                         IN THE NEBRASKA COURT OF APPEALS

               MEMORANDUM OPINION AND JUDGMENT ON APPEAL
                        (Memorandum Web Opinion)

                                        ARNDT V. ARNDT


  NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION
 AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).


                                  JAMES J. ARNDT, APPELLANT,
                                               V.

                                   JODI A. ARNDT, APPELLEE.


                              Filed May 30, 2017.    No. A-16-250.


       Appeal from the District Court for Adams County: STEPHEN R. ILLINGWORTH, Judge.
Affirmed.
       Andrea Finegan McChesney, of McChesney & Farrell Law, for appellant.
       No appearance for appellee.


       MOORE, Chief Judge, and PIRTLE and BISHOP, Judges.
       MOORE, Chief, Judge.
                                       INTRODUCTION
        James J. Arndt appeals from an order of the district court for Adams County in response to
his motion to determine the proper allocation and amount of child support due pursuant to the
parties’ decree of dissolution. On appeal, James argues that the court erred in determining that a
settlement of past due child support only covered support ordered in a second divorce action, not
support ordered in a previously dismissed divorce action involving the same parties. Because we
find no error, we affirm.




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                                          BACKGROUND
First Divorce Action and Temporary Order for Child Support.
        On March 30, 2007, Jodi A. Arndt filed a complaint for dissolution of marriage. On April
25, a temporary stipulated child support order was entered, establishing that James would pay the
sum of $530 per month in support, to commence May 1, 2007, on behalf of the parties’ minor
child. On May 13, 2010, the court dismissed this matter for lack of prosecution.
Second Divorce Action and Decree of Dissolution.
        On May 13, 2010, Jodi filed a new complaint for dissolution with the district court. On
November 19, a temporary child support order was filed, establishing that James would pay the
sum of $492 per month, to commence on May 1, 2010.
        On June 21, 2012, the court entered a decree of dissolution. Attached and incorporated into
the decree was a “child custody and property settlement agreement.” Pursuant to the settlement
agreement and decree, James was to pay $2,500 on or before August 21, 2012, as full settlement
of all child support and medical expenses owed through June 21. If James failed to pay this sum
by August 21, the decree provided that a judgment would be entered against him in the amount of
$6,496.15. The settlement agreement and decree further provided that the Nebraska Child Support
Payment Center “shall adjust their records to reflect that (James’) child support shall be deemed
satisfied in full with a zero balance as of June 30, 2012.” The settlement amount was paid shortly
after entry of the decree. The settlement agreement and decree required James to pay $405 per
month in child support commencing July 1, 2012.
Motion Regarding Child Support Arrearages and Order.
        On January 9, 2014, James filed a “motion regarding child support arrearages.” This
motion was prompted by the interception of James’ 2012 state and federal tax refunds by the
Nebraska Child Support Payment Center. James received correspondence indicating that the
intercepted funds were to be applied to child support arrearages arising from both the original
temporary support order, pursuant to the first divorce action, and support arising from the second
divorce action. James alleged that he was previously unaware that the payment center was still
collecting on both divorce cases.
        James asserts in his motion that the temporary support order in the first divorce was
erroneously accruing arrearage and the payment center was incorrectly applying child support
payments between the first and second divorce cases as a result. James claimed that the second
divorce case and resulting child support orders were meant to replace the temporary support order
from the first divorce case. He alleged it was the full intent of the parties, as expressly stated in the
dissolution decree and settlement agreement, that all child support arrearages, including those
arising from the original temporary support order, would be deemed satisfied.
        James sought a determination from the court that the settlement of past due child support
contained in the dissolution decree included all support previously ordered in both divorce cases.
He further requested an order directing the payment center to amend his child support payment
history to reflect a zero balance as of June 30, 2012.




