Marcovitz v. Rogers

overruling Gresham’s motions for mistrial based on the prosecu-
tor’s statements in closing and on the jury’s initial impasse with
regard to the verdicts on two of the charges. We therefore affirm
Gresham’s convictions.
A ffirmed .
michAel howArd mArcovitz , now known As AAron chAim
mArcovitz , Appellee , v . mAry pAtriciA rogers , now
known As mAry pAtriciA rogers -fArkAs , AppellAnt .
AAron chAim mArcovitz , Appellee , v .
mAry pAtriciA rogers -fArkAs , AppellAnt .
752 N.W.2d 605
Filed July 25, 2008. 	Nos. S-06-800, S-07-414.
1. Summary Judgment. Summary judgment is proper when the pleadings and evi-
dence admitted at the hearing disclose no genuine issue regarding any material fact
or 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 the 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. Modification of Decree: Alimony: Good Cause: Words and Phrases. Good
cause for modifying or revoking an alimony order means a material and substantial
change in circumstances and depends upon the circumstances of each case.
4. Modification of Decree: Alimony: Good Cause. Good cause is demonstrated
by a material change in circumstances, but any changes in circumstances which
were within the contemplation of the parties at the time of the decree, or that were
accomplished by the mere passage of time, do not justify a change or modification
of an alimony order.
5. Divorce: Property Settlement Agreements: Modification of Decree. The par-
ties to a marriage may enter into a written settlement agreement to settle disputes
attendant upon separation of their marriage, including a dispute over modification
of a previous decree.
6. ____: ____: ____. Where a party to a divorce action, represented by counsel, vol-
untarily executes a property settlement agreement which is approved by the court
and incorporated into a divorce decree, it will not thereafter be vacated or modified
as to such provisions, in the absence of fraud or gross inequity.
7. Property Settlement Agreements. Pursuant to Neb. Rev. Stat. § 42-366 (Reissue
2004), the court has an independent duty to evaluate the terms of an agreement and
ensure that they are not unconscionable before incorporating them into a decree.
maRcovITz v. RoGeRS 	199
cite as 276 Neb. 199
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:53 AM CST

8. Promissory Notes: Words and Phrases. a promissory note is an unconditional
written promise, signed by the maker, to pay absolutely and in any event a certain
sum of money either to, or to the order of, the bearer or a designated person.
9. Actions: Promissory Notes: Reformation. While an action on a promissory note
is an action at law, reformation of a promissory note sounds in equity.
10. Equity: Courts. a court of equity will look to the substance of a transaction,
rather than give heed to the mere form it may assume.
Petitions for further review from the court of appeals,
cArlson , sievers, and moore, Judges, on appeal thereto from
the District courts for Dodge and Douglas counties, dArvid
d. Q uist and J russell derr, Judges. Judgment of court
of appeals in No. S-06-800 affirmed. Judgment of court of
appeals in No. S-07-414 reversed, and cause remanded with
directions.
edmond e. Talbot III, of Talbot & Truhlsen Law offices,
L.L.P., for appellant.
Peter c. Wegman, of Rembolt Ludtke, L.L.P., for appellee.
heAvicAn, 	c.J., 	wright, 	connolly, 	gerrArd, 	stephAn,
mccormAck, and miller -lermAn, JJ.
gerrArd, J.
The issue presented in these appeals is whether aaron chaim
marcovitz, formerly known as michael Howard marcovitz, can
enforce an acceleration clause contained in a “promissory note”
signed by his former wife, mary Patricia Rogers-Farkas, for-
merly known as mary Patricia Rogers (Rogers-Farkas). We con-
clude that the acceleration clause is unenforceable, because it is
inconsistent with the parties’ modified decree of dissolution.
BackGRouND
The parties to these consolidated appeals have been to this
court before. as relevant, in Marcovitz v. Rogers,1 we affirmed
the decree of dissolution entered by the Dodge county District
court, but modified it, ordering Rogers-Farkas to pay alimony
of $2,000 per month for 10 years, to terminate upon marcovitz’
remarriage or the death of either party.
1 Marcovitz v. Rogers, 267 Neb. 456, 675 N.W.2d 132 (2004).
200 	276 NeBRaSka RePoRTS

