Gentele v. Gentele

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Nebraska Supreme Court Advance Sheets
319 Nebraska Reports
GENTELE v. GENTELE
Cite as 319 Neb. 182
Tara Gentele, appellant, v.
Christopher Gentele, appellee.
___ N.W.3d ___
Filed June 13, 2025. 	No. S-24-472.
1. Waiver: Appeal and Error. Whether a party waived his or her right to
appellate review is a question of law.
2. Judgments: Appeal and Error. When reviewing questions of law, an
appellate court resolves the questions independently of the lower court’s
conclusions.
3. ____: ____. Generally, under the acceptance of benefits rule, an appel-
lant may not voluntarily accept the benefits of part of a judgment in the
appellant’s favor and afterward prosecute an appeal or error proceeding
from the part that is against the appellant.
Appeal 	from 	the 	District 	Court 	for 	Lancaster 	County:
Andrew R. Jacobsen, Judge. Appeal dismissed.
Gregory 	D. 	Barton, 	of 	Barton 	Law, 	P.C., 	L.L.O., 	for
appellant.
John W. Ballew, Jr., of Ballew Hazen Byrd, P.C., L.L.O., for
appellee.
Funke, 	C.J., 	Miller-Lerman, 	Cassel, 	Stacy, 	Papik,
Freudenberg, and Bergevin, JJ.
Papik, J.
Tara Gentele and Christopher Gentele attempted to resolve
disputed issues in their divorce proceedings through media-
tion. Christopher claimed that during the mediation, the par-
ties reached a settlement agreement. When Tara later denied
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
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Nebraska Supreme Court Advance Sheets
319 Nebraska Reports
GENTELE v. GENTELE
Cite as 319 Neb. 182
that a settlement agreement was reached, Christopher asked
the district court to enforce the settlement agreement. The
district court found that the parties did reach a settlement
agreement at the mediation, and it entered a dissolution decree
imposing the agreement’s terms. The decree included a provi-
sion requiring Christopher to make a series of equalization
payments to Tara and a provision evenly dividing certain
credit card rewards points between the parties. Shortly after
the decree was entered, Christopher made an equalization pay-
ment and transferred the rewards points to Tara pursuant to the
decree. Tara accepted the equalization payment and the trans-
fer of rewards points, but she also filed a notice of appeal. On
appeal, she argues that the district court erred by enforcing the
settlement agreement. We find that the acceptance of benefits
rule precludes Tara’s appeal and therefore dismiss it.
BACKGROUND
Parties Initiate Divorce Proceedings
and Engage in Mediation.
Tara and Christopher were married in 2009 and had two
children together. By 2022, both parties wanted a divorce.
Tara initiated divorce proceedings in the district court, and
Christopher filed an answer and counterclaim in which he also
requested that the district court dissolve the marriage.
Although both parties wanted a divorce, they disagreed
on terms of dissolution. Tara and Christopher participated in
a mediation in an attempt to resolve various disputed issues
including parenting time, property division, alimony, and child
support.
Tara and Christopher disagree about what transpired at
the mediation. Christopher asserts that the parties reached a
complete settlement agreement by the mediation’s end. Tara
claims that late in the mediation, she rejected a proposal
made by Christopher and left the mediation. There is no dis-
pute that Tara left the mediation without signing a settlement
agreement.

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Nebraska Supreme Court Advance Sheets
319 Nebraska Reports
GENTELE v. GENTELE
Cite as 319 Neb. 182
District Court Enforces Settlement Agreement.
Contrary to the expectations of Christopher’s attorney, Tara’s
counsel did not prepare a formal agreement memorializing a
settlement after the mediation. Instead, Tara retained new coun-
sel, who filed an entry of appearance and a motion requesting
an antihypothecation order. When it had become apparent that
Tara was taking the position that a settlement agreement had
not been reached, Christopher filed a motion to enforce the
settlement agreement.
The district court held a hearing on Christopher’s motion to
enforce the settlement agreement. Christopher, Tara, and the
mediator testified as to their recollections of the mediation.
Tara testified that she left the mediation without agreeing to
a settlement. Christopher and the mediator testified that the
parties reached a settlement agreement that was memorial-
ized in a written document that was received by the district
court. In addition to her contention that she did not agree to a
settlement agreement, Tara also argued to the district court that
Christopher’s motion should be denied because any agreement
was covered by the statute of frauds and she had not signed
the document that, according to Christopher, memorialized the
settlement agreement.
After the evidentiary hearing, the district court entered an
order granting Christopher’s motion. The district court found
that the parties had reached an enforceable agreement at the
mediation. The district court’s order did not expressly address
Tara’s argument that without a signed agreement, the settle-
ment agreement was unenforceable under the statute of frauds.
The district court held a final dissolution hearing before
entering a dissolution decree. At that hearing, Tara testified to
her belief that the marriage was irretrievably broken. She also
testified that while she understood that the decree would be
based upon the terms of the settlement agreement the district
court had found the parties entered into, she believed those
terms were not fair and reasonable. Specifically, she testified
that the settlement agreement was premised on an incorrect

