Benda v. Sole

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Nebraska Supreme Court Advance Sheets
319 Nebraska Reports
BENDA v. SOLE
Cite as 319 Neb. 745
Kristine M. Benda, formerly known as
Kristine M. Sole, appellee, v.
Joshua S. Sole, appellant.
___ N.W.3d ___
Filed August 29, 2025. 	No. S-24-751.
1. Divorce: Appeal and Error. In actions for dissolution of marriage, an
appellate court reviews the case de novo on the record to determine
whether there has been an abuse of discretion by the trial judge.
2. Questions of Law: Claim Preclusion: Issue Preclusion. The applica-
bility of claim and issue preclusion is a question of law.
3. Jurisdiction: Appeal and Error. An appellate court determines a
jurisdictional question that does not involve a factual dispute as a mat-
ter of law.
4. Judgments: Questions of Law: Appeal and Error. On a question
of law, an appellate court reaches a conclusion independent of the
court below.
5. Marriage: Jurisdiction. The written certification described in Neb.
Rev. Stat. § 42-361.01 (Reissue 2016) is not a jurisdictional require-
ment that, if not met, would prevent a court from having subject mat-
ter jurisdiction over separation proceedings held without an eviden-
tiary hearing.
6. Judgments: Jurisdiction: Appeal and Error. Appellate courts apply
the doctrine of void ab initio sparingly, and it is critical to differenti-
ate between a judgment entered without jurisdiction and an erroneous
judgment that may nevertheless be enforceable.
7. Jurisdiction. A lack of subject matter jurisdiction differs from an erro-
neous exercise of jurisdiction.
8. Jurisdiction: Final Orders: Appeal and Error. An appellate court
lacks jurisdiction over the merits of a final, appealable order that was
not timely appealed.
9. Judgments: Final Orders: Collateral Attack. When a judgment or
final, appealable order is attacked in a way other than by a proceeding
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
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Nebraska Supreme Court Advance Sheets
319 Nebraska Reports
BENDA v. SOLE
Cite as 319 Neb. 745
in the original action to have it vacated, reversed, or modified, or by
a proceeding in equity to prevent its enforcement, the attack is a col-
lateral attack.
10. ____: ____: ____. Absent an explicit statutory or common-law proce-
dure permitting otherwise, a judgment or final, appealable order may be
collaterally attacked only when void ab initio.
11. Marriage: Modification of Decree: Time: Appeal and Error.
Although a party may seek modification of the terms set forth in a
separation decree as provided by statute upon a showing of a material
change of circumstances, an aggrieved party must duly file a notice of
appeal within 30 days of entry of the legal separation decree to chal-
lenge as unconscionable any order of custody, support, and property
division set forth therein.
12. Marriage: Final Orders: Appeal and Error. A decree of legal separa-
tion is a final, appealable order.
13. Marriage: Property Settlement Agreements: Final Orders: Time:
Appeal and Error. Once the court in a separation proceeding accepts
the terms of a settlement agreement and incorporates them into the
decree, ordering the parties to perform them, those terms become final
after the time to appeal under Neb. Rev. Stat. § 25-1931 (Reissue
2016) has passed.
14. Marriage: Statutes: Motions to Vacate: Time: Appeal and Error.
The terms of a separation agreement subsumed into a separation decree
that was not timely appealed cannot be changed except through the
procedures to modify as set forth by statute, through a timely motion
to vacate under Neb. Rev. Stat. § 25-2001 (Reissue 2016), or under the
court’s inherent power to vacate or modify its own judgments during
the term at which those judgments are pronounced.
15. Marriage: 	Property 	Settlement 	Agreements: 	Modification 	of
Decree: Proof. Where parties to a separation proceeding voluntarily
execute a property settlement agreement that is approved by the court
and incorporated into a separation decree from which no appeal is
taken, its provisions as to real and personal property and maintenance
will not thereafter be vacated or modified in the absence of fraud or
gross inequity, and its provisions relating to child custody, visitation,
and support may be modified only upon a showing of a material change
in circumstances affecting the best interests of the child.
16. Marriage: Divorce. In rendering a dissolution decree, a court is not
prevented from making orders respecting matters of custody, sup-
port, and property, which were not decided in the prior legal separa-
tion decree.

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Nebraska Supreme Court Advance Sheets
319 Nebraska Reports
BENDA v. SOLE
Cite as 319 Neb. 745
17. Judgments: Issue Preclusion. Issue preclusion bars the relitigation of a
finally determined issue that a party had a prior opportunity to fully and
fairly litigate.
18. ____: ____. Issue preclusion applies where (1) an identical issue was
decided in a prior action, (2) the prior action resulted in a final judg-
ment on the merits, (3) the party against whom the doctrine is to be
applied was a party or was in privity with a party to the prior action,
and (4) there was an opportunity to fully and fairly litigate the issue in
the prior action.
19. Issue Preclusion. Issue preclusion applies only to issues actually
litigated.
Appeal from the District Court for Scotts Bluff County:
Andrea D. Miller, Judge. Affirmed.
Sterling T. Huff for appellant.
Ryan M. Swaroff and Abbie L. DeWitte, of Rembolt Ludtke,
L.L.P., for appellee.
Funke, 	C.J., 	Miller-Lerman, 	Cassel, 	Stacy, 	Papik,
Freudenberg, and Bergevin, JJ.
Freudenberg, J.
INTRODUCTION
The former husband appeals from a decree of disso-
lution. Two years before the dissolution proceedings, the
district court entered a decree of legal separation, which
incorporated the terms of the parties’ settlement agreement
governing property division, child custody and support, and
alimony, and which the court expressly found was not uncon-
scionable. The separation decree was not appealed. The
dissolution decree incorporated the same terms, which the
parties had stipulated the court should do. The parties also
agreed the dissolution decree should increase the wife’s
equalization payment to compensate for an asset not pre-
viously disclosed by the husband. The husband argues on
appeal that both decrees should be set aside and the prop-
erty division, child custody and support, and alimony terms

