Fry v. Fry

the cause for further dispositional proceedings consistent with
this opinion.
CONCLUSION
Because the county court’s final order has the opposite of its
intended effect, it constitutes plain error. Because the juvenile
court dismissed Ethan’s juvenile case but did not enter any
order having a permanent effect on Ethan’s custody, the court
lacks the power to enforce its placement of Ethan with Theresa.
The only remaining effective order governing child custody is
a divorce decree which places physical custody of Ethan with
Daniel. This is not the placement intended by the county court.
We therefore reverse the order entered by the county court dis-
missing Ethan’s juvenile case and remand the cause for further
proceedings consistent with this opinion.
R eveRsed and Remanded foR
fuRtheR pRoceedings.
Ronald fRy, appellant, v.
Janet R. fRy, appellee .
775 N.W.2d 438
Filed October 27, 2009. 	No. A-09-011.
1. Divorce: Judgments: Appeal and Error. The meaning of a 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.
2. Divorce: Pensions: Appeal and Error. Whether a subsequently entered qualified
domestic relations order is consistent with the terms of the decree is to be deter-
mined as a matter of law.
3. Divorce: Final Orders: Time. A decree dissolving a marriage becomes final and
operative 30 days after the decree is entered.
4. Courts: Judgments. A district court has the inherent power to determine the
status of its judgments.
5. Divorce: Pensions. A qualified domestic relations order is, generally speaking,
simply an enforcement device of the decree of dissolution.
6. Divorce: Final Orders: Intent. Once a decree for dissolution becomes final,
its meaning is determined as a matter of law from the four corners of the
decree itself.
7. Divorce: Final Orders: Pensions. Where the terms of a final decree are unam-
biguous, a qualified domestic relations order enforcing that decree must dispose
of assets in the manner required by the decree.
Fry v. Fry 	75
Cite as 18 Neb. App. 75
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:13 AM CST

8. Judgments: Interest: Time. Under Neb. rev. Stat. § 45-103.01 (reissue 2004),
interest as provided in Neb. rev. Stat. § 45-103 (reissue 2004) shall accrue on
decrees and judgments for the payment of money from the date of entry of judg-
ment until satisfaction of judgment.
9. Equity: Judgments: Interest. The language of Neb. rev. Stat. § 45-103.01
(reissue 2004) is mandatory, and a court of equity does not have discretion to
withhold interest on decrees or judgments for the payment of money.
10. Judgments. A decree or judgment for the payment of money is one which is
immediately due and collectible where its nonpayment is a breach of duty on a
judgment debtor.
11. Courts. Vertical stare decisis compels lower courts to follow strictly the decisions
rendered by higher courts within the same judicial system.
Appeal from the District Court for Douglas County: thomas
a. otepka, Judge. Affirmed.
David A. Domina and Mark D. raffety, of Domina Law
Group, P.C., L.L.O., for appellant.
Susan A. Anderson, of Anderson & Bressman Law Firm,
P.C., L.L.O., for appellee.
sieveRs, caRlson, and cassel, Judges.
cassel, Judge.
INTrODUCTION
Over 2 years after entry of an unappealed divorce decree, the
parties filed motions seeking to compel the entry of a qualified
domestic relations order (QDrO) to comply with the decree.
After various orders and motions to amend, the district court
entered the operative QDrO, which awarded an amount refer-
enced in the decree but also included postjudgment interest.
We conclude that the court had jurisdiction to enter the QDrO,
that it correctly construed the decree, and that it did not err in
ordering postjudgment interest.
BACKGrOUND
The district court dissolved the marriage of ronald Fry and
Janet r. Fry in a July 17, 2006, decree of dissolution. Pertinent
to this appeal is the following provision:
14. Profit[-]Sharing Plan. [ronald] enjoys an American
Bar Association AKC Profit[-]sharing plan with an accu-
mulated value of $635,243 as of January 1, 2005. All of
76 	18 NEBrASKA APPELLATE rEPOrTS