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Nebraska Supreme Court Advance Sheets
319 Nebraska Reports
GENTELE v. GENTELE
Cite as 319 Neb. 182
valuation of a business that was allocated to Christopher under
the settlement agreement. She testified that a certified public
accountant she had hired had determined that the business was
worth approximately $100,000 more than the amount that was
used to arrive at the settlement agreement. Christopher also
testified at the final dissolution hearing. He testified that he
believed the settlement agreement was fair and reasonable.
After the final dissolution hearing, the district court entered a
decree dissolving the parties’ marriage. The dissolution decree
imposed the terms the district court had found the parties
agreed to in the settlement agreement. Those terms included
an order for joint legal and physical custody of the par-
ties’ children. The decree also included a provision requiring
Christopher to make an equalization payment of $275,000 to
Tara in installments. The decree required Christopher to make
the first payment of $100,000 within 7 days of the entry of the
decree. Additional amounts were to be paid over the next 3
years. The decree also provided each party was to receive half
of certain credit card rewards points they had earned over the
course of the marriage.
Tara Accepts Equalization Payment and
Rewards Points and Files Appeal.
Two days after the dissolution decree was entered, Tara
filed documents in the district court acknowledging that she
had received a $100,000 equalization payment, as well as the
rewards points allocated to her by the decree. Later that same
day, she filed a notice of appeal.
We moved the appeal to our docket pursuant to Neb. Rev.
Stat. § 24-1106(3) (Cum. Supp. 2024).
ASSIGNMENTS OF ERROR
Tara assigns on appeal, restated, that the district court erred
by enforcing the settlement agreement because (1) the parties
never reached an agreement and (2) without her signature on
a written agreement, the agreement Christopher contends the
parties reached is unenforceable under the statute of frauds.

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Nebraska Supreme Court Advance Sheets
319 Nebraska Reports
GENTELE v. GENTELE
Cite as 319 Neb. 182
If she prevails on either assignment of error, Tara asks us
to vacate the decree and the order enforcing the settlement
agreement and to direct the district court to conduct further
proceedings.
STANDARD OF REVIEW
[1,2] Whether a party waived his or her right to appellate
review is a question of law. Becher v. Becher, 299 Neb. 206,
908 N.W.2d 12 (2018). When reviewing questions of law, an
appellate court resolves the questions independently of the
lower court’s conclusions. Id.
ANALYSIS
Christopher raises a threshold matter we address before
entertaining the merits of Tara’s appeal: whether the appeal is
precluded because Tara accepted the benefits of the judgment
she now challenges on appeal. We find that it is.
[3] For nearly as long as Nebraska has been a state, this court
has recognized the acceptance of benefits rule. In Hamilton
County v. Bailey, 12 Neb. 56, 60, 10 N.W. 539, 541 (1881), this
court, citing decisions from the Iowa Supreme Court, explained
that a party could not “accept the amount awarded to him by
an order or judgment, and thereby receive the benefit of the
same and appeal from such order or judgment.” In the decades
that followed, this court continued to recognize and apply some
version of that rule. See, e.g., Liming v. Liming, 272 Neb. 534,
723 N.W.2d 89 (2006) (collecting cases). In more recent years,
we have articulated the general acceptance of benefits rule as
follows: “Generally, under the acceptance of benefits rule, an
appellant may not voluntarily accept the benefits of part of a
judgment in the appellant’s favor and afterward prosecute an
appeal or error proceeding from the part that is against the
appellant.” Seldin v. Estate of Silverman, 305 Neb. 185, 220,
939 N.W.2d 768, 794 (2020).
There is no dispute in this case that Tara’s appeal falls
within the general acceptance of benefits rule as articulated
above. By accepting Christopher’s equalization payment and

