Bergmeier v. Bergmeier , 296 Neb. 440 ( 2017 )

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www.nebraska.gov/apps-courts-epub/
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Nebraska Supreme Court A dvance Sheets
296 Nebraska R eports
BERGMEIER v. BERGMEIER
Cite as 296 Neb. 440
Jay Bergmeier, appellant and cross-appellee,
v. Nanci B. Bergmeier, appellee
and cross-appellant.
___ N.W.2d ___
Filed April 21, 2017. No. S-15-1189.
1. Divorce: Child Custody: Child Support: Property Division:
Alimony: Attorney Fees: Appeal and Error. In actions for dissolution
of marriage, an appellate court reviews the case de novo on the record
to determine whether there has been an abuse of discretion by the trial
judge. This standard of review applies to the trial court’s determinations
regarding custody, child support, division of property, alimony, and
attorney fees.
2. Judges: Words and Phrases. A judicial abuse of discretion exists if the
reasons or rulings of a trial judge are clearly untenable, unfairly depriv-
ing a litigant of a substantial right and denying just results in matters
submitted for disposition.
3. Divorce: Property Division. The ultimate test in determining the appro-
priateness of the division of property is fairness and reasonableness as
determined by the facts of each case.
4. ____: ____. Under Neb. Rev. Stat. § 42-365 (Reissue 2016), the equi-
table division of property is a three-step process. The first step is to clas-
sify the parties’ property as marital or nonmarital, setting aside the non-
marital property to the party who brought that property to the marriage.
The second step is to value the marital assets and marital liabilities
of the parties. The third step is to calculate and divide the net marital
estate between the parties in accordance with the principles contained in
§ 42-365.
5. ____: ____. Generally, all property accumulated and acquired by either
spouse during a marriage is part of the marital estate.
6. Evidence: Appeal and Error. In a review de novo on the record, an
appellate court reappraises the evidence as presented by the record and
reaches its own independent conclusions on the matters at issue. When
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Cite as 296 Neb. 440
evidence is in conflict, the appellate court considers and may give
weight to the fact that the trial judge heard and observed the witnesses
and accepted one version of the facts rather than another.
7. Alimony. The purpose of alimony is to provide for the continued main-
tenance or support of one party by the other when the relative economic
circumstances and the other criteria enumerated in Neb. Rev. Stat.
§ 42-365 (Reissue 2016) make it appropriate.
8. Alimony: Appeal and Error. In reviewing an alimony award, an appel-
late court does not determine whether it would have awarded the same
amount of alimony as did the trial court, but whether the trial court’s
award is untenable such as to deprive a party of a substantial right or
just result.
9. Alimony. The primary purpose of alimony is to assist an ex-spouse for
a period of time necessary for that individual to secure his or her own
means of support.
10. ____. In an alimony award, the ultimate criterion is one of
reasonableness.
Appeal from the District Court for Douglas County: M arlon
A. Polk, Judge. Affirmed in part as modified, and in part
reversed and remanded with directions.
Aaron F. Smeall, of Smith, Slusky, Pohren & Rogers, L.L.P.,
for appellant.
Benjamin M. Belmont and Wm. Oliver Jenkins, of Brodkey,
Peebles, Belmont & Line, L.L.P., for appellee.
Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy,
K elch, and Funke, JJ.
Miller-Lerman, J.
NATURE OF CASE
Jay Bergmeier filed a complaint for dissolution of marriage,
and Nanci B. Bergmeier filed a “counter-complaint.” The dis-
trict court for Douglas County filed a dissolution decree in
which it, inter alia, determined that Jay’s future “termination
payments” and “extended termination payments” that he was
expected to receive after the dissolution as a “captive agent”
of State Farm Insurance Company (State Farm) were marital
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BERGMEIER v. BERGMEIER
Cite as 296 Neb. 440
property and awarded Nanci a portion thereof. The district
court also divided the parties’ liabilities and other assets, and
it awarded Nanci alimony and attorney fees. Jay appeals, and
Nanci cross-appeals. We affirm in part as modified and in part
reverse, and remand with directions to the district court as set
forth below.
STATEMENT OF FACTS
Jay and Nanci were married in August 1981. Jay and Nanci
adopted two children during their marriage; the parties’ children
were no longer minors at the time of the divorce proceedings.
At the time they married, Jay and Nanci were both teachers.
During the marriage, Nanci left teaching to stay home and raise
the parties’ children. During this time, Nanci also obtained a
master’s degree in health education.