as a result of the alimony award, marcovitz obtained an ali-
mony lien on the former marital residence. Rogers-Farkas was
trying to sell the residence and asked marcovitz to release the
alimony lien. marcovitz only agreed to do so in august 2005, in
exchange for a “promissory note” in the amount of $174,000—
approximately the total amount remaining on the alimony award.
Rogers-Farkas agreed and signed the note.
Because the provisions of the note are the subject of this appeal,
we describe them in some detail. In the note, Rogers-Farkas
promised to pay marcovitz “the principal sum of one Hundred
and Seventy-four Thousand Dollars ($174,000[.]00),” plus inter-
est. The note required repayment as follows:
Principal and interest shall be payable at the Nebraska
child Support Payment center, or such other place as
the Note holder may designate, in consecutive monthly
installments of Two Thousand Dollars ($2,000.00), on the
1st day of each month beginning September 1, 2005. Such
monthly installments shall continue until the entire indebt-
edness evidenced by this Note is fully paid, except that any
remaining indebtedness[,] if not sooner paid, shall be due
and payable on November 30, 2012[.] The indebtedness is
pursuant to an Order of Spousal Support entered by the
District Court of Dodge County[.]
If any monthly installment under this Note is not paid
when due and remains unpaid after said due date, the entire
principal amount outstanding and accrued interest thereon
shall at once become due and payable at the option of the
Note holder[.]
(emphasis supplied.) and the note did not provide for termina-
tion of the obligation upon marcovitz’ remarriage.
alleging that Rogers-Farkas had missed some payments,
marcovitz invoked the acceleration clause and filed an action
on the note in Douglas county District court, for $174,000 plus
interest. Rogers-Farkas answered, alleging duress as an affirma-
tive defense and asserting a counterclaim seeking reformation
of the note to remove the acceleration clause. marcovitz filed a
motion for summary judgment, which the court granted, enter-
ing judgment for marcovitz in the amount of $174,000, less any
payments already received.
maRcovITz v. RoGeRS 	201
cite as 276 Neb. 199

a little over a month later, marcovitz remarried. marcovitz
sought garnishment in aid of execution on the judgment, and
Rogers-Farkas moved to vacate the judgment, arguing in part
that marcovitz’ remarriage was supposed to terminate alimony.
The court overruled Rogers-Farkas’ motion and granted sum-
mary judgment against Rogers-Farkas’ counterclaim.
Rogers-Farkas appealed, but the Nebraska court of appeals
concluded, in a memorandum opinion, that the promissory note
was enforceable.2 The court of appeals found no evidence
of duress, noting that marcovitz’ demands had been lawful
and that he had provided adequate consideration for the note.
and the court of appeals found no fraud or inequitable con-
duct supporting reformation, or a mutual or unilateral mistake.
The court of appeals did not discuss Rogers-Farkas’ argument
that the award should have been vacated or the note reformed
because it conflicted with the decree of dissolution. The court
of appeals affirmed the district court’s judgment. We granted
Rogers-Farkas’ petition for further review and ordered the case
to be submitted without argument.3
aSSIGNmeNTS oF eRRoR
Rogers-Farkas assigns, consolidated and restated, that the
court of appeals erred in (1) concluding that the note was not
the result of duress, (2) not finding evidence of mutual or unilat-
eral mistake warranting reformation of the note, (3) not finding
that summary judgment was precluded by Rogers-Farkas’ coun-
terclaim for fraud and reformation, and (4) not finding that the
note was controlled by the decree of dissolution.
The action on the note, in Douglas county District court,
is on appeal in case No. S-07-414. Rogers-Farkas also assigns
error to issues unrelated to the note, which were presented
to the court of appeals in a consolidated appeal, case No.
S-06-800. But Rogers-Farkas did not argue those issues in her
2 Marcovitz v. Rogers, Nos. a-06-800, a-07-414, 2008 WL 373168 (Neb.
app. Feb. 12, 2008) (selected for posting to court Web site).
3 See Neb. ct. R. app. P. § 2-111(B)(1).
202 	276 NeBRaSka RePoRTS

