Jensen v. Jensen

of his personal and family health problems began, and those
problems were not so severe as to totally excuse his failure to
promptly communicate with his client. Finally, in a similar case,
we suspended an attorney who failed to return an unearned
portion of a client’s fee until after the client filed a complaint
against him.8
After a de novo review, it is the judgment of this court that
Barnes be suspended from the practice of law for 30 days,
beginning immediately. Barnes’ license to practice law shall be
reinstated at the end of the 30-day suspension, provided that he
has complied with Neb. Ct. r. of discipline 16 (rev. 2004) and
further provided that he has repaid to HiPAWS the remaining
portion of his unearned fee. Barnes is directed to pay costs and
expenses in accordance with Neb. rev. Stat. §§ 7-114 and 7-115
(reissue 1997) and Neb. Ct. r. of discipline 10(P) (rev. 2005)
and 23 (rev. 2001) within 60 days after an order imposing costs
and expenses, if any, is entered by the court.
J udgment of susPension .
8 See State ex rel. Counsel for Dis. v. Hynes, 262 Neb. 307, 631 N.W.2d 499
(2001).
JeNSeN v. JeNSeN 	921
Cite as 275 Neb. 921
alan dean J ensen , aPPellee , v .
kathleen a. J ensen , now known as
kathleen a. keRRigan , aPPellant .
750 N.W.2d 335
Filed June 13, 2008. 	No. S-07-728.
1. Judgments: Appeal and Error. When reviewing questions of law, an appellate
court has an obligation to resolve the questions independently of the conclusion
reached by the trial court.
2. Judgments: Final Orders. Orders purporting to be final judgments, but that are
dependent upon the occurrence of uncertain future events, do not necessarily oper-
ate as “judgments” and may be wholly ineffective and void as such.
3. ____: ____. A conditional judgment may be wholly void because it does not “per-
form in praesenti” and leaves to speculation and conjecture what its final effect
may be.
4. ____: ____. While conditional orders will not automatically become final judg-
ments upon the occurrence of the specified conditions, they can operate in
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:53 AM CST

922 	275 NeBrASkA rePOrTS
conjunction with a further consideration of the court as to whether the conditions
have been met, at which time a final judgment may be made.
5. Judgments: Equity. The void conditional judgment rule does not extend to
actions in equity.
6. ____: ____. Conditional judgments are a fundamental tool with which courts sit-
ting in equity have traditionally been privileged to properly devise a remedy to
meet the situation.
7. ____: ____. Where it is necessary and equitable to do so, a court of equitable juris-
diction may enter a conditional judgment and such judgment will not be deemed
void simply by virtue of its conditional nature.
8. Property Settlement Agreements. Where a property division is made pursuant
to a voluntary agreement by the parties, a further equitable consideration arises as
to the need to protect the parties’ bargaining power and the benefit of a bargain
once made.
9. Property Settlement Agreements: Presumptions. Where parties have forgone
their opportunity to litigate disputes and have chosen instead to enter into an
agreement, their reliance on the agreement may be presumed.
10. Property Settlement Agreements: Equity. Inequity may result if a court adopts
a policy of less than full enforcement of mutually agreed-upon property and
support agreements.
11. Property Settlement Agreements: Child Support: Public Policy. Public policy
forbids enforcement of a private agreement that purports to discharge a parent’s
liability for child support, if the agreement does not adequately provide for
the child.
12. Child Support. When overpayments of child support are voluntarily made outside
the terms of a court order, the general rule is that no credit is given for those
payments, because such a credit would be tantamount to allowing one party to
unilaterally modify the court’s order, which could result in the deprivation of future
support benefits.
13. Child Support: Equity. A credit against child support can be granted where
equity requires it.
14. Judgments: Res Judicata. The doctrine of res judicata, or claim preclusion, bars
the relitigation of a matter that has been directly addressed or necessarily included
in a former adjudication if (1) the former judgment was rendered by a court of
competent jurisdiction, (2) the former judgment was a final judgment, (3) the
former judgment was on the merits, and (4) the same parties or their privies were
involved in both actions.
15. Res Judicata. The doctrine of res judicata bars relitigation not only of those mat-
ters actually litigated, but also of those matters which might have been litigated in
the prior action.
16. Courts: Judgments. A district court has the inherent power to determine the sta-
tus of its judgments.
17. ____: ____. The district court may, on motion and satisfactory proof that a judg-
ment has been paid and satisfied in whole or in part by the act of the parties
thereto, order it discharged and canceled of record, to the extent of the payment
or satisfaction.

