Bandy v. Bandy

the defendant’s first opportunity to assert ineffective assistance
of trial counsel is in a motion for postconviction relief. State v.
Bazer, 276 Neb. 7, 751 N.W.2d 619 (2008). Therefore, claims
of ineffective assistance of counsel raised on direct appeal by
the same counsel that represented the defendant at trial are pre-
mature and we decline to address them.
CONCLUSION
In sum, we find that Walls’ claimed errors regarding jury
instructions are without merit and that his claims of ineffective
assistance of counsel are premature. Therefore, Walls’ convic-
tion and sentence are affirmed.
A ffirmed .
K imberly K. bAndy , AppellAnt , v .
finis scott bAndy , Appellee .
756 N.W.2d 751
Filed October 14, 2008. 	No. A-07-1306.
1. Divorce: Property Division: Pensions. A determination of whether a disability
pension or disability benefits should be included in the marital estate should be
based on the relevant facts and circumstances of the case at issue.
2. ____: ____: ____. A trial court’s determination that a former spouse’s disability
pension should not be included in the marital estate is not an abuse of discretion
where the former spouse was unable to work as a result of injuries, his or her
only income was from disability payments, and his or her disability pension was
distinct from retirement benefits.
Appeal from the District Court for Sarpy County: dAvid K.
A rterburn, Judge. Affirmed.
Patrick R. Runge, of Runge Law Office, for appellant.
John H. Kellogg, Jr., of Kellogg & Palzer, P.C., for appellee.
irwin , sievers, and cArlson, Judges.
irwin, Judge.
I. INTRODUCTION
Pursuant to this court’s authority under Neb. Ct. R. App. P.
§ 2-111(B)(1), this case was ordered submitted without oral
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Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:14 AM CST

argument. Kimberly K. Bandy appeals from a decree of dis-
solution entered by the district court, which decree dissolved
her marriage to Finis Scott Bandy, divided the parties’ marital
assets and debts, awarded Kimberly custody of the parties’
minor child, and ordered Finis to pay child support and a nomi-
nal amount of alimony. On appeal, Kimberly asserts that the
district court erred in finding that Finis’ disability pension was
not marital property, in ordering her to pay the entirety of a bill
from a jewelry store, in not including Finis’ earning capacity in
its calculations of his monthly income, and in overruling her
motion for new trial. For the reasons set forth below, we affirm
the decision of the district court.
II. BACKGROUND
Kimberly and Finis were married on May 26, 1984. There
were two children born of the marriage. At the time of trial,
the older child was 19 years old and the younger child was
15 years old. As such, the older child was not a subject of
the proceedings.
During the parties’ marriage, Finis’ employment required
Finis, Kimberly, and their children to move often. Over the
years, the parties lived in the eastern U.S. and in San Diego
and two smaller cities in California. The family’s constant
relocation made it difficult for Kimberly to retain employment.
While there were times when Kimberly was able to find tem-
porary employment, there were significant points in time when
Kimberly was a stay-at-home mother because (1) there was not
enough time to obtain a job because of an impending transfer
or (2) Kimberly and Finis determined it would make more
sense economically for Kimberly to stay home.
In 	approximately 	1999 	or 	2000, 	the 	parties 	moved 	to
Nebraska. Shortly thereafter, Finis became employed with the
city of Omaha in the public works department and Kimberly
began working part time for a travel business. In 2003, Finis
was injured while on the job. As a result of this injury, Finis
was unable to continue with his current employment. He quali-
fied for disability pension benefits through the city of Omaha
and workers’ compensation benefits. In addition to these bene-
fits, Finis also began receiving disability payments from the
98 	17 NeBRASKA APPeLLATe RePORTS

Department of Veterans Affairs as a result of a separate injury
which occurred during the time he spent in the military. Since
his injury in 2003, Finis has sought employment; however,
because of his physical limitations, he has found it difficult to
find and retain a job.
On January 11, 2006, Kimberly filed a complaint for dis-
solution of marriage. Kimberly specifically asked that the
parties’ marriage be dissolved; that she be awarded the care,
custody, and control of the younger child; and that the court
award her temporary and permanent child support and alimony.
