Hoshor v. Hoshor
| Decision Date | 12 June 1998 |
| Docket Number | No. S-96-1317,S-96-1317 |
| Citation | 580 N.W.2d 516,254 Neb. 743 |
| Parties | Patricia A. HOSHOR, Apellee and Cross-Appellant, v. Jim A. HOSHOR, Appellant and Cross-Appellee. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. Jurisdiction. Subject matter jurisdiction is a question of law for the court.
2. Jurisdiction: Judgments: Appeal and Error. A jurisdictional question which does not involve a factual dispute is determined by an appellate court as a matter of law, which requires the appellate court to reach a conclusion independent from the lower court's decision.
3. Modification of Decree: Appeal and Error. The determination as to modification of a dissolution decree is a matter of discretion for the trial court, and its decision will be reviewed on appeal de novo on the record and will be reversed upon an abuse of discretion.
4. Attorney Fees: Appeal and Error. The decision to award attorney fees rests within the trial court's discretion. On appeal, a trial court's decision awarding or denying attorney fees will be upheld absent an abuse of discretion.
5. Judges: Words and Phrases: Appeal and Error. A judicial abuse of discretion exists when a judge, within the effective limits of authorized judicial power, elects to act or refrain from acting, but the selected option results in a decision which is untenable and unfairly deprives a litigant of a substantial right or a just result in matters submitted for disposition through a judicial system.
6. Divorce: Property Division: Pensions. When the trial court orders the equitable division of the marital estate, the marital estate includes only that portion of a pension which is earned during the marriage. Contributions to pensions before marriage or after dissolution are not assets of the marital estate.
7. Courts: Jurisdiction: Property Settlement Agreements: Property Division: Pensions. A trial court, in the exercise of its broad jurisdiction with regard to approval and enforcement of property settlement agreements under Neb.Rev.Stat. § 42-366(2) (Reissue 1993), has the power to approve and incorporate into a consent decree a conscionable term in the parties' agreement 8. Modification of Decree: Judgments. A consent decree is usually treated as an agreement between the parties and is accorded greater force than ordinary judgments and ordinarily will not be modified over objection of one of the parties.
to divide pension benefits earned by a spouse after the termination of the marriage, even though the trial court has no statutory power to order such a division in a contested case.
9. Divorce: Modification of Decree: Property Settlement Agreements. Where a party to a divorce action, represented by counsel, voluntarily executes a property settlement agreement which is approved by the court and incorporated into a divorce decree will not thereafter be vacated or modified as to such property provisions, in the absence of fraud or gross inequity.
Gregory C. Scaglione and David M. Dvorak, of Koley, Jessen, Daubman & Rupiper, P.C., Omaha, for appellant.
Neil W. Schilke, of Sidner, Svoboda, Schilke, Thomsen, Holtorf, Boggy & Nick, Fremont, for appellee.
The marriage of Patricia A. Hoshor and Jim A. Hoshor was dissolved in 1982 pursuant to a consent decree. The decree provides that "[the wife] should receive one-fourth of any payments received from the pension and retirement plan by [the husband] at the time such payments are received." In 1996, the wife filed an application for entry of a Qualified Domestic Relations Order (QDRO), authorizing the plan administrator to distribute one-fourth of the husband's pension payments to her. The husband filed a responsive pleading to the application, objecting to the requested QDRO. The husband further filed a cross-application to modify the decree, alleging that the district court lacked jurisdiction in the original decree to authorize the distribution of pension benefits earned by him after the termination of the parties' marriage or, alternatively, that the decree should be modified to limit the wife to pension benefits earned during the marriage. Finding that jurisdiction was proper and that the decree was clear and unambiguous, the district court entered a QDRO, entitling the wife to one-fourth of any pension payments received by the husband without offsetting postdivorce accumulations to the pension. Because we determine that a trial court has jurisdiction to approve and incorporate into a consent decree a term in a property settlement agreement to divide pension benefits earned after the termination of the marriage and because the district court did not abuse its discretion in refusing to modify the consent decree, we affirm the judgment of the district court.
