Mackiewicz v. Mackiewicz
984 N.W.2d 253
Neb.2023Background
- James and Kari (now Veleba) divorced by consent decree on July 14, 2017; the decree set a tiered alimony schedule totaling several years of payments and stated the alimony "shall be in place until such time as it is fully satisfied." The decree also included a general modification/waiver clause requiring written modification or court order.
- At divorce, James earned ~ $162k/year in Omaha; Kari was a doctoral student. After divorce Kari completed her doctorate and obtained a school-administration job at ~$73,345/year.
- In 2019 James took a higher-paying job in Austin (~$200k plus bonuses) but was terminated ~6 months later for "unsatisfactory work performance," returned to Omaha, unsuccessfully sought comparable employment, and started a consulting business that had produced no income by trial.
- On August 11, 2020, James moved to modify his alimony obligation, alleging a material change in circumstances (loss of employment and reduced income); Kari moved for contempt for unpaid arrearages and argued the alimony award was nonmodifiable.
- The district court denied Kari’s pretrial motion to dismiss for lack of jurisdiction, held the decree did not expressly preclude modification, found James had shown a material and substantial change in circumstances, denied contempt, and reduced James’ alimony to $700/month from Sept. 1, 2020 through end of 2025.
- Kari appealed, arguing (1) the consent decree/alimony award was nonmodifiable, and (2) James’ income decline was voluntary so insufficient to justify modification.
Issues
| Issue | Plaintiff's Argument (Kari) | Defendant's Argument (James) | Held |
|---|---|---|---|
| Whether the consent decree/alimony award is modifiable | The parties agreed to the decree; language saying alimony "in place until fully satisfied" makes it nonmodifiable | The decree contains a general modification clause and does not expressly preclude modification | The award was modifiable; the modification clause and absence of an explicit, absolute bar permit modification |
| Whether the district court had jurisdiction / complaint stated a claim | Court lacked jurisdiction or claim fails because alimony was nonmodifiable | Court has jurisdiction because decree does not expressly preclude modification | Court has jurisdiction; denial of dismissal was correct |
| Whether James proved "good cause" (material and substantial change) | James’ income loss resulted from voluntarily leaving employment and taking a risk; cannot rely on that to reduce alimony | James lost higher-paying employment, cannot find comparable work, and currently earns significantly less | James met his burden; loss of income and reduced earning capacity constituted a material and substantial change not contemplated by parties |
| Whether the district court abused its discretion in modifying alimony amount | Modification was improper given decree language and voluntary nature of James’ job change | District court reasonably compared finances at decree vs. modification and adjusted payments | No abuse of discretion; modification affirmed |
Key Cases Cited
- Grothen v. Grothen, 308 Neb. 28, 952 N.W.2d 650 (2020) (decree modification principles and effect of agreement language on modification)
- Vyhlidal v. Vyhlidal, 311 Neb. 495, 973 N.W.2d 171 (2022) (decree is a judgment; meaning determined from four corners)
- Desjardins v. Desjardins, 239 Neb. 878, 479 N.W.2d 451 (1992) (material and substantial change not contemplated by parties is the typical modification standard)
- Euler v. Euler, 207 Neb. 4, 295 N.W.2d 397 (1980) (dissolution decrees based on settlement agreements may be modified unless parties provided otherwise in writing)
- Metcalf v. Metcalf, 278 Neb. 258, 769 N.W.2d 386 (2009) (good cause requires material and substantial change; compare finances at decree and at modification request)