During the marriage, Jay also left teaching and started
working in insurance in 1986. Jay entered into an agreement
with State Farm pursuant to State Farm’s “Form AA4,” and
thus, Jay became a “captive agent” of State Farm. Although a
signed copy of Form AA4 is not in evidence, the record con-
tains an unsigned copy of Form AA4. As a captive agent, Jay
does not own the insurance policies in the way an independent
agent would; instead, the policies are owned by State Farm.
Furthermore, Jay does not own the clients’ accounts or renewal
rights. On January 7, 2014, State Farm’s counsel sent Jay a
letter in response to Jay’s “request for assistance regarding
compensation payments due under [Jay’s] Agent Agreement.”
The letter states:
You have no proprietary interest in the business gen-
erated under your State Farm Agent’s Agreement. The
policies credited to your account belong to State Farm
and may be reassigned by State Farm to the accounts of
other State Farm agents. The physical customer records
and the right to use those records to solicit renewals—
commonly referred to as the “expirations”—belong to
State Farm.
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BERGMEIER v. BERGMEIER
Cite as 296 Neb. 440
The letter goes on to explain that pursuant to section II of
Form AA4,
agents are compensated for soliciting new business and
for servicing existing business. Service compensation is
paid for providing personal service to State Farm pol­
icyholders, assisting adjusters in reporting and handling
claims, and promoting and advancing the interests of the
Company. Service compensation is earned on a day to
day basis.
Under section III of Form AA4, an agent has the right to
terminate the agreement. After termination, the agent may not
act or represent himself or herself in any way as an agent or
representative of State Farm, the agent must return all prop-
erty belonging to State Farm within 10 days after termination
of the agreement, and the agent may not compete with State
Farm for a period of 12 months following termination of
the agreement.
Under Form AA4, an agent, upon certain contingencies
being met, is entitled to two forms of termination payments:
termination payments and extended termination payments.
Termination payments are described in section IV of Form
AA4. Section IV provides that termination payments will be
made in the event the agreement is terminated 2 or more years
after its effective date. The January 7, 2014, letter from coun-
sel for State Farm to Jay describes these termination payments
as follows:
Under Section IV, you have a contract right to termina-
tion payments if you comply with certain conditions at
the time the Agreement is terminated. Termination pay-
ments are based on the service compensation paid to the
agent in the twelve month period preceding the termina-
tion of the Agreement. Termination payments are paid in
sixty monthly installments beginning in the month next
following the termination of the Agreement.
Section IV further states that an agent may qualify for ter-
mination payments so long as all property belonging to State
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BERGMEIER v. BERGMEIER
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Farm has been returned within 10 days following the termi-
nation and the agent does not compete with State Farm for a
period of 12 months.
Extended termination payments are described in section V
of Form AA4. Section V provides that an agent qualifies for
extended termination payments if the agent qualifies for ter-
mination payments under section IV and if at the time of
termination of the agreement the agent was 62 years of age
or older, had at least 20 years of service as a State Farm
agent, and had 10 years of continuous service as a State Farm
agent immediately preceding the date that the agreement was
terminated. With respect to extended termination payments,
the January 7, 2014, letter states: “Extended termination pay-
ments, like termination payments, are based on the service
compensation paid in the twelve month period preceding
the termination of the Agreement. Extended termination pay-
ments begin in the 61st month following the termination of
the Agreement and continue for the lifetime of the agent.”
Section V provides that if the agent is 65 years of age or older
at the time of termination of the agreement, the agent will
receive the full amount of the extended termination payments.
However, if the agent is 62, 63, or 64 years of age at the time
of termination, the extended termination payments will be
actuarially reduced.
In 2005, the parties formed Bergy Properties, L.L.C. The
parties were the managing members of Bergy Properties, and
they each held a 50-percent interest in the business. Bergy
Properties owns an office building in Omaha, Nebraska, that
was appraised at $1.4 million.
On May 7, 2012, Jay filed a complaint for dissolution
of marriage. Nanci filed her answer and counter-complaint
on May 31. Jay filed his reply to the counter-complaint on
June 4.
A trial was held on January 12, March 11, and April 2, 2015.
Evidence was adduced at trial regarding the parties’ assets
and liabilities. Jay generally testified regarding his insurance
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business. Jay operated his business under the name “Jay M.
