Simon v. Simon

file the motion to transfer until well after 2 years following the
filing of the juvenile petition, during which time Francis did
very little to participate in the case. At the time of the hearing
on this motion to transfer, proceedings had begun to terminate
both parents’ parental rights. In addition, the fact that other
cases involving some of the children were to remain in the
juvenile court is essentially a forum non conveniens matter,
which is a valid basis for good cause to deny transfer. See In
re Interest of Brittany C. et al., 13 Neb. App. 411, 693 N.W.2d
592 (2005). We observe that because Francis is the biological
father of only Iyn and Rena, he did not have standing to seek a
transfer relative to Leslie, Glory, and Crystal. Neither the Tribe
nor Kinda has appealed from the juvenile court’s decision.
Accordingly, our opinion applies only to the ruling relative to
Iyn and Rena.
CONCLUSION
The juvenile court did not abuse its discretion in denying the
motion to transfer.
A ffirmed.
C heryl l. Simon, AppellAnt, v.
riChArd Simon, Appellee .
770 N.W.2d 683
Filed August 11, 2009. 	No. A-08-1292.
1. Divorce: 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 division of property, alimony, and attorney fees.
2. Divorce: Property Division. All property, other than gifts or inheritance acquired
by one spouse during the marriage, accumulated and acquired by either spouse
during the marriage is part of the marital estate, unless it falls within an exception
to the general rule.
3. ____: ____. Property owned by one party before the marriage is set off to such
party if it is traceable, unless the other party has significantly cared for the prop-
erty during the marriage.
4. Divorce: Property Division: Pensions. According to Neb. Rev. Stat. § 42-366(8)
(Reissue 2008), the court shall include as part of the marital estate, for purposes
834 	17 NebRASKA APPeLLATe RePORTS
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:14 AM CST

of the division of property at the time of dissolution, any pension plans, retire-
ment plans, annuities, and other deferred compensation benefits owned by either
party, whether vested or not vested.
5. ____: ____: ____. benefits received from a former employer only upon retire-
ment were earned as a result of past employment—not future services or a future
inability to work—during the course of the marriage as a result of the joint efforts
of the parties and therefore are considered marital property.
6. Divorce: Property Division. early retirement incentives that result from employ-
ment during the marriage are included in the marital estate.
7. Alimony: Appeal and Error. The ultimate test for determining the correctness of
the alimony award is reasonableness as determined by the facts of each case.
8. Divorce: Alimony: Property Division. According to Neb. Rev. Stat. § 42-365
(Reissue 2008), 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, 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, 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.
Appeal from the District Court for Douglas County: JoSeph
S. troiA, Judge. Affirmed as modified, and cause remanded
with directions.
Michael 	b. 	Lustgarten 	and 	Justin 	A. 	Roberts, 	Senior
Certified Law Student, of Lustgarten & Roberts, P.C., L.L.O.,
for appellant.
benjamin M. belmont, Jason C. Demman, and Jessica
Levine, Senior Certified Law Student, of brodkey, Cuddigan,
Peebles & belmont, L.L.P., for appellee.
irwin, SieverS, and CASSel, Judges.
SieverS, Judge.
After 30 years of marriage, Cheryl L. Simon and Richard
Simon were divorced by a decree of dissolution entered by
the district court for Douglas County on August 1, 2008, that
was followed by an order ruling on a motion for new trial and
motion to alter or amend on November 4, from which Cheryl
files this timely appeal. The principal issue is the proper treat-
ment of Richard’s “early Leaving Incentive Program” (eLIP)
SIMON v. SIMON 	835
Cite as 17 Neb. App. 834