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Nebraska Supreme Court Advance Sheets
319 Nebraska Reports
BENDA v. SOLE
Cite as 319 Neb. 745
relitigated. He claims the decree of separation was void ab
initio because there was no certification by the parties under
Neb. Rev. Stat. § 42-361.01(3)(b) (Reissue 2016) that “they
shall thereafter live separate and apart.” Alternatively, he
asserts the dissolution decree violated the doctrine of issue
preclusion. He argues the terms of the settlement agreements
were unconscionable. We affirm.
BACKGROUND
Joshua S. Sole (Joshua) and Kristine M. Benda, formerly
known as Kristine M. Sole (Kristine), married in 2006. Their
marriage produced two children: a son in 2013 and a daughter
in 2016.
Decree of Legal Separation
On April 20, 2022, Kristine filed a complaint for legal sepa-
ration from Joshua. The complaint alleged the marriage was
irretrievably broken and prayed for legal separation, equitable
division of property, and both temporary and permanent child
custody, child support, and alimony orders.
When filing Kristine’s complaint, her counsel also filed a
voluntary appearance signed by Joshua, who was pro se, and
a legal separation settlement agreement (LSSA) signed by
Joshua and Kristine. The documents were notarized and dated
April 14, 2022. The address provided for Joshua in his volun-
tary appearance was the same as that listed for both him and
Kristine in Kristine’s complaint.
The LSSA stated that it constituted “a full, final[,] and
complete 	settlement 	of 	[Joshua’s 	and 	Kristine’s] 	rights”
and addressed matters including custody, child support, ali-
mony, the division of assets and debts, and “all other rights
[that arose] by reason of the marital relationship.” The LSSA
also awarded parenting time to Joshua and an equalization pay-
ment to Kristine based on the division of their property.
In the LSSA, Joshua and Kristine agreed that they had
made reasonable efforts to reconcile without success and that

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Nebraska Supreme Court Advance Sheets
319 Nebraska Reports
BENDA v. SOLE
Cite as 319 Neb. 745
their marriage was “irretrievably broken.” The LSSA did not
specify whether Joshua and Kristine had agreed to “thereafter
live separate and apart.” 1 Joshua and Kristine consented to
the court’s entry of a decree of legal separation that approved
the terms of the LSSA without first holding a hearing.
On June 30, 2022, the district court entered a “Decree of
Legal Separation” (Separation Decree) in which it granted
Kristine legal separation from Joshua. In its Separation Decree,
the court found that Joshua and Kristine had made “[r]eason-
able efforts . . . to reconcile their marital difficulties” that
were unsuccessful and had “agree[d] thereafter to live separate
and apart.” The court also found the LSSA to be “fair, reason-
able[,] and not unconscionable” and “ordered [Joshua and
Kristine] to comply with the terms of the [LSSA].” The court
then set forth in the Separation Decree the terms of the LSSA
in their entirety.
Joshua did not appeal the Separation Decree.
First Dissolution Decree
Approximately 6 months after the entry of the Separation
Decree, on December 28, 2022, Kristine filed a complaint for
dissolution. With the complaint, Kristine filed a second volun-
tary appearance signed by Joshua, who was still pro se, and a
dissolution settlement agreement (DSA) signed by Joshua and
Kristine. The documents were notarized.
The DSA stated that Joshua and Kristine had submitted
the agreement to the court “for the status of their marriage
only” and that they “acknowledge[d] that all other issues
ha[d] been resolved by [the Separation Decree],” including
custody, child support, alimony, and the division of assets and
debts. The DSA provided that all of the court’s prior orders
that were not in conflict with the DSA were to “remain in full
force and effect.”
About a month later, Kristine filed an amended version of
the dissolution settlement agreement (Amended DSA) and
1 See § 42-361.01(3)(b).

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Nebraska Supreme Court Advance Sheets
319 Nebraska Reports
BENDA v. SOLE
Cite as 319 Neb. 745
a joint affidavit (affidavit). Both agreements were notarized
and signed by Joshua and Kristine. The Amended DSA only
added a provision to restore Kristine’s maiden name. In the
affidavit, Joshua and Kristine requested that the court approve
their settlement agreement, and they waived the required
statutory hearing before the entry of the decree of dissolu-
tion. The affidavit stated that Joshua and Kristine’s marriage
was “irretrievably broken” and that they had (1) entered into
a settlement agreement that resolved all issues in their case,
(2) signed the agreement under oath, and (3) reviewed the
agreement’s property settlement and believed it was “fair and
equitable.” However, the affidavit incorrectly stated that more
than 60 days had elapsed since Joshua’s second voluntary
appearance was filed.
Only 47 days after Kristine filed her complaint for dissolu-
tion and Joshua’s second voluntary appearance, the district
court entered a decree of dissolution (First Dissolution Decree).
The court found that Joshua and Kristine’s settlement agree-
ment was “fair, reasonable[,] and not unconscionable” and
ordered Joshua and Kristine to comply with its terms.
Months later, Kristine filed a complaint to modify the First
Dissolution Decree. At that time, Kristine’s counsel also filed
(1) a third voluntary appearance signed by Joshua, who was
still pro se, and (2) a stipulated agreement (Modification
Agreement) signed by Joshua and Kristine. Both documents
were notarized and dated June 28, 2023.
The complaint alleged that after the First Dissolution Decree
was entered, Joshua discovered a retirement account he had
failed to disclose to Kristine, so the account was not consid-
ered when calculating her equalization payment set forth in
the Separation Decree. The complaint stated that Joshua and
Kristine had agreed the retirement account changed the value
of the equalization payment in the Separation Decree, so an
order from the court was needed to effectuate that change.
The Modification Agreement pertained solely to increasing
Kristine’s equalization payment.