On February 17, Finis filed a response to the complaint for
dissolution of marriage wherein he asked that the parties be
awarded joint custody of the younger child.
On March 16, 2006, the court entered a temporary order.
This order is not included in the record; however, there is
some evidence that the order awarded temporary custody of the
younger child to Kimberly and ordered Finis to pay temporary
child support and one-half of the monthly mortgage payments
for the parties’ home.
On August 1, 2006, a hearing was held. At the hearing,
Kimberly presented evidence that Finis owed $2,981.01 in
temporary child support arrearages and approximately $2,130
in arrearages on the mortgage payments. Finis testified that
he had been looking for a job, but that his injuries hindered
his ability to gain employment. He testified that he was “mak-
ing [his] best efforts” to pay the child support and mort-
gage payments.
After the hearing, the court found Finis to be in contempt
of the temporary order. The court stated, “[A]lthough, obvi-
ously, there is not enough money to go around in this case,
there is — it seems to me that [Finis] could have not only
gotten the child support paid on time but paid the extra [$]355
[toward the monthly mortgage payments].” The court went
on to suggest that Finis could acquire a part-time job to help
pay the debt if he wanted to: “[I]f you really wanted to make
this a priority, you could get that taken care of because you
have got the arrangement made on the child support now. It is
the mortgage.”
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On August 21, 2007, a trial was held. At the close of the
evidence, the court entered a decree of dissolution. The court
awarded custody of the younger child to Kimberly, ordered
Finis to pay child support in the amount of $621.81 per month,
awarded Kimberly $4,000 in attorney fees, and distributed the
parties’ marital assets and debts. In addition, the court ordered
Finis to pay Kimberly a nominal amount of alimony:
[Finis] shall pay . . . alimony for the support and mainte-
nance of [Kimberly] in the amount of $1.00 per year, for
the next five years. Said payments shall commence upon
the first day of October, 2007, and shall continue to be due
and payable on the first day of the month thereafter until
the final payment on October 01, 2012. If circumstances
around [Finis’] income substantially change, [Kimberly]
may seek modification.
On September 27, 2007, Kimberly filed a motion for new
trial alleging that the trial court erred in (1) finding Finis’ pen-
sion was in the form of a disability pension and not part of the
marital estate, (2) finding Finis’ earning capacity outside of his
pension checks was equal to $0, (3) awarding Kimberly only
$1 per year in alimony, and (4) ordering Kimberly to pay a
bill for jewelry purchased by Finis. After a hearing, the court
entered an order overruling Kimberly’s motion in all respects.
Kimberly appeals here.
III. ASSIGNMeNTS OF eRROR
In her appellate brief, Kimberly assigns five errors. She
alleges, renumbered and consolidated, that the district court
erred in (1) finding that Finis’ disability pension was not a
marital asset, (2) ordering Kimberly to pay the entirety of a
marital debt owed to a jewelry store, (3) not including Finis’
earning capacity in a calculation of his income for purposes of
child support and alimony, and (4) overruling her motion for
new trial.
IV. ANALySIS
1. stAndArd of review
An appellate court’s review in an action for dissolution of
marriage is de novo on the record to determine whether there
100 	17 NeBRASKA APPeLLATe RePORTS

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 regarding
child support, division of property, and alimony. See id. An
abuse of discretion occurs when the trial court’s decision is
based upon reasons that are untenable or unreasonable or if
its action is clearly against justice or conscience, reason, and
evidence. Adams v. Adams, 13 Neb. App. 276, 691 N.W.2d
541 (2005).
2. distribution of mAritAl property
Kimberly’s first assignments of error allege that the dis-
trict court erred in distributing the marital assets and debts.
Specifically, Kimberly argues that the court erred in finding
that Finis’ disability pension from the city of Omaha was not
marital property and in ordering her to pay a particular debt in
its entirety. Upon our review of the record, we cannot say that
the court abused its discretion in distributing the marital assets
or debts.
Under Neb. Rev. Stat. § 42-365 (Reissue 2004), the equi-
table division of property is a three-step process. The first step
is to classify the parties’ property as marital or nonmarital.