moneys that he is entitled to receive as a result of taking early
retirement from the Omaha Public Schools (OPS).
FACTUAL AND PROCeDURAL
bACKGROUND
At the time of the trial, Cheryl was 51 years of age and
Richard was 54 years of age. Richard had three income sources:
from OPS in the amount of $58,800 per year for his work as
a mathematics teacher; from working for a family business,
which was involved in the installation of underground sprin-
kler systems; and from teaching on an occasional basis at the
University of Nebraska at Omaha and a community college.
Richard has a bachelor’s degree and a master’s degree and has
taught mathematics for 30 years at Omaha Northwest High
School. Richard is eligible to retire from OPS and was set
to retire shortly after the trial, effective September 1, 2008.
Richard expected to receive his first OPS pension payment on
October 1. At the time of his retirement, Richard and Cheryl
will divide on an equal basis his OPS pension of $2,940 per
month. Richard testified that after his retirement, he will con-
tinue to work part time at brownell-Talbot School, earning
$32,000 per year. He testified that he is no longer going to
work in the family business, where he has worked since 1987,
earning between $4,500 and $7,800 per year.
The parties raised three children, all of whom are now over
the age of majority. Cheryl also worked throughout the mar-
riage for various employers as a licensed practical nurse. She
last worked providing home health care services, but the exact
date such employment ceased is not in the record. Cheryl
suffers from diabetes as well as a genetic condition, pseudo-
xanthoma elasticum, which manifested itself in the 4 years
preceding trial and caused her to become nearly blind. Cheryl
testified that she cannot drive or read, cannot see anyone’s
face, and can see only the color yellow and “a few shapes.”
Cheryl testified that the condition is getting progressively
worse and that ultimately she will be completely blind. At the
time of trial, Cheryl’s income sources were $350 per month
temporary alimony plus Social Security disability benefits of
$1,239 per month.
836 	17 NebRASKA APPeLLATe RePORTS

The trial court divided the parties’ debts and assets equally.
The parties did not accumulate a marital estate of consequence
after considering debt. Neither party complains about any
aspect of the property division, other than discussed below, and
the net value of the marital estate would not impact our resolu-
tion of the issues presented on appeal. Thus, it is not necessary
to detail the fine points of the property division.
The eLIP from OPS provides a benefit of $1,162.12 per
month to Richard for 83 months for a total of $96,455.96.
The payments will begin September 15, 2008, up to his 62d
birthday, when he will become eligible to begin drawing Social
Security benefits, if he so elects. The trial court awarded
Richard all of the eLIP payments.
The trial court awarded Cheryl alimony of $600 per month,
which is reduced to $1 per month upon Richard’s retirement,
at which point she would begin receiving her agreed-upon
50 percent of his OPS pension, or $1,470 per month. The
net effect is that Cheryl will receive the $600 payment from
Richard for 1 month.
ASSIGNMeNTS OF eRROR
Cheryl assigns two errors: The trial court erred (1) in failing
to equally divide the eLIP moneys and (2) in its alimony award
to Cheryl.
STANDARD OF ReVIeW
[1] 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 division of property, alimony, and attorney fees.
Longo v. Longo, 266 Neb. 171, 663 N.W.2d 604 (2003).
ANAYLSIS
Award of OPS ELIP Benefits.
The eLIP payments that were awarded in their entirety
to Richard begin September 15, 2008, and continue through
July 15, 2015, at the rate of $1,162.12 per month for a total
of $96,455.96. Cheryl argues that she should receive half of
SIMON v. SIMON 	837
Cite as 17 Neb. App. 834

such payments, whereas Richard argues that such are future
“income” to which he is solely entitled.
The only documentation concerning the eLIP payments in
the record is Richard’s application to OPS for such. While
the application refers to “eligibility requirements” for eLIP
payments, and Richard, via his signature on the application,
acknowledges his understanding of such, the actual eligibility
requirements are not in the record. However, Richard admitted
in his testimony that he is getting the eLIP payments “because
of [his] work for OPS during the course of the marriage” and
that such is a “perk” resulting from his work for OPS—all
of which occurred during the marriage. OPS approved his
eLIP application on June 3, 2008. However, Richard did not
disclose the existence of the eLIP benefits until the day of
trial—June 16.
[2,3] Cheryl notes that all assets and debts were divided
essentially 50-50. She concedes that other than the eLIP
moneys, all of the marital assets and debts were divided in
a fair and equitable manner. However, she asserts that the
award of the eLIP moneys solely to Richard is unquestion-
ably an abuse of discretion. The trial court did not provide
a rationale for the award of the eLIP moneys to Richard.
Cheryl’s argument for a division of the eLIP payments is
based on the general rule that all property accumulated and
acquired by either spouse during the marriage is part of the
marital estate, unless it falls within an exception to the gen-
eral rule. Heald v. Heald, 259 Neb. 604, 611 N.W.2d 598
(2000). The exceptions that come immediately to mind are
property acquired during the course of the marriage by one
party through either gift or inheritance. See Heald, supra.
And property owned by one party before the marriage is set
off to such party if it is traceable, unless the other party has
significantly cared for the property during the marriage. See
Olson v. Olson, 13 Neb. App. 365, 693 N.W.2d 572 (2005).
None of these exceptions to the general rule are involved in
this case.
Richard argues the eLIP payments are “an early retirement
incentive plan as a replacement for post-separation wages and
therefore is separate property or income from wages, not to be
838 	17 NebRASKA APPeLLATe RePORTS