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Nebraska Supreme Court Advance Sheets
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BENDA v. SOLE
Cite as 319 Neb. 745
The district court entered two orders addressing Kristine’s
equalization payment. The orders approved the Modification
Agreement, stating that Kristine was entitled to an increased
equalization payment and that “[a]ll of the orders not in con-
flict [t]herein [were to] remain in full force and effect.”
Operative Dissolution Decree
In 2024, Joshua retained counsel and moved to vacate the
First Dissolution Decree, the equalization payment orders, and
all complaints associated therewith. He also moved pursu-
ant to Neb. Ct. R. Pldg. § 6-1112 to dismiss the Separation
Decree. Lastly, Joshua provided notice that he was withdraw-
ing from the LSSA, DSA, Amended DSA, affidavit, and
Modification Agreement and moved to set aside and vacate
those agreements.
Joshua alleged that the First Dissolution Decree was void
ab initio because it was entered before the expiration of the
waiting period set forth in Neb. Rev. Stat. § 42-363 (Reissue
2016), which requires that no suit for divorce may be heard
or tried and no decree may be entered until 60 days after
perfection of service of process. Kristine agreed that Joshua’s
motion to vacate the First Dissolution Decree was appropriate
and that the decree was void. She moved for another decree
of dissolution. She argued that the Separation Decree and
the settlement agreements were still valid and had resolved
all issues.
However, Joshua alleged that the Separation Decree was
void for lack of subject matter jurisdiction because the record
of the separation proceedings did not contain an affirma-
tion by either party that they would thereafter live sepa-
rate and apart, pursuant to § 42-361.01. Alternatively, if
the Separation Decree was not void, he alleged it could not
be modified to contain the increased equalization payment,
“as the [Separation] Decree would have been a final order.”
Joshua’s ultimate objective through the motion was to reliti-
gate all issues surrounding support, custody, and property

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Nebraska Supreme Court Advance Sheets
319 Nebraska Reports
BENDA v. SOLE
Cite as 319 Neb. 745
division, returning the action to the court’s “docket for discov-
ery, progression, and trial.”
Joshua subsequently served discovery requests on Kristine
that sought information relating to child custody, child sup-
port, alimony, and property division. Kristine, who was repre-
sented by new counsel, objected to the requests on the grounds
that they sought information irrelevant to the pending issues
and pertained to issues already resolved by the settlement
agreements. Following Kristine’s objection, Joshua did not
move the court to compel discovery.
During an evidentiary hearing on the motions, the court
emphasized that the purpose of the hearing was not to reliti-
gate the issues, but to address whether the settlement agree-
ments should be vacated or set aside. Joshua testified at the
evidentiary hearing that he did not believe the LSSA’s terms
or the Modification Agreement’s increased equalization pay-
ment were fair and equitable. Joshua specifically took issue
with the child support, alimony, custody, parenting time, and
property settlement provided in the LSSA.
He testified that he had engaged in discussions with Kristine
about their property division and family plan before entering
into the LSSA. Kristine had emailed Joshua documents that
provided her proposed terms for child custody, parenting time,
property division, and other financial matters, which they dis-
cussed before ultimately reaching agreements on those issues.
When Joshua received the documents, he had the opportunity
to respond with his own valuations but did not do so. After
the discussions, Kristine sent the documents to her counsel
to draft the LSSA consistent with what she and Joshua had
discussed. When Joshua was presented the LSSA and DSA, he
knew that Kristine was represented by counsel but chose not
to have an attorney represent him.
Joshua testified that when Kristine filed her complaint for
legal separation, they were living at the same address, and
that he intended to attempt to reunify with her, continue their
marriage, and work things out after they legally separated.

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Nebraska Supreme Court Advance Sheets
319 Nebraska Reports
BENDA v. SOLE
Cite as 319 Neb. 745
Joshua testified that when he signed the LSSA and agreed to
its terms, he was willing to do whatever it took to preserve his
relationship with his family. He also testified that he read the
LSSA before he signed it and, further, was given the opportu-
nity to read all of the documents before he signed them.
For all the agreements between the parties, Joshua signed
the notarized sections in which he affirmed he had read the
agreement, knew its contents, and believed that the facts con-
tained therein were true. In the LSSA, DSA, and Modification
Agreement, Joshua certified that (1) he had entered into the
agreements after receiving “ample opportunity” to consult
separate counsel and (2) his consent to execute the agree-
ments was not obtained by duress, fraud, or undue influence.
The Modification Agreement also stated that Joshua (1) had
voluntarily entered into the agreement “with full knowledge
of the facts” and “full[y] inform[ed] as to [his] legal rights
and liabilities” and (2) believed that the agreement was “rea-
sonable under the circumstances.”
Joshua testified that after the LSSA and DSA were exe-
cuted, he realized that he had failed to disclose one of his
retirement accounts to Kristine. He testified that he contacted
Kristine to inform her of the account because he “felt like [it]
was the right thing to do” and still hoped to reunify with her.
He testified that he had thought that Kristine should share
in that marital asset and agreed to increase her equaliza-
tion payment.
At the hearing, Kristine’s counsel offered exhibits 19 and
20 into evidence. Exhibit 19 was a picture of one of the
documents that Kristine sent Joshua by email before their
pre-LSSA discussions. The document provided Kristine’s pro-
posed terms for various financial matters, including child
support, alimony, and the division of certain property and
expenses. Before the exhibit was offered, Joshua testified that
Kristine had sent him an email with her proposed division of
their assets and that the email listed most of their high-value

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BENDA v. SOLE
Cite as 319 Neb. 745
items, such as their vehicles, and some of Kristine’s gifts
from her family.
When Kristine’s counsel offered exhibit 19, Joshua’s coun-
sel objected, again stating that he had sent discovery requests
and the exhibit was not disclosed to him. Joshua’s counsel
also objected on the grounds of foundation, relevance, and
hearsay. Kristine’s counsel asserted that (1) she had sent
the exhibit before the hearing, (2) disclosure of the exhibit
was not required at that point because Joshua had not filed a
motion to compel discovery, and (3) the document was rel-
evant because Joshua testified that it was used during his dis-
cussions with Kristine before the LSSA was drafted. Joshua’s
counsel argued that filing a motion to compel was unneces-
sary because Kristine’s counsel should have complied with
court rules and shared the exhibits before the hearing. The
court overruled the objection and received exhibit 19, stating
that if its receipt of the exhibit necessitated further evidence
from Joshua’s counsel at a later date, the court would sched-
ule a time for him to present it. Joshua then testified he felt
that Kristine’s document provided “a reasonable estimate” for
the marital assets that it listed.
Exhibit 20 was Kristine’s counsel’s attorney fee affidavit
on the services she rendered. Joshua’s counsel objected to the
exhibit, again stating he was not sent the exhibit despite his
discovery requests. He also argued that the exhibit did not
satisfy the requirements for an attorney fee affidavit. The court
ultimately received the exhibit.
Kristine did not offer exhibits 17 and 18 as evidence, and
they are not contained in the appellate record.
After the evidentiary hearing, the district court entered
an order addressing Joshua’s and Kristine’s motions. The
court sustained Joshua’s motion only as to vacating the First
Dissolution Decree. The court noted that the decree was
entered 47 days after Joshua’s second voluntary appearance
was filed, so the decree did not satisfy the 60-day waiting
period set forth in § 42-363. Thus, the court concluded that

