Carlson v. Carlson , 299 Neb. 526 ( 2018 )


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    CARLSON v. CARLSON
    Cite as 
    299 Neb. 526
    M ark A lan Carlson, appellant, v.
    K aren Sue Carlson, appellee.
    ___ N.W.2d ___
    Filed April 6, 2018.     No. S-17-064.
    1.	 Declaratory Judgments. An action for declaratory judgment is sui
    generis; whether such action is to be treated as one at law or one in
    equity is to be determined by the nature of the dispute.
    2.	 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.
    3.	 Declaratory Judgments: Appeal and Error. When a declaratory judg-
    ment action presents a question of law, an appellate court has an obliga-
    tion to reach its conclusion independently of the conclusion reached by
    the trial court with regard to that question.
    4.	 Divorce: Judgments: Property Settlement Agreements: Contracts.
    Once a property settlement agreement has been incorporated into a dis-
    solution decree, the contractual character of the agreement is subsumed
    into the court‑ordered judgment. At that point, the court and the parties
    are no longer dealing with a mere contract between the parties.
    5.	 Divorce: Judgments: 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.
    6.	 Judgments: Appeal and Error. Whether a judgment is ambiguous is a
    question of law for which the appellate court has an obligation to reach
    a conclusion independent from the lower court’s conclusion.
    7.	 Judgments: Words and Phrases. Ambiguity in a judgment exists when
    a word, phrase, or provision therein has, or is susceptible of, at least two
    reasonable but conflicting interpretations or meanings.
    8.	 Judgments: Parties. The fact that the parties advance differing inter-
    pretations does not, by itself, compel the conclusion that a judgment
    is ambiguous.
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    9.	 Divorce: Judgments: Appeal and Error. Even if ambiguity exists in a
    dissolution decree, its meaning nevertheless presents a question of law
    that an appellate court reviews de novo.
    10.	 Courts: Child Support: Minors. As a general rule, absent agreement
    of the parties, a Nebraska district court cannot order a party to pay child
    support beyond the age of majority.
    11.	 Courts: Divorce: Jurisdiction: Property Settlement Agreements:
    Child Support: Minors. In the exercise of its broad jurisdiction over
    marriage dissolutions, a district court retains jurisdiction to enforce
    all the terms of approved property settlement agreements, including
    agreements made to support children of the marriage past the age
    of majority.
    12.	 Courts: Property Settlement Agreements: Child Support: Minors. If
    the parties voluntarily include a provision for post‑majority child sup-
    port in an approved property settlement agreement, a district court has
    the authority to enforce that provision.
    13.	 Modification of Decree: Property Settlement Agreements: Child
    Support: Minors. A provision for post‑majority child support in an
    approved property settlement agreement can be modified either as
    agreed to by the parties in the agreement or according to the general
    standard for modifying an approved property settlement agreement
    under Nebraska law.
    14.	 Divorce: Motions to Vacate: Modification of Decree: Property
    Settlement Agreements. Where parties to a divorce action voluntarily
    execute a property settlement agreement which is approved by the
    dissolution court and incorporated into a divorce decree from which
    no appeal is taken, its provisions as to real and personal property and
    maintenance will not thereafter be vacated or modified in the absence of
    fraud or gross inequity.
    15.	 Divorce: Attorney Fees: Appeal and Error. In an action for the dis-
    solution of marriage, 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.
    Appeal from the District Court for Douglas County: Leigh
    A nn R etelsdorf, Judge. Affirmed.
    Adam E. Astley and Kathryn D. Putnam, of Astley Putnam,
    P.C., L.L.O., for appellant.
    Benjamin M. Belmont and Wm. Oliver Jenkins, of Brodkey,
    Peebles, Belmont & Line, L.L.P., for appellee.
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    CARLSON v. CARLSON
    Cite as 
    299 Neb. 526
    Heavican, C.J., Miller‑Lerman, Cassel, Stacy, K elch, and
    Funke, JJ.
    Stacy, J.