Appeal from the district Court for douglas County: P atRicia
a. lambeRty, Judge. Affirmed.
Stephanie Weber Milone for appellant.
donald A. roberts, of Lustgarten & roberts, P.C., L.L.O.,
for appellee.
heavican , 	c.J., 	wRight , 	connolly , 	geRRaRd , 	stePhan ,
mccoRmack , and milleR-leRman , JJ.
geRRaRd , J.
The parties to this appeal entered into an agreement, incor-
porated into a court order, by which the father of a minor child
agreed to pay the mother $14,000. If the mother ever sought
and received child support, however, the order provided that the
father was to receive $14,000 credit against the child support
award. The primary issue presented in this appeal is whether
such a provision is enforceable. We conclude that on the facts
of this case, the agreement is enforceable, and we affirm the
judgment of the district court.
BACkGrOUNd
Alan dean Jensen and kathleen A. Jensen, now known as
kathleen A. kerrigan, are the parents of a minor child whose
paternity was adjudicated in a decree entered on december 29,
1999. That decree established joint legal and physical custody,
and because Alan and kathleen were living together at the time,
no child support was awarded.
The decree of paternity was modified on March 14, 2000.
The modification established a schedule for the parties’ physical
custody of the child. The 2000 modification did not order ongo-
ing child support, but provided that
[Alan] has delivered to [kathleen], the sum of $14,000.00,
which amount is considered toward any future child sup-
port that [kathleen] may request from the Court. In the
event [kathleen] does request child support in the future,
the $14,000.00 shall be used toward the payment of that
child support each month, before [Alan] shall be required
to make any actual payments to the Court. In the event
JeNSeN v. JeNSeN 	923
Cite as 275 Neb. 921

924 	275 NeBrASkA rePOrTS
[kathleen] never requests child support during the minor-
ity of the child, she shall not be required to repay or credit
this money to [Alan].
Alan testified that the $14,000 payment had been made at
kathleen’s request. Alan explained that kathleen “didn’t want
to get an apartment. She wanted [the child] to have a house with
a backyard. And I told her that I would help her in that regard
in as much as that would provide shelter for my son.” kathleen
conceded that she received the $14,000 payment and used it to
make a downpayment on a house.
On January 12, 2001, kathleen filed an application for
another modification of the decree. kathleen alleged that the
joint custody arrangement was not working and prayed that she
be awarded sole custody. Alan cross-petitioned for custody and
child support. The parties then, through mediation, entered into
a “parenting plan” reestablishing a schedule for joint custody.
The parenting plan was not memorialized by the court at that
time, nor was the decree modified.
On October 14, 2003, Alan petitioned to modify the decree,
alleging, for a number of reasons, that circumstances had changed
since the parenting plan and previous court orders and that he
should be awarded sole custody and child support. On November
19, the court modified the decree to reflect the previous parent-
ing plan. On November 21, kathleen cross-petitioned for sole
custody and child support.
The case was not tried until September and October 2005.
On March 7, 2006, the court entered an order modifying the
decree, awarding kathleen sole custody, and establishing a visi-
tation schedule. The court ordered Alan to pay child support “in
the amount of $1,100 per month commencing the first month
after the signing and entry of this Order and continuing until
the minor child reaches majority, marries, is emancipated, dies,
or until further order of the Court.” The order did not address a
credit against the child support award, and there is no indication
in the record that Alan raised the issue of a credit at that time.
Alan appealed from the March 7 order, assigning error only
to the district court’s failure to award him sole custody. In a
memorandum opinion filed december 12, the Court of Appeals
affirmed the district court’s custody award.

On March 29, 2007, Alan filed a declaratory judgment action
in the district court, seeking a declaration with respect to the
$14,000 credit provision of the March 14, 2000, order. In
response, kathleen alleged that the credit provision was (1)
void as a conditional order, (2) void as against public policy, (3)
void as impermissibly contracting away the right of the child to
receive child support, and (4) barred by res judicata. kathleen
also alleged that the $14,000 payment “has been expended in
maintaining and supporting the parties’ minor child” and that
she was unable to return it. At trial, kathleen testified that
she had cut back her work hours, “because I thought I was
going to have this money coming in. And now that it’s not in,
we’re struggling.”
The district court rejected each of kathleen’s arguments. The
court reasoned that the credit provision had not bargained away
the right to receive child support, but was in effect a negotiated
settlement provision in which Alan had agreed to pay a sum of
money that was to be used in supporting the child. The court
concluded that the March 14, 2000, order was valid and enforce-
able, and declared that Alan was entitled to a credit of $14,000
to be applied to the March 7, 2006, child support award.
ASSIGNMeNTS OF errOr
kathleen assigns that the district court erred in declaring the
$14,000 credit provision enforceable and in granting Alan such
credit against his child support obligation.
STANdArd OF reVIeW
[1] This appeal presents questions of law. When reviewing
questions of law, an appellate court has an obligation to resolve
the questions independently of the conclusion reached by the
trial court.1
ANALYSIS
kathleen offers three arguments in support of her assign-
ments of error: that the credit provision was a void conditional
order, that it is unenforceable as against public policy, and that
1 Law Offices of Ronald J. Palagi v. Howard, ante p. 334, 747 N.W.2d 1
(2008).
JeNSeN v. JeNSeN 	925
Cite as 275 Neb. 921

