Schwartz v. Schwartz

492 	275 Nebraska reports
doNNa S chWartz , appellee aNd croSS- appellaNt , v .
rodNey S chWartz , appellaNt aNd croSS- appellee .
747 N.W.2d 400
Filed april 18, 2008. 	No. s-06-1271.
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 which will be affirmed absent an abuse of discretion by
the trial court.
2. Contempt: Final Orders: Appeal and Error. an appellate court, reviewing a
final judgment or order in a contempt proceeding, reviews for errors appearing on
the record.
3. Attorney Fees: Appeal and Error. on appeal, a trial court’s decision awarding
or denying attorney fees will be upheld absent an abuse of discretion.
4. Actions: Pleadings. the nature of an action, whether legal or equitable, is deter-
minable from its main object, as disclosed by the averments of the pleadings and
the relief sought.
5. Divorce: Modification of Decree: Property Settlement Agreements: Pensions.
Where parties to a divorce action voluntarily execute a property settlement agree-
ment which is approved by the dissolution court and incorporated into a divorce
decree from which no appeal is taken, provisions dealing with division of pension
benefits will not thereafter be vacated or modified in the absence of fraud or
gross inequity.
6. Property Division. the purpose of a property division is to distribute the marital
assets equitably between the parties.
7. Divorce: Property Division: Pensions. In dissolution proceedings, the trial court
has broad discretion in valuing and dividing pension rights between the parties.
8. Judgments: Words and Phrases. an abuse of discretion occurs when a trial
court’s decision is based upon reasons that are untenable or unreasonable or if its
action is clearly against justice or conscience, reason, and evidence.
9. Contempt. When a party to an action fails to comply with an order of the court
made for the benefit of the opposing party, such act is ordinarily a civil contempt,
which requires willful disobedience as an essential element.
10. Contempt: Words and Phrases. “Willful” means the violation was committed
intentionally, with knowledge that the act was in violation of the court order.
11. Contempt: Proof. a party’s contempt must be established by proof beyond a
reasonable doubt.
appeal from the District Court for Lancaster County: S teveN
d. burNS, Judge. affirmed.
robert b. Creager, of anderson, Creager & Wittstruck, p.C.,
for appellant.
Jane F. Langan, of rembolt Ludtke, L.L.p., for appellee.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:54 AM CST

W right , coNNolly , gerrard , S tephaN, M ccorMack , and
M iller -lerMaN, JJ.
W right, J.
NatUre oF Case
the district court entered a decree in January 1999, dissolv-
ing the marriage of Donna schwartz and rodney schwartz. In
2005, Donna alleged that rodney’s military pension was not
being properly divided, and after a trial, the court entered an
order effecting a division of the pension that was different than
the decree. the main issue is whether the court could modify
the dissolution decree.
sCope oF reVIeW
[1] 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 which will be affirmed absent an abuse
of discretion by the trial court. Gruber v. Gruber, 261 Neb. 914,
626 N.W.2d 582 (2001). an abuse of discretion occurs when a
trial court’s decision is based upon reasons that are untenable
or unreasonable or if its action is clearly against justice or con-
science, reason, and evidence. Zahl v. Zahl, 273 Neb. 1043, 736
N.W.2d 365 (2007).
[2] an appellate court, reviewing a final judgment or order
in a contempt proceeding, reviews for errors appearing on the
record. Klinginsmith v. Wichmann, 252 Neb. 889, 567 N.W.2d
172 (1997). When reviewing a judgment for errors appearing
on the record, the inquiry is whether the decision conforms
to the law, is supported by competent evidence, and is neither
arbitrary, capricious, nor unreasonable. Id.
[3] on appeal, a trial court’s decision awarding or denying
attorney fees will be upheld absent an abuse of discretion. see
Hoshor v. Hoshor, 254 Neb. 743, 580 N.W.2d 516 (1998).
FaCts
on January 8, 1999, the marriage of Donna and rodney was
dissolved pursuant to a decree that incorporated a property set-
tlement agreement dividing the marital estate. In the agreement,
the parties agreed that an attached qualified domestic relations
order (QDro) dividing rodney’s military retirement account
sCHWartz v. sCHWartz 	493
Cite as 275 Neb. 492

