Carlson v. Carlson

Decision Date06 April 2018
Docket NumberNo. S-17-064.,S-17-064.
Citation909 N.W.2d 351,299 Neb. 526
Parties Mark Alan CARLSON, appellant, v. Karen Sue CARLSON, appellee.
CourtNebraska Supreme Court

Adam E. Astley and Kathryn D. Putnam, of Astley Putnam, P.C., L.L.O., for appellant.

Benjamin M. Belmont and Wm. Oliver Jenkins, Omaha, of Brodkey, Peebles, Belmont & Line, L.L.P., for appellee.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, Kelch, and Funke, JJ.

Stacy, J.

This appeal arises from a dispute over the meaning of provisions in a divorce decree and incorporated property settlement agreement (PSA) regarding payment of post-majority child support. The district court construed the decree and incorporated PSA to require the father to pay post-majority child support if certain conditions were met, and it denied the father’s request to modify such support. Finding no error, we affirm.


Mark Alan Carlson and Karen Sue Carlson married in 1994 and divorced in March 2008. Three children were born during the marriage. At the time of the divorce, the children were 6, 8, and 10. Mark and Karen are both physicians, but Karen did not actively practice medicine during most of their marriage.

The parties represented themselves during their divorce. Through mediation, they reached an agreement on the division of their assets and debts, the custody and support of their children, and the payment of alimony. The mediator drafted the parties’ PSA and the dissolution decree. The record on appeal does not include the hearing at which the parties proved up their PSA and asked the court to approve it, but it does contain the signed and notarized PSA, as well as the consent decree entered by the court.

As relevant here, the parties agreed they would have joint legal custody of the children and Karen would have physical custody. Mark agreed to pay both child support and alimony. The decree addressed child support as follows:

[Mark] shall pay ... child support ... commenc[ing] on the first day of the first month following the entry of the decree and shall continue to [pay] each month thereafter, until the child reaches the age of majority under Nebraska law, becomes emancipated, becomes
self-supporting, marries or dies, or until further order of the court.

The decree also recited that the parties had negotiated a PSA which the court had examined and "found to be fair and reasonable and conscionable." According to the decree, a signed copy of the PSA had been filed with the clerk and the agreement was "incorporated [in the decree] with the same force and effect as if set forth in this decree in its entirety." The decree further recited that the "parties[PSA] shall be enforced by all remedies available for the enforcement of a judgment, including contempt proceedings." No party appealed from the entry of the decree.


Section 3 of the PSA is titled "Child Support and Expenses, Educational Expenses, Health Insurance and Care Expenses and Life Insurance." It provides in relevant part:

3.01 Terms and Definitions.
(2) Age of Majority The age of majority for most legal purposes is 19 and generally defines when child support is terminated unless the parties agree otherwise, or circumstances set by law apply.
(4) Support Past Age 19: A child will not be determined to be emancipated and child support may continue past age 19 in the following circumstances:
a. If a child attends college or vocational training, child support may continue until age 27 or graduation from college, trade school, or graduate school, whichever occurs first. (The child must be regularly attending college (enrolled in 12 or more credit hours of course work per semester) or a vocational school. (However, the parties intend to allow some flexibility in the child’s college attendance, therefore a child may have up to two (2) semester[s] of nonattendance at school, not
including summer vacations, without being understood to be emancipated.[ ) ]
3.02 Child Support
(1) MARK shall pay to KAREN the amount of $2,400.00 per month for the support of three children, $2,089.00 per month when two children remain eligible for support and $1,468.00 per month when only one child is eligible for child support. Child support will be payable until each child reaches majority, becomes emancipated, marries or dies or until further order of the court as provided by law.

For the sake of completeness, we note the PSA contains a definition of "emancipation" which does not expressly reference post-majority child support. Neither party suggests that provision is determinative of the issues presented, so we do not address it. We also note the PSA addressed payment of post-majority child support if a child becomes mentally or physically incapacitated, but the parties did not seek a declaratory judgment regarding the interpretation of such provisions so we express no opinion thereon.