Bergmeier Agency, Inc.,” and it reported: $1,018,059 in rev-
enues in 2010; $957,318 in revenues in 2011; $867,538 in rev-
enues in 2012; and $864,679 in revenues in 2013. Jay testified
that he was still operating his insurance business at the time of
trial. Nanci testified that at the time of trial, she was working
part time as a substitute teacher and part time for the National
Safety Council.
On August 11, 2015, the district court filed the decree of
dissolution of marriage. In the decree, some awards were listed
by a narrative under individually numbered paragraphs. Some
assets and liabilities were covered by individually numbered
paragraphs, but others were contained in a table.
With respect to alimony, the court ordered Jay to pay Nanci
$2,000 per month and continuing until the last day of the
month in which Nanci reaches the age of 65, until she remar-
ries or dies, until Jay begins receiving termination payments,
or until further order of the court, whichever occurs first. With
respect to real and personal property, each party was awarded
insurance policies held in their respective names.
As noted, the decree set forth a table in which it listed
certain of the parties’ marital assets and marital liabilities.
In the table, the district court designated which party would
receive which assets and liabilities. The table, in summary,
indicates that Jay was awarded a timeshare in Arizona, Nanci
was awarded a timeshare in Missouri, and the parties were
each awarded a 25-percent share of the parties’ 50-percent
interest in a timeshare in Mexico. With respect to vehicles,
Jay was awarded a Mitsubishi, a Suburban, two “Sea Doos,”
and a “Shorelander” trailer, and he was ordered to pay the
lease on a Buick. Nanci was awarded a paddle boat and trailer,
and she was ordered to surrender the lease on a Subaru. With
respect to bank accounts, Jay and Nanci were each awarded 50
percent of the joint account at Bank of Bennington. Jay was
awarded the account at State Farm Credit Union. Nanci was
awarded the account at First National Bank and the checking
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and savings accounts at US Bank. Jay and Nanci were each
awarded his or her own 401K and Roth IRA accounts. Jay
was awarded the two businesses formed during the marriage:
the Jay M. Bergmeier Agency and Bergy Properties. Jay was
assigned all of the parties’ liabilities.
Regarding property not included in the table, the dis-
trict court awarded Jay four season tickets to University of
Nebraska-Lincoln football games and Nanci two season tick-
ets. The parties were awarded household goods, furniture, and
jewelry that were in their respective possession at the time
of the dissolution proceedings. Each party was ordered to be
responsible for any debts that party incurred since the parties’
separation on January 4, 2013.
With respect to equalizing the marital estate, in a para-
graph titled “Equalization of Marital Estate,” the district
court stated:
Having equitably divided the marital estate, exclusive
of [Jay’s] Termination and Early Termination Payments,
the Court finds that the resulting net value of the Parties’
marital estate, is -$52,960.00 and that each party shall
be responsible for fifty percent (50%) of such defi-
ciency[.] The Court further finds that [Nanci’s] portion
of such deficiency shall be paid to [Jay] by reducing
[Nanci’s] interest in [Jay’s] Termination Payments, as set
forth hereinafter.
With respect to termination payments, the district court
stated in the decree:
The Court finds that [Jay’s] Termination Payments are a
marital asset subject to division. The Court further finds
that the value of the marital portion of such assets [is]
$802,040.00. This amount is determined by calculating
the termination payments [Jay] would have received had
[Jay] retired in January of 2014. Each party is awarded
50% thereof with [Nanci’s] portion being reduced by
$26,480.00. As such, [Nanci] is awarded $374,540.00
of [Jay’s] Termination Payment. Such amount shall be
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paid to [Nanci] by [Jay] at such time as [Jay] begins
receiving such payments. [Jay] shall remitting [sic]
50% of his Termination payments received each month
within 15 days of receipt and shall continue to remit
such percentage each month until such time as [Jay]
has paid to [Nanci] the sum of $374,000.00 as required
hereunder.
With respect to “extended termination payments,” the dis-
trict court stated in the decree:
The Court finds that [Jay’s] Extended Termination
Payments are a marital asset subject to division. In the
event [Jay] should qualify for and then receive such
Extended Termination Payments, [Jay] shall remit 50%
of such Extended Termination Payments amount received
each month within 15 days of receipt and shall continue
to remit such payment each month until such time as
[Jay] or [Nanci] shall die, subject to the joint survivor
option hereinafter set forth. [Jay] shall be required to
name [Nanci] as his surviving spouse beneficiary for
all such Extended Termination Payments, through the
joint and survivor option which [Jay] shall be required
to elect.
