Klimek v. Klimek

QDRO’s at the time of trial or along with a decree that the
court directs counsel to prepare. While a decree making a divi-
sion of retirement accounts and providing for a later QDRO is
final because the QDRO is merely a tool for enforcement of
the decree, see Blaine v. Blaine, supra, the delay in entry of a
QDRO invites complications and potentially additional expense
and litigation, all of which can, and should, be avoided. To
that end, we encourage trial courts to implement procedures to
ensure that their responsibility to enter QDRO’s is fulfilled at
the same time as the decree is entered, bearing in mind that in
practice, the drafting of a QDRO may require approval by the
retirement plan administrator, which counsel can secure prior
to submitting the QDRO to the court.
CONCLUSION
Even though more than 2 years passed following entry of
an unappealed decree, we conclude that the district court had
jurisdiction to enter the QDRO in accordance with the terms of
the decree, because a QDRO is merely an enforcement device.
Based upon Kullbom v. Kullbom, 215 Neb. 148, 337 N.W.2d
731 (1983), we conclude that the court did not err in awarding
judgment interest on Janet’s share of the profit-sharing plan
accruing from the date of the divorce decree.
A ffirmed.
StAcey L. KLimeK, AppeLLee And croSS-AppeLLAnt, v.
dAnieL d. KLimeK, AppeLLAnt And croSS-AppeLLee .
775 N.W.2d 444
Filed October 27, 2009. 	No. A-09-023.
1. Divorce: Child Custody: Child Support: Property Division: Alimony:
Attorney Fees: Appeal and Error. An appellate court’s review in an 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. 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 requires that the rea-
sons or rulings of a trial judge be clearly untenable, unfairly depriving a litigant
of a substantial right and a just result.
82 	18 NEBRASkA AppELLATE REpORTS
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:13 AM CST

3. Divorce: Child Custody. When custody of a minor child is an issue in a pro-
ceeding to dissolve the marriage of the child’s parents, custody is determined by
parental fitness and the child’s best interests.
4. Child Custody. The court may place custody of minor children with both parents
on a joint legal or physical custody basis, or both, when both parents agree to
such or if the court specifically finds that joint custody is in the best interests of
the minor children regardless of parental agreement or consent.
5. ____. When making custody determinations under Neb. Rev. Stat. § 42-364(3)
(Reissue 2008), if both parties do not agree, the court can award joint custody
only if it holds a hearing and makes the required finding that joint custody is in
the best interests of the children.
6. Divorce: Property Division. The purpose of a property division is to distribute
the marital assets equitably between the parties.
7. ____: ____. The equitable division of property is a three-step process: (1) The
first step is to classify the parties’ property as marital or nonmarital, (2) the
second step is to value the marital assets and liabilities of the parties, and (3)
the third step is to calculate and divide the net marital estate between the parties
in accordance with the principles contained in the statute governing division of
marital property.
8. Divorce: Pensions. A qualified domestic relations order is, generally speaking,
simply an enforcement device of the decree of dissolution.
9. Divorce: Property Division. Although the division of property is not subject to
a precise mathematical formula, the general rule is to award a spouse one-third
to one-half of the marital estate, the polestar being fairness and reasonableness as
determined by the facts of each case.
10. Divorce: Property Division: Pensions. Only that portion of a pension which is
earned during the marriage is part of the marital estate.
11. Divorce: Property Division: Pensions: Words and Phrases. 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 number includes and will include the time the
employed spouse worked before, during, and after the marriage.
12. Appeal and Error. plain error may be asserted for the first time on appeal or be
noted by an appellate court on its own motion.
13. Appeal and Error: Words and Phrases. plain error exists where there is an
error, plainly evident from the record but not complained of at trial, which preju-
dicially affects a substantial right of a litigant and is of such a nature that to leave
it uncorrected would cause a miscarriage of justice or result in damage to the
integrity, reputation, and fairness of the judicial process.
14. Divorce: Alimony: Property Division. When dissolution of a marriage is decreed,
the court may order payment of such alimony by one party to the other and divi-
sion of property as may be reasonable, having regard for the circumstances of the
parties, duration of the marriage, a history of the contributions to the marriage
by each party, including contributions to the care and education of the children,
kLImEk v. kLImEk 	83
Cite as 18 Neb. App. 82

