Fry v. Fry

[7] The requirement of standing is fundamental to a court’s
exercising jurisdiction, and litigants cannot confer subject mat-
ter jurisdiction on a judicial tribunal by either acquiescence
or consent.18 In this case, FCID and the DNR stipulated to
standing, but FCID made no claim that it had suffered an
injury in fact. Because FCID did not plead an injury in fact,
it does not have standing and we do not have jurisdiction over
FCID’s claims.
CONCLUSION
FCID has failed to plead an injury in fact and therefore has
not established standing. Without standing, we have no juris-
diction over FCID’s claims, and we therefore dismiss for lack
of jurisdiction.
A ppeAl dismissed.
Wright and C onnolly, JJ., not participating.
18 State v. Baltimore, 242 Neb. 562, 495 N.W.2d 921 (1993).
ronAld F ry, AppellAnt, v.
JAnet r. F ry, Appellee .
800 N.W.2d 671
Filed July 29, 2011. 	No. S-10-698.
1. Judgments: Statutes: Appeal and Error. Statutory interpretation is a matter of
law in connection with which an appellate court has an obligation to reach an
independent, correct conclusion irrespective of the determination made by the
trial court.
Appeal from the District Court for Douglas County: thomAs
A. otepkA, Judge. Affirmed.
David A. Domina and, of Counsel, Mark D. Raffety, of
Domina Law Group, P.C., L.L.O., for appellant.
Susan A. Anderson and Molly M. Blazek, of Anderson &
Bressman Law Firm, P.C., L.L.O., for appellee.
heAviCAn, C.J., C onnolly, gerrArd, stephAn, mCC ormACk,
and miller-lermAn, JJ.
FRy v. FRy 	1001
Cite as 281 Neb. 1001
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:46 AM CST

miller-lermAn, J.
NATURE OF CASE
Ronald Fry appeals orders of the district court for Douglas
County filed June 14, 2010. The court entered an amended
qualified domestic relations order (QDRO) which, in addition
to stating that Janet R. Fry was entitled to an absolute amount
from Ronald’s profit-sharing plan, awarded Janet postjudg-
ment interest thereon for the period commencing with entry
of the decree of dissolution on July 17, 2006, during the pend-
ency of a previous appeal which had challenged an earlier
version of the QDRO and concluding on June 10, 2010. The
district court did not err when it ordered postjudgment inter-
est. We affirm.
STATEMENT OF FACTS
Ronald and Janet’s marriage was dissolved pursuant to a
decree of dissolution entered by the district court on July 17,
2006. The decree included 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
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.
No QDRO was entered prior to September 2008, when
Ronald filed a motion to reopen the case, and Ronald and Janet
filed separate motions to compel entry of their respective com-
peting proposed QDROs. After an initial hearing, subsequent
motions to amend by each party, and an additional hearing,
the district court on December 15, 2008, entered an 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.
Ronald appealed the December 15, 2008, QDRO and related
orders to the Nebraska Court of Appeals. Ronald claimed, inter
1002 	281 NEBRASKA REPORTS

alia, that the district court had erred when it treated the division
of retirement funds as a monetary judgment consisting of an
absolute dollar amount rather than as a judgment for a percent-
age of the funds and when it awarded postjudgment interest
on Janet’s share of the retirement funds accruing from the date
of the decree of dissolution. See Fry v. Fry, 18 Neb. App. 75,
775 N.W.2d 438 (2009). The Court of Appeals determined that
the decree of dissolution “plainly awarded Ronald the profit-
sharing plan and awarded Janet $182,599 from the plan” and
concluded therefore that the QDRO properly awarded Janet
the dollar amount of $182,599 rather than a particular percent-
age of the plan. 18 Neb. App. at 79, 775 N.W.2d at 442. The
Court of Appeals cited Kullbom v. Kullbom, 215 Neb. 148,
337 N.W.2d 731 (1983), for the proposition that interest on
the unpaid balance of pension and profit-sharing funds shall
accrue from the date of the divorce decree and concluded that
“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.”
18 Neb. App. at 81, 775 N.W.2d at 443. The Court of Appeals
affirmed the orders appealed.
After the affirmance, Janet filed motions in the district
court to reopen the case and to enter an amended QDRO. She
sought to amend the QDRO which had been affirmed in Fry to
provide for interest that had accrued during the appeal of the
prior orders. Ronald opposed the amendment on the basis that
he had not filed a supersedeas bond during the appeal or taken
any action that would have prevented Janet from executing on
the prior QDRO. Janet noted in response that one of the issues
on appeal was whether the QDRO properly provided that she
was to receive a specific dollar amount from the retirement
funds or whether the QDRO should have provided that she was
to receive a certain percentage of the plan. She argued that it
would have been unwise to execute on the QDRO before that
issue was resolved because if it had been resolved in Ronald’s
favor, she could have owed him money back.
Following a hearing, on June 14, 2010, the district court
ordered the case reopened and entered the amended QDRO
proposed by Janet. It is this QDRO and related orders which
FRy v. FRy 	1003
Cite as 281 Neb. 1001

