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Bergmeier v. Bergmeier

Supreme Court of Nebraska

April 21, 2017

Jay Bergmeier, Appellant and Cross-Appellee,
Nanci B. Bergmeier, Appellee and Cross-Appellant.

         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 depriving 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 appropriateness 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 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.

         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 [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.

         7. 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.

         8. 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.

         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: Marlon 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, Kelch, and Funke, JJ.

          Miller-Lerman, J.


         Jay 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.


         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 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 states:

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.

         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 property belonging to State Farm within 10 days after termination of the agreement, and the agent may ...

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