926 	275 NeBrASkA rePOrTS
Alan’s enforcement of the provision is barred by res judicata.
We will address each argument in turn.
conditional oRdeR
[2,3] kathleen argues that the credit provision is a void
conditional judgment. Orders purporting to be final judgments,
but that are dependent upon the occurrence of uncertain future
events, do not necessarily operate as “judgments” and may be
wholly ineffective and void as such.2 We have explained that a
conditional judgment may be wholly void because it does not
“perform in praesenti” and leaves to speculation and conjecture
what its final effect may be.3
[4-7] But we have also explained that while conditional
orders will not automatically become final judgments upon the
occurrence of the specified conditions, they can operate in con-
junction with a further consideration of the court as to whether
the conditions have been met, at which time a final judgment
may be made.4 And more importantly, we held in Strunk v.
Chromy-Strunk that the void conditional judgment rule does not
extend to actions in equity.5 Conditional judgments are a funda-
mental tool with which courts sitting in equity have traditionally
been privileged to properly devise a remedy to meet the situa-
tion. Therefore, where it is necessary and equitable to do so, a
court of equitable jurisdiction may enter a conditional judgment
and such judgment will not be deemed void simply by virtue of
its conditional nature.6
[8-10] Instead, certain conditional judgments may be con-
sidered erroneous or an abuse of discretion, be set aside where
procured by fraud, or be considered void as contrary to statute
or public policy.7 There is no evidence of fraud in this case, and
we will consider public policy more completely in the context
of kathleen’s next argument. We have also said that where a
2 See Strunk v. Chromy-Strunk, 270 Neb. 917, 708 N.W.2d 821 (2006).
3 See id.
4 Id.
5 Id.
6 See id.
7 Id.

property division is made pursuant to a voluntary agreement
by the parties, a further equitable consideration arises as to the
need to protect the parties’ bargaining power and the benefit of
a bargain once made.8 Where parties have forgone their oppor-
tunity to litigate disputes and have chosen instead to enter into
an agreement, their reliance on the agreement may be presumed.
Inequity may result if the court adopts a policy of less than
full enforcement of mutually agreed-upon property and support
agreements.9 That would be the case here. We note, in particu-
lar, that although kathleen argues the March 14, 2000, order
was void, she has made no offer to return the $14,000 payment
she received as a result of the order.
The credit provision at issue here was the product of negotia-
tion and agreement by the parties, and was incorporated by the
court into what was implicitly a fair and reasonable modifica-
tion of the paternity decree. even assuming it was subject to
collateral attack, it was not so indefinite as to be unenforceable.
And the evidence suggests that the provision was an appropri-
ate exercise of the court’s equitable powers, because it made
possible a settlement provision that, at the time, was apparently
in the child’s best interests. We reject kathleen’s claim that the
provision was an impermissible conditional order.
P ublic P olicy
[11] kathleen also argues that the credit provision is unen-
forceable as against public policy. We have explained that
public policy forbids enforcement of a private agreement that
purports to discharge a parent’s liability for child support, if the
agreement does not adequately provide for the child.10 But the
agreement at issue here did not discharge Alan’s liability for
child support. Instead, it expressly provided Alan with credit for
a payment that the parties agreed would constitute prepayment
of any subsequent child support award. We conclude that on the
facts of this case, the agreement is enforceable.
8 Id.
9 Id.
10 See State on behalf of Kayla T. v. Risinger, 273 Neb. 694, 731 N.W.2d 892
(2007).
JeNSeN v. JeNSeN 	927
Cite as 275 Neb. 921