494 	275 Nebraska reports
should be entered. the agreement stated that the proposed
QDro should provide Donna 43 percent of rodney’s monthly
military retirement benefits and make her the beneficiary of
the survivor benefit plan (sbp). the document specified that
the parties had chosen the survivor benefit for Donna in lieu
of an equal 50-percent distribution of the monthly benefits.
the agreement further provided that the proposed QDro was
attached and marked as an exhibit. However, unknown to the
parties, the proposed QDro was not entered by the district
court, though it appeared in the file.
We pause here to note that although the parties and the
district court refer to this order as a QDro, the order is actu-
ally a military court order, which is the military’s version of a
QDro. to prevent confusion, we will also refer to the order
as a QDro.
the proposed QDro was sent to the Defense Finance and
accounting service (DFas) office in January 1999, immedi-
ately following the district court’s entry of the decree and prop-
erty settlement agreement. In a letter dated January 21, 1999,
the Denver, Colorado, DFas office informed rodney that it had
received a QDro pertaining to his divorce and that in order
to comply with this order, the DFas needed him to complete
“arpC Form 64, rCsbp election Change,” and “arpC Form
14, rCsbp election statement for Former spouse Coverage.”
Donna was required to, and did, complete a form 14. rodney
also completed a form 14, but he testified that he did not com-
plete a form 64 because the DFas indicated to him that the
form was a change of beneficiary form and the decree provided
that he was to keep Donna as the beneficiary.
Donna testified that she corresponded with the DFas regard-
ing the QDro and that the DFas informed her that she had
taken all steps necessary to entitle her to the military retire-
ment benefits. she further testified the DFas told her that she
was to contact that office again 6 months prior to rodney’s
60th birthday—the date he was entitled to begin receiving
retirement benefits—to provide the office with her current
mailing address.
after this correspondence with the DFas, the parties believed
the proposed QDro had been approved by the DFas because

they heard nothing more from the DFas. rodney continued in
his duties with the air Force for an additional 3 months and
retired on april 30, 1999.
However, when Donna contacted the DFas in March 2004—6
months before rodney’s retirement benefits were to start—she
was informed that the military had no record of the QDro.
Donna worked to resolve the matter, but in the meantime,
rodney was required to designate a beneficiary of the sbp
in his retirement application. rodney testified that he selected
Donna as the beneficiary, but that the military denied his request.
He stated the military told him that he had the option of either
electing his current wife—rodney had remarried in 2000—as
the beneficiary and later petitioning for a change or losing the
opportunity to designate a beneficiary forever. Consequently,
rodney chose to elect his current wife as the beneficiary of the
sbp. However, rodney has since been unsuccessful in changing
the beneficiary from his current wife to Donna.
Donna has also been unsuccessful in changing the sbp,
though as of the time of trial, she was still trying. additionally,
she was unsuccessful in her attempt to enter the proposed
QDro with the DFas, though not because the district court
had not entered or signed it, but, rather, because the QDro
awarded her 43 percent of rodney’s retirement “as of the date
of the Decree” and the DFas stated that it had no way of
determining that amount. the DFas informed Donna that she
needed to obtain a clarifying order that awarded her a fixed dol-
lar amount or a percentage of rodney’s retirement pay.
In october 2004, rodney began receiving his military retire-
ment benefits. He did not forward any of the payments from
2004 to Donna and only began forwarding a portion of the
2005 payments after this action was filed.
In august 2005, Donna filed a verified motion to show cause
why rodney should not be held in contempt of the decree for
(1) failing to provide her with amounts already received that
should have been set aside to her, (2) not making appropriate
arrangements to retain her as the sbp beneficiary, (3) purpose-
fully reducing his benefits by taking disability, and (4) refus-
ing to deliver necessary and requested documents regarding
the account. In her motion, she sought, among other things,
sCHWartz v. sCHWartz 	495
Cite as 275 Neb. 492

