Bergmeier v. Bergmeier
| Decision Date | 21 April 2017 |
| Docket Number | No. S-15-1189.,S-15-1189. |
| Citation | 894 N.W.2d 266,296 Neb. 440 |
| Parties | Jay BERGMEIER, appellant and cross-appellee, v. Nanci B. BERGMEIER, appellee and cross-appellant. |
| Court | Nebraska Supreme Court |
Aaron F. Smeall, Omaha, 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., Omaha, for appellee.
Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy, Kelch, and Funke, JJ.
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 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:
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 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: 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 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 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...
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