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Nebraska Supreme Court Advance Sheets
319 Nebraska Reports
GENTELE v. GENTELE
Cite as 319 Neb. 182
the transfer of the rewards points, Tara voluntarily accepted
benefits afforded to her by the decree and then subsequently
sought to challenge the decree on appeal. We are aware that
some courts have held that if a party accepts the benefits of a
judgment or decree due to financial duress, they have not vol-
untarily accepted the benefits for purposes of the acceptance of
benefits rule. See, e.g., Haggard v. Haggard, 550 S.W.2d 374
(Tex. App. 1977). Tara, however, makes no argument that she
accepted the benefits under financial duress.
Tara maintains that her appeal should be allowed to proceed
despite her voluntary acceptance of benefits. She argues that
her appeal is not precluded because it falls within an excep-
tion to the general acceptance of benefits rule. We extensively
discussed the acceptance of benefits rule and its exceptions
in Liming. Because this discussion from Liming is relevant to
Tara’s arguments, we summarize the opinion from that case in
considerable detail below.
Liming came to this court via a petition for further review.
The Nebraska Court of Appeals had summarily affirmed an
appeal under the acceptance of benefits rule after a party to a
marital dissolution proceeding had accepted an alimony pay-
ment made pursuant to a dissolution decree and subsequently
challenged on appeal the decree’s division of the marital estate.
On further review, this court traced the history of the
acceptance of benefits rule in Nebraska. We noted that for
nearly as long as this court had recognized the general accep-
tance of benefits rule, it had recognized that the rule was sub-
ject to exceptions. For example, we observed that our cases
had long recognized that an appeal is not precluded where
a party accepts the benefits of a judgment or decree but the
“right to the benefit accepted is absolute and cannot possibly
be affected by reversal of the judgment.” Liming, 272 Neb.
at 539, 723 N.W.2d at 94. Further explaining this exception,
we stated that “[i]t is the possibility that appeal may lead to
a result showing that the party was not entitled to what was
received under the judgment appealed from that defeats the

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Nebraska Supreme Court Advance Sheets
319 Nebraska Reports
GENTELE v. GENTELE
Cite as 319 Neb. 182
right of appeal,” but “[w]here there is no such possibility,” the
rule does not apply. Id.
We then mentioned some specific situations that would fall
within the exception and in which an appeal would thus not
be precluded despite the appellant’s acceptance of benefits:
“where one is shown to be so absolutely entitled to the sum
collected or accepted that reversal of the judgment or decree
will not affect his or her right to it, as in the case of a col-
lection of an admitted or uncontroverted part of his or her
demand” and “when the appellant is conceded to be entitled to
the thing he or she has accepted and where the appeal relates
only to an additional claim on his or her part.” Liming v.
Liming, 272 Neb. 534, 539, 723 N.W.2d 89, 94 (2006).
We further explained that in concluding that the acceptance
of benefits rule precluded the appeal at issue in Liming, the
Court of Appeals had relied on two cases decided by this
court that had failed to recognize that the general acceptance
of benefits rule was subject to the exception discussed above.
See, e.g., Giese v. Giese, 243 Neb. 60, 497 N.W.2d 369 (1993);
Shiers v. Shiers, 240 Neb. 856, 485 N.W.2d 574 (1992). We
found, however, that the exception was consistent with our
historic approach to the acceptance of benefits rule as well as
the weight of authority from other jurisdictions. We therefore
disapproved of Giese and Shiers to the extent they failed to
recognize the exception.
Having clarified the governing law, we then found that
the appeal in Liming was not precluded by the acceptance of
benefits rule. Because the appellant’s challenge to the dis-
trict court’s property division could not possibly affect the
appellant’s right to the alimony payment she had accepted,
the appeal was not precluded. Liming, 272 Neb. at 545, 723
N.W.2d at 98 (“it is clear that [the appellant’s] acceptance
of the benefits of the alimony award is not inconsistent with
her appellate argument regarding the property division, and
appellate disposition of that appellate argument could not
affect the alimony award entered by the district court”).