496 	275 Nebraska reports
equitable relief in the form of an award modifying her interest
in rodney’s military retirement benefits from 43 to 50 percent
if she could not be designated as the beneficiary of the sbp.
In october 2005, Donna filed a motion to determine the
parties’ rights and interests to the military retirement benefits.
In her motion, she prayed that the district court enter a clarify-
ing order consistent with the DFas’ requirements for the entry
of a QDro and “to the extent any benefit contemplated to be
received by [Donna] is no longer available, that the Court enter
an appropriate order requiring [rodney] to provide an equiva-
lent substitute performance.” rodney responded to Donna’s
motion, asking the court to “stay within its jurisdictional limits
in regards to the Decree which was entered herein.”
the district court consolidated Donna’s motions for hearing.
at the hearing, the parties presented evidence on what terms the
QDro should include, and on June 2, 2006, the court entered
a memorandum regarding the QDro. the court found, among
other things, that based on the evidence before it, the court
could not find fault on the part of either of the parties which led
to rodney’s inability to name Donna as the surviving spouse
and, consequently, the parties should bear the impact of the loss
of this benefit between them. the court determined that Donna
should receive the benefit of the cost of living and other adjust-
ments that are made to the pension from time to time. the court
then directed the parties to calculate the amounts which rodney
should have already paid Donna and to submit the calculation
to the court at the time the new QDro was submitted.
on august 24, 2006, the district court entered an order
dividing rodney’s military retirement benefits in which it (1)
awarded Donna $11,336.21 for unpaid amounts of retirement
pay at an interest rate of 7.297 percent, (2) required the parties
to pay their own attorney fees, and (3) held that all terms and
provisions of the decree not in direct conflict with this order
should remain in full force and effect.
the district court also entered an “order Dividing Military
retirement” that replaced the proposed QDro. In the order, the
court ignored the point-value method the parties argued at the
hearing and instead calculated Donna’s share to be 50 percent.

rodney filed a motion for new trial, requesting the dis-
trict court to reconsider numerous provisions of the orders,
including the interest rate and the percentage of Donna’s
share of the military retirement benefits. after a hearing on
the motion, the court entered an “amended order Dividing
Military retirement” in which it addressed several of rodney’s
concerns, but it did not change either the interest rate or the
percentage of Donna’s share. the court found that the order
represented an equitable distribution.
assIGNMeNts oF error
rodney assigns three errors: (1) the district court lacked
jurisdiction to enter a QDro not in accordance with the origi-
nal decree and property settlement agreement; (2) the district
court abused its discretion in entering a QDro that varied from
the terms of the original decree and property settlement agree-
ment and was inconsistent with federal law; and (3) the district
court abused its discretion in not including in said order, provi-
sions that are material and necessary to the proper implementa-
tion of the order by the military.
Donna cross-appeals and assigns three errors: the district
court erred (1) in not holding rodney in civil contempt for fail-
ing or refusing to (a) take proper steps to ensure Donna would
receive direct payment for her share of rodney’s military retire-
ment or make those payments to Donna directly and (b) take
proper steps to maintain Donna as the beneficiary of the sbp
in connection with the military retirement; (2) in deducting one-
half of the sbp premium from Donna’s share of the military
retirement; and (3) in failing to award Donna attorney fees.
aNaLYsIs
rodney’s entire argument rests on the premise that the dis-
trict court “modified” the property settlement agreement when
it entered an order dividing the military retirement benefits that
varied from the terms of the proposed QDro agreed to by the
parties. Under Nebraska law, a district court can modify the
division of pension benefits, upon application, notice, and hear-
ing, if the failure to modify the decree would result in fraud
sCHWartz v. sCHWartz 	497
Cite as 275 Neb. 492

