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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 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 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.

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 

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

06/16/2017 09:12 AM CDT
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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.

NATURE OF CASE

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 
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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 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.
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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 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 counsel for State Farm to Jay describes these termination payments 

as follows:

Under Section IV, you have a contract right to termination payments if you comply with certain conditions at 

the time the Agreement is terminated. Termination payments are based on the service compensation paid to the 

agent in the twelve month period preceding the termination 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 termination payments so long as all property belonging to State 
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Farm has been returned within 10 days following the termination 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 termination 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 payments, like termination payments, are based on the service 

compensation paid in the twelve month period preceding 

the termination of the Agreement. Extended termination payments 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 revenues in 2010; $957,318 in revenues in 2011; $867,538 in revenues 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 remarries 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 district court awarded Jay four season tickets to University of 

Nebraska-Lincoln football games and Nanci two season tickets. 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 paragraph 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 deficiency[.] 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 district 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 addition 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 termination 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 termination 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 marital 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 determinations 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 denying 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 jurisdictions as to whether the termination payments and extended 

termination payments under the contract are marital or nonmarital 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 payments are marital property.

Jay argues that the termination payments and the extended 

termination payments should be classified as nonmarital property, because at the time the decree was entered, it was uncertain 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 termination 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 contract 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 discretion when it assigned the specific value to the termination 

payments. The district court assigned a value to the termination 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 elsewhere not to be an abuse of discretion. See Ray v. Ray, supra. 

Accordingly, assigning a specific value to the termination payments 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 discretion 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 jurisprudence in this area, we believe Nanci’s percentage of termination payments should reflect the duration the asset was possessed 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 termination 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. 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. 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 marriage, 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 therefore 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. 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 termination 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 termination 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 portion 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 payments 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 termination 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 payments. 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 division 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’ property as marital or nonmarital and setting aside the nonmarital 

property to the party who brought that property to the marriage—Nanci argues that the district court abused its discretion 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 parties separated.

[5,6] We have stated that generally, all property accumulated 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 marriage 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 evidence as presented by the record and reaches its own independent 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 portion 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 relative 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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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 calculate 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 deficiency[.] 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 circumstances, we cannot evaluate whether the equalization provision 

is proper.

We have treated the State Farm termination payments earlier 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 considered by the district court when ordering an equalization payment, 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 continued 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 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. 

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 termination 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 payments. 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 termination 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.

 Affirmed in part as modified, and in part

reversed and remanded with directions.