and interruption of personal careers or educational opportunities, and the ability
of the supported party to engage in gainful employment without interfering with
the interests of any minor children in the custody of such party.
15. Alimony. In considering the specific statutory criteria concerning an award of
alimony, a court’s polestar must be fairness and reasonableness as determined by
the facts of each case; a court is also to consider the income and earning capacity
of each party, as well as the general equities of each situation.
16. ____. Alimony should not be used to equalize the incomes of the parties or to
punish one of the parties.
Appeal from the District Court for Sarpy County: WiLLiAm
B. ZASterA, Judge. Affirmed as modified, and cause remanded
for further proceedings.
Anne m. Breitkreutz and michael R. peterson, of Hotz,
Weaver, Flood, Breitkreutz & Grant, for appellant.
Jeffrey A. Wagner, 	of 	Schirber 	& Wagner, 	L.L.p., 	for
appellee.
SieverS, cArLSon, and cASSeL, Judges.
SieverS, Judge.
Stacey L. klimek filed for dissolution of her 15-year mar-
riage to Daniel D. klimek in the district court for Sarpy
County. The district court awarded Stacey sole custody of the
parties’ two children, divided the marital estate, and dissolved
the parties’ marriage. Daniel appealed the decree of dissolution
to this court. For the reasons set forth herein, we modify the
decree and remand the cause for further proceedings.
FACTUAL AND pROCEDURAL BACkGROUND
Stacey and Daniel were married on July 10, 1993, and resided
in Lincoln and York, Nebraska, until 1999, when they moved to
Gretna, Nebraska. The parties lived in Gretna from 1999 until
the time of separation. Stacey and Daniel have one son, born in
April 2001, and in September 2007, they adopted a daughter,
born in September 2006. Stacey has been employed in various
positions with the Department of Health and Human Services
during the course of the marriage. At the time of separation,
Stacey was training protection and safety workers. Daniel is
employed as a sergeant for the Nebraska State patrol.
84 	18 NEBRASkA AppELLATE REpORTS

In February 2008, Daniel moved out of the marital residence.
Stacey filed a complaint for dissolution on February 13 in the
district court for Sarpy County. In such, Stacey alleged that
the marriage was irretrievably broken and sought a decree of
dissolution of marriage; an equitable distribution of property;
custody and control of the minor children, subject to visitation
by Daniel; and child support, alimony, attorney fees, and court
costs. Daniel answered, and temporary orders were issued, but
such are not pertinent to this appeal.
Trial was held on August 18, 2008. The court issued its ten-
tative findings to the parties on September 16. On December 2,
Daniel filed a motion to reconsider and notice of hearing, seek-
ing custody of the minor children because of events that took
place during November that caused Daniel to be concerned
about Stacey’s ability to protect the children. A hearing was
held on December 5, at which the court determined that the
motion to reconsider was not properly brought before the court
because the court had not yet issued its decree.
The court issued its decree of dissolution on December 9,
2008. The court awarded Stacey sole legal and physical cus-
tody of the minor children, subject to Daniel’s regular and
holiday visitation as set out in the parenting plan. The parent-
ing plan was adopted and incorporated into the decree. The
court ordered Daniel to pay $1,076 per month in child support,
to pay 60 percent of the childcare and preschool expenses, to
provide health insurance for the children, and to pay the first
$480 of medical expenses.
The court also ordered a distribution of property. The par-
ties were awarded any personal property or bank accounts
in their own names. Stacey was awarded the 2004 Dodge
Caravan, and Daniel was awarded the 1997 Dodge 1500 truck.
The court ordered that the marital home in Gretna be sold and
all proceeds split equally and that pending the sale, each party
was responsible for one-half of the mortgage payment. Stacey
was ordered to pay the following debts: the Chase account,
the Bp account, and the First Investors Financial Services
account. These accounts totaled $24,184.99 at the time of
separation. Daniel was ordered to pay the following debts: the
Capital One account, the Bank of America account, and the
kLImEk v. kLImEk 	85
Cite as 18 Neb. App. 82