    This appeal arises from a dispute over the meaning of pro-
    visions in a divorce decree and incorporated property settle-
    ment agreement (PSA) regarding payment of post‑majority
    child support. The district court construed the decree and
    incorporated PSA to require the father to pay post‑majority
    child support if certain conditions were met, and it denied
    the father’s request to modify such support. Finding no error,
    we affirm.
    FACTS
    Mark Alan Carlson and Karen Sue Carlson married in 1994
    and divorced in March 2008. Three children were born during
    the marriage. At the time of the divorce, the children were 6,
    8, and 10. Mark and Karen are both physicians, but Karen did
    not actively practice medicine during most of their marriage.
    The parties represented themselves during their divorce.
    Through mediation, they reached an agreement on the divi-
    sion of their assets and debts, the custody and support of their
    children, and the payment of alimony. The mediator drafted the
    parties’ PSA and the dissolution decree. The record on appeal
    does not include the hearing at which the parties proved up
    their PSA and asked the court to approve it, but it does contain
    the signed and notarized PSA, as well as the consent decree
    entered by the court.
    As relevant here, the parties agreed they would have joint
    legal custody of the children and Karen would have physical
    custody. Mark agreed to pay both child support and alimony.
    The decree addressed child support as follows:
    [Mark] shall pay . . . child support . . . commenc[ing]
    on the first day of the first month following the entry
    of the decree and shall continue to [pay] each month
    thereafter, until the child reaches the age of major-
    ity under Nebraska law, becomes emancipated, becomes
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    self‑supporting, marries or dies, or until further order of
    the court.
    The decree also recited that the parties had negotiated a PSA
    which the court had examined and “found to be fair and rea-
    sonable and conscionable.” According to the decree, a signed
    copy of the PSA had been filed with the clerk and the agree-
    ment was “incorporated [in the decree] with the same force and
    effect as if set forth in this decree in its entirety.” The decree
    further recited that the “parties’ [PSA] shall be enforced by all
    remedies available for the enforcement of a judgment, includ-
    ing contempt proceedings.” No party appealed from the entry
    of the decree.
    Incorporated PSA
    Section 3 of the PSA is titled “Child Support and Expenses,
    Educational Expenses, Health Insurance and Care Expenses
    and Life Insurance.” It provides in relevant part:
    3.01 Terms and Definitions.
    ....
    (2) Age of Majority The age of majority for most legal
    purposes is 19 and generally defines when child support
    is terminated unless the parties agree otherwise, or cir-
    cumstances set by law apply.
    ....
    (4) Support Past Age 19: A child will not be deter-
    mined to be emancipated and child support may continue
    past age 19 in the following circumstances:
    a. If a child attends college or vocational training,
    child support may continue until age 27 or graduation
    from college, trade school, or graduate school, which-
    ever occurs first. (The child must be regularly attending
    college (enrolled in 12 or more credit hours of course
    work per semester) or a vocational school. (However,
    the parties intend to allow some flexibility in the child’s
    college attendance, therefore a child may have up to
    two (2) semester[s] of nonattendance at school, not
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    including summer vacations, without being understood
    to be emancipated.[)]
    ....
    3.02 Child Support
    (1) MARK shall pay to KAREN the amount of
    $2,400.00 per month for the support of three children,
    $2,089.00 per month when two children remain eligible
    for support and $1,468.00 per month when only one child
    is eligible for child support. Child support will be payable
    until each child reaches majority, becomes emancipated,
    marries or dies or until further order of the court as pro-
    vided by law.
    For the sake of completeness, we note the PSA contains a
    definition of “emancipation” which does not expressly refer-
    ence post‑majority child support. Neither party suggests that
    provision is determinative of the issues presented, so we do
    not address it. We also note the PSA addressed payment of
    post‑majority child support if a child becomes mentally or
    physically incapacitated, but the parties did not seek a declara-
    tory judgment regarding the interpretation of such provisions
    so we express no opinion thereon.
    Complaint to Modify
    In March 2010, Mark filed a complaint to modify the decree
    as it regarded post‑majority child support, alimony, health care
    expenses, and college expenses. He claimed, inter alia, that the
    court lacked jurisdiction to order child support after a child
    attained the age of majority, and he claimed he should not be
    required to pay both post‑majority child support and college
    expenses for the same child.
