Benda v. Sole, 319 Neb. 745

Kristine M. Benda (formerly known as Sole) and Joshua S. Sole married in 2006 and had two children.
In 2022, Kristine filed for legal separation, and the parties signed a comprehensive Legal Separation Settlement Agreement (LSSA) resolving child custody, support, alimony, and property division.
The district court incorporated the LSSA into a Decree of Legal Separation, finding it not unconscionable; Joshua did not appeal.
Kristine later filed for dissolution, with the parties stipulating that the same property/custody terms should be included, except for an increase in the wife’s equalization payment for a retirement asset Joshua had not disclosed.
Joshua later sought to set aside the prior separation/dissolution decrees, claiming procedural and substantive defects, including lack of jurisdiction and unconscionability.
The district court affirmed the settlement and denied Joshua’s bid to reopen or relitigate the previously resolved issues, save for correcting the equalization payment.

Issue	Sole's Argument	Benda's Argument	Held
Was the separation decree void due to lack of written certification ("separate and apart")?	Decree void for lack of certification required by § 42-361.01	Decree valid; certification not jurisdictional	Certification not required for jurisdiction; decree valid
Could the property, custody, and support terms of the separation decree be collaterally attacked/relitigated?	Decree should be vacated/reopened as unconscionable	Terms final as not appealed; only modifiable per statute (fraud, material change)	Terms final and preclusive; collateral attack not permitted
Did issue/claim preclusion bar the terms being reiterated in the subsequent dissolution decree?	Yes; redeciding issues from separation barred	Not relitigated; terms just carried forward as final	No preclusion bar; issues not relitigated, but appropriately restated
Was the modification of equalization payment unconscionable?	Agreement unconscionable, signed under duress	Agreed, voluntary, and fair adjustment for newly disclosed retirement asset	Modification was voluntary, fair, and conscionable

Wilson v. Wilson, 238 Neb. 219 (written certification is not a jurisdictional prerequisite for dissolution/separation)
Brunges v. Brunges, 255 Neb. 837 (hearing requirements in dissolution context elaborated)
Kibler v. Kibler, 287 Neb. 1027 (failure to meet statutory procedure does not necessarily deprive court of jurisdiction)
Anderson v. Anderson, 222 Neb. 212 (separation decree property divisions are final, reviewed on the same standard as for dissolution)
Dahlheimer v. Dahlheimer, 5 Neb. App. 222 (appeal from separation decree must be timely, or terms are final and only modifiable as statute permits)
Windham v. Kroll, 307 Neb. 947 (modification of child support and custody requires showing of material change)