Parish v. Parish
314 Neb. 370
| Neb. | 2023Background
- Parties divorced by consent decree in 2011; decree awarded Kathleen 48% of Robert’s military retirement interest and nominal "Special Alimony" of $1/year, modifiable only if Robert took a disability offset against his net disposable nondisability pension.
- In 2012 Robert obtained VA service-connected disability, which reduced his disposable retired pay and thus the dollar value of Kathleen’s share.
- Kathleen filed to modify alimony in 2018, alleging a material and substantial change due to the disability offset; a default modification award was later vacated and the case proceeded to trial.
- At trial the district court dismissed Kathleen’s modification complaint for lack of subject-matter jurisdiction, reasoning that federal law preempted division of VA disability benefits.
- Nebraska Supreme Court reversed: the alimony provision was not void or an attempt to divide disability pay, the court had jurisdiction to consider modification under state law, res judicata made the original decree final, and the matter was remanded to assess whether a material change justified modification, considering the effect of Robert’s disability benefits on relative finances.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| 1. Did the district court lack subject-matter jurisdiction to decide Kathleen’s motion to modify alimony because state action would be preempted by federal law? | Parish: State court may consider modifying alimony; federal law does not strip state courts of jurisdiction to adjudicate alimony modification. | Robert: Federal law preempts division/relitigation of VA disability benefits, depriving state court of jurisdiction. | Nebraska Supreme Court: Court had jurisdiction; the motion sought modification of alimony, not division of VA disability pay, so federal preemption did not bar consideration. |
| 2. Was the original alimony provision void because it effectively attempted to divide VA disability benefits or indemnify Kathleen for reductions? | Parish: The Decree only allowed modification if a disability offset reduced nondisability retired pay; it did not order division of VA benefits or indemnification. | Robert: The provision was a subterfuge to divide/indemnify for VA disability benefits and therefore void/preempted. | Court: Provision was not void; it permissibly reserved modification contingent on a disability offset and did not order division or indemnity of VA benefits. |
| 3. Does claim preclusion/res judicata bar relitigation of the decree’s alimony terms after no appeal was taken? | Parish: The decree became final and enforceable; the provision is res judicata unless void for lack of jurisdiction. | Robert: Argued the original provision was improper and unenforceable due to federal law. | Court: Res judicata applies; an unappealed decree dividing military-related interests is final unless truly void for lack of jurisdiction (which was not shown). |
| 4. May a state court consider receipt of VA disability benefits when evaluating a modification for "good cause" (material change in circumstances)? | Parish: Yes; courts may consider disability benefits and resulting waiver of retirement pay when determining material change for alimony. | Robert: Impliedly disputes considering disability because it would amount to judging/distributing preempted VA benefits. | Court: Yes; under Nebraska law and controlling precedent, disability may be considered in assessing relative finances and whether modification is warranted. |
Key Cases Cited
- Mansell v. Mansell, 490 U.S. 581 (1989) (federal law prevents state courts from ordering indemnification for VA disability offsets to military retirement pay)
- Howell v. Howell, 581 U.S. 214 (2017) (family courts may account for the contingency of waived military retirement pay when calculating spousal support)
- Rose v. Rose, 481 U.S. 619 (1987) (state courts may consider veteran benefits in family-law support determinations)
- Longo v. Longo, 266 Neb. 171 (2003) (Nebraska supports reservation/modification of alimony conditioned on future disability offsets)
- Kramer v. Kramer, 252 Neb. 526 (1997) (courts may consider service-connected disability benefits in modification analyses even if such benefits are nondivisible)
- Grothen v. Grothen, 308 Neb. 28 (2020) (standard for modifying a dissolution decree—good cause requires material and substantial change)
- Foster v. Foster, 509 Mich. 109 (2022) (distinguishes lack of jurisdiction from erroneous exercise of jurisdiction in cases dividing military/VA benefits)