v. Desjardins, 239 Neb. 878, 479 N.W.2d 451 (1992).
10
Id. at 882, 479 N.W.2d at 454.
- 289 -
Nebraska Supreme Court Advance Sheets
313 Nebraska Reports
MACKIEWICZ V. MACKIEWICZ
Cite as 313 Neb. 281seeking modification—and not the higher “gross inequity”
standard which applies where a decree is nonmodifiable. 11
Moreover, we explicitly noted in Euler v. Euler 12 that “dissolu-
tion decrees may be modified with reference to alimony by the
plain language of the statutes even if they are based on prop-
erty settlement agreements, so long as the parties or the court
have not provided otherwise in writing.”
We turn next to the issue of whether the alimony award was
nonmodifiable by its terms. Both parties point to language in
the decree supporting their respective positions. James directs
us to the portion of paragraph 8 of the decree that provides:
t) WAIVER OF BREACH: No waiver of any breach
by either party of the terms of this Decree shall be
deemed a waiver of any subsequent breach. No modifica-
tions of this Decree shall be binding upon either of the
parties unless reduced to writing and subscribed to by
both parties unless otherwise ordered by the Court.
(Emphasis supplied.) Kari primarily relies on the portion of the
language of the alimony award that states that the award “shall
be in place until such time as it is fully satisfied.” She further
argues that the modification language relied upon by James is
not specifically applicable to the alimony award set forth in
the decree.
We conclude that the alimony award is modifiable. It is
apparent from paragraph 8(t) of the decree that the parties envi-
sioned a possibility of the decree’s being modified.
And we find the language Kari relies upon—that the ali-
mony award as set forth in paragraph 8(a) of the decree was
to be in place until such time as it was fully satisfied—not
to set an absolute bar to modification. Rather, we read it in
conjunction with the rest of that same sentence, which notes
that remarriage or death has no effect on the payment of ali-
mony. This language contemplates termination of the alimony
11
See Grothen v. Grothen, supra note 1, 308 Neb. at 34, 952 N.W.2d at 657.
12
Euler v. Euler, 207 Neb. 4, 9-10, 295 N.W.2d 397, 400 (1980).
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Nebraska Supreme Court Advance Sheets
313 Nebraska Reports
MACKIEWICZ V. MACKIEWICZ
Cite as 313 Neb. 281award, but termination is not the same as modification. Should
the parties have intended to absolutely bar modification of the
decree or the alimony award itself, there are more direct ways
to effect such a result.
We find no error in the district court’s determination that the
decree, and in turn the alimony award, was modifiable. Kari’s
assignments of error to the contrary are without merit.
Change in Circumstances.
In her final assignment of error, Kari assigns that the district
court erred in finding a material change in circumstances suf-
ficient to modify the alimony award.
[8-10] We begin with familiar propositions. Where an award
of alimony may be modified or revoked, that modification is
for good cause shown. 13 Good cause means a material and sub-
stantial change in circumstances and depends upon the circum-
stances of each case. 14 Good cause is demonstrated by a mate-
rial change in circumstances, but any changes in circumstances
which were within the contemplation of the parties at the time
of the decree, or that were accomplished by the mere passage
of time, do not justify a change or modification of an alimony
order. 15 The moving party has the burden of demonstrating a
material and substantial change in circumstances which would
justify the modification of an alimony award. 16
[11] To determine whether there has been a material and
substantial change in circumstances warranting modification
of a divorce decree, a trial court should compare the financial
circumstances of the parties at the time of the divorce decree,
or last modification of the decree, with their circumstances at
the time the modification at issue was sought. 17
13
See Metcalf v. Metcalf, 278 Neb. 258, 769 N.W.2d 386 (2009).
14
Id.15
Id.16
Id.17
Id.- 291 -
Nebraska Supreme Court Advance Sheets
313 Nebraska Reports
MACKIEWICZ V. MACKIEWICZ
Cite as 313 Neb. 281In this case, James has the burden of demonstrating a mate-
rial change in circumstances. We conclude that he has met
his burden. In reaching this conclusion, we examine James’
and Kari’s financial circumstances at the time of the decree
and now, and we note that James is making significantly less
income and Kari is making a higher income.
Kari argues that James’ lower income is due to his leaving
a high-paying Omaha job and relocating to a different job with
a startup company and that he should not be allowed to rely
on those actions to pay her less in alimony. We disagree on
this record.
There is no evidence in the record to show that James’
decision to relocate for a higher-paying job was unreasonable.
There is nothing in the record to suggest that James’ employ-
ment was terminated due to the risky nature of the startup com-
pany he began to work for; indeed, the record at the modifica-
tion hearing suggests that the company was still operating at
that time. Instead, the record shows only that James’ employ-
ment was terminated for “unsatisfactory work performance.”
The nature of that apparently unsatisfactory performance is
not set forth in the record, with James’ testifying that he never
received any negative feedback and Kari’s testifying that she
lacked firsthand knowledge as to why James’ employment
was terminated.
Kari also testified that she did not know firsthand what
efforts James had made to find new employment upon his
return to Omaha. The only evidence on that point is James’
testimony that he was unable to get hired back at his old job
and that he applied for two other openings in his field but was
not hired. As a result, James began his consulting company.
There is no evidence in the record that James failed to make
reasonable efforts to find comparable employment or that his
choice to begin a consulting company was made in an attempt
to avoid his alimony obligation.
We do agree that Kari’s employment and higher salary were
contemplated by the parties at the time of the decree, but that
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Nebraska Supreme Court Advance Sheets
313 Nebraska Reports
MACKIEWICZ V. MACKIEWICZ
Cite as 313 Neb. 281fact does not affect the result in this case. James’ income, at
least for now, has been significantly reduced due to the loss of
his job and inability to find a comparable new job. This was a
material change in circumstances not contemplated by the par-
ties at the time of the decree.
In such instances, we review the decision of the district
court de novo but will reverse only for an abuse of discretion.
While a different judge might have reached a different result,
we see no abuse of the discretion given to the district court.
Kari’s third and final assignment of error is without merit.
CONCLUSION
The decision of the district court is affirmed.
Affirmed.