the accumulation has occurred during the course of the
marriage. There are tax consequences for withdrawals
from the plan by either party, but either party will deter-
mine by their own choices how and when the taxable
events will occur. [ronald] is awarded the profit[-]sharing
plan. [Janet] is awarded a portion of the plan which is
$182,599.00. Counsel shall prepare a [QDrO] to facilitate
transfer of the funds.
On September 11, 2008, ronald filed a motion to reopen
the case and a motion to compel entry of the QDrO. ronald
attached a proposed QDrO which assigned to Janet $182,599
of ronald’s “total [a]ccrued [b]enefit as of the [a]ssignment
[d]ate (July 14, 2006).” Four days later, Janet filed a motion to
compel the entry of a QDrO, a copy of which she attached to
her motion. Her proposed QDrO stated that her portion of the
plan “shall be proportionately divided among the investments
in the same manner as [ronald’s] account was allocated as of
January 1, 2005[,] and allocated in a manner which assures that
[ronald] and [Janet] each receive an equal tax basis in their
respective portion of said account.”
On October 17, 2008, the court held a hearing and received
exhibits. On October 30, the court entered an order on the
motions. The court determined that the language of paragraph
14 of the decree was clear and unambiguous. The court found
that the QDrO proposed by ronald comported with the decree.
Also on October 30, the court entered a QDrO. It awarded
interest at the rate of 6.849 percent from July 17, 2006, until
the amount was transferred to Janet.
On November 6, 2008, ronald filed a motion to alter or
amend the order, because the QDrO the court signed and
attached was that proposed by Janet. ronald alleged that order-
ing him to pay postjudgment interest was contrary to law and
that it was unclear on what amount the interest was to be paid.
On November 20, Janet filed a motion to amend the QDrO
in which she stated that on November 13, she was advised
that the exact amount of interest and the fund from which the
amount should be withdrawn must be specified “as the Stable
Asset return Fund.” She attached an amended QDrO to com-
ply with “ABA retirement Funds requirements.”
Fry v. Fry 	77
Cite as 18 Neb. App. 75

After holding a hearing on November 25, 2008, the court
entered an order on the motions on December 8. The court
adopted the QDrO that Janet attached to her motion to amend
because it directed that the specific sum contained in the
decree, plus interest, be paid to her out of ronald’s profit-
sharing plan. The court overruled ronald’s motion to alter or
amend. On December 15, the court entered a second amended
QDrO, which awarded Janet $182,599, together with interest
thereon at the rate of 6.849 percent from July 17, 2006, until
December 8, 2008, for a total of $212,576.50 ($182,599 +
$29,977.50 in interest).
ronald timely appeals.
ASSIGNMENTS OF ErrOr
ronald assigns three errors. First, he alleges that the dis-
trict court lacked subject matter jurisdiction to issue an order
construing the meaning of the decree more than 1 year after
it was entered and without being asked to do so in a declara-
tory judgment action or under Neb. rev. Stat. § 25-2001
(reissue 2008). Second, he contends that the court miscon-
strued the decree as a matter of law in deciding to treat the
division of retirement funds as a monetary judgment. Finally,
ronald claims that the court erred in treating the division of
profit-sharing funds between the parties as a judgment against
ronald bearing postjudgment interest because ronald could
not satisfy the judgment by making a payment or taking any
unilateral action to satisfy the profit-sharing funds awarded
to Janet.
STANDArD OF rEVIEW
[1] The meaning of a 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.
See Strunk v. Chromy-Strunk, 270 Neb. 917, 708 N.W.2d
821 (2006).
[2] Whether a subsequently entered QDrO is consistent with
the terms of the decree is to be determined as a matter of law.
See Blaine v. Blaine, 275 Neb. 87, 744 N.W.2d 444 (2008).
78 	18 NEBrASKA APPELLATE rEPOrTS