The district court also awarded Nanci attorney fees in the
amount of $12,500.
On August 17, 2015, Nanci filed a motion to alter or amend
and/or motion for new trial. After a hearing on the motion,
on November 17, the district court filed its order, in which it
denied Nanci’s motion for new trial and granted in part her
motion to alter or amend. The district court stated:
[Nanci’s] Motion to Alter or Amend shall be granted in
part to provide that to the extent that the Decree does
not include all debts as set forth in [Nanci’s] Credit
Report and [Nanci’s] List of Debts marked as Exhibit
95 and Exhibit 96 respectively, offered and received into
evidence, it shall be amended to provide that in addi-
tion to the debts set forth in the Decree that [Jay] is to
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assume, pay, hold [Nanci] harmless, and refinance said
obligations to remove [Nanci] from any liability thereon,
specifically on those debts set forth on Exhibit 96 . . . as
well as those debts on [Nanci’s] Credit Report (Exhibit
95), except her JC Penny and Younkers card that were her
individual liability.
Jay appeals, and Nanci cross-appeals.
ASSIGNMENTS OF ERROR
Jay claims, restated, that the district court erred when it
determined that the termination payments and extended ter-
mination payments were marital assets and awarded Nanci a
portion thereof.
Nanci claims on cross-appeal that the district court erred
when it (1) failed to order Jay to pay the amount of his ter-
mination payments awarded to Nanci in a lump sum or, in the
alternative, in payments commencing immediately upon the
entry of the decree with postjudgment interest; (2) assigned
50 percent of the responsibility of the deficiency in the mari-
tal value to Nanci; and (3) awarded Nanci alimony until she
turned 65 years old instead of at the commencement of her
receipt of termination payments.
STANDARDS OF REVIEW
[1,2] In actions for dissolution of marriage, an appellate
court reviews the case de novo on the record to determine
whether there has been an abuse of discretion by the trial
judge. Devney v. Devney, 295 Neb. 15, 886 N.W.2d 61 (2016).
This standard of review applies to the trial court’s determina-
tions regarding custody, child support, division of property,
alimony, and attorney fees. Sellers v. Sellers, 294 Neb. 346,
882 N.W.2d 705 (2016). A judicial abuse of discretion exists
if the reasons or rulings of a trial judge are clearly untenable,
unfairly depriving a litigant of a substantial right and deny-
ing just results in matters submitted for disposition. Devney v.
Devney, supra.
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ANALYSIS
Termination Payments and Extended
Termination Payments.
Jay claims that the district court erred when it treated the
termination payments and extended termination payments as
marital property. We find no merit to this assignment of error.
As an initial matter, we are aware that other jurisdictions
have considered the contract at issue in this case—State
Farm’s Form AA4. There is a split among the other jurisdic-
tions as to whether the termination payments and extended
termination payments under the contract are marital or non-
marital property. Some jurisdictions have determined that the
termination payments are marital property. See, In re Marriage
of Skaden, 19 Cal. 3d 679, 566 P.2d 249, 136 Cal. Rptr. 615
(1977); Ray v. Ray, 916 S.W.2d 469 (Tenn. App. 1995); Matter
of Marriage of Wade, 923 S.W.2d 735 (Tex. App. 1996); In re
Marriage of Garceau v. Garceau, 232 Wis. 2d 1, 606 N.W.2d
268 (Wis. App. 1999). Other jurisdictions have determined
that the termination payments are nonmarital property. See,
Lawyer v. Lawyer, 288 Ark. 128, 702 S.W.2d 790 (1986); In
re Marriage of Frazier, 125 Ill. App. 3d 473, 466 N.E.2d 290,
80 Ill. Dec. 838 (1984); Mallett v. Mallett, 323 S.C. 141, 473
S.E.2d 804 (S.C. App. 1996). We agree with the reasoning of
those jurisdictions that have determined that termination pay-
ments are marital property.
Jay argues that the termination payments and the extended
termination payments should be classified as nonmarital prop-
erty, because at the time the decree was entered, it was uncer-
tain whether Jay would actually receive the payments and, if
so, what the value of the payments would be. While it is true
that Jay does not have an indefeasible right to a certain benefit,
namely the termination payments and the extended termination
payments, he does have an accrued contractual right subject
only to minimal qualifying conditions, including actual termi-
nation and delivery of State Farm’s property. Jay may choose
to squander this contractual right or forfeit it by violating
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a noncompete provision in the contract, but that should not
affect its status as marital property. We are persuaded that the
State Farm contract, which was acquired during the marriage,
had a substantial value and was properly considered a part of
the marital estate.