Ambassador account. These accounts had a total balance of
$33,646.77 at the time of separation. In paragraph 20 of the
decree, the court awarded Stacey, as a property settlement and
not as alimony, a portion of Daniel’s State patrol retirement
plan, which we will discuss further in our analysis, but the
court apparently treated Stacey’s retirement plan as nonmarital
property. On January 6, 2009, Daniel filed notice of his intent
to appeal to this court.
ASSIGNmENTS OF ERROR
Daniel assigns as error the following: (1) The trial court
abused its discretion in awarding Stacey sole legal and physical
custody, and (2) the trial court erred in its division of the mari-
tal estate by awarding Stacey one-half of Daniel’s retirement
fund but failing to divide Stacey’s retirement fund in the same
manner. On her cross-appeal, Stacey assigns as error that the
district court failed to award alimony.
STANDARD OF REVIEW
[1,2] An appellate court’s review in an action for dissolu-
tion of marriage is de novo on the record to determine whether
there has been an abuse of discretion by the trial judge. Gress
v. Gress, 271 Neb. 122, 710 N.W.2d 318 (2006). This standard
of review applies to the trial court’s determinations regard-
ing custody, child support, division of property, alimony, and
attorney fees. Id. A judicial abuse of discretion requires that
the reasons or rulings of a trial judge be clearly untenable,
unfairly depriving a litigant of a substantial right and a just
result. Dormann v. Dormann, 8 Neb. App. 1049, 606 N.W.2d
837 (2000).
ANALYSIS
Custody of Minor Children.
Daniel argues that the trial court abused its discretion in
awarding Stacey sole legal and physical custody of the minor
children. Daniel sought sole custody in his cross-complaint,
but testified at trial and argues in his brief to this court that the
best interests of the children require joint legal and physical
custody, as was provided in the trial court’s march 31, 2008,
temporary order.
86 	18 NEBRASkA AppELLATE REpORTS

[3] When custody of a minor child is an issue in a proceed-
ing to dissolve the marriage of the child’s parents, custody is
determined by parental fitness and the child’s best interests.
Maska v. Maska, 274 Neb. 629, 742 N.W.2d 492 (2007). In the
parenting plan adopted and incorporated into the decree of dis-
solution by the court, the parties acknowledge that both parents
are fit. Such was testified to by both Stacey and Daniel at trial
as well, and neither challenges the fitness of the other upon
appeal. When both parents are found to be fit, the inquiry for
the court is the best interests of the children. Id.
The best interests of the child require:
(1) A parenting arrangement and parenting plan or
other court-ordered arrangement which provides for a
child’s safety, emotional growth, health, stability, and
physical care and regular and continuous school attend-
ance and progress for school-age children;
. . . .
(3) That the child’s families and those serving in par-
enting roles remain appropriately active and involved
in parenting with safe, appropriate, continuing quality
contact between children and their families when they
have shown the ability to act in the best interests of the
child and have shared in the responsibilities of raising
the child.
Neb. Rev. Stat. § 43-2923 (Reissue 2008).
[4,5] Under Neb. Rev. Stat. § 42-364(3) (Reissue 2008), the
court may place custody of minor children with both parents
on a joint legal or physical custody basis, or both, when both
parents agree to such or if the court specifically finds that joint
custody is in the best interests of the minor children regard-
less of parental agreement or consent. When making custody
determinations under § 42-364(3), if both parties do not agree,
the court can award joint custody only if it holds a hearing
and makes the required finding that joint custody is in the best
interests of the children. See Kay v. Ludwig, 12 Neb. App. 868,
686 N.W.2d 619 (2004). The parties did not agree to joint legal
custody—each parent sought sole custody. Furthermore, Stacey
disagreed with Daniel’s assessment that the court-ordered tem-
porary joint custody arrangement had been working well. The
kLImEk v. kLImEk 	87
Cite as 18 Neb. App. 82

