Mahlendorf v. Mahlendorf, 011521 NESC, S-20-257

Docket NºS-20-257
Opinion JudgeSTACY, J.
Party NameJennifer Mahlendorf, now known as Jennifer Rasmussen-Sagan, Appellant, v. Brian Mahlendorf, Appellee.
AttorneyAngela Dunne, of Koenig Dunne, P.C., L.L.O., for appellant. Nancy R. Shannon, of Cordell Law, L.L.R, for appellee.
Judge PanelHeavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ.
Case DateJanuary 15, 2021
CourtSupreme Court of Nebraska

308 Neb. 202

Jennifer Mahlendorf, now known as Jennifer Rasmussen-Sagan, Appellant,

v.

Brian Mahlendorf, Appellee.

No. S-20-257

Supreme Court of Nebraska

January 15, 2021

1.

Judgments: Appeal and Error. Ordinarily, a party may not assign error on appeal to a judgment entered by consent.

2. Judgments: Words and Phrases. A consent judgment constitutes the agreement of the parties, made a matter of record by the court at their request. A consent judgment is not, strictly speaking, the act of a court, but, rather, the act of the parties to the suit.

3. Judgments: Appeal and Error. It is a generally accepted rule that, ordinarily, a consent judgment is not subject to appellate review. This should not be understood as a jurisdictional limitation, but, rather, as a rule limiting the scope of appellate review to those matters actually submitted to and determined by the court.

4. __:__.A party is not entitled to prosecute error upon the granting of an order or the rendition of a judgment when the same was made with his or her consent, or upon his or her application.

5. Appeal and Error. On appeal, a party cannot complain of error which the party has invited the court to commit.

Appeal from the District Court for Douglas County: Leigh Ann Retelsdorf, Judge.

Angela Dunne, of Koenig Dunne, P.C., L.L.O., for appellant.

Nancy R. Shannon, of Cordell Law, L.L.R, for appellee.

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

[308 Neb. 203]STACY, J.

This is an appeal from an order of modification entered in a dissolution action. Because the order of modification reflects the negotiated agreement of the parties and was entered at their request, we affirm.

I. FACTS

1. Dissolution Decree

The marriage of Jennifer Mahlendorf and Brian Mahlendorf was dissolved by the district court for Douglas County in 2010. The decree approved and incorporated a parenting plan negotiated by the parties. Jennifer was awarded sole legal and physical custody of the parties' two minor children, and Brian was awarded specific parenting time. Brian was ordered to pay monthly child support.

2. 2013 Modification

The decree was modified in 2013 to permit Jennifer to remove the children from Nebraska and relocate to Tennessee. The 2013 modification order approved and incorporated an amended parenting plan, negotiated by the parties, which addressed issues of child support, parenting time, and travel expenses. Under that plan, Brian was awarded 2 weeks of parenting time in Tennessee and 8 consecutive weeks of parenting time in Nebraska during summer break. The parties also agreed to a downward deviation in Brian's monthly child support. The court approved the downward deviation, finding it was in the children's best interests because "[Brian] will incur substantial travel expenses to travel to Tennessee to visit the minor children [and the downward] deviation also takes into consideration the abatement in child support for the extended summer parenting time exercised by [Brian]."

3. 2016 Modification

In March 2016, Jennifer filed a complaint to modify both child support and parenting time. She alleged there had been a material change in circumstances which justified [308 Neb. 204] eliminating the downward deviation, because Brian had not traveled to Tennessee to visit the children and thus had incurred no travel expenses. She also alleged the children's increased participation in extracurricular activities supported a modification of Brian's summer parenting time.

The parties subsequently reached an agreement on these issues, and in June 2016, the district court entered a "Stipulated Order of Modification." That order approved the parties' agreement, which increased the amount of Brian's monthly child support obligation but continued the existing downward deviation. The stated justifications for continuing the downward deviation were the "anticipated travel expenses [Brian] may incur to travel to Tennessee to visit the minor children" and "the abatement in child support for [Brian's] extended summer parenting time with the minor children." The court approved the downward deviation, finding it was justified and in the children's best interests.

4. Current Modification

In 2019, Jennifer filed the complaint to modify, which is the subject of this appeal. Her operative amended complaint alleged there had been a material change in circumstances not anticipated by the parties at the time of the 2016 modification, which warranted a modification of Brian's child support obligation. Specifically, she requested that the downward deviation in child support be eliminated because Brian had not visited the children in Tennessee and thus had not incurred any travel expenses. She also alleged a material change in circumstances had occurred because the income of both parties had increased since the 2016 modification.

Brian's answer alleged there had been no material change in circumstances with respect to his travel expenses because the parties had addressed the issue in 2016 and agreed to continue the deviation for travel expenses he "may" incur. In other words, Brian contended the parties contemplated in 2016 that he may not actually incur the travel expenses in the future, [308 Neb. 205] but nevertheless agreed to continue the deviation.[1] Brian also filed an application for an order to show cause as to why Jennifer should not be held in contempt for violating certain provisions of the 2016 order.

(a) Trial

A 2-day bench trial was scheduled on Jennifer's complaint to modify and Brian's application to show cause. On the first day of trial, both parties appeared and were represented by counsel.

At the end of the first day, the parties invited the court to comment on the evidence adduced thus far. Among other things, the court commented on the request to eliminate the downward deviation, expressing skepticism about whether the evidence supported a material change in circumstances since the last modification. But the court also assured the parties that it had not prejudged the issue and would keep an open mind until all the evidence was submitted and the parties had rested. The court encouraged the parties to resolve the disputed issues if they were able.

Our bill of exceptions includes only the first day of trial and contains a notation that no record was made of the second day of trial. At oral argument before this court, the parties confirmed that the second day of trial did not occur, because they reached...

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