In re Parish

• Docket Number: S-22-066
• Decision Date: 02 June 2023
• Citation: 314 Neb. 370
• Parties: Robert J. Parish, appellee, v. Kathleen M. Parish, now known as Kathleen M. Spence, appellant.
• Court: Nebraska Supreme Court

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314 Neb. 370

Robert J. Parish, appellee,
v.
Kathleen M. Parish, now known as Kathleen M. Spence, appellant.

No. S-22-066

Supreme Court of Nebraska

June 2, 2023

1. Modification of Decree: Appeal and Error. 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. Judges: Words and Phrases. A judicial abuse of discretion exists if the reasons or rulings of a trial judge are clearly untenable, unfairly depriving a litigant of a substantial right and denying just results in matters submitted for disposition.

3. Divorce: Property Division: Armed Forces: Pensions. Federal law does not preempt the power of a state court to treat a future nondisability veteran's pension entitlement as a marital asset in a dissolution proceeding.

4. __: __: __: __. Disposable retired military pay is divisible property in a divorce under the Uniformed Services Former Spouses' Protection Act, 10 U.S.C. § 1408(c)(1) (2018).

5.__: __: __: __. If disposable retired pay is reduced by the veteran's election of disability benefits, the state court may not order a veteran to indemnify a former spouse for the loss of a former spouse's share of the veteran's retirement pay caused by the veteran's election to separately receive disability benefits.

6. Divorce: Property Division: Armed Forces: Final Orders. Where a state court enters a judgment of divorce dividing military benefits, and no appeal is taken therefrom, such division becomes a final order.

7. Judgments: Collateral Attack. Only a void judgment may be collaterally attacked.

8. Judgments: Jurisdiction. When considering whether a previous order is void, it is critical to differentiate between a judgment entered

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[314 Neb. 371] without jurisdiction and an erroneous judgment that may nevertheless be enforceable.

9. Divorce: Property Division: Armed Forces: Claim Preclusion. When a divorce decree erroneously divides military benefits, the state law of claim preclusion, also known as res judicata, applies to determine whether relitigation of the issue may occur.

10. Judgments: Jurisdiction: Collateral Attack. Judgments entered without personal jurisdiction or subject matter jurisdiction are void and subject to collateral attack.

11. Actions: Jurisdiction. The lack of subject matter jurisdiction can be raised at any time by any party or by the court sua sponte.

12. Modification of Decree: Alimony: Good Cause: Words and Phrases. "Good cause" for modifying an alimony award means a material and substantial change in circumstances and depends upon the circumstances of each case.

13. Modification of Decree: Alimony: Armed Forces: Pensions: Waiver. While a Nebraska court may not include service-connected disability benefits awarded to a military retiree as a part of a marital estate, it may consider such benefits and the corresponding waiver of retirement pension benefits required by federal law in determining whether there has been a material change in circumstances which would justify modification of an alimony award to a former spouse.

Appeal from the District Court for Sarpy County: Stefanie A. Martinez, Judge. Reversed and remanded for further proceedings.

Aimee S. Melton and Megan E. Shupe, of Reagan, Melton & Delaney, L.L.P., for appellant.

Van A. Schroeder, of Bertolini, Schroeder & Blount, for appellee.

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

Miller-Lerman, J.

NATURE OF CASE

Kathleen M. Parish, now known as Kathleen M. Spence, filed a motion to modify alimony. The district court for Sarpy County dismissed the motion for lack of subject matter

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[314 Neb. 372] jurisdiction. Kathleen appeals. A dissolution decree (Decree) had awarded each party an interest in the couple's retirement properties and in addition had awarded Kathleen alimony that could be modified if her former spouse, Robert J. Parish, accepted a veteran's disability pension. The Decree was not appealed. Robert accepted a veteran's disability pension, thereby reducing his retirement benefits and consequently reducing the value of Kathleen's share of his benefits under the Decree, and Kathleen sought to modify alimony. The district court evidently believed that the original alimony award was improper and, in any event, believed it was being asked to divide Robert's veteran's disability benefits, which it concluded it could not do because it was preempted by federal law. The district court dismissed the matter for "lack of subject matter jurisdiction." Contrary to the district court's reasoning, it was merely being asked to consider modifying alimony based on a reduction in Robert's nondisability pension he shared with Kathleen. We conclude the district court had jurisdiction to consider the request to modify alimony, and we reverse, and remand for further proceedings.

STATEMENT OF FACTS

The parties were divorced in 2011 by consent decree. As part of the property settlement, Robert received 50 percent of Kathleen's retirement account. The Decree further provided that Kathleen was entitled to an interest in Robert's military pension under the Uniformed Services Former Spouses' Protection Act (USFSPA), 10 U.S.C. § 1401 et seq. (2018). Kathleen was awarded a 48-percent interest in Robert's retirement benefits. Because the parties contemplated that Robert may receive disability upon retirement, thus reducing his traditional retirement pension to be shared with Kathleen, paragraph P of the Decree awarded Kathleen "Special Alimony" in the nominal amount of $1 per year. Paragraph P of the Decree stated, "This alimony provision shall be subject to modification only in the circumstance that there be a disability offset

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[314 Neb. 373] against [Robert's] net disposable, non-disability pension and for no other reason." The foregoing awards were not challenged on appeal.

In 2012, Robert filed for and was given a disability rating and was then awarded a veteran's disability pension, which he received separately; that award resulted in a waiver of a portion of his retirement pension. Robert's disposable retired pay changed from $971.36 to $679.40 per month. The decrease in Robert's disposable retired pay reduced the amount that Kathleen received under the Decree to a smaller figure.

On May 18, 2018, Kathleen filed a complaint for modification in which she alleged that there had been a material and substantial change in circumstances that warranted modification of the special alimony to accommodate for the reduction in Robert's pension because he had converted retirement benefits to disability veteran's benefits. Robert was served with the complaint but failed to file an answer or appear for a hearing, and defaulted. In its September 5 order, the...