trial court did not find that joint legal custody was in the minor
children’s best interests.
There was evidence adduced at trial that the joint custody
arrangement was not in the minor children’s best interests.
Stacey testified that the parties’ son had been confused about
the joint custody arrangement and felt as if he did not have
a home. There was also considerable testimony from both
Stacey and Daniel that they had a hard time communicating
with one another, and communication is an essential require-
ment for joint custody to be successful. Therefore, we find
that the district court did not abuse its discretion in failing
to find that joint custody was in the best interests of the
minor children.
We also find that the district court did not abuse its discre-
tion in granting sole legal and physical custody to Stacey.
Throughout the marriage, Stacey had been the primary care-
giver for the children, and Daniel admitted that he had spent
much of his time outside the home, either working or trying
to avoid fighting with Stacey in front of the children. Both
Stacey and Daniel testified that each was capable of parent-
ing the children, and the evidence adduced at trial showed
that either Stacey or Daniel would be able to provide for the
safety, emotional growth, health, stability, and physical care
of the children. However, Stacey had taken on most of the
parenting responsibilities. Stacey and Daniel both testified that
the children are well-adjusted, and while Stacey admitted to
struggling sometimes with disciplining their son, that certainly
does not indicate Stacey lacks the requisite parenting skills to
adequately care for her children. After our de novo review, we
find that Daniel’s first assignment of error lacks merit.
Division of Marital Estate.
Daniel also argues that the trial court erred in its division
of the marital estate by awarding Stacey one-half of Daniel’s
retirement plan but failing to divide Stacey’s retirement fund in
the same manner.
[6,7] The purpose of a property division is to distribute the
marital assets equitably between the parties. Neb. Rev. Stat.
§ 42-365 (Reissue 2008); Malin v. Loynachan, 15 Neb. App.
88 	18 NEBRASkA AppELLATE REpORTS

706, 736 N.W.2d 390 (2007). The equitable division of prop-
erty is a three-step process: (1) The first step is to classify
the parties’ property as marital or nonmarital, (2) the second
step is to value the marital assets and liabilities of the parties,
and (3) the third step is to calculate and divide the net marital
estate between the parties in accordance with the principles
contained in the statute governing division of marital property.
See Sitz v. Sitz, 275 Neb. 832, 749 N.W.2d 470 (2008). We
note, however, that the court did not include a balance sheet,
which is typically helpful in demonstrating that the three-step
process has been followed and that the division ordered com-
ports with the applicable law. We have constructed our own
table to illustrate the division of property and debts ordered by
the trial court:
Stacey 	Daniel
Joint checking account 	$ 	1,000.00 	$ 1,000.00
Tax refund 	2,762.00
Capital One 	(11,844.79)
Bank of America 	(20,601.98)
Ambassador 	(1,200.00)
Chase 	(4,022.22)
Bp 	(4,845.69)
First Investors 	(15,317.08)
Stacey’s retirement 	54,953.72
Daniel’s retirement 	52,072.98 	52,072.99
Stacey’s car 	7,500.00
Daniel’s car 	5,000.00
mortgage 	(70,579.91) 	(70,579.90)
Value of house 	80,750.00 	80,750.00
$104,273.80 	$34,596.32
The value of the marital residence, which was not factually
determined by the court, was estimated at $167,000 to $169,000
by Daniel and $155,000 by Stacey. No formal appraisal was
offered in evidence. In our table, we average the parties’ valu-
ations for purposes of division of the marital estate, remember-
ing that the disposition of the residence was that it was to be
immediately sold and the net proceeds divided equally.
In our table, we have also allocated 50 percent of the “Total
Accumulated Contributions plus Interest” in Daniel’s State
kLImEk v. kLImEk 	89
Cite as 18 Neb. App. 82