In March 2010, Mark filed a complaint to modify the decree as it regarded post-majority child support, alimony, health care expenses, and college expenses. He claimed, inter alia, that the court lacked jurisdiction to order child support after a child attained the age of majority, and he claimed he should not be required to pay both post-majority child support and college expenses for the same child.

In January 2011, the parties stipulated to an order modifying the decree to, among other things, reduce Mark’s alimony payment and increase his monthly child support obligation. The stipulated order reflected that Mark had withdrawn "without prejudice" his request for an order terminating his obligation to pay post-majority child support. And the stipulated order expressly provided that all provisions of the decree and PSA "not specifically altered by this Order shall remain in full force and effect."


In January 2015, the parties’ oldest child turned 19. She was a full-time college student at the time. Mark stopped paying child support for this child, and Karen filed an application to show cause why Mark should not be held in contempt of court for willfully failing to pay post-majority child support.

At the show cause hearing, both Mark and Karen were represented by counsel. After a meeting in chambers between the court and counsel, Karen withdrew her contempt application and instead filed the complaint for declaratory judgment which is at issue in this appeal.


Karen’s complaint sought a declaration of the rights, duties, and obligations of the parties under the dissolution decree as it regarded post-majority child support. Specifically, she sought a declaration that under the PSA incorporated into the decree, Mark had an obligation to continue paying child support past the age of majority for a child attending college.

In a counterclaim, Mark also sought a declaratory judgment regarding post-majority child support. As relevant to the issues on appeal, Mark sought a declaration that the provisions regarding post-majority child support were unenforceable or, in the alternative, that any obligation to pay post-majority child support was "completely discretionary on the part of the person paying it." Alternatively, Mark sought modification of the decree to relieve him of any post-majority child support obligation, alleging there had been a material change in circumstances.

Both parties moved for summary judgment on their requests for declaratory judgment. The trial court denied both motions and set the matter for trial.


By the time of trial, two of the parties’ children had reached the age of majority, and each was a full-time college student. At trial, the parties were allowed to present extrinsic evidence as to the meaning of the PSA incorporated into the decree. Neither party had a clear recollection of how the language regarding post-majority child support came to be in the PSA. According to Karen, the mediator brought up the issue of supporting the children through college, and Mark had no disagreement, so the provisions regarding post-majority support were included in the PSA with "no discussion." Mark testified he intended the agreement to be flexible and "leave[ ] the door open" to paying post-majority child support if Karen was unable to return to employment as a physician after the divorce. The attorney who mediated the property settlement agreement invoked the statutory privilege1 and refused to testify about mediation communications.

Ultimately, the district court concluded that the decree and incorporated PSA obligated Mark to pay post-majority child support for any child regularly attending college, trade school, or graduate school, until the child attained the age of 27 or graduated, whichever first occurred. Regarding Mark’s complaint to modify, the court noted the agreement to pay post-majority child support was contained in the parties’ PSA which had been approved by the court and incorporated into the decree. It thus reasoned the approved PSA could not be vacated or modified in the absence of fraud or gross inequity. The court found Mark had neither alleged nor offered evidence of fraud or gross inequity, and it denied his complaint to modify.

The court entered an order granting Karen’s request for declaratory judgment, denying Mark’s counterclaims, and awarding Karen attorney fees and costs in the amount of $3,500. Mark filed this timely appeal, which we removed to our docket pursuant to our authority to regulate the caseloads of the appellate courts of this state.2


Mark assigns that the district court erred in (1) finding the decree was ambiguous, (2) interpreting the decree and property settlement to require post-majority child support, (3) granting declaratory relief to Karen, (4) failing to consider his request for modification of the post-majority support obligation, and (5) awarding $3,500 in attorney fees to Karen.


An action for declaratory judgment is sui generis; whether such action is to be...

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2 books & journal articles
  • Nebraska Choice of Law: an Updated Synthesis
    • United States
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