    In January 2011, the parties stipulated to an order modifying
    the decree to, among other things, reduce Mark’s alimony pay-
    ment and increase his monthly child support obligation. The
    stipulated order reflected that Mark had withdrawn “without
    prejudice” his request for an order terminating his obligation
    to pay post‑majority child support. And the stipulated order
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    expressly provided that all provisions of the decree and PSA
    “not specifically altered by this Order shall remain in full force
    and effect.”
    Contempt Proceedings
    In January 2015, the parties’ oldest child turned 19. She was
    a full‑time college student at the time. Mark stopped paying
    child support for this child, and Karen filed an application to
    show cause why Mark should not be held in contempt of court
    for willfully failing to pay post‑majority child support.
    At the show cause hearing, both Mark and Karen were rep-
    resented by counsel. After a meeting in chambers between the
    court and counsel, Karen withdrew her contempt application
    and instead filed the complaint for declaratory judgment which
    is at issue in this appeal.
    Complaint and Counterclaim
    for Declaratory Judgment
    Karen’s complaint sought a declaration of the rights, duties,
    and obligations of the parties under the dissolution decree as it
    regarded post‑majority child support. Specifically, she sought
    a declaration that under the PSA incorporated into the decree,
    Mark had an obligation to continue paying child support past
    the age of majority for a child attending college.
    In a counterclaim, Mark also sought a declaratory judg-
    ment regarding post‑majority child support. As relevant to the
    issues on appeal, Mark sought a declaration that the provisions
    regarding post‑majority child support were unenforceable or,
    in the alternative, that any obligation to pay post‑majority
    child support was “completely discretionary on the part of
    the person paying it.” Alternatively, Mark sought modifica-
    tion of the decree to relieve him of any post‑majority child
    support obligation, alleging there had been a material change
    in circumstances.
    Both parties moved for summary judgment on their requests
    for declaratory judgment. The trial court denied both motions
    and set the matter for trial.
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    Trial
    By the time of trial, two of the parties’ children had reached
    the age of majority, and each was a full‑time college student.
    At trial, the parties were allowed to present extrinsic evidence
    as to the meaning of the PSA incorporated into the decree.
    Neither party had a clear recollection of how the language
    regarding post‑majority child support came to be in the PSA.
    According to Karen, the mediator brought up the issue of
    supporting the children through college, and Mark had no
    disagreement, so the provisions regarding post‑majority sup-
    port were included in the PSA with “no discussion.” Mark
    testified he intended the agreement to be flexible and “leave[]
    the door open” to paying post‑majority child support if Karen
    was unable to return to employment as a physician after the
    divorce. The attorney who mediated the property settlement
    agreement invoked the statutory privilege1 and refused to tes-
    tify about mediation communications.
    Ultimately, the district court concluded that the decree
    and incorporated PSA obligated Mark to pay post‑majority
    child support for any child regularly attending college, trade
    school, or graduate school, until the child attained the age of
    27 or graduated, whichever first occurred. Regarding Mark’s
    complaint to modify, the court noted the agreement to pay
    post‑majority child support was contained in the parties’ PSA
    which had been approved by the court and incorporated into
    the decree. It thus reasoned the approved PSA could not be
    vacated or modified in the absence of fraud or gross inequity.
    The court found Mark had neither alleged nor offered evi-
    dence of fraud or gross inequity, and it denied his complaint
    to modify.
    The court entered an order granting Karen’s request for
    declaratory judgment, denying Mark’s counterclaims, and
    awarding Karen attorney fees and costs in the amount of
    $3,500. Mark filed this timely appeal, which we removed to
    1
    See Neb. Rev. Stat. § 25‑2933 (Reissue 2016).
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    our docket pursuant to our authority to regulate the caseloads
    of the appellate courts of this state.2
    ASSIGNMENTS OF ERROR
    Mark assigns that the district court erred in (1) finding the
    decree was ambiguous, (2) interpreting the decree and property
    settlement to require post‑majority child support, (3) granting
    declaratory relief to Karen, (4) failing to consider his request
    for modification of the post‑majority support obligation, and
    (5) awarding $3,500 in attorney fees to Karen.