As noted above, we are aware that other jurisdictions have
determined that termination payments under this same con-
tract have no value for division as marital property. These
jurisdictions have focused on the fact that the actual value
of the contract depends on the activities of the husband who
is in the relationship with State Farm that occur after the
marriage has been dissolved. See, e.g., Lawyer v. Lawyer,
supra; In re Marriage of Frazier, supra. We choose not to
adopt the conclusion that, for that reason, the wife should be
denied any interest whatsoever in a substantial asset which
was acquired during the marriage. Accordingly, we determine
that the district court did not err when it determined that the
termination payments and extended termination payments are
marital property. We reject Jay’s assignment of error urging a
contrary conclusion.
Although we determine that the district court correctly
classified both termination payments as marital property, we
determine that on this record, the district court abused its dis-
cretion when it assigned the specific value to the termination
payments. The district court assigned a value to the termina-
tion payments based on what the value would have been if Jay
had terminated his contract with State Farm in January 2014.
But Jay did not terminate his relationship with State Farm in
January 2014, and the record shows that he continued to work
for State Farm at the time of trial in 2015. We further note
that the court did not determine a present value of the asset
as of the time of trial, which approach has been found else-
where not to be an abuse of discretion. See Ray v. Ray, supra.
Accordingly, assigning a specific value to the termination pay-
ments as of January 2014 was improper because, inter alia, the
value chosen was stale, it was not warranted by the facts, and
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the actual value depends on factors that have not yet occurred,
such as the date of Jay’s termination and total sales for the 12
months immediately preceding his termination.
Additionally, we determine that the court abused its dis-
cretion when it awarded Nanci 50 percent of the termination
payments and the extended termination payments if and when
Jay receives them at some point after the marriage has been
dissolved. Instead of 50 percent, in keeping with our jurispru-
dence in this area, we believe Nanci’s percentage of termina-
tion payments should reflect the duration the asset was pos-
sessed during the course of the marriage. That is, payments to
Nanci are dependent on the amount of time that Jay will have
been in a working relationship with State Farm both during and
after the parties’ marriage when Jay starts receiving termina-
tion payments.
As to how to calculate what percentage of the termination
payments Nanci should be awarded, we look for guidance to
divorce cases involving pensions. See Klimek v. Klimek, 18
Neb. Ct. App. 82, 775 N.W.2d 444 (2009). See, also, Webster
v. Webster, 271 Neb. 788, 716 N.W.2d 47 (2006); Koziol v.
Koziol, 10 Neb. Ct. App. 675, 636 N.W.2d 890 (2001). In these
cases, it has been noted that the marital estate includes only
that portion of the pension which is earned during the mar-
riage, and contributions to pensions before marriage or after
dissolution are not assets of the marital estate. See Koziol v.
Koziol, supra. The cases have used the “coverture formula”
to determine the marital portion, which has been described
as follows:
“Simplified, the coverture formula provides that the
numerator of the fraction used to determine the marital
portion is essentially the number of months of credible
service of the employed spouse while married and there-
fore is the pension contribution while married and that
the denominator is the total number of months that the
spouse has [been] or will be employed which resulted in
the pension the employee will receive. This denominator
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number includes and will include the time the employed
spouse worked before, during, and after the marriage.”
Klimek v. Klimek, 18 Neb. Ct. App. at 93-94, 775 N.W.2d at 454,
quoting Koziol v. Koziol, supra (emphasis in original). The
ex-spouse is awarded a percentage of the marital portion. We
determine that this formula should be applied in this case.
Therefore, we reverse the portion of the district court’s
decree in which it assigned a specific value to the termination
payments and awarded Nanci 50 percent of all the payments.
We direct the district court to amend the order of dissolution
to provide that when termination payments commence, the
marital portion of the termination payments and extended ter-
mination payments shall be determined using the formula set
forth above, and to order that Nanci receive 50 percent of the
marital portion of the termination payments and extended ter-
mination payments. We further direct the district court to order
that Jay shall remit to Nanci her percentage of the termination
payments and extended termination payments, if and when
he starts to receive them, each month within 15 days of Jay’s
receipt of the payment.