included in the equitable division of the marital estate.” brief
for appellee at 12.
In arguing for the notion that the eLIP moneys are excluded
from the marital estate, Richard begins with the general con-
cept found in Davidson v. Davidson, 254 Neb. 656, 578 N.W.2d
848 (1998), that the marital estate should only include property
created by the marital partnership and that the eLIP benefits
do not meet this criteria. However, Richard ignores the holding
of Davidson, that to the extent that the husband’s “unvested
employee stock options and stock retention shares were accu-
mulated and acquired during the marriage, they were accumu-
lated and acquired through the joint efforts of the parties.” 254
Neb. at 663, 578 N.W.2d at 855.
The Davidson court then turned to the question of when
stock 	options 	and 	retention 	shares 	“are 	accumulated 	and
acquired.” Id. The Davidson court said that most courts rec-
ognize that employee stock options may be granted for “past,
present, or future services, or some combination thereof.” Id.
(citing In re Marriage of Hug, 154 Cal. App. 3d 780, 201 Cal.
Rptr. 676 (1984)). There can be no doubt from the evidence
that the eLIP benefits were completely earned and granted for
past performance—in this case, Richard’s 30 years of work for
OPS, all of which time he was married to Cheryl. Moreover,
Richard’s choosing to terminate his employment with OPS is
the precondition to his obtaining such benefits. Thus, in no
sense can the eLIP payments be deemed a reward for future
services, because his OPS employment has ended. Finally,
we observe that the permutations commented upon by the
Davidson court regarding the valuation and acquisition dates
of the husband’s stock options and retention shares are simply
not present here. Corporate stock is subject to the vagaries of
the marketplace and the economy, whereas Richard is receiving
a fixed amount, $96,455.96 paid in 83 equal installments, and
such is not affected by future events as stock options or reten-
tion shares would be.
[4] Davidson, supra, clearly reaffirms the basic “time rule”
that assets acquired during the marriage are marital property.
Thus, in the instant case, to the extent that the eLIP benefits
are deemed “property,” the right to such was undisputedly
SIMON v. SIMON 	839
Cite as 17 Neb. App. 834

acquired during the marriage. And none of the aforementioned
exceptions to exclude property from the marital estate apply.
The record is clear that the eLIP benefits are a direct result of
Richard’s work for OPS over the 30-year course of the mar-
riage. Thus, we have little hesitancy in concluding that if the
eLIP benefits are considered property, such should have been
included in the marital estate. Neb. Rev. Stat. § 42-366(8)
(Reissue 2008) provides substantial guidance on the question
of whether the eLIP benefits are “property.” The statute pro-
vides, “The court shall include as part of the marital estate,
for purposes of the division of property at the time of dissolu-
tion, any pension plans, retirement plans, annuities, and other
deferred compensation benefits owned by either party, whether
vested or not vested.” § 42-366(8).
The statute clearly sweeps quite broadly in requiring retire-
ment or deferred compensation plans to be included in the
division of property. On the basis of the statutory language
alone, it is difficult to reach any conclusion other than that the
eLIP benefits should have been divided as marital property,
given that it clearly is part and parcel of Richard’s “retire-
ment benefits package” that he accumulated while married
to Cheryl.
[5] Our decision in Bandy v. Bandy, 17 Neb. App. 97, 756
N.W.2d 751 (2008), is instructive in the sense that it discusses
a pension that we determined was outside of the broad lan-
guage of § 42-366(8). In Bandy, the husband sustained an
on-the-job injury that qualified him for workers’ compensa-
tion benefits as well as a disability pension from the city of
Omaha, his employer when he was injured. On appeal, the
wife argued that the trial court erred in excluding the dis-
ability pension from the property division because the court
found the pension was a nonmarital asset. We affirmed the
trial judge’s decision awarding the disability pension solely
to the husband, reasoning that the husband’s disability pen-
sion was distinct from any retirement benefits he may receive
from the city and the disability pension appeared to be com-
pensation for his loss of earning capacity, noting the evidence
that he had not been able to obtain and hold regular employ-
ment since the injury. In this case, the eLIP benefits do not
840 	17 NebRASKA APPeLLATe RePORTS