    STANDARD OF REVIEW
    [1,2] An action for declaratory judgment is sui generis;
    whether such action is to be treated as one at law or one
    in equity is to be determined by the nature of the dispute.3
    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.4
    [3] When a declaratory judgment action presents a question
    of law, an appellate court has an obligation to reach its con-
    clusion independently of the conclusion reached by the trial
    court with regard to that question.5
    ANALYSIS
    Before addressing the assignments of error we address two
    threshold issues.
    2
    Neb. Rev. Stat. § 24‑1106(3) (Supp. 2017).
    3
    Vlach v. Vlach, 
    286 Neb. 141
    , 
    835 N.W.2d 72
    (2013); American
    Amusements Co. v. Nebraska Dept. of Rev., 
    282 Neb. 908
    , 
    807 N.W.2d 492
    (2011).
    
    4 Rice v
    . Webb, 
    287 Neb. 712
    , 
    844 N.W.2d 290
    (2014).
    5
    Board of Trustees v. City of Omaha, 
    289 Neb. 993
    , 
    858 N.W.2d 186
          (2015); Davenport Ltd. Partnership v. 75th & Dodge I, L.P., 
    279 Neb. 615
    , 
    780 N.W.2d 416
    (2010).
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    UseDeclaratory Judgment
    of
    Construe Decree
    to
    Both parties sought a declaratory judgment interpreting their
    rights and obligations under the consent decree and incorpo-
    rated PSA. Our case law has generally permitted the use of
    declaratory judgment actions to resolve genuine disputes over
    the meaning of language in a dissolution decree.6 But parties
    have also resolved similar issues via complaints to modify,7
    contempt proceedings,8 motions to enforce the judgment,9 and
    motions to determine amounts due under the decree.10 Without
    endorsing any particular procedure, we observe the general
    rule that an action for declaratory judgment does not lie where
    another equally serviceable remedy is available.11 In this case,
    no party has challenged the availability of declaratory relief
    or alleged that a more serviceable remedy is available. We
    therefore assume, without deciding, that it was proper for
    the district court to entertain the parties’ requests for declara-
    tory judgment.
    Parties’ Subjective Intent
    Is Irrelevant
    In addressing the parties’ dispute over the meaning of the
    decree and incorporated PSA, the district court and the parties
    6
    Buhrmann v. Buhrmann, 
    231 Neb. 831
    , 835, 
    438 N.W.2d 481
    , 484 (1989)
    (“[w]here there is a genuine controversy between the parties as to the
    meaning of language in a decree of dissolution, and the appeal period has
    passed, a proper method to resolve the controversy is by a separate action
    for declaratory relief”). See, Jensen v. Jensen, 
    275 Neb. 921
    , 
    750 N.W.2d 335
    (2008); Hohertz v. Estate of Hohertz, 
    19 Neb. Ct. App. 110
    , 
    802 N.W.2d 141
    (2011).
    7
    Boyle v. Boyle, 
    12 Neb. Ct. App. 681
    , 
    684 N.W.2d 49
    (2004).
    8
    Blaine v. Blaine, 
    275 Neb. 87
    , 
    744 N.W.2d 444
    (2008).
    
    9 Rice v
    . Webb, supra note 4.
    10
    Strunk v. Chromy‑Strunk, 
    270 Neb. 917
    , 
    708 N.W.2d 821
    (2006).
    11
    Mansuetta v. Mansuetta, 
    295 Neb. 667
    , 
    890 N.W.2d 485
    (2017); Northwall
    v. State, 
    263 Neb. 1
    , 
    637 N.W.2d 890
    (2002).
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    relied, in part, on traditional contract principles. For example,
    the court found the PSA was ambiguous regarding the payment
    of post‑majority child support, and it thus allowed the admis-
    sion of extrinsic evidence of the parties’ intent. As a general
    matter, if a contract is ambiguous, the meaning of the contract
    is a question of fact and a court may consider extrinsic evi-
    dence to determine the meaning of the contract.12 But in the
    present case, we are not dealing with a contract; we are dealing
    with a judgment.
