Bergmeier v. Bergmeier
296 Neb. 440
Neb.2017Background
- Jay and Nanci Bergmeier married in 1981, adopted two children, and separated January 4, 2013; divorce decree entered August 11, 2015 after multi-day trial.
- Jay worked as a State Farm "captive" agent under Form AA4, which can yield termination payments (60 monthly installments after termination) and extended termination payments (lifelong payments beginning after month 60 if age/service requirements met).
- Parties formed Bergy Properties, LLC in 2005 (50/50); Jay operated Jay M. Bergmeier Agency, Inc.; various bank accounts, vehicles, timeshares, and debts were divided in the decree.
- The district court treated Jay’s termination and extended termination payments as marital property, valued termination payments as if Jay had retired in Jan. 2014 ($802,040), and awarded Nanci 50% (minus adjustments); ordered Jay to remit 50% monthly when payments are received.
- District court also ordered alimony $2,000/month until Nanci turns 65 (or earlier if she begins receiving termination payments, remarries, or dies), assessed a $52,960 marital deficit with each party responsible for 50%, and awarded Nanci $12,500 in attorney fees.
Issues
| Issue | Plaintiff's Argument (Jay) | Defendant's Argument (Nanci) | Held |
|---|---|---|---|
| Whether termination and extended termination payments are marital property | Payments are speculative and contingent; should be nonmarital | The contract/right arose during marriage and has present contractual value; marital | Court: Payments are marital property (contractual right acquired during marriage) but valuation/award required modification |
| Proper valuation and percentage award for termination payments | Court erred valuing payments as of Jan. 2014 and awarding 50% of all payments | Wanted immediate lump-sum or immediate payments with interest; opposed remittance-only-upon-receipt | Court: Reversed valuation (stale); directed use of coverture formula to determine marital portion and award Nanci 50% of that marital portion; monthly remittance when payments commence |
| Division/equalization of remaining marital estate (debt allocation and deficiency) | (Implicit) district court’s table divided assets/liabilities appropriately | Court failed to specify values; equalization unclear; allocation of some debts disputed as postseparation | Court: Remanded—district court must specify valuation of marital assets/liabilities and clarify equalization; no abuse found in treating the challenged debts as marital on this record |
| Alimony duration/timing relative to termination payments | (Jay) Alimony as ordered is reasonable | (Nanci) Alimony should continue until termination payments commence (to avoid a gap) or be payable sooner | Court: Affirmed alimony award ($2,000/month until 65 or until payments begin) as within discretion; did not order extension to commencement of termination payments |
Key Cases Cited
- In re Marriage of Skaden, 19 Cal. 3d 679 (1977) (termination payments under agent agreement treated as marital property)
- Ray v. Ray, 916 S.W.2d 469 (Tenn. Ct. App. 1995) (present-value approach to termination-payments valuation discussed)
- Klimek v. Klimek, 18 Neb. App. 82 (2009) (use of coverture formula to determine marital portion of pension-like benefits)
- Koziol v. Koziol, 10 Neb. App. 675 (2001) (pension contributions before marriage or after dissolution are nonmarital; coverture formula explained)
- Webster v. Webster, 271 Neb. 788 (2006) (principles for determining marital portion of pension benefits)
- Lawyer v. Lawyer, 288 Ark. 128 (1986) (contrasting authority treating termination payments as nonmarital)