The second step is to value the marital assets and marital lia-
bilities 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. Gress v. Gress, supra.
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. Id.
(a) Finis’ Disability Pension
Kimberly argues that the district court erred in finding
that Finis’ disability pension was not a part of the marital
estate and in failing to award her a portion of the pension.
Kimberly asserts that the disability pension constituted a por-
tion of the retirement benefits Finis earned as a result of his
employment with the city of Omaha. She asserts that “because
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[Finis’] employment was during the marriage of the parties,
the benefits of that employment should be subject to a reason-
able division by the District Court.” Brief for appellant at 14.
Upon our review of the record, and considering the equities of
the parties’ circumstances, we cannot say that the district court
abused its discretion in finding that Finis’ disability pension
was not a part of the marital estate.
Neb. Rev. Stat. § 42-366(8) (Reissue 2004) provides, in
part, that “[t]he court shall include as part of the marital estate,
for purposes of the division of property at the time of dis-
solution, any pension plans, retirement plans, annuities, and
other deferred compensation benefits owned by either party,
whether vested or not vested.” The marital estate includes only
that portion of pensions or retirement accounts earned during
the marriage. See Priest v. Priest, 251 Neb. 76, 554 N.W.2d
792 (1996).
It is clear from the language of § 42-366(8) that retirement
benefits, including retirement pension plans, are to be consid-
ered as part of the marital estate. Kimberly contends that Finis’
disability pension constitutes a retirement benefit. She asserts
that evidence in the record demonstrates that the disability
pension was actually a “‘disability retirement pension.’” Brief
for appellant at 12. Finis argues that the pension is a disability
pension unrelated to his retirement benefits through the city. In
tentative findings made before entry of the decree, the district
court found that “the pension [Finis] now receives from the
City of Omaha is in the nature of a disability pension,” and the
court reiterated that finding in the decree.
Upon our de novo review of the record, we do not find that
the district court abused its discretion in determining that Finis’
pension was a disability pension unrelated to his retirement
benefits. The record reveals that after Finis was injured on the
job, he applied for a “service-connected disability” benefit.
Documentation from the city of Omaha informed Finis that
“[a]t age 65, disability pensions convert to service retirement
pensions with service credit incurred up to 30 years.” (emphasis
omitted.) In addition, the terms of the disability pension require
a recipient to “apply for Social Security Disability,” and they
explain, “Social Security Disability is not the same as old age
102 	17 NeBRASKA APPeLLATe RePORTS

Social Security.” (emphasis omitted.) (emphasis in original.)
The terms of the disability pension also permit the city to offset
disability payments by the amount of any workers’ compensa-
tion benefit awarded as a result of the disabling injury.
Based on the language contained in documentation from the
city of Omaha, it is clear that the city distinguished Finis’ dis-
ability pension from his retirement benefits. In fact, the Omaha
City Code provides that while Finis is receiving payments from
his disability pension, his retirement pension is still accruing
value. See Omaha Mun. Code § 22-35(a) (2008). The code
provides that upon Finis’ reaching the age of 65, Finis’ period
of work credits coupled with his period of disability shall be
utilized to determine a retirement pension which will begin at
that time. See id.
The majority of the evidence presented at trial established
that although Finis’ disability benefits were labeled a “pen-
sion,” the benefits were more analogous to a workers’ compen-
sation award than to a retirement benefit in that the disability
pension appears to be compensation for Finis’ loss of earning
power due to a work-related injury, rather than compensation
for past services.
Because we affirm the district court’s finding that Finis’
disability pension was not a retirement benefit, we turn to the
question of whether disability payments which are labeled a
“disability pension” are to be considered part of the marital
estate under the language of § 42-366(8) or current case law.
This court has previously examined whether a “disability
pension” should be included in the marital estate. In John v.
John, 1 Neb. App. 947, 511 N.W.2d 544 (1993), the plaintiff
had applied for and been granted a disability pension through
the city of Omaha 15 years prior to the parties’ dissolution
proceedings. After beginning to receive disability payments,
the plaintiff began working at a bank as a personal banking
center manager. Id. At trial, the plaintiff did not present any
evidence regarding the nature of his disability; nor did he pre-
sent evidence to demonstrate that his earning capacity had been
in any way affected by his disability. Id. As a part of the decree
of dissolution, the court awarded the defendant approximately
$300 per month of the plaintiff’s disability pension. Id.