are at issue in this appeal. The QDRO provided for interest
from the date of the decree of dissolution through June 10,
2010, the date of the hearing on the motions before the court.
The QDRO provided in part as follows:
[Janet] shall be awarded the sum of One Hundred
Eighty Two Thousand Five Hundred Ninety Nine and
no/100 Dollars ($182,599.00) from [Ronald’s] 401(k)
Profit[-]Sharing Plan, together with interest thereon at
the rate of 6.849% from July 17, 2006, until June 10,
2010, for a total of $231,385.24, said amount represent-
ing the total amount awarded to [Janet]. ($182,599 +
$48,786.24 interest). Said amount shall be paid from
[Ronald’s] Income Plus Fund to assure that said funds are
paid in cash as opposed to equities, and [Janet] is entitled
to an immediate distribution from the Plan of the entire
balance of [Janet’s] account and any earnings thereon in
accordance with the directions specified by [Janet].
Ronald appeals the order to reopen the case and the amended
QDRO entered by the district court.
ASSIGNMENT OF ERROR
Ronald claims, summarized and restated, that the district
court erred when it awarded Janet postjudgment interest for the
period after the decree encompassing the pendency of a prior
appeal of an earlier QDRO and up to June 10, 2010.
STANDARD OF REVIEW
[1] Statutory interpretation is a matter of law in connection
with which an appellate court has an obligation to reach an
independent, correct conclusion irrespective of the determina-
tion made by the trial court. State ex rel. Wagner v. Gilbane
Bldg. Co., 280 Neb. 223, 786 N.W.2d 330 (2010).
ANALySIS
Ronald claims that the district court erred when it awarded
Janet additional postjudgment interest following the remand
from the Court of Appeals’ decision in Fry v. Fry, 18 Neb.
App. 75, 775 N.W.2d 438 (2009). The earlier QDRO that had
been appealed and affirmed by the Court of Appeals in Fry
awarded postjudgment interest from the date of the decree
1004 	281 NEBRASKA REPORTS

through December 8, 2008. On remand, the district court
extended the award of postjudgment interest through June 10,
2010, which period included the pendency of the appeal result-
ing in Fry. We conclude that the award of additional postjudg-
ment interest up to June 10, 2010, now challenged on appeal,
was not error.
In Fry, the Court of Appeals determined that the district
court did not err when it awarded interest from the date of the
divorce decree “because that is when Janet was assigned her
share of Ronald’s profit-sharing plan.” 18 Neb. App. at 81, 775
N.W.2d at 443. The Court of Appeals reasoned that the award
was required by Neb. Rev. Stat. § 45-103.01 (Reissue 2010),
which provides that postjudgment interest “shall accrue on
decrees and judgments for the payment of money from the date
of entry of judgment until satisfaction of judgment.” The Court
of Appeals cited Bowers v. Lens, 264 Neb. 465, 648 N.W.2d
294 (2002), and noted that the language of § 45-103.01 is
mandatory and that a court of equity does not have discretion
to withhold interest on decrees or judgments for the payment
of money. The Court of Appeals also relied on Kullbom v.
Kullbom, 215 Neb. 148, 337 N.W.2d 731 (1983), in which this
court concluded that interest on the unpaid balance of a specific
dollar amount of a pension and profit-sharing trust awarded in
a divorce decree should accrue from the date of the decree.
Based on these authorities, the Court of Appeals concluded in
Fry that the divorce decree in this case awarded Janet a specific
dollar amount from Ronald’s profit-sharing plan and that she
was entitled to postjudgment interest on that amount from the
date of the decree. Ronald petitioned for further review of Fry.
We denied the petition.
We agree with the Court of Appeals’ reasoning in Fry that
Janet was awarded a specific dollar amount of the plan and
its conclusion that Janet was entitled to postjudgment interest
from the date of the decree until the satisfaction of judgment.
We extend the reasoning of Fry and conclude in this case that
because the judgment had not been satisfied at the time the
cause was remanded to the district court after Fry and the
case reopened, the court did not err when it entered a QDRO
that extended the award of postjudgment interest through the
FRy v. FRy 	1005
Cite as 281 Neb. 1001