928 	275 NeBrASkA rePOrTS
[12,13] When overpayments of child support are voluntarily
made outside the terms of a court order, the general rule is that
no credit is given for those payments.11 The principle behind this
rule is that such a credit would be tantamount to allowing one
party to unilaterally modify the court’s order, which could result
in the deprivation of future support benefits.12 Nonetheless, even
then, a credit against child support can be granted where equity
requires it.13
But Alan does not need equitable relief in the present case,
because this case does not involve a voluntary overpayment.
rather, it involves a payment that was actually incorporated into
the court’s order. Alan is not seeking relief from the provisions
of the decree, as modified by the March 14, 2000, order—he
is asking the court to enforce the modified decree’s express
terms. Alan’s $14,000 payment was neither “voluntary” nor
an “overpayment,” because it was the payment specified in the
court’s order.
Instead, the question here is whether principles of equity
demand that the credit provision of the March 14, 2000, order be
set aside. The few courts to have considered comparable circum-
stances have concluded that giving such credit is appropriate.14
Such a credit clause does not violate public policy because it is
regarded as a lump-sum payment of child support, not a waiver
of child support altogether.15 And the agreement still provides
regular support for the children, because it is the custodial
11 See, Jameson v. Jameson, 13 Neb. App. 703, 700 N.W.2d 638 (2005); Palagi
v. Palagi, 10 Neb. App. 231, 627 N.W.2d 765 (2001); Griess v. Griess, 9
Neb. App. 105, 608 N.W.2d 217 (2000).
12 See Griess, supra note 11.
13 See id. See, e.g., Berg v. Berg, 238 Neb. 527, 471 N.W.2d 435 (1991);
Contra Costa Cty. ex rel. Petersen v. Petersen, 234 Neb. 418, 451 N.W.2d
390 (1990); Cotton v. Cotton, 222 Neb. 306, 383 N.W.2d 739 (1986).
14 See, Hewson v. Hewson, 708 N.W.2d 889 (N.d. 2006); Picht v. Henry,
252 Iowa 559, 107 N.W.2d 441 (1961); Blume v. Stewart, 715 N.e.2d 913
(Ind. App. 1999); Marriage of Babbitt, 50 Wash. App. 190, 747 P.2d 507
(1987).
15 See Marriage of Babbitt, supra note 14. See, also, Hewson, supra note 14.

parent’s responsibility, being aware of the credit provision, to
budget the payment accordingly.16
kathleen relies on Gibson v. Gibson,17 in which this court
reversed a trial court’s entry of a lump-sum child support award.
But Gibson is distinguishable. The judgment in Gibson did not
involve a credit provision. rather, the trial court attempted to
award, in advance, all the child support to be paid for the fol-
lowing 13 years. We held that it was
improper under the law to make a final, definite, and posi-
tive entry of such a judgment for the support of a minor
child, for the amount to be paid must vary with the several
needs of the child . . . and the court may also consider
such changes in the financial condition of the father as are
shown by the testimony. Therefore, the law has provided
that the monthly payments can be changed from time to
time as the evidence warrants.18
The problem in Gibson was not, as kathleen suggests, an order
for a lump-sum payment. Instead, we found error in the trial
court’s attempt to order, without the agreement of the parties,
that all the child support be paid in advance. That error is not
present here, because the March 14, 2000, order was the prod-
uct of a settlement agreement and does not preclude a future
child support award or adjustment of that award. In fact, the
order expressly acknowledges that possibility—it simply directs
that Alan be credited for a substantial payment that he has
already made.
kathleen also argues that the March 14, 2000, order was not
accompanied by a child support worksheet. It is true that all
orders for child support, including modifications, should include
the appropriate child support worksheets.19 And in the event of a
deviation from the Nebraska Child Support Guidelines, the trial
court should state the amount of support that would have been
required under the guidelines absent the deviation and include
16 See Blume, supra note 14.
17 Gibson v. Gibson, 147 Neb. 991, 26 N.W.2d 6 (1947).
18 Id. at 1000, 26 N.W.2d at 10.
19 See, e.g., Nebraska Child Support Guidelines, paragraph C; Gress v. Gress,
271 Neb. 122, 710 N.W.2d 318 (2006).
JeNSeN v. JeNSeN 	929
Cite as 275 Neb. 921