    The intentions of the parties regarding the PSA may have
    been relevant when the dissolution court was examining the
    agreement to determine whether it was fair and reasonable, not
    unconscionable, and in the childrens’ best interests. But once
    the PSA was approved by the court and incorporated into the
    decree, it became a judgment of the court.13 Thereafter, the par-
    ties’ subjective interpretations and intentions were irrelevant to
    the court’s declaration of the meaning of the decree.14
    [4] In both Ryder v. Ryder 15 and Rice v. Webb,16 this court
    specifically disapproved of the application of contract prin-
    ciples to a PSA that had been incorporated into a dissolution
    decree. In Ryder, we held:
    Once a property settlement agreement has been incorpo-
    rated into a dissolution decree, the contractual character
    of the agreement is subsumed into the court‑ordered
    judgment. “‘At that point the court and the parties are
    no longer dealing with a mere contract between the
    parties.’”
    12
    David Fiala, Ltd. v. Harrison, 
    290 Neb. 418
    , 
    860 N.W.2d 391
    (2015).
    13
    See, Ryder v. Ryder, 
    290 Neb. 648
    , 
    861 N.W.2d 449
    (2015); Rice v. Webb,
    supra note 4.
    14
    See Neujahr v. Neujahr, 
    223 Neb. 722
    , 
    393 N.W.2d 47
    (1986) (once
    decree becomes final, what parties thought it meant is irrelevant; meaning
    of decree is question of law determined from four corners of decree).
    15
    Ryder v. Ryder, supra note 13.
    
    16 Rice v
    . Webb, supra note 4.
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    . . . [W]hen a decree is ambiguous, “the parties must
    bring some form of action which raises the issue and
    thereby requires the court before whom the matter is then
    pending to resolve the issue as a matter of law in light of
    the evidence and meaning of the decree as it appears.”17
    Thus, in the present case, we are considering the meaning of a
    judgment rather than a contract.18
    [5] 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.19 With this standard in mind,
    we address the assignments of error.
    No Error in Finding
    Decree A mbiguous
    Mark assigns error to the trial court’s finding that the terms
    of the decree and incorporated PSA were ambiguous. He con-
    cedes the documents are poorly drafted but suggests that “after
    reviewing the document five or six times, a single meaning
    becomes clear.”20 Mark suggests that “when read in a vacuum
    [the language of the decree] is susceptible to only one mean-
    ing, which is that child support ends when each child reaches
    the age of majority under Nebraska law, becomes emancipated,
    becomes self‑supporting, marries or dies, or until further order
    of the court.”21 We understand this argument to suggest that if
    the decree is construed without reference to the language of
    the incorporated PSA, there is no ambiguity. But we reject the
    invitation to construe the decree without considering the terms
    of the PSA that was expressly incorporated into the decree at
    the parties’ request.
    17
    Ryder v. Ryder, supra note 
    13, 290 Neb. at 656
    ‑57, 861 N.W.2d at 456.
    18
    See Rice v. Webb, supra note 4.
    19
    
    Id. 20 Brief
    for appellant at 17.
    21
    
    Id. at 16.
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    [6,7] Whether a judgment is ambiguous is a question of
    law for which the appellate court has an obligation to reach
    a conclusion independent from the lower court’s conclusion.22
    Ambiguity in a judgment exists when a word, phrase, or provi-
    sion therein has, or is susceptible of, at least two reasonable
    but conflicting interpretations or meanings.23
    [8] We agree with the district court that the decree and
    incorporated PSA are ambiguous regarding the parties’ rights
    and obligations concerning payment of post‑majority child
    support. The fact that the parties advance differing interpreta-
    tions does not, by itself, compel the conclusion that the PSA is
    ambiguous.24 But we agree that the conflicting interpretations
    advanced by Mark and Karen illustrate an ambiguity in the
    PSA which necessitated construction.
