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.
Judges: Words and Phrases. 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 denying just results in matters
submitted for disposition.
Divorce: Property Division. The ultimate
test in determining the appropriateness of the division of
property is fairness and reasonableness as determined by the
facts of each case.
___. Under Neb. Rev. Stat. § 42-365 (Reissue 2016), 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 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.
___ . Generally, all property accumulated and acquired by
either spouse during a marriage is part of the marital
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 [296
Neb. 441] 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.
Alimony. The purpose of alimony is to
provide for the continued maintenance 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.
Alimony: Appeal and Error. In reviewing an
alimony 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.
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.
. In an alimony award, the ultimate criterion is one of
from the District Court for Douglas County: Marlon A. Polk,
Judge. Affirmed in part as modified, and in part reversed and
remanded with directions.
F. Smeall, of Smith, Slusky, Pohren & Rogers, L.L.P., for
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, Kelch,
and Funke, JJ.
Bergmeier filed a complaint for dissolution of marriage, and
Nanci B. Bergmeier filed a "counter-complaint." The
district 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 [296 Neb.
442] 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.
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.
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 contains 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
You have no proprietary interest in the business generated
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.
[296 Neb. 443] 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 policyholders,
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.
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
property belonging to State Farm within 10 days after
termination of the agreement, and the agent may ...