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The defendant appealed to this court and argued, among
other things, that the district court erred in not awarding her
one-half of the marital estate, including one-half of the defend-
ant’s disability pension. Id. On appeal, the plaintiff conceded
that the disability pension was a marital asset, but argued that
it was deserving of some type of “special treatment.” Id. at 951,
511 N.W.2d at 547.
In analyzing whether to include the proceeds from the dis-
ability pension in the marital estate, we first analogized dis-
ability payments to personal injury claims, which the Nebraska
Supreme Court had previously held could be included in the
marital estate. See Maricle v. Maricle, 221 Neb. 552, 378
N.W.2d 855 (1985), overruled on other grounds, Parde v.
Parde, 258 Neb. 101, 602 N.W.2d 657 (1999). We then deter-
mined, “based on the facts as presented by the record, that it
[was] proper in [John] to include [the plaintiff’s] disability
pension in the marital estate.” John, 1 Neb. App. at 951-52, 511
N.W.2d at 548. In finding that the plaintiff’s disability pension
should be included in the marital estate, we noted that there
was nothing in the record to reveal the nature of the plaintiff’s
disability or any effect that this disability had on his ability
to earn additional income. Id. However, we stated: “We can
imagine situations where in fact a person’s earning capacity or
medical expenses may be greatly impacted by a disability and
result in a different outcome than what we hold in this case.”
Id. at 952, 511 N.W.2d at 548.
We note that our holding in John could be read to suggest
that because disability pensions or disability benefits are analo-
gous to personal injury claims, at least a portion of the benefits
should always be included in the marital estate. However, the
crux of our decision to include the disability pension in that
marital estate was not our determination that the disability
pension was akin to a personal injury claim, but our analysis
of the relevant facts, circumstances, and resulting equities of
the case. In John, the plaintiff conceded that the disability
pension should be a part of the marital estate, the plaintiff was
able to resume working after being injured, and there was no
evidence that the disability had affected his earning capac-
ity whatsoever.
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[1] Accordingly, we clarify our holding in John v. John, 1
Neb. App. 947, 511 N.W.2d 544 (1993), to provide that a deter-
mination of whether a disability pension or disability benefits
should be included in the marital estate should be based on the
relevant facts and circumstances of the case at issue.
In the instant case, the evidence at trial revealed that Finis
was injured while on the job in 2003. He has been unable to
maintain work since that time. It is clear that his disability
greatly impacted his ability to earn additional income. Finis
testified that he had tried to work at other jobs, but that he was
unable to perform the responsibilities associated with the jobs
and that he experienced a great deal of pain while working.
At the time of trial, Finis’ only income was from his disabil-
ity payments. As such, his disability pension from the city of
Omaha, together with his workers’ compensation award and his
pension from the Department of Veterans Affairs, constituted
his entire stream of income. Finis’ disability pension is distinct
from any retirement benefits he may receive from the city;
rather, the pension appears to be compensation for his loss of
earning capacity.
[2] A trial court’s determination that a former spouse’s dis-
ability pension should not be included in the marital estate is
not an abuse of discretion where the former spouse was unable
to work as a result of injuries, his or her only income was
from disability payments, and his or her disability pension was
distinct from retirement benefits. Based on Finis’ inability to
earn additional income and the circumstances of the parties,
we do not find that the court abused its discretion in failing
to include any part of Finis’ disability pension in the marital
estate. We affirm.
(b) Jewelry Bill
Kimberly also contends that the district court erred in order-
ing her to pay a bill for jewelry purchased by Finis. Kimberly
argues that she is not in possession of all of the jewelry listed
on the bill and that as such, “it would be inequitable and unrea-
sonable to require [her] to be responsible” for the debt. Brief
for appellant at 19. Upon our review of the record, we do not
find that the court abused its discretion in ordering Kimberly to
pay the jewelry bill.