    As it regards the payment of post‑majority child support, the
    operative language in the PSA provides:
    A child will not be determined to be emancipated and
    child support may continue past age 19 in the following
    circumstances:
    a. If a child attends college or vocational training,
    child support may continue until age 27 or graduation
    from college, trade school, or graduate school, whichever
    occurs first.
    Mark argues the phrase “may continue” indicates that pay-
    ment of post‑majority support is discretionary and allows him
    the flexibility to decide whether such support is necessary
    under the circumstances. Karen argues the language creates
    an affirmative obligation to pay post‑majority child support
    so long as the conditions of college attendance are satisfied.
    Although we ultimately reject Mark’s interpretation, we agree
    the operative language of the PSA is susceptible to at least
    two reasonable but conflicting interpretations, and we thus
    22
    Friedman v. Friedman, 
    290 Neb. 973
    , 
    863 N.W.2d 153
    (2015).
    23
    See Rice v. Webb, supra note 4.
    24
    See Strunk v. Chromy‑Strunk, supra note 10.
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    agree with the district court that it is ambiguous.25 Mark’s first
    assignment has no merit.
    [9] We also reject as incorrect the suggestion in Mark’s
    briefing that the presence or absence of ambiguity in a decree
    affects our standard of review. This court has long held that the
    meaning of a dissolution decree presents a question of law,26
    and we recently clarified that even if ambiguity exists in a dis-
    solution decree, its meaning nevertheless presents a question of
    law that we review de novo.27
    No Error in Construing Decree
    Mark’s main contention on appeal is that the district court
    erred in construing the decree and incorporated PSA to require
    him to pay post‑majority child support under certain circum-
    stances. Mark contends the court should have interpreted the
    decree to provide that his obligation to pay child support ends
    when the children reach the age of 19 and that any continued
    payment of support post‑majority is entirely discretionary. The
    district court rejected this construction. After our independent
    review of the four corners of the decree and incorporated
    PSA,28 we do too.
    The parties’ primary disagreement relates to the proper inter-
    pretation of the phrase “may continue” as used in the operative
    provision of the PSA:
    (4) Support Past Age 19: A child will not be deter-
    mined to be emancipated and child support may continue
    past age 19 in the following circumstances:
    a. If a child attends college or vocational training,
    child support may continue until age 27 or graduation
    from college, trade school, or graduate school, which-
    ever occurs first. (The child must be regularly attending
    25
    See Rice v. Webb, supra note 4.
    26
    See Strunk v. Chromy‑Strunk, supra note 10.
    27
    Ryder v. Ryder, supra note 13.
    28
    See 
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    college (enrolled in 12 or more credit hours of course
    work per semester) or a vocational school. (However,
    the parties intend to allow some flexibility in the child’s
    college attendance, therefore a child may have up to two
    (2) semester[s] of nonattendance at school, not includ-
    ing summer vacations, without being understood to be
    ­emancipated.[)]
    Mark suggests the term “may” is permissive and affords him
    the discretion to pay post‑majority child support if he thinks
    it is needed. We reject this construction not only because it
    invites construing the judgment to be conditional upon Mark’s
    decision to pay,29 but because there is no support for such a
    construction within the four corners of the judgment.
    Instead, considering the entirety of the decree and incor-
    porated PSA, we find the parties agreed to an affirmative
    obligation to pay post‑majority child support so long as the
    agreed‑upon conditions precedent are satisfied. Those condi-
    tions include that the child be regularly attending college, trade
    school, or graduate school and not have attained the age of 27.
    This construction is compelled by several provisions within
    the judgment.
    Section 3.01(2) of the PSA recognizes that child support
    generally terminates when the child turns 19 “unless the par-
    ties agree otherwise.” Section 3.01(4) then reflects the par-
    ties’ agreement that the children “will not be determined to
    be emancipated and child support may continue past the age
    of 19” under specific enumerated circumstances. Within this
    framework, the phrase “child support may continue past age
    19” in § 3.01(4) is not permissive or discretionary; rather, it
    reflects the prior acknowledgment that ordinarily child support
    terminates at age 19.
    That the payment of post‑majority support is not discre-
    tionary is further supported by language in the PSA acknowl-
    edging the possibility that payment of post‑majority child
    29
    See Strunk v. Chromy‑Strunk, supra note 10.