498 	275 Nebraska reports
or gross inequity. see Gruber v. Gruber, 261 Neb. 914, 626
N.W.2d 582 (2001).
the district court’s entry of the order met the requirements
to modify pension benefits, as it was (1) entered pursuant to
an application, notice, and hearing for modification and (2)
entered to remedy a gross inequity. In Neujahr v. Neujahr, 218
Neb. 585, 357 N.W.2d 219 (1984), the former wife instituted
contempt proceedings against her ex-husband, claiming that he
withheld personal property assigned to her under the divorce
decree. the district court, without notice or hearing, modified
its original decree. the ex-husband appealed, and this court
held that without notice, hearing, and a formal application to
the district court for either interpretation of the decree or modi-
fication of the decree, the district court’s order modifying the
decree was void.
In the case at bar, Donna filed a motion entitled “Motion
to Determine rights and Interests” that sought relief in the
form of
a clarifying order consistent with any and all require-
ments of the United states air Force and/or any other
applicable military department effectuating the terms of
the parties’ agreement and the decree herein; and, to the
extent any benefit contemplated to be received by [Donna]
is no longer available, that the Court enter an appropri-
ate order requiring [Rodney] to provide an equivalent
substitute performance.
(emphasis supplied.)
although Donna’s motion to determine rights and interests
did not explicitly ask the district court to modify the proposed
QDro, her use of the phrase “equivalent substitute perfor-
mance” indicates that she sought modification of the QDro
if she could not be named the beneficiary of the sbp. that
she sought modification is further evident when her motion to
determine rights and interests is viewed in conjunction with
her motion for contempt, which asked for an “order awarding
[Donna] up to 50% of [rodney’s] total military retirement.”
though the relief she sought in her motion for contempt cannot
be granted in such a motion, when her two motions were com-
bined for hearing, we conclude that rodney was given notice

that Donna sought modification. In fact, the record reflects that
rodney presented evidence with respect to the terms of the
modified QDro at the hearing, thus making it apparent that
rodney knew Donna sought modification.
[4] the nature of an action, whether legal or equitable, is
determinable from its main object, as disclosed by the aver-
ments of the pleadings and the relief sought. see Dillon Tire,
Inc. v. Fifer, 256 Neb. 147, 589 N.W.2d 137 (1999). this
determination is unaffected by the conclusions of the pleader or
what the pleader calls it. Id. thus, despite the fact that Donna
never explicitly requested modification in a motion that could
provide her such relief, the record reflects that when the cir-
cumstances are viewed as a whole, Donna’s motion to determine
rights and interests was a proper application for modification
and provided rodney notice that Donna sought modification.
therefore, we find that the first requirement to modify a QDro
was met.
the next question is whether the failure to modify the
decree would result in fraud or gross inequity. We note that
the district court did not technically determine that the prop-
erty settlement agreement should be modified because of gross
inequity; though, by implication, that is precisely what the court
did when it entered an order inconsistent with the property
settlement agreement.
[5] Where parties to a divorce action voluntarily execute a
property settlement agreement which is approved by the disso-
lution court and incorporated into a divorce decree from which
no appeal is taken, provisions dealing with division of pen-
sion benefits will not thereafter be vacated or modified in the
absence of fraud or gross inequity. Gruber v. Gruber, 261 Neb.
914, 626 N.W.2d 582 (2001). In Gruber, the court modified the
division of pension benefits on the basis of gross inequity upon
an application to modify. the former wife sought modification
of the divorce decree because the city board of trustees for the
police and fire retirement system refused to recognize a QDro
pertaining to her former husband’s pension. this court found
that because neither party could reasonably have contemplated
the city’s refusal to recognize a QDro, the district court did
not abuse its discretion in finding that gross inequity would
sCHWartz v. sCHWartz 	499
Cite as 275 Neb. 492