compensate Richard for a future inability to work—even
though the benefits are payable in the future, nor do such bene-
fits pay him for future work.
In Longo v. Longo, 266 Neb. 171, 663 N.W.2d 604 (2003), the
court considered the division of a nonvested military pension in
a dissolution action. The Longo court’s observations about such
seem analogous to Richard’s retirement package, including the
eLIP payments. The Longo court stated as follows:
[Section] 42-366(8) logically requires that a nonvested
military pension be treated as marital property in a disso-
lution proceeding. While military personnel do not make
monetary investments in a pension plan, they invest time
and personal sacrifice in order to qualify for a nondis-
ability military pension. Spouses of such personnel share
in this investment to the extent that the duration of the
marriage coincides with the period of military service.
As one court has noted, the future retirement pay of a
career military service member who is not yet eligible
to retire “is a contractual right, subject to a contingency,
and is a form of property.” Jackson v. Jackson, 656 So.
2d 875, 877 (Ala. Civ. App. 1995). because § 42-366(8)
specifically requires the inclusion of retirement benefits
“whether vested or not vested” in the marital estate, we
conclude that the district court did not err in awarding
[the wife] a share of [the husband’s] future nondisability
military pension entitlement, payable only if and when
such benefits become payable to [the husband].
266 Neb. at 179, 663 N.W.2d at 610.
We see little difference between the “investment” a teacher
and his or her spouse make in a teaching career and what a
military service member and his or her spouse make in a mili-
tary career.
[6] With the foregoing “background” law in place, which
seems to compel the conclusion that the trial court erred in its
treatment of the eLIP moneys, we turn to Richard’s argument
that the trial court award should be upheld. Richard asserts
the following: “Whether early retirement incentive plans are
marital property is an issue of first impression in Nebraska.”
brief for appellee at 13. That is not exactly true, and we note
SIMON v. SIMON 	841
Cite as 17 Neb. App. 834

that neither party cites us to Shockley v. Shockley, 251 Neb.
896, 560 N.W.2d 777 (1997). Shockley is more mathemati-
cally complicated because while the husband worked for U S
West for a total of 26.5833 years, only 5.5 years were dur-
ing the marriage before he took early retirement on March 1,
1990. He retired on an incentive plan, which added 5 years
to his age and 5 years to his years of service to compute the
lump-sum settlement he received when he retired. The husband
in Shockley argued, in the words of the Supreme Court, that
“Wife contributed nothing to the early retirement incentives
and his actual years of employment did not include the 5+5
enhancement.” 251 Neb. at 901, 560 N.W.2d at 781. However,
the Supreme Court agreed with the wife’s argument that the
trial court should have added the 5 extra years from the early
retirement incentive to his 5.5 years of employment in order
to get the percentage attributable to marriage. Thus, 5 years
were added to the 5.5 years worked during the marriage, as
well as to the total actually worked, producing 31.5833 total
years, divided by 10.5 marital years, to produce a figure of
33.25 percent. Therefore, the court found, “The marital portion
of Husband’s pension, including the buyout incentives, should
be increased by $23,574.20.” Id. Accordingly, while Shockley
is more nuanced than the instant situation, it clearly stands for
the proposition that early retirement incentives that result from
employment during the marriage are included in the marital
estate. Although § 42-366(8) was then effective, the Shockley
court did not cite to it; nonetheless, we suggest the result in
Shockley is not only driven by equity and reasonableness, but
by the unambiguous language of that statute.
Richard 	also 	cites 	decisions 	from 	Virginia, 	Ohio, 	and
Pennsylvania in support of his argument that the eLIP benefits
were properly excluded from the marital estate. We do not dis-
sect or attempt to distinguish those cases, because § 42-366(8)
and the Nebraska authority we have cited above is determina-
tive. Therefore, we hold that the trial court abused its discretion
in awarding all of the eLIP benefits solely to Richard, because
such should have been included in the property division as
marital property.
842 	17 NebRASKA APPeLLATe RePORTS