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Nebraska Supreme Court Advance Sheets
319 Nebraska Reports
GENTELE v. GENTELE
Cite as 319 Neb. 182
Returning to this case, Tara contends that her appeal involves
one of the specific situations identified in Liming as not being
subject to the acceptance of benefits rule. Specifically, she con-
tends that in this case, Christopher has conceded her right to
the equalization payment and the rewards points she accepted.
Pointing to her testimony at the final dissolution hearing that
the business awarded to Christopher was undervalued in the
settlement agreement, Tara also claims that she is pursuing this
appeal merely to seek a larger equalization payment and that
such a remedy would not be inconsistent with her acceptance
of the equalization payment and rewards points. For reasons
we will explain, we disagree with Tara’s arguments that her
appeal falls within an exception to the general acceptance of
benefits rule.
First, this is not a case where Christopher has conceded that
Tara is entitled to the benefits Tara accepted, such that the
acceptance of benefits rule does not apply. Tara argues that
Christopher conceded her right to the equalization payment
and the rewards points because he agreed to transfer those
benefits to her in the settlement agreement. But the conces-
sion scenario envisioned in Liming is one in which the right to
the benefit accepted is absolute and could not be affected by
reversal on appeal. It would thus occur when the nonappealing
spouse concedes that the appellant would remain entitled to
the accepted benefits even if his or her appeal is successful.
In this case, Christopher has made no such concession. While
he agreed to transfer benefits to Tara as part of the settlement
agreement, Tara can point to nothing in the record that shows
that Christopher has conceded that if Tara is successful on
appeal and the decree is vacated, Tara would ultimately be
entitled to the same benefits she has already accepted.
As for Tara’s argument that she is appealing merely to pur-
sue a larger equalization payment, she again misunderstands
the Liming opinion. Tara relies on the following excerpt from
that case:

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Nebraska Supreme Court Advance Sheets
319 Nebraska Reports
GENTELE v. GENTELE
Cite as 319 Neb. 182
[W]hen an appellant in a dissolution action accepts only
that which the appellee concedes, or is bound to concede,
to be due to the appellant under the decree, the appel-
lant is not barred from prosecution of an appeal which
involves only the appellant’s right to a future recovery.
Acceptance of part of the award in such circumstances is
not inconsistent with the appellant’s claim that the award
should have been larger.
Liming v. Liming, 272 Neb. 534, 543-44, 723 N.W.2d 89, 97
(2006) (emphasis supplied). This language does not support
Tara’s position, however. As the italicized text above makes
clear, acceptance of part of the award is not inconsistent with
the appellant’s claim that the award should have been larger
when the appeal “involves only the appellant’s right to a future
recovery.” Id. at 544, 723 N.W.2d at 97. But in Tara’s case,
the appeal does not involve only her right to a future recov-
ery; it also involves her right to a past recovery. Her appeal
seeks to vacate the dissolution decree and the order enforcing
the settlement agreement—the orders that created her right to
the equalization payment and the rewards points in the first
place. Tara’s acceptance of those benefits is inconsistent with
her arguments on appeal. This case thus stands in contrast to
a case like Liming in which the appellant accepted an alimony
payment but on appeal sought only to obtain a more favorable
property division.
Tara, however, apparently sees this case as no different
than Liming. In her view, if her appeal is successful and the
decree is vacated, the case could only end with her ultimately
receiving the same or a greater property settlement award
than that provided by the current decree. We see no basis
for us to conclude that is the only possible outcome. If the
settlement agreement and the decree were vacated, this case
would be remanded for further contested proceedings in the
district court. Perhaps the evidence adduced at those proceed-
ings would lead the district court to order that Tara receive
the same property settlement award as that provided to her by

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Nebraska Supreme Court Advance Sheets
319 Nebraska Reports
GENTELE v. GENTELE
Cite as 319 Neb. 182
the current decree or a larger one, but perhaps not. Based on
this record, which primarily includes evidence about whether
a settlement agreement was reached, we have no way to know.
And, as our cases have emphasized, “[i]t is the possibility that
appeal may lead to a result showing that the party was not
entitled to what was received under the judgment appealed
from that defeats the right of appeal” under the acceptance
of benefits rule. Liming, 272 Neb. at 539, 723 N.W.2d at 94
(emphasis supplied). To the same effect is an older case that
analyzed the applicability of the acceptance of benefits rule
by asking: “Could the appeal in this case affect the right of
the plaintiff to the benefit which came to it as a result of the
acceptance of the property in question?” First Trust Co. v.
Hammond, 139 Neb. 546, 551, 298 N.W. 144, 147 (1941).
Because there is a possibility that Tara’s appeal would affect
Tara’s right to the benefits she accepted, the acceptance of
benefits rule precludes her appeal.
In prior cases in which we have found that the acceptance
of benefits rule applies, we have dismissed the appeal without
discussing its merits. See, e.g., Fletcher v. Fletcher, 227 Neb.
179, 416 N.W.2d 570 (1987); Snyder v. Hill, 153 Neb. 721, 45
N.W.2d 757 (1951); Harte v. Castetter, 38 Neb. 571, 57 N.W.
381 (1894). We follow the same course here.
CONCLUSION
Because we find Tara’s appeal is precluded under the accept-
ance of benefits rule, we dismiss the appeal.
Appeal dismissed.