ANALySIS
Jurisdiction.
[3] A decree dissolving a marriage becomes final and
operative 30 days after the decree is entered. Neb. rev.
Stat. § 42-372.01 (reissue 2008). See, also, Neb. rev. Stat.
§ 42-372 (reissue 2008). Neither party appealed from the
decree, and ronald asserts that the district court lacked juris-
diction to issue an order construing the dissolution decree
more than 1 year after entry of the decree. He contends that
only a declaratory judgment action under Neb. rev. Stat.
§ 25-21,149 et seq. (reissue 2008) or a timely proceeding
under Neb. rev. Stat. § 25-2001 et seq. (reissue 2008) could
have empowered the court to adjudicate what the original
decree meant.
[4,5] A district court has the inherent power to determine the
status of its judgments. Jensen v. Jensen, 275 Neb. 921, 750
N.W.2d 335 (2008). A QDrO is, generally speaking, simply
an enforcement device of the decree of dissolution. Blaine v.
Blaine, supra. Accordingly, we conclude that the court had
jurisdiction to enter the QDrO disposing of ronald’s profit-
sharing plan as set forth in the decree.
Construing Decree.
[6,7] ronald next argues that the district court erred in
construing the decree. It is well settled that once a decree for
dissolution becomes final, its meaning is determined as a mat-
ter of law from the four corners of the decree itself. Blaine
v. Blaine, supra. The district court found paragraph 14 of the
decree to be unambiguous, and we agree. Where the terms
of a final decree are unambiguous, a QDrO enforcing that
decree must dispose of assets in the manner required by the
decree. Blaine v. Blaine, supra. In particular, the QDrO should
reflect the value assigned and awarded in the decree. Id. The
paragraph plainly awarded ronald the profit-sharing plan and
awarded Janet $182,599 from the plan. The QDrO entered by
the court did just that, and we find no error. Next, we address
the court’s inclusion of interest in the QDrO.
Fry v. Fry 	79
Cite as 18 Neb. App. 75

Interest.
ronald’s final challenge concerns the court’s award of post-
judgment interest. The second amended QDrO awarded Janet
$212,576.50, which amount included $29,977.50 in interest at
6.849 percent accumulated from July 17, 2006, until December
8, 2008.
[8-10] Under Neb. rev. Stat. § 45-103.01 (reissue 2004),
“Interest as provided in section 45-103 shall accrue on decrees
and judgments for the payment of money from the date of entry
of judgment until satisfaction of judgment.” The language of
§ 45-103.01 is mandatory, and a court of equity does not have
discretion to withhold interest on decrees or judgments for the
payment of money. Bowers v. Lens, 264 Neb. 465, 648 N.W.2d
294 (2002). A decree or judgment for the payment of money
is one which is immediately due and collectible where its non-
payment is a breach of duty on a judgment debtor. Welch v.
Welch, 246 Neb. 435, 519 N.W.2d 262 (1994). Interest does not
accrue until the debt becomes due. Id.
In Cumming v. Cumming, 193 Neb. 601, 228 N.W.2d 296
(1975), the Nebraska Supreme Court reasoned that although
any or all of a $37,000 equalization payment may be paid at
any time, none was required to be paid until the petitioner
received the distribution of her share from her father’s estate.
The court therefore determined that interest on the unpaid
balance of the $37,000 judgment would accrue from the
date of the decree of distribution assigning her share of her
father’s estate. Subsequently, in Kullbom v. Kullbom, 215
Neb. 148, 337 N.W.2d 731 (1983), the Nebraska Supreme
Court appeared to change course. In Kullbom, a decree
ordered appellee to pay $37,566.75 of his pension and profit-
sharing trusts to appellant as part of the property division, but
he was not required to make any part of the payment until
he received a distribution from the trusts. The district court
did not award any interest on appellant’s share of the trusts.
On appeal, the Kullbom court cited and discussed Cumming,
but the majority then determined that interest on any unpaid
balance of the $37,566.75 shall accrue from the date of the
divorce decree, “which was when the [d]istrict [c]ourt should
have assigned to appellant her share of appellee’s pension
80 	18 NEBrASKA APPELLATE rEPOrTS