memorandum brief, and we do not consider them.4 Because
none of Rogers-Farkas’ assigned and argued errors relate to case
No. S-06-800, the judgment in that case will be affirmed.
STaNDaRD oF RevIeW
[1,2] Summary judgment is proper when the pleadings and
evidence admitted at the hearing disclose no genuine issue
regarding any material fact or the ultimate inferences that may
be drawn from those facts and that the moving party is entitled
to judgment as a matter of law.5 In reviewing a summary judg-
ment, an appellate court views the evidence in the light most
favorable to the party against whom the judgment is granted and
gives such party the benefit of all reasonable inferences deduc-
ible from the evidence.6
aNaLYSIS
We begin with Rogers-Farkas’ argument that the note is
unenforceable to the extent it conflicts with the decree of dis-
solution, because we find that argument to be dispositive of
this appeal.
[3,4] When dissolution of a marriage is decreed, the court
may order payment of such alimony by one party to the other
and division of property as may be reasonable.7 If one party
wants to modify an alimony award, a proceeding to modify or
revoke an order for alimony for good cause shall be commenced
by filing a complaint to modify.8 Good cause for modifying or
revoking an alimony order means a material and substantial
change in circumstances and depends upon the circumstances
of each case.9 Good cause is demonstrated by a material change
in circumstances, but any changes in circumstances which were
within the contemplation of the parties at the time of the decree,
4 See, Neb. ct. R. app. P. § 2-102(G); US Ecology v. Boyd Cty. Bd. of Equal.,
256 Neb. 7, 588 N.W.2d 575 (1999).
5 County of Hitchcock v. Barger, 275 Neb. 872, 750 N.W.2d 357 (2008).
6 Id.
7 Neb. Rev. Stat. § 42-365 (Reissue 2004).
8 See id.
9 Finney v. Finney, 273 Neb. 436, 730 N.W.2d 351 (2007).
maRcovITz v. RoGeRS 	203
cite as 276 Neb. 199

or that were accomplished by the mere passage of time, do not
justify a change or modification of an alimony order.10
[5-7] The parties to a marriage may enter into a written
settlement agreement to settle disputes attendant upon separa-
tion of their marriage, including a dispute over modification of
a previous decree.11 Where a party to a divorce action, repre-
sented by counsel, voluntarily executes a property settlement
agreement which is approved by the court and incorporated into
a divorce decree, it will not thereafter be vacated or modified
as to such provisions, in the absence of fraud or gross ineq-
uity.12 But the key to that proposition is that the agreement be
“approved by the court.” Pursuant to § 42-366, the court has
an independent duty to evaluate the terms of an agreement and
ensure that they are not unconscionable before incorporating
them into a decree.
[8] The error committed by the trial court and court of appeals
in this case was treating the “promissory note” as if it was sim-
ply part of a contractual arrangement between the parties. a
promissory note is “[a]n unconditional written promise, signed
by the maker, to pay absolutely and in any event a certain sum
of money either to, or to the order of, the bearer or a designated
person.”13 While that literal definition may have been met, the
only debt that Rogers-Farkas promised to pay was the alimony
obligation that she already owed. Rogers-Farkas simply prom-
ised to pay what she was to pay under the decree, in the manner
generally required for making alimony payments—except that,
according to marcovitz, the alimony could be accelerated and no
longer terminated on marcovitz’ remarriage.
The note, however, was absolutely clear that the underlying
obligation was found in the decree of dissolution: the “order of
Spousal Support entered by the District court of Dodge county.”
The intent and effect of the note were not to create a debt, but,
10 Pope v. Pope, 251 Neb. 773, 559 N.W.2d 192 (1997).
11 See, Neb. Rev. Stat. § 42-366 (Reissue 2004); Bevins v. Gettman, 13 Neb.
app. 555, 697 N.W.2d 698 (2005).
12 See Hoshor v. Hoshor, 254 Neb. 743, 580 N.W.2d 516 (1998).
13 Black’s Law Dictionary 1089 (8th ed. 2004).
204 	276 NeBRaSka RePoRTS