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         A hearing on James’ motion was held on January 27, 2014. The only evidence received
were three exhibits, which included a payment history for the temporary child support order
pursuant to the first divorce action (beginning May 1, 2007), a payment history for child support
orders pursuant to the second divorce action (beginning May 1, 2010), and child support
enforcement correspondence from the Nebraska Department of Health and Human Services and
the United States Department of the Treasury.
         On February 27, 2014, the court entered its order overruling James’ motion. The court
concluded that “intent” to have the settlement payment result in a zero balance of support owed in
both the first and second divorce cannot be inferred from the language of the dissolution decree.
The court found that “[h]ad the parties intended to zero out both cases, that should have been
clearly set out in the Decree.” The court concluded that since the arrearage accrued in the first
divorce case was for child support, “it could not be extinguished without clear language to that
effect.”
Motion to Reconsider.
        On March 7, 2014, James filed a motion to reconsider the court’s order, asserting again
that the decree was intended to satisfy both child support orders. Attached to this motion was an
affidavit from James’ counsel at the time of the dissolution decree, asserting that the parties’
intended all child support arrearages to be deemed satisfied.
        In addition, James alleged in this motion that the court lacked jurisdiction to enter an order
regarding child support arrearages arising from the original temporary support order. James
claimed that after the first divorce case was dismissed, the issue of a child support arrearage was
not preserved, and the temporary support order ceased. Once the first case was dismissed, James
claimed there was nothing invoking the court’s jurisdiction over the parties regarding this prior
case.
        A final order was eventually entered on February 8, 2016 which effectively denied the
motion to reconsider. James subsequently perfected this appeal.
                                   ASSIGNMENTS OF ERROR
       James assigns, restated, that the district court erred in (1) finding the intent of the parties
did not include elimination of all child support arrearages despite the plain language of the
settlement agreement and decree and (2) failing to find it lacked jurisdiction over a previously
dismissed action between the parties.
                                    STANDARD OF REVIEW
       The meaning of a dissolution decree presents a question of law, in connection with which
an appellate court reaches a conclusion independent of the determination reached by the court
below. Rice v. Webb, 287 Neb. 712, 844 N.W.2d 290 (2014).
       The standard of review of an appellate court in child support cases is de novo on the record,
and the decision of the trial court will be affirmed in the absence of an abuse of discretion.
Anderson v. Anderson, 290 Neb. 530, 861 N.W.2d 113 (2015).




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                                            ANALYSIS
Intent of Parties.
         James argues that the district court failed to follow the unambiguous plain language of the
agreement and decree and the intent of the parties in denying his motion regarding child support
arrearages.
         James argues that the language of the decree, directing payment of $2,500 in full settlement
of all child support and adjustment by the payment center of their records to reflect a zero balance,
establishes that the parties intended all child support arrearages, including those arising from the
original temporary support order, were to be deemed satisfied in full.
         A decree is a judgment, and once a decree for dissolution becomes final, its meaning,
including the settlement agreement incorporated therein, is determined as a matter of law from the
four corners of the decree itself. Rice v. Webb, 287 Neb. 712, 844 N.W.2d 290 (2014).
         Ambiguity exists in a document when a word, phrase, or provision therein has, or is
susceptible of, at least two reasonable but conflicting interpretations or meanings. Rice v. Webb,
supra. If the contents of a dissolution decree are unambiguous, the decree is not subject to
interpretation and construction, and the intention of the parties must be determined from the
contents of the decree. Id. If the contents of a dissolution decree are unambiguous, the effect of the
decree must be declared in the light of the literal meaning of the language used. Id.
         Upon our de novo review, we conclude that the unambiguous terms of the settlement
agreement and decree do not reflect an intent by the parties to zero out child support arrearages in
both divorce cases. The provisions of the decree regarding James’ past due child support payments
and the settlement payment of $2,500 to satisfy past due support make no mention of the previous
divorce case or the temporary order of support entered in that case.
         Any intent by the parties to zero out child support arrearages arising from the original
temporary support order cannot be inferred from the content of the dissolution decree. A literal
reading of the decree only supports the elimination of child support arrearages arising in the second
divorce action in which the settlement agreement and decree were filed. As noted by the district
court, “[h]ad the parties intended to zero out both cases, that should have been clearly set out in
the Decree.” Further, as the court also concluded, since the arrearage which accrued in the first
divorce case was for child support, “it could not be extinguished without clear language to that
effect.” The district court did not abuse its discretion in declining to infer an intent in the decree
which is not contained in the express language of the settlement agreement and decree.
         James’ first assignment of error is without merit.
Enforceability of Original Temporary Child Support Order.
       James argues, alternatively, that the original temporary child support order ceased to exist
when the first divorce action was dismissed. He argues that the issue of child support in the first
divorce action was not preserved, and thus the district court lacked jurisdiction to take action
concerning the original temporary order.
       In support of his argument, James cites to the Nebraska Supreme Court opinion of
Schroeder v. Schroeder, 223 Neb. 684, 392 N.W.2d 787 (1986). In Schroeder, temporary orders,