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At trial, the parties testified that there were two unpaid
marital debts. Testimony and exhibits showed the parties owed
$1,605.69 to an automobile repair shop for repairs made to a
vehicle driven by the parties’ older son. The parties also owed
approximately $702 to a jewelry store for certain items pur-
chased in May 2005, including earrings, a pendant, and “addi-
tional items.” In the decree, the court assigned the debt from
the automobile repair shop to Finis and assigned the debt from
the jewelry store to Kimberly. Specifically, the court stated:
“[Finis] shall pay and hold [Kimberly] harmless for the debt to
[the automobile repair shop] in the amount of $1,605.89 [sic].
[Kimberly] shall pay and hold [Finis] harmless for $702.00 of
the [jewelry store] debt.”
In her brief to this court, Kimberly asserts that this divi-
sion of the parties’ debts was inequitable because she did not
receive all of the items of jewelry listed on the jewelry store
bill. She opines that some of the jewelry was retained by Finis
or given to someone else. When questioned by counsel at trial,
Kimberly agreed that there were items of jewelry listed on
the receipt that she did not receive as a gift from Finis at any
point in time. Kimberly did not provide any further testimony
regarding which items she had received and which she had
not received.
Contrary to Kimberly’s testimony, Finis testified that the
items listed on the receipt were gifts for Kimberly which
were given to her on the last anniversary the parties cele-
brated together.
In light of the conflicting evidence regarding possession of
the jewelry, and viewing the property distribution as a whole,
we cannot say the district court abused its discretion in order-
ing Kimberly to pay the jewelry store debt in its entirety. We
find Kimberly’s contention to be without merit.
3. cAlculAtion of finis ’ monthly income
In her next assignments of error, Kimberly asserts that the
district court erred in calculating Finis’ monthly income for the
purpose of determining his child support and alimony obliga-
tions. Kimberly alleges that the court should have imputed
additional income to Finis because, despite Finis’ disability, he
106 	17 NeBRASKA APPeLLATe RePORTS

is capable of working and earning additional income. Kimberly
further alleges that at the contempt hearing in August 2006, the
court found Finis to be capable of working, and that the court
should be bound by that prior determination. Upon our review
of the record, we find that the district court did not abuse its
discretion in calculating Finis’ income using only his monthly
disability payments.
At trial, Finis testified that his current income was based
entirely on his disability payments. He testified that he receives
monthly payments from his disability pension through the city
of Omaha, from his disability pension through the Department
of Veterans Affairs, and from a workers’ compensation award.
He estimated that his monthly earnings from these three bene-
fits totaled $2,262. The trial court calculated Finis’ monthly
income to be $2,291.18, an amount very close to Finis’ esti-
mated monthly earnings. The court did not impute any addi-
tional income to Finis and noted in a letter to the parties dated
September 12, 2007, “[A]t this point in time, [Finis’] only
income is disability.”
We now examine the court’s calculation of Finis’ income
as it relates to a determination of Finis’ child support and ali-
mony obligations.
(a) Child Support
In general, child support payments should be set according
to the Nebraska Child Support Guidelines, which compute the
presumptive share of each parent’s child support obligation.
Claborn v. Claborn, 267 Neb. 201, 673 N.W.2d 533 (2004).
Under the Nebraska Child Support Guidelines,
[i]f applicable, earning capacity may be considered
in lieu of a parent’s actual, present income and may
include factors such as work history, education, occupa-
tional skills, and job opportunities. earning capacity is
not limited to wage-earning capacity, but includes moneys
available from all sources.
Neb. Ct. R. § 4-204. Child support may be based on a parent’s
earning capacity when a parent voluntarily leaves employment
and a reduction in that parent’s support obligation would seri-
ously impair the needs of the children. Claborn, supra. earning
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capacity may be used as a basis for an initial determination of
child support under the Nebraska Child Support Guidelines
where evidence is presented that the parent is capable of realiz-
ing such capacity through reasonable effort. Id.
In the instant case, the district court based its calculation
of Finis’ income solely on Finis’ monthly disability payments.
The court did not impute any additional income to Finis.