500 	275 Nebraska reports
result in the absence of modification of the decree that would
allow the city to recognize the QDro.
In the case at bar, the parties executed a property settle-
ment agreement that was incorporated into a decree entered on
January 8, 1999. the property settlement agreement provided
for the division of rodney’s military retirement account by an
attached QDro. the parties agreed the QDro would “[set]
aside 43% of the value of such plan with [Donna] named as
an alternate payee.” the parties further agreed that in exchange
for setting aside less than 50 percent of the plan to Donna, she
would be the beneficiary of the sbp.
However, for reasons that were disputed by the parties, the
proper forms were not in place at the DFas to permit Donna
to qualify as the beneficiary of the sbp. rodney testified that
this forced him to designate his new wife as the beneficiary
because the military told him that he could not designate Donna
as the sbp beneficiary without the proper forms, and that, con-
sequently, he would lose the right to do so in the future if he
did not designate his current wife as the beneficiary. the dis-
trict court found merit in rodney’s explanation and stated that
it could not find fault on the part of either of the parties which
led to rodney’s inability to designate Donna as the beneficiary
of the sbp.
Nevertheless, the change in beneficiary undoubtedly altered
the parties’ agreement. therefore, because this change was
material to the parties’ agreement and could not be contem-
plated at the time of the decree, we find that a gross ineq-
uity existed.
Having determined that the district court could have modi-
fied the decree, we turn to whether the court abused its discre-
tion in any of its modifications. rodney argues that the district
court incorrectly valued his retirement points and improperly
awarded Donna an interest in the points rodney accumulated
subsequent to the marriage. He specifically argues Donna
should not be entitled to share in the value of the 351⁄2 points he
earned during the 3 months he served subsequent to the parties’
divorce. Implicitly, rodney argues that the district court should
have used the point-value method to value Donna’s percentage
of rodney’s military retirement benefits.

at the time the decree was entered, the court determined
that rodney had accumulated 3,9911⁄2 points. the evidence at
the hearing showed that rodney retired april 30, 1999, with
4,027 total points and that no additional points were subse-
quently earned. the 3,9911⁄2 points represented 99.118 percent
of the retirement, and the district court merely rounded Donna’s
49.559 percent upward to an even 50 percent. the court rec-
ognized that it had not used the point-value method that the
parties had presented at the hearing to value Donna’s percent-
age of rodney’s benefits, but it noted that even if it had used
the point-value method, the difference between the point-value
method and what the court had done amounted to less than one-
half of 1 percent and only made a $7-per-month difference. the
court found that this was not a material difference and that the
order represented an equitable distribution.
[6-8] the purpose of a property division is to distribute
the marital assets equitably between the parties. Gangwish v.
Gangwish, 267 Neb. 901, 678 N.W.2d 503 (2004). In dissolu-
tion proceedings, the trial court has broad discretion in valuing
and dividing pension rights between the parties. Webster v.
Webster, 271 Neb. 788, 716 N.W.2d 47 (2006). an abuse of
discretion occurs when a trial court’s decision is based upon
reasons that are untenable or unreasonable or if its action is
clearly against justice or conscience, reason, and evidence. Zahl
v. Zahl, 273 Neb. 1043, 736 N.W.2d 365 (2007).
We find no abuse of discretion in the district court’s valuation
of rodney’s retirement points. although rodney’s distribution
amounted to a $7-per-month reduction from the amount that
he would have received if the court had used the point-value
method, the record does not reflect that this distribution was
inequitable under the circumstances. the court’s decision was
not based on reasons that were untenable or unreasonable, nor
was it against justice or conscience, reason, and evidence.
rodney next argues that the district court abused its dis-
cretion in changing the judgment interest rate from 5.513 to
7.297 percent. However, rodney fails to recognize that the
agreed-upon interest rate in the decree related only to unpaid
alimony: “[i]nterest shall be paid on unpaid alimony at the rate
of 5.513%.” thus, because the court did not award alimony,
sCHWartz v. sCHWartz 	501
Cite as 275 Neb. 492