930 	275 NeBrASkA rePOrTS
the reason for the deviation in the findings portion of the decree
or order, or complete and file worksheet 5 in the court file.20
But it is not clear that a worksheet would have been neces-
sary or appropriate for the March 14, 2000, modification of the
decree, given that no ongoing child support award was entered
in that order. And the basis for the order—both the $14,000 pay-
ment and the credit provision—was apparent from the record. In
any event, we have never held that the absence of a child sup-
port worksheet provides a basis for a collateral attack on a final
judgment. Once the March 14 order became final, even without
a worksheet, it was enforceable.
Finally, kathleen argues that Alan did not prove that giving
him a credit against child support is in the best interests of the
child. But kathleen’s argument misses the point. The record
establishes that the $14,000 payment was originally made so
kathleen could make a downpayment on a house, for her bene-
fit and the child’s. Presumably, without the credit provision, no
such payment would have been made.
Although the March 14, 2000, order was entered by agree-
ment of the parties, determination of the best interests of a child
includes a judicial decision based upon evidence and is not
governed exclusively by a parental stipulation.21 This principle
imposed upon the trial court, in entering the March 14 order,
an obligation to independently consider whether the order was
in the best interests of the child.22 There is no evidence in the
record to suggest that it did not do so, and we reject kathleen’s
collateral attack to the contrary. Because the March 14 order
was presumably in the child’s best interests when it was entered,
it was not Alan’s burden to prove it was still in the best interests
of the child in order to have it enforced.
kathleen was seeking relief from the terms of the modified
decree, not Alan. essentially, kathleen sought to modify the
20 Gress, supra note 19.
21 See, Stuhr v. Stuhr, 240 Neb. 239, 481 N.W.2d 212 (1992); Schulze v.
Schulze, 238 Neb. 81, 469 N.W.2d 139 (1991). See, also, Zahl v. Zahl, 273
Neb. 1043, 736 N.W.2d 365 (2007); Lawson v. Pass, 10 Neb. App. 510, 633
N.W.2d 129 (2001).
22 See id.

decree again to set aside the credit provision. But the March 14,
2000, modification to the decree was the product of negotiation
and settlement between the parties. And kathleen presented no
evidence of particular hardship to the child, or any other evi-
dence that would justify setting the stipulated settlement aside.
Without such evidence, we find no equitable basis for reversing
the trial court’s decision to enforce the modified decree that was
agreed to by the parties and approved by the court.
R es J udicata
kathleen’s final argument is that Alan’s claim for credit
against the 2006 child support award was barred by res judicata.
kathleen argues that Alan should have asked for credit in the
last modification proceeding, and not after the child support
award was entered. Therefore, kathleen asserts that his declara-
tory judgment action should be barred by res judicata.
[14,15] The doctrine of res judicata, or claim preclusion, bars
the relitigation of a matter that has been directly addressed or
necessarily included in a former adjudication if (1) the former
judgment was rendered by a court of competent jurisdiction, (2)
the former judgment was a final judgment, (3) the former judg-
ment was on the merits, and (4) the same parties or their privies
were involved in both actions.23 The doctrine bars relitigation not
only of those matters actually litigated, but also of those matters
which might have been litigated in the prior action.24
But Alan’s claim for credit against his child support obliga-
tion was not before the court, expressly or implicitly, in the last
modification proceeding. rather, it had been conclusively settled
in the March 14, 2000, modification, from which kathleen
did not appeal. Alan was entitled to rely on the provisions of
the March 14 order, at least until it became clear that he and
kathleen disagreed about its effectiveness. There is nothing in
the record to suggest that Alan knew, in the last modification
proceeding, that it would be necessary to seek a declaratory
23 Ichtertz v. Orthopaedic Specialists of Neb., 273 Neb. 466, 730 N.W.2d 798
(2007).
24 Id.
JeNSeN v. JeNSeN 	931
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932 	275 NeBrASkA rePOrTS
judgment to enforce the provisions of the March 14 order.25 He
was not required, in the later proceedings, to anticipate a col-
lateral attack on the credit provision.
[16,17] Instead, Alan’s declaratory judgment action sought
to establish, insofar as the $14,000 credit was concerned, that
a portion of Alan’s liability for child support had already been
discharged. We have previously noted, in the context of approv-
ing credit against child support judgments, that a district court
has the inherent power to determine the status of its judgments.26
The district court may, on motion and satisfactory proof that a
judgment has been paid and satisfied in whole or in part by the
act of the parties thereto, order it discharged and canceled of
record, to the extent of the payment or satisfaction.27 While the
2006 child support award set a date upon which Alan’s obliga-
tion to pay child support would commence, that did not pre-
clude the court from finding, pursuant to the March 14, 2000,
order, that part of the March 7, 2006, award had already been
satisfied by Alan’s $14,000 payment.
CONCLUSION
The credit provision was not void as a conditional order or
as against public policy. Alan’s declaratory judgment action to
enforce the provision was not barred by res judicata. Therefore,
kathleen’s assignments of error lack merit, and we affirm the
judgment of the district court.
affiRmed .
25 See id.
26 Cotton, supra note 13. See, also, Berg, supra note 13; Petersen, supra note
13.
27 Berg, supra note 13; Cotton, supra note 13.