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BENDA v. SOLE
Cite as 319 Neb. 745
it had lacked jurisdiction to enter that decree and vacated it.
It overruled the remainder of Joshua’s motion.
The court sustained Kristine’s motion to enter a second
decree of dissolution. The court reasoned that because the
statutory period had since expired, it had jurisdiction to enter
another dissolution decree. The court stated that, accordingly,
it did not need to decide whether the Separation Decree was
enforceable and Joshua’s motions to vacate that decree and
the LSSA were “moot.” The court stated it would incorporate
the Amended DSA and the Modification Agreement into the
new dissolution decree.
The court noted Joshua’s admissions in the affidavit and
found no evidence he was forced into the affidavit or coerced
into signing it. The court also noted that Joshua knew he could
hire an attorney, but chose not to, and that Joshua had access
to relevant financial information when he signed the affidavit.
The court found that the evidence showed Joshua and Kristine
had discussed their property and children in written documents
before signing the settlement agreements. The court empha-
sized that Joshua had “signed 5 separate documents [that] indi-
cated that he believed the agreements were fair and reasonable
[and] in the children’s best interests.” The court also stated that
the DSA was “identical” to the LSSA, which Joshua had signed
during his and Kristine’s legal separation.
Based on the evidence, the court found that Joshua had vol-
untarily entered into the Amended DSA and the Modification
Agreement and that there was no sufficient reason to vacate
the agreements. The court found no evidence of fraud or gross
inequity and noted that Joshua and Kristine had operated under
their agreed-upon terms for over 2 years. The court stated that
although the affidavit signed by the parties and submitted by
Kristine’s attorney incorrectly represented that 60 days had
passed, the 60-day timeframe was “the only part of the affi-
davit waiving the final hearing which is incorrect,” and that
such error “[did] not and should not give [Joshua] a second
opportunity to litigate [the] divorce.”

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BENDA v. SOLE
Cite as 319 Neb. 745
The court found that all of the settlement agreements were
“valid and resolve[d] all issues regarding child custody, child
support, alimony, and the division of assets and debts” and that
there were no outstanding issues in need of resolution. The
court declined Kristine’s request for attorney fees.
On October 1, 2024, the court entered a decree of dissolu-
tion (Operative Dissolution Decree), in which it stated that
Joshua and Kristine had certified in writing that their mar-
riage was “irretrievably broken.” The court found that Joshua
and Kristine’s settlement agreements were “fair, reasonable[,]
and not unconscionable” and bound Joshua and Kristine to
their terms. The Operative Dissolution Decree restated the
terms that were listed in the First Dissolution Decree and
changed Kristine’s equalization payment in accordance with the
Modification Agreement.
Within 30 days of the Operative Dissolution Decree, Joshua
filed his notice of appeal, which he stated included the deci-
sions of the Separation Decree, the First Dissolution Decree,
and the orders addressing Kristine’s equalization payment.
ASSIGNMENTS OF ERROR
Joshua assigns, consolidated and restated, that the district
court erred by (1) not setting aside the Separation Decree for
lack of jurisdiction and due to the allegedly unconscionable
LSSA; (2) entering the Operative Dissolution Decree because
it was barred by claim and issue preclusion by the Separation
Decree; (3) failing to set aside and approving the allegedly
unconscionable 	settlement 	agreements; 	and 	(4) 	receiving
exhibits 17 through 20.
STANDARD OF REVIEW
[1] In actions for dissolution of marriage, an appellate court
reviews the case de novo on the record to determine whether
there has been an abuse of discretion by the trial judge. 2
2 Connolly v. Connolly, 299 Neb. 103, 907 N.W.2d 693 (2018).

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[2] The applicability of claim and issue preclusion is a ques-
tion of law. 3
[3] An appellate court determines a jurisdictional question
that does not involve a factual dispute as a matter of law. 4
[4] On a question of law, we reach a conclusion independent
of the court below. 5
ANALYSIS
Joshua seeks to vacate the terms of his and Kristine’s set-
tlement agreement that was incorporated into the Separation
Decree so he can litigate anew all matters of child custody
and support, alimony, and property division. In an attempt to
reach his desired result, Joshua argues the Separation Decree
is void ab initio because neither party submitted a statement
under oath or an affirmation that they shall thereafter live
separate and apart, as described in § 42-361.01. In the alter-
native, Joshua argues the Operative Dissolution Decree was
“void” 6 under claim preclusion because it “re-decide[d] all of
the same issues” 7 of property division, child custody and sup-
port, and alimony decided in the Separation Decree 2 years
earlier, albeit in a “virtually identical” 8 manner. He believes
these arguments permit a reevaluation of the district court’s
explicit determination in the separation proceedings that the
terms of child custody and support, alimony, and property
division were conscionable. Joshua argues the terms were
unconscionable, and the alleged errors in the court’s alleged
receipt of exhibits 17 through 20 are relevant to this analysis.
We find no merit to Joshua’s arguments.
3 Hara v. Reichert, 287 Neb. 577, 843 N.W.2d 812 (2014).
4 Myers v. Nebraska Invest. Council, 272 Neb. 669, 724 N.W.2d 776 (2006).
5 Hara v. Reichert, supra note 3.
6 Brief for Appellant at 34.
7 Id. at 20.
8 Id. at 22, 23, and 34.

