Jenne v. Jenne

1

33 Neb.App. 30

William D. Jenne, appellant, v. Kimberlee A. Jenne, appellee.

No. A-23-403

Court of Appeals of Nebraska

July 2, 2024

1. Divorce: Judgments: Appeal and Error. The meaning of a divorce 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.

2. 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.

3. Divorce: Property Settlement Agreements: Final Orders. 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.

4. Judgments: Final Orders. It is inherent to a judgment's finality that all are bound by the original language used, and all ought to interpret the language the same way. Even when the determination involves "interpretation" of the judgment or decree, its meaning is determined, as a matter of law, by its contents.

5. Divorce: Judgments. Unlike disputes over the meaning of an ambiguous contract, the parties' subjective interpretations and intentions are wholly irrelevant to a court's declaration, as a matter of law, as to the meaning of an ambiguous decree.

6. Divorce: Pensions: Time. The rationale for using a "date of divorce" method for pension valuation is that a former spouse would not receive a windfall benefit from promotions and other pay increases that accrued from the date of divorce to the date of retirement to which the former spouse made no contribution.

7. Divorce: Armed Forces: Pensions: Time. When dividing a military pension in a divorce proceeding, the nonserving spouse should only be entitled to the portion of the pension that was earned during the marriage, which is an acceptable division in Nebraska.

8. Divorce: Attorney Fees: Appeal and Error. In an action involving a marital dissolution decree, the award of attorney fees is discretionary with the trial court, is reviewed de novo on the record, and will be affirmed in the absence of an abuse of discretion.

9. Divorce: Attorney Fees. In dissolution cases, as a matter of custom, attorney fees and costs are awarded to prevailing parties. In awarding attorney fees in a dissolution action, a court shall consider the nature of the case, the amount involved in the controversy, the services actually performed, the results obtained, the length of time required for preparation and presentation of the case, the novelty and difficulty of the questions raised, and the customary charges of the bar for similar services.

Appeal from the District Court for Sarpy County: Stefanie A Martinez, Judge. Reversed and remanded with directions.

John A. McWilliams and Philip B. Katz, of Gross, Welch, Marks & Clare, P.C., L.L.O., for appellant.

Michael B. Lustgarten, of Lustgarten Dudzinski, L.L.C., for appellee.

Pirtle, Chief Judge, and Riedmann and Bishop, Judges.

Pirtle, Chief Judge.

INTRODUCTION

William D. Jenne (Bill) appeals from an order entered by the district court for Sarpy County that denied his amended complaint for declaratory judgment or, in the alternative, his complaint to modify, and awarded his ex-spouse, Kimberlee A. Jenne (Kim), an attorney fee of $2,500. The district court found that Kim's benefit under Bill's military pension should be valued as of the date Bill retired from the military, as opposed to the date they divorced. However, based on specific language in the parties' marriage dissolution decree, we determine that Kim's benefit should have been valued as of the date of the parties' divorce. Therefore, for the reasons that follow, we reverse the district court's order entered on April 27, 2023, and remand the matter with directions.

BACKGROUND

Bill joined the U.S. Air Force Reserve in May 1979. Bill and Kim were married on February 24, 1984. They divorced on April 19 2001. When they divorced, Bill had been in the Air Force Reserve for 21 years 11 months and had the rank of major with a corresponding O-4 pay grade. As part of their divorce, they entered into a property settlement agreement. Paragraph IX of this property settlement agreement contained a section concerning the distribution of Bill's eventual military pension:

Each party shall be awarded one-half (½) of [Bill's] military retirement benefits accumulated during the course of the marriage. The valuation date for these benefits shall be the date of entry of the Decree of Dissolution of Marriage and Property Settlement Agreement by the Court herein. The parties shall utilize the coverture method for calculating [Kim's] portion of the military benefits in which the total number of months of the marriage shall be the numerator and the total number of months of military service shall be the denominator.

Several months later, an amendment was necessary because the Defense Finance and Accounting Service (DFAS) required different language to appropriately divide the pension. Therefore, on July 23, 2001, the district court entered an order nunc pro tunc that changed the "the third full sentence in [p]aragraph IX of the Property Settlement Agreement" to state:

The parties shall utilize the coverture method for calculating [Kim's] portion of the military benefits in which the total number of months of the marriage shall be the numerator (which number of months is determined to be 206 calculated by taking the number of months between the date of the marriage, February 24, 1984, and the date of the entry of the Decree of Dissolution of Marriage, April 19, 2001) and the total number of months of military service shall be the denominator.

Following the parties' divorce, Bill remained in the Air Force Reserve until May 2009. Although he retired at that time, as a reservist, he could not start drawing his retirement benefits until he turned 60 years of age. When his military service ended, Bill was a colonel with an O-6 pay grade. He began receiving his military pension in November 2016.

However, upon Bill's retirement, DFAS required another amendment to the agreement to properly divide Bill's military pension. Accordingly, on March 22, 2017, the district court issued an amended order nunc pro tunc, which stated that

the Order Nunc Pro Tunc entered herein on July 23, 2001[,] regarding paragraph IX of the Property Settlement Agreement entered on April 19, 2001, shall be hereby changed . . . as follows:

The parties shall utilize the coverture method for calculating [Kim's] portion of the military benefits. [Kim] is awarded a percentage of the member's disposable military retired pay, to be computed by multiplying 50% times a fraction, in which the total number of months of marriage during the member's creditable military service shall be the numerator (which number of months is determined to be 206 calculated by taking the number of months between the date of marriage, February 24, 1984, and the date of the entry of the Decree of Dissolution of Marriage, April 19, 2001), divided by the member's total number of months of creditable service.

(Emphasis omitted.)

However, because the Air Force Reserve calculates retirement benefits on a point system as opposed to months of service utilized for active duty members, DFAS later required an order that utilized Bill's earned points instead of months of service. Therefore, on September 13, 2017, the district court issued a "Military Retired Pay Division Order," which stated:

[Kim] (the former spouse) is awarded a percentage of the member's disposable military retired pay, to be computed by multiplying 50% times a fraction, the numerator of which is 4,363 Reserve retirement points earned during the period of the marriage, divided by the member's total number of Reserve retirement points earned.

. . . [O]n the date of the Decree of Dissolution of Marriage (April 19, 2001) the member's military pay grade was Major and the member had 21 years and 11 months of service for basic pay purposes.

Following the entry of this division order, which Bill, through his attorney, had approved as to form and content, Kim received $81,343.28 from Bill's pension from 2016 to 2022. As of October 2022, she was receiving $1,924.90 per month.

On May 10, 2021, Bill filed a complaint for declaratory judgment that alleged Kim was receiving a larger distribution from the pension than what she was owed. On December 7, 2022, Bill filed an amended complaint for declaratory judgment or, in the alternative, a complaint to modify. He essentially claimed that the district court's 2017 order was vague because it did not provide a number for the denominator of the fraction and was also incorrect because it was using an inaccurate number for the numerator. Bill also asserted that Kim was receiving excessive benefits because the calculation of Kim's distribution was using his entire time of service and the pay grade he held when he retired, as opposed to the number of years he had accrued during the marriage and his pay grade at the time of the divorce. He claimed this was an error because the original decree had ordered the valuation of Kim's benefits to be calculated at the time of their divorce. Accordingly, Bill claimed that Kim's distribution should be based on his O-4 salary, when he was a major, and the retirement points he had earned up until their divorce, and not based on his O-6 salary and the total amount of retirement points he had accumulated when he retired as a colonel many years later.

A trial was held on March 15, 2023. Bill called as a witness Richard Crane, who offered expert testimony regarding the calculation and distribution of military pensions. He...