We acknowledge that Nanci claims on cross-appeal that the
district court erred when it ordered that Jay pay Nanci her por-
tion of the termination payments as he receives them and that
Nanci contends that the district court “abused its discretion in
failing to order Jay to pay the amount of his termination pay-
ments awarded to Nanci in a lump-sum, or in the alternative in
payments commencing immediately upon entry of the Decree
with post-judgment interest.” In view of our determinations set
forth above, we reject this assignment of error, and we direct
the district court to award Nanci her percentage of the termina-
tion payments as set forth above.
Division of Marital Property Other Than
Termination Payments and Extended
Termination Payments.
Nanci generally claims on cross-appeal that the district
court erred in its division of the marital property, exclusive
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of the termination payments and extended termination pay-
ments. For the reasons set forth below, we agree with certain
of Nanci’s claims.
[3,4] We first review general standards relating to property
division. Under Nebraska’s divorce statutes, “[t]he purpose of
a property division is to distribute the marital assets equitably
between the parties.” Neb. Rev. Stat. § 42-365 (Reissue 2016).
The ultimate test in determining the appropriateness of the divi-
sion of property is fairness and reasonableness as determined
by the facts of each case. Sellers v. Sellers, 294 Neb. 346, 882
N.W.2d 705 (2016). We have stated that under § 42-365, the
equitable division of property is a three-step proc­ess. The first
step is to classify the parties’ property as marital or nonmarital,
setting aside the nonmarital property to the party who brought
that property to the marriage. The second step is to value the
marital assets and marital liabilities of the parties. The third
step is to calculate and divide the net marital estate between
the parties in accordance with the principles contained in
§ 42-365. Sellers v. Sellers, supra.
With respect to the first step—classifying the parties’ prop-
erty as marital or nonmarital and setting aside the nonmarital
property to the party who brought that property to the mar-
riage—Nanci argues that the district court abused its dis-
cretion when it classified certain debts as marital property,
including a certain Slate/Chase credit card, a certain United
Mileage Plus credit card, a GE Capital Retail Bank credit
card, a Younkers credit card, and a US Bank line of credit.
The total balance of these debts amounts to $42,832.83. Nanci
argues these debts should have been classified as nonmarital
property because they were incurred by Jay after the parties
separated. In support of her argument that these debts were
incurred after the parties were separated, Nanci points to Jay’s
answers to interrogatories provided to Nanci in September
2012, in which Jay provided a list of credit cards he believed
showed the debt incurred during the marriage. Nanci asserts
that these additional debts were presented to her for the first
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time at trial, and she testified that she had no prior knowledge
of these additional debts. Jay, on the other hand, testified that
these debts were incurred during the marriage before the par-
ties separated.
[5,6] We have stated that generally, all property accumu-
lated and acquired by either spouse during a marriage is part
of the marital estate. Brozek v. Brozek, 292 Neb. 681, 874
N.W.2d 17 (2016). The burden of proof rests with the party
claiming that property is nonmarital. Sellers v. Sellers, supra.
Our standard of review in this action for dissolution of mar-
riage is de novo on the record to determine whether there
has been an abuse of discretion by the trial judge. Devney v.
Devney, 295 Neb. 15, 886 N.W.2d 61 (2016). In a review de
novo on the record, an appellate court reappraises the evi-
dence as presented by the record and reaches its own inde-
pendent conclusions on the matters at issue. When evidence
is in conflict, the appellate court considers and may give
weight to the fact that the trial judge heard and observed the
witnesses and accepted one version of the facts rather than
another. Freeman v. Groskopf, 286 Neb. 713, 838 N.W.2d 300
(2013). With this standard of review in mind, based upon our
de novo review of the record, we cannot say that the district
court abused its discretion when it determined that these debts
identified by Nanci were marital property and included them
in the marital estate. We find no error with respect to this por-
tion of the district court’s decree.
Nanci additionally argues that the district court erred when
it found that the marital estate was deficient in the amount
of $52,960 and ordered that each party be responsible for
half of the deficiency. Nanci contends that “[u]nder the rela-
tive economic circumstances of the parties, the trial court’s
order leads to grave economic inequities between the parties,
resulting in an abuse of discretion.” Brief for appellee on
cross-appeal at 31. Because the district court’s order dividing
the marital estate is unclear, we cannot adequately address
this argument.