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Voidness ab Initio
First, we hold that the Separation Decree is not void. The
Separation Decree was entered 60 days or more after perfec-
tion of service of process, and the district court made a finding
in the Separation Decree that the parties had agreed “thereafter
to live separate and apart.” We reject Joshua’s premise that
the parties’ failure to include in the LSSA a written certifica-
tion, as described by § 42-361.01(3)(b), to support the district
court’s finding, deprived the court of subject matter jurisdic-
tion to enter a separation decree without first holding an evi-
dentiary hearing.
Under Nebraska’s marital dissolution, separation, annulment,
custody, and support statutes, 9 “‘[l]egal separation means a
decree of a court of competent jurisdiction providing that two
persons who have been legally married shall thereafter live
separate and apart and providing for any necessary adjustment
of property, support, and custody rights between the parties but
not dissolving the marriage.’” 10 Section 42-361.01 provides, in
relevant part, that in a legal separation proceeding:
(1) If both of the parties state under oath or affirma-
tion that they shall thereafter live separate and apart, or
one of the parties so states and the other does not deny it,
the court, after hearing, shall make a finding whether the
legal separation should be granted and if so may enter a
decree of legal separation; [or]
(2) If one of the parties has denied under oath or
affirmation that they will thereafter live separate and
apart, the court shall, after hearing, consider all rel-
evant factors, including the circumstances that gave
rise to the filing of the complaint and the prospect of
reconciliation, and shall make a finding whether the
9 Neb. Rev. Stat. §§ 42-347 to 42-381 (Reissue 2016 & Cum. Supp. 2024).
See, also, Christine W. v. Trevor W., 303 Neb. 245, 928 N.W.2d 398
(2019).
10 See Connolly v. Connolly, supra note 2, 299 Neb. at 109, 907 N.W.2d at
697.

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legal separation should be granted and if so may enter a
decree of legal separation.
Section § 42-356 provides that the hearings must be “held in
open court upon the oral testimony of witnesses or upon the
depositions of such witnesses taken as in other actions.”
Section 42-361.01(3) offers an alternative to the required
hearing, stating that a court may enter a decree of legal sepa-
ration without first holding a hearing if (1) 60 or more days
have passed since perfection of service of process and (2)
both parties
(a) . . . waive the requirement of the hearing and the
court has sufficient basis to make a finding that it has
subject matter jurisdiction over the legal separation pro-
ceeding and personal jurisdiction over both parties; and
(b) . . . have certified in writing that they shall
thereafter live separate and apart [and] that they have
made every reasonable effort to effect reconciliation[;]
all documents required by the court and by statute have
been filed[;] and the parties have entered into a written
agreement, signed by both parties under oath, resolving
all 	issues 	presented 	by 	the 	pleadings 	in 	their 	legal
separation proceeding.
(Emphasis supplied.)
We have analyzed similar requirements in the context of a
dissolution proceeding. Section § 42-361 concerns a court’s
findings before entering a decree of dissolution and provides
the same requirements and alternative to the required hear-
ing as § 42-361.01, aside from requiring parties’ affirmation
or written certification that “the[ir] marriage is irretrievably
broken” instead of that “they will thereafter live separate and
apart.” 11 Before the Legislature added a written certification
alternative to § 42-361, 12 we held it was reversible error for
the court to enter a decree of dissolution without a hearing
11 See, § 42-361(1),(2), and (3)(b); § 42-361.01(1),(2), and (3)(b).
12 See 2011 Neb. Laws, L.B. 669.

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and solely based on the allegations in the pleadings that the
marriage was irretrievably broken. We have never indicated
such dissolution decrees were void ab initio and could there-
fore be collaterally attacked after the time for a direct appeal
from the dissolution decree had run.
In Wilson v. Wilson, 13 on direct appeal, we reversed a
decree of dissolution and remanded the cause after conclud-
ing that the district court erred by relying solely on the par-
ties’ sworn pleadings in finding that their marriage was irre-
trievably broken. Neither party appeared at the hearing on the
matter, no evidence was submitted, and “no oral testimony
was adduced, nor were any depositions introduced, in any of
the various forms permitted by statute, including affidavits
or written interrogatories.” 14 The parties did not submit a
sworn dissolution settlement agreement. The wife admitted
in her verified pleading that the marriage was irretrievably
broken but the husband did not. We said that to proceed with
a “‘trial’” on the petition and response alone, with the parties
absent and no evidence, “constitutes error on the part of the
trial court.” 15
In Brunges v. Brunges, 16 on direct appeal from a dissolution
decree, we reversed, and remanded for an evidentiary hearing
after concluding the district court erred by failing to hold a
sufficient hearing, relying instead solely on statements by the
parties in their pleadings asserting that the marriage was irre-
trievably broken. The district court based its determinations of
property division, child and spousal support, and child custody
on exhibits attached to the pleadings and the attorneys’ argu-
ments and oral representations of a stipulation between the
parties. No witnesses testified, and no documentary or deposi-
tion evidence was received.
13 Wilson v. Wilson, 238 Neb. 219, 469 N.W.2d 750 (1991).
14 Id. at 221, 469 N.W.2d at 752.
15 Id.
16 Brunges v. Brunges, 255 Neb. 837, 587 N.W.2d 554 (1998).

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We said the proceedings did not satisfy the requirements
of § 42-356(1), which, at that time, required a hearing to be
held. We said there was no “hearing” as defined by § 42-356,
describing a hearing held “‘in open court upon the oral testi-
mony of witnesses or upon the depositions of such witnesses
taken as in other actions.’” 17 Thus, the district court erred in
finding the marriage irretrievably broken without receiving
oral testimony or depositions, and the court’s determinations
as to the parties’ property settlement, alimony, child support,
visitation, and custody needed to be redetermined at the hear-
ing on remand. 18
After Wilson and Brunges, a written certification alternative
was added to § 42-361. Subsequently, in Kibler v. Kibler, 19
we affirmed the district court’s denial of a motion to vacate
a decree of dissolution that was alleged to have violated the
requirements of § 42-361. The parties admitted in their plead-
ings that their marriage was irretrievably broken, and, before
a trial was held, they reached a settlement agreement, which
was memorialized by the wife’s counsel in a draft decree of
dissolution. 20 The wife refused to sign and submit the draft
decree to the district court, so the husband filed a motion to
compel. 21 The evidence at the hearing showed that the wife
did not want to sign the draft decree until after she received
her property from the marital home. 22 The court signed and
entered a copy of the draft decree that was unsigned by both
parties, and neither party filed a direct appeal. 23 Later, the
wife moved in district court to vacate the decree, arguing
that the court lacked the authority to enter the decree because
17 Id. at 844, 587 N.W.2d at 558 (quoting § 42-356).
18 Id.
19 Kibler v. Kibler, 287 Neb. 1027, 845 N.W.2d 585 (2014).
20 Id.
21 Id.
22 Id.
23 Id.