patrol retirement account as of June 26, 2008, although we
later find that the trial court’s treatment of this retirement plan
requires modification. But, for ease of illustration, we have
allocated 50 percent of the “cash” in such plan to each party.
Therefore, we arrive at a total marital estate of $138,870. The
trial court’s division of the marital estate results in 24.9 per-
cent to Daniel and 75.1 percent to Stacey. This division does
not comport with the normal division of one-third to one-half
to the spouses. See Thiltges v. Thiltges, 247 Neb. 371, 527
N.W.2d 853 (1995) (division of property is not subject to pre-
cise mathematical formula, but general rule is to award spouse
one-third to one-half of marital estate). There is nothing in the
evidence to justify such a marked departure from the norm,
which is largely caused by the failure to include Stacey’s
retirement account in the marital estate—to which Daniel
assigns error.
However, before specifically addressing that assigned error,
we discuss Daniel’s retirement plan—a matter of concern to us
preargument which resulted in an order alerting the parties of
our concern. In that order, we required the filing of a supple-
mental transcript containing any qualified domestic relations
order (QDRO) entered under paragraph 20 postdecree—which
has not occurred. Our basic preargument concern, which was
discussed with counsel at oral argument, was whether para-
graph 20 of the decree was adequate and sufficient to divide
Daniel’s State patrol retirement plan. paragraph 20, wherein
the trial court dealt with such award to Stacey, as a property
settlement and not as alimony, provides:
[Stacey] is awarded as a property settlement and not as
alimony from [Daniel’s] pension through the State of
Nebraska, Nebraska State patrol, a sum equal to 50% of
[Daniel’s] gross retirement benefits based on the value
of [his] pension earnings as of the date of separation or
an amount to be determined by the coverture method as
of the date of retirement of [Daniel]. Said award shall be
pursuant to a separate [QDRO] to be entered herein.
[8] A QDRO is, generally speaking, simply an enforcement
device of the decree of dissolution. Blaine v. Blaine, 275 Neb.
87, 744 N.W.2d 444 (2008).
90 	18 NEBRASkA AppELLATE REpORTS

Some details about Stacey’s State of Nebraska retirement
plan help illuminate our concerns about the treatment of
Daniel’s State patrol plan. Stacey’s retirement account with
the State of Nebraska is a defined contribution plan—which
can be viewed as a “pot of money” that is readily divisible.
And she is “100% vested,” meaning that all of the money in
such account is hers, or more accurately for our purposes,
marital property. The evidence shows that all of such was
accumulated during the marriage, and thus it is marital prop-
erty to be divided. See Davidson v. Davidson, 254 Neb. 656,
578 N.W.2d 848 (1998) (as general rule, all property accumu-
lated and acquired by either spouse during marriage is part of
marital estate, unless it falls within exception to general rule).
While we do not detail the exceptions referenced in Davidson,
supra, none of such are applicable, and the trial court erred in
excluding Stacey’s State of Nebraska retirement plan from the
marital estate.
However, in contrast to Stacey’s plan, Daniel’s State patrol
retirement account is a defined benefit plan—which can be
either a “pot of money” payable in a lump sum upon retire-
ment or termination of employment (the refund option) or an
amount payable as a monthly annuity upon his retirement from
the State patrol according to the formula set forth in the State-
issued “Account Statement” (the annuity option). In short,
Stacey’s plan is an “apple” and Daniel’s plan is an “orange,”
resulting in material differences in benefits, and thus treatment,
in a dissolution.
According to Daniel’s testimony in response to question-
ing by the trial court, the State patrol plan uses the “Rule 75,”
meaning that after 25 years of service, he is eligible to retire
at age 50 and draw the annuity option. Under the applicable
statute, Daniel’s annuity can commence as early as age 50, but
if he elects the return of contributions plus interest, then he
will not get the annuity. See Neb. Rev. Stat. § 81-2031 (Reissue
2008). Given that the annuity can be as much as 75 percent
of his three highest 12-month periods of compensation, it is
apparent that Daniel’s monthly annuity payments will quickly,
and greatly, exceed the amount of the contributions and interest
that could be withdrawn—a fact that has significant implication
kLImEk v. kLImEk 	91
Cite as 18 Neb. App. 82