and profit-sharing trusts.” Kullbom, 215 Neb. at 150, 337
N.W.2d at 732.
[11] Vertical stare decisis compels lower courts to follow
strictly the decisions rendered by higher courts within the same
judicial system. State v. Hausmann, 277 Neb. 819, 765 N.W.2d
219 (2009). Based upon Kullbom, the district court did not
err in awarding interest from July 17, 2006—the date of the
divorce decree—because that is when Janet was assigned her
share of ronald’s profit-sharing plan.
Before closing, we emphasize that the difficulties posed by
this appeal could have been eliminated by care and precision
in the drafting of the decree and, where the trial court deter-
mined use of a QDrO was appropriate, by prompt entry of
the necessary order. We have noted numerous recent instances
of cases involving substantial delay in the entry of a QDrO.
See, Schwartz v. Schwartz, 275 Neb. 492, 747 N.W.2d 400
(2008); Blaine v. Blaine, 275 Neb. 87, 744 N.W.2d 444 (2008);
Klimek v. Klimek, post p. 82, 775 N.W.2d 444 (2009); Incontro
v. Incontro, No. A-01-1068, 2003 WL 1962884 (Neb. App.
Apr. 29, 2003) (not designated for permanent publication).
Manifestly, the failure to promptly follow through with appro-
priate orders has resulted in unnecessary delay and consider-
able expense. The statutory requirements for a QDrO are not
complex. See, I.r.C. § 414(p) (2000); 29 U.S.C. § 1056(d)(3)
(2006). The Internal revenue Service has issued publications
intended to assist attorneys in drafting a QDrO. See I.r.S.
Notice 97-11, 1997-1 C.B. 379.
We suggest that the ultimate responsibility for assuring that
a proper decree is entered, and for entry of a QDrO if the court
determines that the situation so requires, rests upon the trial
judge. While the judge may call upon the assistance of counsel,
the decree and the QDrO are orders of a court and not mere
agreements of the parties. Consequently, the responsibility for
the entry of a necessary QDrO is the trial court’s. Ideally, the
QDrO should be entered simultaneously with the decree, if
not actually made a part thereof. In this way, the parties know
exactly how the pension or retirement accounts will be divided,
as will we, in the event of an appeal. To that end, trial courts
should seriously consider requiring submission of proposed
Fry v. Fry 	81
Cite as 18 Neb. App. 75

QDrO’s at the time of trial or along with a decree that the
court directs counsel to prepare. While a decree making a divi-
sion of retirement accounts and providing for a later QDrO is
final because the QDrO is merely a tool for enforcement of
the decree, see Blaine v. Blaine, supra, the delay in entry of a
QDrO invites complications and potentially additional expense
and litigation, all of which can, and should, be avoided. To
that end, we encourage trial courts to implement procedures to
ensure that their responsibility to enter QDrO’s is fulfilled at
the same time as the decree is entered, bearing in mind that in
practice, the drafting of a QDrO may require approval by the
retirement plan administrator, which counsel can secure prior
to submitting the QDrO to the court.
CONCLUSION
Even though more than 2 years passed following entry of
an unappealed decree, we conclude that the district court had
jurisdiction to enter the QDrO in accordance with the terms of
the decree, because a QDrO is merely an enforcement device.
Based upon Kullbom v. Kullbom, 215 Neb. 148, 337 N.W.2d
731 (1983), we conclude that the court did not err in awarding
judgment interest on Janet’s share of the profit-sharing plan
accruing from the date of the divorce decree.
affiRmed.
stacey l. klimek , appellee and cRoss -appellant, v.
daniel d. klimek , appellant and cRoss -appellee .
775 N.W.2d 444
Filed October 27, 2009. 	No. A-09-023.
1. Divorce: Child Custody: Child Support: Property Division: Alimony:
Attorney Fees: Appeal and Error. An appellate court’s review in an action for
dissolution of marriage is de novo on the record to determine whether there has
been an abuse of discretion by the trial judge. This standard of review applies
to the trial court’s determinations regarding custody, child support, division of
property, alimony, and attorney fees.
2. Judges: Words and Phrases. A judicial abuse of discretion requires that the rea-
sons or rulings of a trial judge be clearly untenable, unfairly depriving a litigant
of a substantial right and a just result.
82 	18 NEBrASKA APPELLATE rEPOrTS