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there was not a judicial finding or written stipulation between
the parties that the marriage was irretrievably broken as
required by § 42-361. The court overruled the wife’s motion
to vacate, and she appealed.
We stated that although the wife did not sign the decree,
it was drafted by her attorney, and, at the hearing, neither
the wife nor her attorney indicated she had changed her
mind about the settlement. 24 Noting that the parties’ pleadings
admitted that the marriage was irretrievably broken, we cited
our holdings in Wilson and Brunges that pleadings alone are
insufficient for the court to make a finding that a marriage is
irretrievably broken. 25 We observed that the district court was
not relying on the pleadings alone. 26
We also noted that the wife could have appealed the decree
and did not, so the divorce had since become final. 27 Though
the court had the power to vacate because it was still dur-
ing the term in which the judgment was rendered, 28 we held
that the interests of justice did not support vacating the decree
and concluded that the district court did not abuse its discre-
tion in overruling the wife’s motion. 29
[5] In line with our decision in Kibler, we hold that the
written certification described in § 42-361.01 is not a juris-
dictional requirement that, if not met, would prevent a court
from having subject matter jurisdiction over separation pro-
ceedings held without an evidentiary hearing. We find unavail-
ing Joshua’s attempts to analogize the certification under
§ 42-361.01 to the required statutory 60-day waiting period
for dissolution in § 42-363. Section 42-363 provides that
“[n]o suit for divorce shall be heard or tried until sixty days
24 Id.
25 Id.
26 Id.
27 Id.
28 See Neb. Rev. Stat. § 25-2001 (Reissue 2016).
29 Kibler v. Kibler, supra note 19.

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after perfection of service of process, at which time the suit
may be heard or tried and a decree may be entered.” We have
held that this 60-day waiting period for obtaining a divorce
is a jurisdictional requirement such that a decree entered pre-
maturely is null and void and either party may raise the juris-
dictional defect at any time. 30 But the language of § 42-363
is meaningfully different from the language of § 42-361
addressed in Kibler, and it is likewise meaningfully different
from the language of § 42-361.01(3)(b).
[6,7] We apply the doctrine of void ab initio sparingly, 31
and it is critical to differentiate between a judgment entered
without jurisdiction and an erroneous judgment that may nev-
ertheless be enforceable. 32 A lack of subject matter jurisdiction
differs from an erroneous exercise of jurisdiction. 33
“‘[T]here is a wide difference between a want of juris-
diction, in which case the court has no power to adju-
dicate at all, and a mistake in the exercise of undoubted
jurisdiction, in which case the action of the trial court is
not void although it may be subject to direct attack on
appeal. . . .’” 34
This is not one of the limited scenarios where the void ab
initio doctrine applies. The district court had the power to
enter the Separation Decree that incorporated the terms of the
LSSA, and it is not void.
Finality and Preclusion
[8] 	The 	Separation 	Decree 	was 	not 	timely 	appealed.
We lack jurisdiction over the merits of a final, appealable
30 See Wymore v. Wymore, 239 Neb. 940, 479 N.W.2d 778 (1992) (citing
Garrett v. State, 118 Neb. 373, 224 N.W. 860 (1929)).
31 See State v. Bartel, 308 Neb. 169, 953 N.W.2d 224 (2021).
32 Parish v. Parish, 314 Neb. 370, 991 N.W.2d 1 (2023).
33 Id.
34 Id. at 379, 991 N.W.2d at 8 (quoting Foster v. Foster, 509 Mich. 109, 983
N.W.2d 373 (2022)).

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order that was not timely appealed. 35 Under Neb. Rev. Stat.
§ 25-1931 (Reissue 2016), proceedings for reversing, vacat-
ing, or modifying judgments or final orders shall be com-
menced within 30 days after the making of the final order
complained of.
[9,10] When a judgment or final, appealable order is attacked
in a way other than by a proceeding in the original action to
have it vacated, reversed, or modified, or by a proceeding in
equity to prevent its enforcement, the attack is a collateral
attack. 36 Absent an explicit statutory or common-law procedure
permitting otherwise, a judgment or final, appealable order
may be collaterally attacked only when void ab initio. 37
[11] We find that Joshua’s appeal of the property, custody,
and support provisions that were set forth in the Separation
Decree and reiterated in the Operative Dissolution Decree is
an impermissible collateral attack. Apposite to the case at bar
is Dahlheimer v. Dahlheimer. 38 Therein, the Nebraska Court
of Appeals held that although a party may seek modification
of the terms set forth in a legal separation decree as provided
by statute upon a showing of a material change of circum-
stances, an aggrieved party must duly file a notice of appeal
within 30 days of entry of the decree to challenge as uncon-
scionable any order of custody, support, and property division
set forth therein. Proceedings to modify the separation decree
to a dissolution decree do not reopen the terms of property
division, child custody and support, and alimony set forth in
the separation decree that was not timely appealed.
The separation decree in Dahlheimer included an award of
child custody, property division, child support, and alimony.
35 See, e.g., Seid v. Seid, 310 Neb. 626, 967 N.W.2d 253 (2021); Tilson v.
Tilson, 299 Neb. 64, 907 N.W.2d 31 (2018); State v. Jacques, 253 Neb.
247, 570 N.W.2d 331 (1997).
36 See Becher v. Becher, 311 Neb. 1, 970 N.W.2d 472 (2022).
37 See id. See, also, Parish v. Parish, supra note 32; State v. Jones, 318 Neb.
840, 19 N.W.3d 499 (2025); Seid v. Seid, supra note 35.
38 Dahlheimer v. Dahlheimer, 5 Neb. App. 222, 557 N.W.2d 719 (1996).