for Daniel, but also for Stacey. The election to receive either
a refund of contributions plus accrued interest or the monthly
annuity is made by “the officer.” See § 81-2031(2). At the
time of trial, Daniel was only 40 years old and had nearly 18
years of service. Thus, assuming he continues with the State
patrol, he will be able to retire at age 50—at 75 percent of his
salary—ignoring Stacey’s rights for the moment. The value
of Daniel’s contributions and the accrued interest thereupon
totaled $104,145.97 as of June 26, 2008, and on that date, he
had 17.42 years of service.
[9] As said, our table shows that Daniel would receive only
24.9 percent of the total marital estate under the trial court’s
decree. Although the division of property is not subject to a
precise mathematical formula, the general rule is to award a
spouse one-third to one-half of the marital estate, the polestar
being fairness and reasonableness as determined by the facts
of each case. Meints v. Meints, 258 Neb. 1017, 608 N.W.2d
564 (2000). Clearly, the district court’s distribution would be
untenable because there is nothing in the record to justify such
an unequal division of property, nor is there anything to justify
substantial departure from an essentially equal division.
That said, we find problems with paragraph 20 even though
neither party assigns error to any aspect of the division of
Daniel’s State patrol retirement plan in paragraph 20. The
trial court awarded Stacey “50% of [Daniel’s] gross retirement
benefits based on the value of [his] pension earnings as of the
date of separation.” This award does not comport with the evi-
dence, because while the parties separated in February 2008,
the only value for Daniel’s “contributions plus interest” was
as of June 26, 2008. Although we suspect the court’s intent
was to award Stacey 50 percent of the contributed cash and
interest as of June 26, 2008, the proper descriptor is “accumu-
lated contributions plus interest” as used in the State-issued
account statement.
[10,11] moreover, the court’s use of the term “pension
earnings” implies periodic payments, given that “pension” is
defined as “a fixed amount, other than wages, paid at regular
intervals to a person . . . in consideration of his past services.”
Webster’s Encyclopedic Unabridged Dictionary of the English
92 	18 NEBRASkA AppELLATE REpORTS

Language 1067 (1989). And, there is no evidence of the
value of Daniel’s “pension earnings” which the State-issued
account statement references as “annuity for your lifetime”
or “[m]onthly [b]enefit,”—the annuity option. There is no
evidence, as of the date of separation or as of any other date,
of the value of such annuity option. There is only evidence of
what Daniel has contributed to the plan plus accrued interest as
of June 26, 2008—but that is not the same as the “value of his
pension,” which would involve reducing his presently earned
pension entitlement to present value—which was not done. But,
because he is still working and earning benefits, the amount of
Daniel’s monthly annuity cannot be determined because of the
three variables involved in determining such: total years of
service, age at which Daniel would begin receiving benefits,
and “Final Average compensation,” defined as Daniel’s three
highest 12-month periods of compensation. That said, Stacey
would not be entitled to 50 percent of the monthly annuity
payments, because the amount of that payment is dependent on
the number of Daniel’s premarital employment years, as well
as his postdivorce years of service, and the amount of his post-
divorce rate of pay, remembering the above-definition of “Final
Average compensation,” which will most likely be calculated
on the basis of Daniel’s postdivorce earnings. Daniel has 3
years of premarital service with the State patrol that would
be excluded from Stacey’s share of the annuity payments. See
Webster v. Webster, 271 Neb. 788, 716 N.W.2d 47 (2006) (only
that portion of pension which is earned during marriage is part
of marital estate). Thus, there are premarital years of service
and postdivorce years of service that must be included in the
calculation of the marital portion of the annuity option using
the “‘coverture fraction,’” a method of dividing a spouse’s
retirement plan approved in Koziol v. Koziol, 10 Neb. App. 675,
696, 636 N.W.2d 890, 908 (2001). See, also, Webster, supra. In
Koziol, we explained:
Simplified, the coverture formula provides that the numer-
ator 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
kLImEk v. kLImEk 	93
Cite as 18 Neb. App. 82

denominator is the total number of months that the spouse
has [been] or will be employed which resulted in the pen-
sion the employee will receive. This denominator number
includes and will include the time the employed spouse
worked before, during, and after the marriage.
10 Neb. App. at 696, 636 N.W.2d at 908.
The district court’s paragraph 20 references use of the
coverture fraction method with respect to the annuity option
available under Daniel’s plan. Because of the variables ear-
lier mentioned, and which are part of the formula, the marital
portion (i.e., percentage) of the annuity payments cannot be
determined in advance of when Daniel is no longer employed
by the State patrol because the denominator cannot be deter-
mined until sometime in the future. However, the numerator
for the calculation can be determined because the number of
months that Daniel worked for the State patrol while married
is fixed. He was working for the State patrol when the parties
married on July 10, 1993, and thus his marital contribution to
his plan continued until December 9, 2008, when the parties
were divorced. Thus the numerator is 185 (months), and such
should be determined and included in the portion of the decree
mandating the entry of a QDRO.
Although there is a definite amount for the “accumulated
contributions plus interest” that we conclude the trial court
intended to award to Stacey, paragraph 20 reflects the reality
that there is a choice—refund or annuity. The choice between
the two options is Daniel’s to make. Thus, how and when
Stacey receives a benefit from the State patrol plan will ulti-
mately be determined by Daniel when he selects either the
refund or annuity option.
[12,13] plain error may be asserted for the first time on
appeal or be noted by an appellate court on its own motion.
Worth v. Kolbeck, 273 Neb. 163, 728 N.W.2d 282 (2007).
plain error exists where there is an error, plainly evident from
the record but not complained of at trial, which prejudicially
affects a substantial right of a litigant and is of such a nature
that to leave it uncorrected would cause a miscarriage of justice
or result in damage to the integrity, reputation, and fairness of
the judicial process. Id.
94 	18 NEBRASkA AppELLATE REpORTS