June 10, 2010, hearing. Janet continued to be entitled to post-
judgment interest pursuant to § 45-103.01 from the date of
decree until she received the specific dollar amount that she
had been awarded. Therefore, it was appropriate for the court
to update the award of postjudgment interest until Janet actu-
ally received her share of the profit-sharing plan.
Ronald argues that Janet should not have been awarded
additional postjudgment interest beyond the December 8, 2008,
date specified in the earlier QDRO, because she could have
executed on that QDRO during the pendency of the appeal. In
this regard, he notes that he did not post a supersedeas bond
and that therefore Janet was not prevented from executing on
the QDRO and receiving her share of the profit-sharing plan
during the appeal.
We determine that although Janet could have executed on
the earlier QDRO, there was nothing that required her to do
so and there was no conclusive reason to cut off the accrual
of postjudgment interest during the appeal. A supersedeas
bond serves to suspend further proceedings on the judgment
or decree from which an appeal is taken. See Tilt-Up Concrete
v. Star City/Federal, 261 Neb. 64, 621 N.W.2d 502 (2001).
However, Ronald points to no authority to the effect that the
absence of a supersedeas bond requires a party to execute on a
judgment during an appeal. Indeed, we observe, but need not
comment on the fact, that there may be valid reasons that a
person or entity who can execute on a judgment chooses not to
do so immediately.
In connection with Ronald’s execution discussion, we note
that Neb. Rev. Stat. § 25-1515 (Reissue 2008) generally pro-
vides that a judgment shall become dormant if it has not been
executed upon within 5 years. The statute thus indicates that
within that 5-year period, the party who obtained a judgment
can execute on it at a time of his, her, or its choosing. Referring
to § 25-1515, we note that the QDRO at issue in this case
included postjudgment interest through June 10, 2010, which
was within 5 years after the July 17, 2006, date of the divorce
decree. Therefore, in terms of the dormancy statute, it cannot
be said that the judgment had been outstanding an unreason-
able period of time.
1006 	281 NEBRASKA REPORTS

Janet asserts that she did not execute on the earlier QDRO
during the appeal, because the appeal involved an issue regard-
ing whether the decree awarded a specific dollar amount or a
percentage of the plan. She argues that if she had executed on
the QDRO based on a specific dollar amount and it had been
determined on appeal that she was actually awarded a percent-
age rather than a specific dollar amount, a correction may have
been warranted which might have required Janet to pay money
back into the plan. Janet instead chose to await the resolution
of the appeal. We find no authority indicating that Janet could
not await execution during the pendency of the appeal. Ronald
points to no authority which would serve as a basis to cut off
the accrual of postjudgment interest, the accrual of which, as
noted above, is mandatory under § 45-103.01.
Ronald also argues that the award of postjudgment interest
resulted in an impermissible “double recovery” to Janet. We
are unclear as to Ronald’s reasoning on this point. We note,
however, that Janet was awarded a specific dollar amount of
$182,599 from Ronald’s profit-sharing plan in the July 17,
2006, decree. In the June 2010 QDRO at issue in this appeal,
she was awarded postjudgment interest on that amount from
July 16, 2006, through June 10, 2010. The QDRO on appeal
further provided that after Janet’s share had been put into a
separate account, which evidently would occur on or shortly
after June 10, she would be entitled to distributions of cash
from the plan and, after segregation and the cessation of post-
judgment interest, of earnings, if any, on those funds from the
time the funds were put into a separate account until they were
actually distributed. In sum, Janet was awarded postjudgment
interest from July 17, 2006, through June 10, 2010, and she
was entitled to earnings on the funds that would be put into a
separate account from June 10, or whatever later date the funds
were separated, until the funds were distributed in cash to her.
Therefore, there were two distinct periods bearing different
economic consequences: the first period encompassed the time
during which Janet was awarded postjudgment interest, and
the second period encompassed the time during which Janet
received earnings on the funds. Contrary to Ronald’s assertion,
under the controlling order, there was not a period when Janet
FRy v. FRy 	1007
Cite as 281 Neb. 1001

was awarded both postjudgment interest and earnings on her
awarded share of the profit-sharing plan. We find this argument
to be without merit.
CONCLUSION
The district court properly reopened the case and did not
err when it determined that Janet was entitled to postjudg-
ment interest from the date of the divorce decree until June 10,
2010, the date set forth in the QDRO at issue in this appeal.
Accordingly, we affirm the orders of the district court.
AFFirmed.
Wright, J., not participating.
in re interest oF C hristopher t.,
A Child under 18 yeArs oF Age .
stAte oF nebrAskA, Appellee , v.
C hristopher t., AppellAnt.
801 N.W.2d 243
Filed July 29, 2011. 	No. S-10-1105.
1. Juvenile Courts: Appeal and Error. Juvenile cases are reviewed de novo on the
record, and an appellate court is required to reach a conclusion independent of the
juvenile court’s findings.
2. Statutes. In the absence of anything indicating to the contrary, statutory language
is to be given plain and ordinary meaning; when the words of a statute are plain,
direct, and unambiguous, no interpretation is necessary or will be indulged to
ascertain their meaning.
3. Due Process: Proof. The function of a standard of proof, as that concept is
embodied in the Due Process Clause and in the realm of factfinding, is to instruct
the fact finder concerning the degree of confidence our society thinks he or she
should have in the correctness of factual conclusions for a particular type of
adjudication.
4. Courts: Expert Witnesses. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509
U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993), and Schafersman v. Agland
Coop, 262 Neb. 215, 631 N.W.2d 862 (2001), require the trial court to act as a
gatekeeper to ensure that expert testimony is scientifically valid and can be prop-
erly applied to the facts in issue, and therefore helpful to the trier of fact.
5. Trial: Presumptions: Evidence. In a bench trial, there is a presumption that the
finder of fact disregards inadmissible evidence.
6. Trial: Expert Witnesses: Pretrial Procedure. To sufficiently call specialized
knowledge into question under Daubert v. Merrell Dow Pharmaceuticals, Inc.,
1008 	281 NEBRASKA REPORTS