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The husband did not timely appeal the decree or file any
other action to have the decree set aside. Approximately 1½
years later, the wife filed an application to modify the separa-
tion decree to a dissolution decree. The husband responded
by alleging that several provisions of the separation decree,
including the division of property and the child support order,
were unconscionable and should be modified, noting, among
other things, that he was not represented by counsel at the
time the separation decree was entered.
[12] The Court of Appeals held that the district court erred
in the dissolution proceedings by changing the child custody
and property division terms of the separation decree “as if the
proceeding was one for dissolution rather than one for modi-
fication of the legal separation decree” 39 and when there was
no evidence of any material change of circumstances from the
time of the separation decree. The Court of Appeals explained
that a decree of legal separation is a final, appealable order. 40
And, by statute, the court in entering a separation decree may
provide for final orders concerning the custody and support of
minor children, the support of either party, and the settlement
of property rights. Such final orders, reasoned the court, cannot
be collaterally attacked or undone through the later modifica-
tion of the separation decree to a dissolution decree. 41
The Court of Appeals distinguished the facts before it from
those addressed in Pendleton v. Pendleton, 42 wherein we held
that principles of res judicata did not bar the court from divid-
ing, in a dissolution proceeding, property that had accrued
after the entry of the separation decree and that had not been
distributed in the separation proceeding. The Court of Appeals
39 Id. at 229, 557 N.W.2d at 724.
40 See id. See, also, Anderson v. Anderson, 222 Neb. 212, 382 N.W.2d 620
(1986).
41 See id.
42 Pendleton v. Pendleton, 242 Neb. 675, 496 N.W.2d 499 (1993). See, also,
Connolly v. Connolly, supra note 2.

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also relied on our statement in Anderson v. Anderson 43 that
“‘we apply to this decree of legal separation the same stan-
dards as are applied for reviewing property divisions and ali-
mony awards in decrees of dissolution.’” 44
We agree with the Court of Appeals’ analysis in Dahlheimer.
Section 42-351(1) provides the district court with jurisdiction
in proceedings, including in legal separation, to render judg-
ment and make orders “both temporary and final” concerning,
among other things, child custody and support, spousal sup-
port, and property settlement. 45 Section 42-364.17 requires
that the court, in “[a] decree of dissolution, legal separa-
tion, or order establishing paternity shall incorporate financial
arrangements for each party’s responsibility for reasonable
and necessary medical, dental, and eye care, medical reim-
bursements, day care, extracurricular activity, education, and
other extraordinary expenses of the child and calculation of
child support obligations.”
Section 42-366(1) states that in either legal separation
or dissolution of marriage, the parties may enter into writ-
ten settlement agreements containing provisions for property
disposition, maintenance of either party, and support and cus-
tody of minor children. Under § 42-366(2), such agreements,
except for terms for support and custody of minor children,
are binding on the court considering them unless it finds the
agreement unconscionable.
In the absence of such a finding of unconscionability, the
terms of the settlement agreement “may be set forth in the
decree of dissolution or legal separation and the parties shall
be ordered to perform them” 46 and the terms of the agree-
ment set forth in the separation or dissolution decree “may be
43 Anderson v. Anderson, supra note 40.
44 Dahlheimer v. Dahlheimer, supra note 38, 5 Neb. App. at 225, 557 N.W.2d
at 722 (quoting Anderson v. Anderson, supra note 40).
45 See, also, §§ 42-357 and 42-368.
46 § 42-366(4).

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enforced by all remedies available for the enforcement of a
judgment, including contempt.” 47
We have recognized in the dissolution context that once
a court adopts a property settlement agreement and sets it
forth as a judgment of the court, or incorporates it into a
dissolution decree, “the contractual character of the . . .
agreement is subsumed into the court-ordered judgment.” 48
Under our reasoning in Anderson that “we apply to [a]
decree of legal separation the same standards as are applied
for . . . decrees of dissolution,” 49 a settlement agreement
that is incorporated into a separation decree is likewise sub-
sumed into the order.
In applying § 42-366, we have generally held that if the
terms of a property settlement agreement with respect to real
and personal property and maintenance are not found uncon-
scionable, the agreement is binding upon the court and the
initial decree must carry such agreement into effect. 50
Section 42-364 refers to “an action under Chapter 42 involv-
ing child support, child custody, parenting time, visitation, or
other access,” which includes both separation proceedings
and dissolution proceedings. It sets forth requirements for
such determinations and also states that modification of said
custody or support “shall be commenced by filing a complaint
to modify.” 51
[13] Considering all applicable statutory provisions in pari
materia, it is clear that once the court in a separation pro-
ceeding accepts the terms of a settlement agreement and
47 § 42-366(5).
48 See Rice v. Webb, 287 Neb. 712, 723, 844 N.W.2d 290, 298 (2014). See,
also, Gomez v. Gomez, 303 Neb. 539, 930 N.W.2d 515 (2019); Ryder v.
Ryder, 290 Neb. 648, 861 N.W.2d 449 (2015).
49 Anderson v. Anderson, supra note 40, 222 Neb. at 212, 382 N.W.2d at 621.
50 See Windham v. Kroll, 307 Neb. 947, 951 N.W.2d 744 (2020) (citing
Reinsch v. Reinsch, 259 Neb. 564, 611 N.W.2d 86 (2000)). See, also,
Ryder v. Ryder, supra note 48.
51 § 42-364(6). See, also, § 42-368.

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incorporates them into the decree, ordering the parties to per-
form them, those terms become final after the time to appeal
under § 25-1931 has passed. They cannot thereafter be col-
laterally attacked.
[14-16] The terms of a settlement agreement subsumed into
a separation decree that was not timely appealed cannot be
changed except through the procedures to modify as set forth
by statute, through a timely motion to vacate under § 25-2001,
or under the court’s inherent power to vacate or modify its
own judgments during the term at which those judgments are
pronounced. 52 Thus, where parties to a separation proceed-
ing voluntarily execute a property settlement agreement that
is approved by the court and incorporated into a separation
decree from which no appeal is taken, its provisions as to
real and personal property and maintenance will not thereaf-
ter be vacated or modified in the absence of fraud or gross
inequity, 53 and its provisions relating to child custody, visita-
tion, and support may be modified only upon a showing of a
material change in circumstances affecting the best interests
of the child. 54 In rendering a dissolution decree, a court is not,
however, prevented from making orders respecting matters of
custody, support, and property, which were not decided in the
prior separation decree. 55
[17-19] This is consistent with the principles of issue
preclusion. Issue preclusion bars the relitigation of a finally
determined issue that a party had a prior opportunity to fully
and fairly litigate. 56 Issue preclusion applies where (1) an
52 See Kibler v. Kibler, supra note 19.
53 See, Carlson v. Carlson, 299 Neb. 526, 909 N.W.2d 351 (2018) (citing
Ryder v. Ryder, supra note 48). See, also, Rice v. Webb, supra note 48.
54 See Windham v. Kroll, supra note 50 (citing Tilson v. Tilson, supra note
35, and State on behalf of Fernando L. v. Rogelio L., 299 Neb. 329, 907
N.W.2d 920 (2018)).
55 See, id.; Connolly v. Connolly, supra note 2; Pendleton v. Pendleton, supra
note 42.
56 Hara v. Reichert, supra note 3.