We conclude that the trial court’s treatment of Daniel’s
retirement account in paragraph 20 of the decree constitutes
plain error. We so find because paragraph 20 does not accu-
rately reflect the undisputed evidence about the amount of
the “refund” option, and it ignores the fact that there will be
delay, even in Stacey’s receipt of the refund option, and equity
demands that she should be compensated for such delay by an
award of interest on her portion of the refund option—should
that be selected. moreover, paragraph 20 does not provide
sufficiently definite terms for the entry of a QDRO that will
properly divide Daniel’s State patrol retirement plan, including
the fact that it is Daniel who elects between the State patrol
plan’s two options and the fact that the record establishes the
numerator to be used in the coverture fraction. Finally, the
trial court’s paragraph 20 is defective in that it does not, as
it should, award Stacey a specific percentage of the marital
portion of the annuity option that will be determined by cov-
erture fraction method. That said, it can be inferred that the
trial court intended that she receive 50 percent of the marital
portion of the annuity, given the trial court’s direction that she
receive 50 percent of what is properly designated as the refund
option. Accordingly, for clarity, we find that Stacey shall
receive 50 percent of the marital portion of the annuity option.
Accordingly, we modify that paragraph of the decree so that it
provides as follows:
Stacey is awarded, as property settlement and not as ali-
mony, from Daniel’s State patrol retirement plan, the sum
of $52,072.98, being 50 percent of Daniel’s “accumulated
contributions plus interest” as of June 26, 2008, together
with such further interest credited to such amount by the
plan until paid to her if Daniel, upon his separation from
service with the State patrol, elects the option of “refund”
of contributions plus accrued interest.
In the alternative, if Daniel elects the “annuity-monthly
benefit” option upon his separation from service with the
State patrol, then Stacey shall receive a monthly annuity
amounting to 50 percent of the marital portion of the annu-
ity, such to be determined by the coverture fraction method,
with the numerator being 185 (months), calculated as of
kLImEk v. kLImEk 	95
Cite as 18 Neb. App. 82

the date of Daniel’s separation from service with the State
patrol, and the denominator of the coverture fraction shall
include the total number of months of Daniel’s premarital,
marital, and postdivorce employment with the State patrol.
Said award and division of Daniel’s State patrol retirement
plan shall be pursuant to a separate qualified domestic
relations order that should be entered contemporaneously
with the spreading of the mandate upon remand, but in any
event, within 30 days thereafter.
As found above, the trial court erred in not including Stacey’s
retirement plan in the marital estate. Stacey’s plan is simply a
defined contribution plan and does not have an annuity or pen-
sion option, and thus its division is much less complicated than
the division of Daniel’s plan. There should be an equal division
of Stacey’s plan, as with Daniel’s. Stacey’s retirement account
is readily divisible via a QDRO. As of July 1, 2008, Stacey’s
account balance was $54,953.72, and she is 100 percent vested
in both her contributions and her employer’s. The decree
should be modified to add the following paragraph:
Daniel 	is 	awarded, 	as 	property 	division 	and 	not 	as
alimony, the sum of $27,477 from Stacey’s State of
Nebraska retirement plan, which sum shall be separated
from Stacey’s account and awarded to Daniel in his
name alone by a qualified domestic relations order that
should be entered contemporaneously with the spreading
of the mandate upon remand, but in any event, within 30
days thereafter.
This modification brings the property division within the gen-
eral rule to award one-third to one-half per spouse. We note
that on this same day, we have released our opinion in Fry v.
Fry, ante p. 75, 775 N.W.2d 438 (2009), in which we com-
mented upon difficulties encountered by the parties (and the
courts) by delayed entry of QDRO’s. Thus, in this opinion,
we have, in effect, “followed our own advice” and specifically
required prompt entry of the QDRO’s necessary to deal with
Stacey’s and Daniel’s retirement plans.
The parties have two joint Roth IRA accounts, one with a
balance of $1,668.96 and the other with a balance of about
$1,500. Stacey testified that she intended to use these accounts
96 	18 NEBRASkA AppELLATE REpORTS