The evidence presented at trial revealed that Finis had
worked for the city of Omaha for approximately 3 years when
he was injured on the job in 2003. Finis sought treatment for
his injuries from various physicians; however, after he reached
“maximum medical improvement,” he was still limited in his
ability to perform certain activities, including his ability to sit
or stand for long periods of time and his ability to lift more
than 15 pounds. In March 2005, his doctors informed the city
that Finis was not “capable of performing all the essential
functions” of his previous position. The city later determined
that it could not accommodate Finis in any other position
based on his medical restrictions and his lack of education
and experience in other areas. As a result of the city’s inabil-
ity to accommodate him, Finis filed an application request-
ing a disability pension through the city. The city approved
the application.
The terms of the disability pension do not preclude Finis
from obtaining other employment. However, Finis testified at
trial that his physical limitations and the amount of pain he
experiences do limit his ability to obtain other employment.
Finis testified that after being put on disability, he attempted to
work at other locations. Finis said that he obtained a job with a
foods company in 2005. He testified he remained at the job for
only 6 or 7 months because he was incapable of performing all
of his duties as a result of his disability. Finis also testified that
he worked for another company for approximately 1 month.
Finis testified that his current medical condition is “unchange-
able” and that he has not been able to find a suitable job in
light of his injuries.
In her motion for new trial and in her brief to this court,
Kimberly argued that this evidence is insufficient to support
the court’s implicit finding that Finis is not capable of earning
108 	17 NeBRASKA APPeLLATe RePORTS

additional income through reasonable efforts. Kimberly bases
her argument on the district court’s previous findings at the
contempt hearing in August 2006. At the hearing, the court
found Finis to be in contempt of court as a result of his failure
to pay his temporary child support obligation and one-half of
the parties’ monthly mortgage payments. The court stated:
And it just seems to me if you worked a part-time job for
15 hours a week at $6 an hour, you could pay that [$]355
a month. And it seems to me that as I look at the local
job market and I look at what other people have done
who are in similar circumstances to you, that if you really
wanted to make this a priority, you could get that taken
care of . . . .
Kimberly seems to argue that the district court is bound by
its previous decision that Finis is “capable of working” and
that as such, the court erred in not imputing any additional
income to Finis. See brief for appellant at 16. At the hearing
on Kimberly’s motion for new trial, the district court addressed
Kimberly’s argument and explained the rationale for finding
differently at the contempt hearing than it did at trial: “And
as far as earning capacity or ability to work, I think the evi-
dence was somewhat different at trial than it was at previous
hearings, and so I am going to overrule the motion for new
trial . . . .”
At the contempt hearing, Finis testified that he was look-
ing for suitable employment, that he had enrolled in a voca-
tional rehabilitation program, and that he was making his
“best efforts” to keep up with his child support obligation
and his part of the mortgage payment. There was no evidence
to suggest that Finis was incapable of working at any job as
a result of his injury. There was no evidence which demon-
strated that Finis had obtained employment, but had to leave
that employment because of his inability to complete his rou-
tine responsibilities.
In contrast, at trial, Finis testified that his injury prohibited
him from working. He testified that he had tried, unsuccess-
fully, to earn additional income, but that he experienced too
much pain to be able to work at jobs for which he was other-
wise qualified.
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In light of the evidence at trial which demonstrated that
Finis could not work because of his disability, we do not find
that the court abused its discretion in calculating Finis’ income
for the purpose of determining his child support obligation.
Upon our de novo review of the record, we find sufficient
evidence to establish that Finis is not voluntarily choosing to
remain unemployed. Rather, the evidence reveals that Finis is
currently incapable of finding employment through “reason-
able efforts.” Accordingly, we affirm the decision of the district
court to calculate Finis’ income based solely on his monthly
disability payments.
(b) Alimony
We next address Kimberly’s assertion that the court erred
in calculating Finis’ income for the purpose of determining
his alimony obligation. Kimberly again argues that the district
court should have imputed additional income to Finis because
he is capable of working despite his disability and that this
imputed income should have been considered in determining
the amount of alimony awarded to Kimberly.
In awarding alimony, a court should consider, in addition to
the specific criteria listed in § 42-365, the income and earning
capacity of each party as well as the general equities of each
situation. Marcovitz v. Rogers, 267 Neb. 456, 675 N.W.2d 132
(2004). The criteria in § 42-365 include
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, 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.