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including restraining orders pertaining to property, were entered in the divorce action. Thereafter,
upon motion of the wife, the court dismissed the case without prejudice. The husband attempted
to vacate the dismissal, asserting that the wife had violated one of the temporary orders concerning
property. The district court denied the husband’s motion and the Supreme Court affirmed. The
Supreme Court held that “[o]nce the wife’s petition was dismissed, there was nothing invoking the
court’s jurisdiction over these parties. Consequently, the temporary orders perished at the moment
the wife’s suit ceased to exist.” Id. at 687. The court went on to note, however, that the husband’s
property rights were not permanently affected in the dismissed action and that should a second
divorce action be brought, the court with jurisdiction at that time would be able to address the
property matters.
        James claims that the present case parallels Schroeder, in that once the first divorce action
was dismissed, the temporary child support order perished. We disagree. The holding in Schroeder,
with its focus on the temporary orders affecting property, does not stand for the proposition that
temporary child support ordered before a case is dismissed is extinguished by its dismissal.
        Child support payments become a vested right of the payee in a dissolution action as they
accrue. Gress v. Gress, 257 Neb. 112, 596 N.W.2d 8 (1999). See, also, State on behalf of Kayla T.
v. Risinger, 273 Neb. 694, 731 N.W.2d 892 (2007); Dartmann v. Dartmann, 14 Neb. App. 864,
717 N.W.2d 519 (2006). A court may modify the amount of child support due in the future but
may not forgive or modify past-due child support. Gress v. Gress, supra. See, also, State ex rel.
L.L.B. v. Hill, 268 Neb. 355, 682 N.W.2d 709 (2004); Lucero v. Lucero, 16 Neb. App. 706, 750
N.W.2d 377 (2008) (such payments become vested in the payee as they accrue, and generally, the
courts are without authority to reduce the amounts of such accrued payments).
        An exception to the foregoing rule involves the doctrine of equitable estoppel. Truman v.
Truman, 256 Neb. 628, 591 N.W.2d 81 (1999). See, also, Trogdon v. Trogdon, 18 Neb. App. 313,
780 N.W.2d 45 (2010); Lucero v. Lucero, supra (the articulated exception to the vesting rule
concerns situations in which the payee is equitably estopped from collecting the accrued
payments). Alternatively, the district court may, on motion and satisfactory proof that a past-due
child support judgment has been paid or satisfied in whole or in part by the act of the parties
thereto, order it discharged and canceled of record, to the extent of the payment or satisfaction.
Berg v. Berg, 238 Neb. 527, 471 N.W.2d 435 (1991). See, also, Lucero v. Lucero, supra.
        Applying the foregoing principles, we conclude that the original temporary child support
order, and the arrearages arising from it, did not cease to exist upon dismissal of the first divorce
action. Rather, these temporary support obligations vested with Jodi as they accrued. The dismissal
did not amount to a forgiveness of the arrearages arising from the temporary order, nor was it
necessary for Jodi to take action to preserve the arrearages.
        James did not ask the district court to use the doctrine of equitable estoppel to forgive his
delinquent temporary child support obligation arising from the first divorce action. In fact, he
asserts that the district court would not have had jurisdiction to do so. Even had James attempted
to invoke the doctrine of equitable estoppel, the record does not support it. The exhibits received
in evidence show that James was delinquent on his temporary child support obligation in the first
divorce action in the sum of $1,534.52 at the time that it was dismissed. In the second divorce
action, the payment records show that James was delinquent in the sum of $3,267.73 as of June



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21, 2012. In addition, the settlement sum was also to satisfy James’ obligation for outstanding
medical expenses through June 21, 2012, the amount of which is not contained in the record. We
note, however, that had James failed to timely pay the $2,500, a judgment in the sum of $6,496.15
would have been entered. Thus, the payment of $2,500 in “full settlement” does not support the
application of equitable estoppel to forgive his past due temporary child support payments from
the first divorce proceeding which had vested in Jodi upon becoming due.
         We conclude that the district court did not abuse its discretion in declining to find that the
temporary child support obligation ceased to exist upon dismissal of the first divorce action.
         James’ second assignment of error is without merit.
                                          CONCLUSION
        The district court did not err in determining that any intent of the parties to zero out child
support arrearages for both divorce cases could not be inferred from the language of the dissolution
decree. Further, the court did not err in declining to find that the temporary child support obligation
ceased to exist upon dismissal of the first divorce action. Therefore, we affirm.
                                                                                           AFFIRMED.




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