Patricia A. Hoshor and Jim A. Hoshor were married in 1957 and were divorced on July 23, 1982, pursuant to a consent decree. Paragraph 10 of the consent decree provides that No appeal was taken by either party from the entry of the consent decree.
At the request of the plan administrator and in anticipation of the husband's February 1998 retirement, the wife, on August 20, 1996, filed an application for entry of a QDRO, authorizing the plan administrator to distribute one-fourth of the husband's pension payments to her. The husband filed a responsive pleading to the application, alleging that the wife was only entitled to one-fourth of the value of his pension plan as of July 23, 1982, the date of the divorce decree. The husband further filed a cross-application to modify the consent decree to limit the wife to her pro rata share in the pension benefits earned during the parties' marriage. In this regard, the husband asserted that the district court lacked jurisdiction to enter the consent decree, as well as the QDRO, because Nebraska law provides that a court Following a bench trial, the district court found that jurisdiction was proper with respect to the 1982 dissolution proceedings and that even if the decree was erroneous, the husband could not collaterally attack the original decree in the instant proceeding. In addition, the district court, upon finding that the decree was clear and unambiguous, entered a QDRO consistent with the decree, distributing one-fourth of any pension payments received by the husband to the wife without offsetting postdivorce accumulations to the pension. Finally, the district court denied the wife's request for the payment of attorney fees as a result of frivolous or bad faith conduct on the part of the husband or his counsel. The husband appeals, and the wife cross-appeals.
may include in the marital estate only that portion of a pension existing at the time of the dissolution.
Subject matter jurisdiction is a question of law for the court. Miller v. Walter, 247 Neb. 813, 530 N.W.2d 603 (1995). A jurisdictional question which does not involve a factual dispute is determined by an appellate court as a matter of law, which requires the appellate court to reach a conclusion independent from the lower court's decision. Big John's Billiards v. Balka, 254 Neb. 528, 577 N.W.2d 294 (1998); Bonge v. County of Madison, 253 Neb. 903, 573 N.W.2d 448 (1998).
The determination as to modification of a dissolution decree is a matter of discretion for the trial court, and its decision will be reviewed on appeal de novo on the record and will be reversed upon an abuse of discretion. Adrian v. Adrian, 249 Neb. 53, 541 N.W.2d 388 (1995). Furthermore, the decision to award attorney fees rests within the trial court's discretion. DeVaux v. DeVaux, 245 Neb. 611, 514 N.W.2d 640 (1994); Meyers v. Meyers, 222 Neb. 370, 383 N.W.2d 784 (1986). On appeal, a trial court's decision awarding or denying attorney fees will be upheld absent an abuse of discretion. DeVaux v. DeVaux, supra. A judicial abuse of discretion exists when a judge, within the effective limits of authorized judicial power, elects to act or refrain from acting, but the selected option results in a decision which is untenable and unfairly deprives a litigant of a substantial right or a just result in matters submitted for disposition through a judicial system. Tyler v. Tyler, 253 Neb. 209, 570 N.W.2d 317 (1997).
The husband assigns as error: (1) The district court lacked jurisdiction to enter the consent decree, as well as the QDRO, authorizing the plan administrator to distribute to the wife pension benefits earned by him after the termination of the parties' marriage and (2) the district court abused its discretion in refusing to modify the consent decree to limit the wife to one-fourth of the pension benefits earned by him during the parties' marriage.
In her cross-appeal, the wife contends that the district court abused its discretion in denying her request for an award of attorney fees.
A consent decree is treated as an agreement between the parties. Desjardins v. Desjardins, 239 Neb. 878, 479 N.W.2d 451 (1992). The provision of the consent decree at issue in the instant case provides that The husband asserts that the district court lacked jurisdiction to approve a term in the parties' agreement to divide pension benefits earned by him after the termination of the parties' marriage because Nebraska law provides that such property is not included in the marital estate. The husband further contends that even if jurisdiction is proper, the consent decree should be...
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