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BERGMEIER v. BERGMEIER
Cite as 296 Neb. 440
As stated above, under the second step of the three-step
proc­ess of the equitable divisions of property, the district
court is to value the marital assets and marital liabilities of
the parties. Under the third step, the district court is to cal-
culate and divide the net marital estate between the parties
in accordance with the principles contained in § 42-365. See
Sellers v. Sellers, 294 Neb. 346, 882 N.W.2d 705 (2016). In
its decree, the district court set forth a table which divided the
assets between the parties and assigned the liabilities to Jay.
However, the table set forth in the decree does not specify the
value of any of these assets or liabilities.
In the paragraph titled “Equalization of Marital Estate,” the
district court offered this conclusory statement:
Having equitably divided the marital estate, exclusive
of [Jay’s] Termination and Early Termination Payments,
the Court finds that the resulting net value of the Parties’
marital estate, is -$52,960.00 and that each party shall
be responsible for fifty percent (50%) of such defi-
ciency[.] The Court further finds that [Nanci’s] portion
of such deficiency shall be paid to [Jay] by reducing
[Nanci’s] interest in [Jay’s] Termination Payments, as set
forth hereinafter.
Because the district court did not specify the value of
the assets and liabilities in the decree, it is not clear from
the decree that the district court complied with the second
and third steps of the three-step process. Under the circum-
stances, we cannot evaluate whether the equalization provision
is proper.
We have treated the State Farm termination payments ear-
lier in this opinion; with respect to the remainder of the
marital estate, we reverse the portion of the decree dividing
the marital property and remand the matter with directions
to the district court to set forth the valuation of the parties’
marital assets and marital liabilities and to clarify the basis
for an equalization award, if any. Furthermore, based on
our determination above that the district court erred when it
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BERGMEIER v. BERGMEIER
Cite as 296 Neb. 440
assigned a specific value to the termination payments, the
value of any termination payments should not be included in
the valuation of the marital estate and should not be consid-
ered by the district court when ordering an equalization pay-
ment, if any.
Alimony.
Nanci claims that the district court erred in its award of
alimony to her, which provided that Nanci would receive
$2,000 per month until Nanci reaches the age of 65, until she
begins receiving her percentage of Jay’s termination payments,
until she remarries or dies, or until further order of the court,
whichever occurs first. Nanci argues that Jay might not begin
receiving his termination payments until after Nanci reaches
the age of 65, which would create a gap between when Nanci
stops receiving alimony and when she begins receiving her
percentage of the termination payments. For this reason, Nanci
asserts that her award of alimony should be modified so that
it continues until the termination payments begin or until
she dies or remarries. Because we believe that the court did
not abuse its discretion, we find no merit to this assignment
of error.
[7-10] The purpose of alimony is to provide for the contin-
ued maintenance or support of one party by the other when
the relative economic circumstances and the other criteria
enumerated in § 42-365 make it appropriate. Brozek v. Brozek,
292 Neb. 681, 874 N.W.2d 17 (2016). In reviewing an ali-
mony award, an appellate court does not determine whether
it would have awarded the same amount of alimony as did
the trial court, but whether the trial court’s award is untenable
such as to deprive a party of a substantial right or just result.
Anderson v. Anderson, 290 Neb. 530, 861 N.W.2d 113 (2015).
The primary purpose of alimony is to assist an ex-spouse for
a period of time necessary for that individual to secure his or
her own means of support. Id. The ultimate criterion is one of
reasonableness. Id.
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BERGMEIER v. BERGMEIER
Cite as 296 Neb. 440
In her appellate brief, Nanci notes that she is 57 years old
and has limited earning power. Jay responds that Nanci will
receive alimony of $2,000 per month for 7 years, at which
point she will be eligible for Social Security. Considering the
circumstances of this case, we determine that the district court
did not abuse its discretion. Therefore, we find no merit to
this assignment of error.
CONCLUSION
We determine that the district court did not err when it
determined that Jay’s termination payments and extended ter-
mination payments under his contract with State Farm are
marital property. However, we determine that the district court
erred when it assigned a specific value to the termination pay-
ments. We further determine that the district court erred when
it awarded Nanci 50 percent of the termination payments and
extended termination payments, and we direct the district
court to utilize the formula set forth above to calculate Nanci’s
percentage of the termination payments and extended termina-
tion payments.
We further remand this cause to the district court with
directions to clarify its calculation of the marital estate and
the equalization payment, if any. We also determine that
the district court did not abuse its discretion in its award
of alimony.
A ffirmed in part as modified, and in part
reversed and remanded with directions.