instead, to modify the terms of the preexisting obligation created
by the decree—without the approval of the court.
[9,10] While an action on a promissory note is an action at
law,14 reformation sounds in equity.15 and a court of equity will
look to the substance of a transaction, rather than give heed to
the mere form it may assume.16 In this case, while the form of
the transaction was a promissory note, the substance of it was an
impermissible attempt to modify a decree of dissolution without
the approval of the court, and without satisfying the statutory
requirements for such a modification.
In the absence of a valid modification of the decree, the
terms for payment of Rogers-Farkas’ alimony obligation—the
indebtedness that is the basis for the purported note—are still
contained in the decree, not the note. To the extent that the note
purports to modify the terms of Rogers-Farkas’ alimony obliga-
tion in a manner that conflicts with the decree, the decree con-
trols instead of the note. The acceleration clause, in particular,
would have been of dubious validity even had it been ordered
by the court.17 But it was not, and it is clearly unenforceable.
The district court, and court of appeals, erred in conclud-
ing otherwise.
We note the suggestion in the record that marcovitz has
remarried and Rogers-Farkas’ belief that her alimony obligation
should be terminated as a result. That issue is not before us. The
appeal in case No. S-06-800 was taken from the Dodge county
District court before any request to terminate alimony was made,
and the appeal in case No. S-07-414 is from marcovitz’ attempt
in Douglas county District court to collect on the note. Thus,
although our reasoning with respect to the acceleration clause
may be relevant to Rogers-Farkas’ argument about remarriage,
in these appeals, we do not directly reach the issue presented by
marcovitz’ remarriage.
14 See Schuelke v. Wilson, 255 Neb. 726, 587 N.W.2d 369 (1998).
15 See CAE Vanguard, Inc. v. Newman, 246 Neb. 334, 518 N.W.2d 652
(1994).
16 Mackiewicz v. J.J. & Associates, 245 Neb. 568, 514 N.W.2d 613 (1994).
17 cf. Gibson v. Gibson, 147 Neb. 991, 26 N.W.2d 6 (1947).
maRcovITz v. RoGeRS 	205
cite as 276 Neb. 199

coNcLuSIoN
as previously noted, the judgment in case No. S-06-800 is
affirmed. The judgment in case No. S-07-414 is reversed, and
the cause is remanded to the court of appeals with directions to
reverse the judgment of the district court.
J udgment in no . s-06-800 Affirmed .
J udgment in no . s-07-414 reversed , And
cAuse remAnded with directions .
Jennie l. young And thomAs J. young, wife
And husbAnd, Appellees, v. midwest fAmily
mutuAl insurAnce compAny, AppellAnt.
753 N.W.2d 778
Filed July 25, 2008. 	No. S-07-364.
1. Attorney Fees: Appeal and Error. a trial court’s decision awarding or denying
attorney fees will be upheld on appeal absent an abuse of discretion.
2. ____: ____. When an attorney fee is authorized, the amount of the fee is addressed
to the discretion of the trial court, whose ruling will not be disturbed on appeal in
the absence of an abuse of discretion.
3. Statutes. Statutory interpretation presents a question of law.
4. Judgments: Appeal and Error. When reviewing questions of law, an appellate
court has an obligation to resolve the questions independently of the conclusion
reached by the trial court.
5. Attorney Fees. as a general rule, attorney fees and expenses may be recovered
in a civil action only where provided for by statute or when a recognized and
accepted uniform course of procedure has been to allow recovery of attor-
ney fees.
6. Actions: Insurance: Attorney Fees. a successful pro se litigant in an action on
an insurance policy is not entitled to recover an attorney fee under Neb. Rev. Stat.
§ 44-359 (Reissue 2004), even if the pro se litigant is a licensed attorney.
7. Attorney Fees. To determine proper and reasonable attorney fees under Neb. Rev.
Stat. § 44-359 (Reissue 2004), it is necessary for the court to consider the nature
of the litigation, the time and labor required, the novelty and difficulty of the
questions raised, the skill required to properly conduct the case, the responsibil-
ity assumed, the care and diligence exhibited, the result of the suit, the character
and standing of the attorney, and the customary charges of the bar for simi-
lar services.
8. Insurance: Attorney Fees. an attorney fee awarded under the provisions of Neb.
Rev. Stat. § 44-359 (Reissue 2004) must be solely and only for services actually
rendered in the preparation and trial of the litigation on the policy in question.
206 	276 NeBRaSka RePoRTS