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identical issue was decided in a prior action, (2) the prior
action resulted in a final judgment on the merits, (3) the party
against whom the doctrine is to be applied was a party or
was in privity with a party to the prior action, and (4) there
was an opportunity to fully and fairly litigate the issue in the
prior action. 57 Issue preclusion applies only to issues actu-
ally litigated. 58
Joshua correctly asserts that issue preclusion from the
Separation Decree applies in this case. During Joshua and
Kristine’s legal separation proceedings, the district court
found that the LSSA was not unconscionable and subse-
quently incorporated its terms into the Separation Decree,
ordering Joshua and Kristine to adhere to them. Joshua did
not move to modify for a material change of circumstances
or on the grounds of fraud or gross inequity. Nor did he file
a motion to vacate under § 25-2001 or under the court’s
inherent power to vacate or modify its own judgments dur-
ing the term at which those judgments were pronounced.
Joshua also does not argue on appeal that fraud or gross
inequity or a material change in circumstances affecting
the children’s best interests warranted modification of the
Separation Decree’s terms.
The terms of the LSSA that were incorporated into the
Separation Decree had a preclusive effect on the Operative
Dissolution Decree. That preclusive effect included the district
court’s explicit determination that the provisions of the LSSA
were not unconscionable.
Joshua is mistaken that the Operative Dissolution Decree
violated the doctrine of issue preclusion. This is because
the custody, support, and property division set forth in the
Separation Decree were not relitigated in the dissolution pro-
ceedings. The court’s act of restating the Separation Decree’s
57 Id.
58 Id.

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terms in the dissolution decree did not equate to it relitigating
those issues for purposes of issue preclusion.
As Joshua points out, the Operative Dissolution Decree has
“virtually identical” provisions to the Separation Decree. 59 The
only exception as pertains to the matters at issue is the modi-
fication of the equalization payment to account for the previ-
ously undisclosed retirement account. As discussed, it was
permissible for the court to address a matter not decided under
the Separation Decree.
Although the district court determined it did not need
to decide whether the Separation Decree was enforceable,
the court, in an abundance of caution, found that all of the
settlement agreements were “valid and resolve[d] all issues
regarding child custody, child support, alimony, and the divi-
sion of assets and debts,” which in effect honored the terms
of the LSSA that were incorporated into the Separation
Decree. Though unnecessary, the court’s additional review
of the LSSA’s conscionability could only have benefited
Joshua, who would have otherwise needed to overcome the
burdens of showing fraud or gross inequity 60 or a mate-
rial change in circumstances affecting his children’s best
interests 61 to undo the terms incorporated into the decree.
Ultimately, it appears that the district court in the Operative
Dissolution Decree simply restated the previously ordered
terms in the Separation Decree for ease of reference. It then
added the matters not decided in the Separation Decree,
which included restoring Kristine’s maiden name and incor-
porating the Modification Agreement’s change to Kristine’s
59 See brief for appellant at 22, 23, and 34.
60 See Carlson v. Carlson, supra note 53 (citing Ryder v. Ryder, supra note
48). See, also, Rice v. Webb, supra note 48.
61 See Windham v. Kroll, supra note 50 (citing Tilson v. Tilson, supra note
35, and State on behalf of Fernando L. v. Rogelio L., supra note 54).

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equalization payment. In so doing, the district court did not
violate the principles of issue preclusion.
Unconscionability of
Modification Agreement
The only matter pertaining to property division, child cus-
tody and support, and alimony that is properly before us in
this appeal is the modification of the equalization payment
incorporated into the Operative Dissolution Decree—assum-
ing without deciding that Joshua specifically assigned and
argued this issue on appeal. We find that the court did not
abuse its discretion in determining that the equalization pay-
ment pursuant to the Modification Agreement was not uncon-
scionable. The Modification Agreement pertained solely to
increasing Kristine’s payment to compensate for Joshua’s
undisclosed retirement account. Joshua testified that he vol-
untarily contacted Kristine to inform her of the undisclosed
account upon its discovery because he “felt like [it] was the
right thing to do” and still hoped to reunify with her. He also
testified that he had thought Kristine should share in that
marital asset and agreed to increase her equalization payment.
In the Modification Agreement, Joshua affirmed that he (1)
had voluntarily entered into the agreement “with full knowl-
edge of the facts” and “full[y] inform[ed] as to [his] legal
rights and liabilities” and (2) believed that the agreement was
“reasonable under the circumstances.”
Joshua’s arguments on appeal pointing to the alleged mis-
representations by Kristine’s counsel in the affidavit, which
incorrectly stated 60 days had passed in relation to the First
Dissolution Decree, are not particularly relevant to our analysis
of whether the agreement to modify the equalization payment
was unconscionable. And the admission of exhibits 19 and 20
has no bearing on any of the issues properly before us. We
find the court did not abuse its discretion in determining the
Modification Agreement was not unconscionable and incorpo-
rating it into the Operative Dissolution Decree.

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CONCLUSION
We conclude that the Separation Decree is not void and
that the Operative Dissolution Decree is a valid decree that
effectively reiterated the terms of Joshua and Kristine’s first
settlement agreement, which had been incorporated into the
Separation Decree. Further, the district court did not abuse
its discretion by approving as conscionable and incorporat-
ing into the Operative Dissolution Decree the Modification
Agreement’s equalization provision that accounted for the
undisclosed retirement account. Thus, we affirm the judgment
of the district court.
Affirmed.