Disparity in income or potential income may partially justify
an award of alimony. Hosack v. Hosack, 267 Neb. 934, 678
N.W.2d 746 (2004).
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
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award is untenable such as to deprive a party of a substantial
right or just result. Id. In determining whether alimony should
be awarded, in what amount, and over what period of time, the
ultimate criterion is one of reasonableness. Id. The purpose of
alimony is to provide for the continued maintenance or support
of one party by the other when the relative economic circum-
stances make it appropriate. Id.
In the instant case, the district court ordered Finis to pay
Kimberly alimony in the amount of $1 per year for the next 5
years. In providing Kimberly with a nominal award of alimony,
the court stated:
[Kimberly] introduced evidence which would support
some award of alimony. The evidence demonstrated that
her career has been interrupted numerous times by trans-
fers which occurred due to [Finis’] employment and that,
at other times, she stayed at home with the minor chil-
dren. However, at this point in time, [Finis’] only income
is disability. . . . [I]t would appear that under these cir-
cumstances a substantial award of alimony is not war-
ranted. However, there was some evidence that [Finis],
since his disability findings, has worked at times and
could possibly work in the future. Therefore, the Court
orders $1.00 per year in alimony be paid by [Finis] to
[Kimberly] for the next five years. If circumstances sur-
rounding [Finis’] income substantially change, [Kimberly]
may seek modification.
As we discussed more thoroughly above, evidence at trial
established that Finis is currently incapable of working and
that his income is made up entirely from his disability benefits.
Based on our analysis of the district court’s computation of
Finis’ income and our review of other evidence in the record,
including the duration of the parties’ marriage, Kimberly’s
work history, and the contributions each party made to the
marriage, we do not find that the court abused its discretion in
calculating Finis’ income or in awarding Kimberly a nominal
amount of alimony for the next 5 years. We affirm.
4. motion for new triAl
After the district court filed the decree of dissolution,
Kimberly timely filed a motion for new trial in which she
BANDy v. BANDy 	111
Cite as 17 Neb. App. 97

alleged the district court erred for the same reasons she argues
in her appellate brief to this court. The trial court subsequently
overruled Kimberly’s motion, and she now alleges such denial
constituted an abuse of discretion. A motion for new trial is
addressed to the discretion of the trial court, whose decision
will be upheld in the absence of an abuse of that discretion.
Poppe v. Siefker, 274 Neb. 1, 735 N.W.2d 784 (2007). In light
of our analysis of Kimberly’s other assignments of error, we
conclude that the district court did not abuse its discretion in
overruling Kimberly’s motion for new trial. We find Kimberly’s
contention to be without merit.
V. CONCLUSION
Upon our de novo review of the record, we find that the
district court did not abuse its discretion in determining that
Finis’ disability pension was not marital property, in ordering
Kimberly to pay the jewelry store bill in its entirety, in cal-
culating Finis’ monthly income, or in overruling Kimberly’s
motion for new trial in all respects. Accordingly, we affirm.
A ffirmed .
trAcy broAdcAsting corporAtion , A nebrAsKA
corporAtion , Appellee , v . telemetrix , inc .,
A delAwAre corporAtion , AppellAnt .
756 N.W.2d 742
Filed October 14, 2008. 	No. A-07-1327.
1. Statutes. Statutory interpretation presents a question of law.
2. Judgments: Appeal and Error. On questions of law, an appellate court is obli-
gated to reach a conclusion independent of the determination reached by the
court below.
3. Arbitration and Award: Final Orders. Denial of a motion to compel arbitration
is a final, appealable order under Nebraska law because it affects a substantial
right and is made in a special proceeding.
4. Arbitration and Award: Contracts. Arbitration is a matter of contract, and a
party cannot be required to submit to arbitration any dispute which he has not
agreed so to submit.
5. Constitutional Law: Waiver: Intent. A party has a constitutional right to adju-
dication of a justiciable dispute, and the law will not find a waiver of that right
112 	17 NeBRASKA APPeLLATe RePORTS