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    support will overlap with the separate obligation to contribute
    to college expenses under the agreement. In that regard, the
    PSA provides:
    3.03 Educational Expenses: Trade School or College
    Education Costs and Expenses
    (1) The parties agree that should any of the children
    desire to attend college (trade or vocational school after
    high school) and be accepted to a school, the parties
    shall be responsible to provide for the costs and expenses
    of that education in an amount no more than the cost
    of an education at the primary state college or univer-
    sity (University of Nebraska‑Lincoln) in the state where
    the children may reside at the time the child has been
    accepted, regardless of where he/she may attend school
    or college.
    (2) This Agreement contemplates a four‑year under-
    graduate college education that may extend beyond the
    age of majority as long as the child is in good stand-
    ing as a student, but in no event beyond the child’s 23rd
    birthday.
    ....
    (5) The parties understand that amounts paid for the
    college educations of the children still may not fully cover
    other child care expenses including car insurance, cloth-
    ing, recreation, or time spent at home during vacations.
    Alternatively, the amounts being paid in child support
    by one party to the other party may duplicate amounts
    being paid for college room and board. The parties agree
    to negotiate, or if necessary, mediate the balance between
    payment of child support and college costs and expenses
    if and when a child attends college.
    (6) These provisions are intended to set out the mini-
    mum amounts obliged to be paid by a parent to assure
    that the children obtain further training or an undergrad­
    uate college education, should the children be capable
    and desire to so do. These provisions are not intended to
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    limit the additional contribution either parent may volun-
    tarily make toward a child’s undergraduate or graduate
    school education.
    These provisions not only acknowledge the potential for
    duplication between payment of post‑majority child support
    and payment of college expenses, but also express the intent
    of the parties to “set out the minimum amounts obliged to be
    paid” to continue supporting a child beyond the age of majority
    who wishes to pursue further education.
    We hold that the decree and incorporated PSA affirmatively
    obligate Mark to pay post‑majority child support so long as the
    conditions set forth in § 3.01(4) of the PSA are met. We find
    this construction is supported by the language of the judgment,
    can be harmonized with the standard child support language
    set out in the decree, and results in a sensible construction that
    is consistent with the best interests of the children.
    No Error in Denying
    Complaint to Modify
    In a counterclaim, Mark sought to modify the decree based
    on a material change in circumstances in the event the court
    determined he was obligated to pay post‑majority child sup-
    port. The district court denied his request to modify. It rea-
    soned that the post‑majority child support was agreed to in
    a PSA that had been approved by the court and incorporated
    into the decree and as such it could be vacated or modified
    only upon a showing of fraud or gross inequity.30 The court
    concluded Mark had failed to allege or prove fraud or gross
    inequity, and it denied the modification.
    On appeal, Mark argues the court applied the wrong legal
    standard. He claims that rather than being required to show
    fraud or gross inequity, he should have been permitted to mod-
    ify the terms of his post‑majority child support upon showing
    a material change in circumstances. In making this argument,
    30
    See Ryder v. Ryder, supra note 13.
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    Mark relies on the statutory provisions31 and case law32 govern-
    ing modification of statutory child support for minors.
    But the present case does not involve modification of statu-
    tory child support for a minor and requires us to answer a dif-
    ferent question: Under what circumstances can a party seek to
    vacate or modify an approved PSA that requires payment of
    post‑majority child support? To answer this question, we look
    to our jurisprudence on post‑majority child support.
    [10‑12] As a general rule, absent agreement of the par-
    ties, a Nebraska district court cannot order a party to pay
    child support beyond the age of majority.33 In Zetterman v.
    Zetterman,34 however, we held that a court can enforce an
    approved PSA voluntarily entered into by the parties which
    provides for post‑majority child support. We held that a
    district court, “in the exercise of its broad jurisdiction over
    marriage dissolutions, retains jurisdiction to enforce all the
    terms of approved property settlement agreements, including
    agreements made to support children of the marriage past the
    age of majority.”35 Thus, pursuant to Zetterman, if the parties
    voluntarily include a provision for post‑majority child sup-
    port in an approved PSA, a district court has the authority to
    enforce that provision.