for their minor children and that each account had the name of
one of the children included, as well as Stacey’s and Daniel’s
names. Stacey requested that she be awarded these accounts
to maintain on the children’s behalf, but the trial court did
not address these accounts in its decree. The evidence is that
the parties intended these accounts for the use of the children.
Thus, we do not include them in the marital estate for purposes
of the equitable distribution of property. However, to clarify
this matter, we award the accounts to Stacey.
Cross-Appeal.
[14] Stacey argues that the district court erred by failing to
award her alimony. Section 42-365 provides in part:
When dissolution of a marriage is decreed, the court
may order payment of such alimony by one party to the
other and division of property as may be reasonable, hav-
ing regard for the circumstances of the parties, duration
of the marriage, a history of the contributions to the mar-
riage by each party, including contributions to the care
and education of the children, and interruption of personal
careers or educational opportunities, and the ability of the
supported party to engage in gainful employment without
interfering with the interests of any minor children in the
custody of such party.
[15,16] In considering the specific statutory criteria concern-
ing an award of alimony, a court’s polestar must be fairness
and reasonableness as determined by the facts of each case.
Bauerle v. Bauerle, 263 Neb. 881, 644 N.W.2d 128 (2002). A
court is also to consider the income and earning capacity of
each party, as well as the general equities of each situation.
Millatmal v. Millatmal, 272 Neb. 452, 723 N.W.2d 79 (2006).
Alimony should not be used to equalize the incomes of the
parties or to punish one of the parties. Claborn v. Claborn, 267
Neb. 201, 673 N.W.2d 533 (2004).
Stacey argues that she was entitled to alimony because she
was unable to attend graduate school during her marriage to
Daniel. Stacey claims that Daniel wanted to start a family and
discouraged her from attending graduate school, so she was
not able to obtain postgraduate education, the lack of which
kLImEk v. kLImEk 	97
Cite as 18 Neb. App. 82

she asserts has caused her to be passed over for promotions.
However, Stacey and Daniel were married for 8 years before
their son was born, and Stacey would have had an opportunity
during that time to begin a graduate program, well before she
and Daniel started a family. Furthermore, Stacey provided no
documentation to the court of what type of promotion or pay
raise could have potentially resulted from her additional educa-
tion. Stacey’s pay stub showed that she would earn consider-
ably more in 2008 than she had in prior years. Stacey’s pro-
jected gross earnings for 2008 are $38,292, and Daniel’s 2008
projected earnings are $58,587 plus any overtime or holiday
pay, which for the first 6 months of 2008, amounted to $4,294.
All pertinent factors considered, we find that the district court
did not abuse its discretion in determining that this was not an
appropriate case for an award of alimony. Stacey’s assignment
of error in this cross-appeal lacks merit.
CONCLUSION
We have modified the language of paragraph 20 to facilitate
the entry of the required QDRO, because the paragraph was
ambiguous and did not use the proper terminology, nor did
it specify who had the power to make the selection between
options in the State patrol plan at the time of Daniel’s end of
service with the State patrol. We have found that the trial court
erred in failing to include Stacey’s retirement account in the
marital estate, and we have modified the decree to provide for
a division thereof by a QDRO. We have clarified that the Roth
IRA’s are awarded to Stacey. We have found that the trial court
did not err in denying Stacey alimony. In all other respects, we
affirm the trial court’s decree.
A ffirmed AS modified, And cAuSe remAnded
for further proceedingS.
98 	18 NEBRASkA AppELLATE REpORTS