502 	275 Nebraska reports
but, rather, entered a judgment as to the property settlement, the
court did not abuse its discretion in fixing the judgment interest
rate at the prevailing rate.
[9-11] In Donna’s cross-appeal, she argues that the district
court erred in not holding rodney in contempt. When a party
to an action fails to comply with an order of the court made for
the benefit of the opposing party, such act is ordinarily a civil
contempt, which requires willful disobedience as an essential
element. Klinginsmith v. Wichmann, 252 Neb. 889, 567 N.W.2d
172 (1997). “Willful” means the violation was committed
intentionally, with knowledge that the act was in violation of
the court order. Id. a party’s contempt must be established by
proof beyond a reasonable doubt. Id.
In the case at bar, the district court found that based on the
evidence before it, the court could “find no fault on the part of
either of the parties which lead [sic] to [rodney’s] inability to
name [Donna] as the surviving spouse.” therefore, the court
did not hold rodney in contempt for his failure to designate
Donna as the beneficiary of the sbp. on review of the record,
we find that the court’s decision is supported by competent evi-
dence, and is neither arbitrary, capricious, nor unreasonable.
Donna also argues that rodney failed to pay amounts due
Donna under the proposed QDro and, thus, should be held
in contempt. the district court never explicitly stated that it
was finding rodney in contempt, but it did order rodney to
pay Donna $10,359.54 in arrearages. thus, we find no merit to
this argument.
Donna next argues that the district court erred in deducting
one-half of the cost of the sbp premium from her share of the
military retirement. the sole basis for her argument is that the
change in beneficiary was rodney’s fault and that she should
not have to pay for his mistake. because we can find no error in
the district court’s determination that the change in beneficiary
was neither party’s fault, we find no abuse of discretion in the
court’s deducting one-half of the cost of the sbp premium from
Donna’s share.
Donna claims that the district court erred in failing to award
her attorney fees. again, the sole basis for her argument is
that the change in beneficiary was rodney’s fault and that she

should not have to pay for his mistake. We find nothing in the
record to show that the change in beneficiary was either party’s
fault. therefore, we find no abuse of discretion. We find no
merit to Donna’s cross-appeal.
CoNCLUsIoN
For the above-stated reasons, we affirm the district court’s
order in its entirety.
affirMed .
heavicaN, C.J., not participating.
chad a. hofferber , appellaNt , v . city of
haStiNgS, N ebraSka , et al ., appelleeS.
747 N.W.2d 389
Filed april 18, 2008. 	No. s-06-1349.
1. Summary Judgment. summary judgment is proper when the pleadings and
evidence admitted at the hearing disclose that there is no genuine issue as to any
material fact or as to the ultimate inferences that may be drawn from those facts
and that the moving party is entitled to judgment as a matter of law.
2. Summary Judgment: Appeal and Error. In reviewing a summary judgment, an
appellate court views the evidence in a light most favorable to the party against
whom the judgment is granted and gives such party the benefit of all reasonable
inferences deducible from the evidence.
3. Workers’ Compensation. If an injury arises out of and in the course of employ-
ment, the Nebraska Workers’ Compensation act is the injured employee’s exclu-
sive remedy against his or her employer.
4. Negligence. Whether a legal duty exists for actionable negligence is a question of
law dependent on the facts in a particular case.
5. Negligence: Property: Liability. ordinarily, a person who is not the owner
and is not in control of property is not liable for negligence with respect to
such property.
6. Negligence: Liability: Proximate Cause. a possessor of land is subject to
liability for injury caused to a lawful visitor by a condition on the land if (1)
the possessor defendant either created the condition, knew of the condition, or
by the exercise of reasonable care would have discovered the condition; (2) the
defendant should have realized the condition involved an unreasonable risk of
harm to the lawful visitor; (3) the defendant should have expected that a lawful
visitor such as the plaintiff either (a) would not discover or realize the danger or
(b) would fail to protect himself or herself against the danger; (4) the defendant
failed to use reasonable care to protect the lawful visitor against the danger; and
(5) the condition was a proximate cause of damage to the plaintiff.
HoFFerber v. CItY oF HastINGs 	503
Cite as 275 Neb. 503