    We have not yet addressed whether a district court has the
    authority to modify such a provision and, if it does, what
    standard applies to the modification. The general consensus of
    other jurisdictions that, like Nebraska, hold that a court lacks
    authority to impose an obligation to pay post‑majority child
    support but can enforce an agreement to pay such support
    31
    See Neb. Rev. Stat. § 42‑364 (Reissue 2016).
    32
    See, State on behalf of B.M. v. Brian F., 
    288 Neb. 106
    , 
    846 N.W.2d 257
          (2014); Caniglia v. Caniglia, 
    285 Neb. 930
    , 
    830 N.W.2d 207
    (2013).
    33
    See Foster v. Foster, 
    266 Neb. 32
    , 
    662 N.W.2d 191
    (2003).
    34
    Zetterman v. Zetterman, 
    245 Neb. 255
    , 
    512 N.W.2d 622
    (1994).
    35
    
    Id. at 261,
    512 N.W.2d at 625.
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    made via an approved PSA is that post‑majority child support
    can be modified using either the standard adopted by the par-
    ties in their agreement or the standard applied in that jurisdic-
    tion to modify an approved PSA.36 The rationale for such a
    rule is that the court could not have imposed the post‑majority
    child support obligation in the first instance, so it lacks the
    authority to modify it as a child support obligation.37
    [13] We agree with this rationale and find it is consistent
    with our holding in Zetterman.38 We thus hold that a provision
    for post‑majority child support in an approved PSA can be
    modified either as agreed to by the parties in the agreement39
    or according to the general standard for modifying an approved
    PSA under Nebraska law.
    In this case, neither the decree nor the incorporated PSA
    contained provisions for modifying post‑majority child sup-
    port. Thus, Mark’s request for modification of post‑majority
    support will be governed by the general standard for modifying
    an approved PSA under Nebraska law.
    [14] This court has consistently held that where parties to
    a divorce action voluntarily execute a PSA which is approved
    by the dissolution court and incorporated into a divorce decree
    from which no appeal is taken, its provisions as to real
    and personal property and maintenance will not thereafter be
    vacated or modified in the absence of fraud or gross inequity.40
    36
    See, Van Camp v. Van Camp, 
    333 Ark. 320
    , 
    969 S.W.2d 184
    (1998); Miner
    v. Miner, 
    48 Conn. App. 409
    , 
    709 A.2d 605
    (1998); Katz v. Katz, 
    258 Ga. 184
    , 
    366 S.E.2d 766
    (1988); Helms v. Schultze, 
    161 N.C. App. 404
    , 
    588 S.E.2d 524
    (2003).
    37
    
    Id. 38 Zetterman
    v. Zetterman, supra note 34.
    39
    See, also, Neb. Rev. Stat. § 42‑366(7) (“[e]xcept for terms concerning the
    custody or support of minor children, the decree may expressly preclude
    or limit modification of terms set forth in the decree”).
    40
    Ryder v. Ryder, supra note 13; Whitesides v. Whitesides, 
    290 Neb. 116
    , 
    858 N.W.2d 858
    (2015).
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    The district court correctly applied this standard to Mark’s
    complaint to modify the post‑majority child support provision
    and properly found he had not met his burden of proof in that
    regard. Mark’s arguments to the contrary are without merit.
    No Error in Award
    of Attorney Fees
    [15] The district court awarded Karen $3,500 in attorney
    fees and costs. Mark assigns this as error. In an action for the
    dissolution of marriage, the award of attorney fees is discre-
    tionary with the trial court, is reviewed de novo on the record,
    and will be affirmed in the absence of an abuse of discretion.41
    Having reviewed the parties’ arguments and the record, we find
    no abuse of discretion in the award of attorney fees.
    CONCLUSION
    For the foregoing reasons, we affirm the judgment of the
    district court.
    A ffirmed.
    K elch, J., not participating in the decision.
    Wright, J., not participating.
    41
    Vlach v. Vlach, supra note 3.