Perhaps because Richard did not disclose the eLIP until
the day of trial, the details of this program in our record are
a bit sketchy. We do not know for certain that the payments
are taxable, nor do we know if a qualified domestic relations
order is needed to have Cheryl receive one-half of the eLIP
moneys, which we determine is proper and reasonable, as
part of the property division. Therefore, we remand the cause
to the district court for further proceedings to determine if a
qualified domestic relations order is needed and, if so, for the
execution and approval of such. The trial court shall award
Cheryl a percentage of the payments that have not yet been
made—remembering that such were to start on August 15,
2008—so that in the end, she receives that percentage of the
remaining payments, once the payments to her begin, which
will equal 50 percent of the total eLIP benefit of $96,455.96
over the timespan of the then remaining payments. In this way,
Richard will not be obligated to pay Cheryl out of pocket for
her share of the eLIP benefits he has already received, but she
will end up receiving a total of $48,227.98—one-half of the
total eLIP payments.
Award of Alimony to Cheryl.
We now turn to the issue of the alimony award to Cheryl.
It is apparent that this case is appropriate for an award of
alimony, given the 30 years of marriage and Cheryl’s unfortu-
nate circumstances. The trial court awarded her $600 a month
beginning on the first day of the month following the entry of
the decree, which occurred on August 1, 2008, but such pay-
ment was ordered reduced to $1 a month when Cheryl begins
“receiving her 50% portion of [Richard’s OPS] Pension.”
However, in the November 4 order on the motion to alter or
amend, the court amended the alimony provision
in that at such time as [Richard] retires from his employ-
ment with [OPS], he shall file . . . an Affidavit, with back
up documentation, setting forth his retirement start date
and the Clerk will then adjust its records to show the
reduction in [Richard’s] alimony obligation from $600.00
per month to $1.00 per month.
SIMON v. SIMON 	843
Cite as 17 Neb. App. 834

Another provision of the November 4, 2008, order provides
that until Cheryl receives her 50 percent of the monthly OPS
pension payment directly from OPS ($1,470 at the time of
trial), Richard will be obligated to pay her 50 percent of what
he receives. Richard testified that his effective retirement date
is September 1, 2008, and that he will get the first payment on
October 1—meaning the $600 per month will be paid only 1
month, September 2008, and thereafter alimony will be $1 per
month. The alimony is to run for 60 months, or until Richard’s
death or Cheryl’s remarriage, whichever occurs first.
Cheryl asks that we order the alimony extended for 10 years
and not reduce it below $600 per month or only “slightly
reduce the obligation.” brief for appellant at 20.
[7,8] The ultimate test for determining the correctness of the
alimony award is reasonableness as determined by the facts
of each case. Baratta v. Baratta, 245 Neb. 103, 511 N.W.2d
104 (1994). Neb. Rev. Stat. § 42-365 (Reissue 2008) 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.
Cheryl’s education is limited to certification for licensed
practical nursing, and she is no longer able to work in that
capacity because of her near complete blindness, which the
evidence shows will only worsen. She cannot read, drive a car,
distinguish faces, colors, or most shapes. Her opportunities for
employment are clearly severely limited. Her monthly income
is composed of Social Security benefits of $1,239 and taxable
income of $1,470 from her share of Richard’s OPS retirement.
Thus, her income is $2,709 pretax per month. Additionally, she
will get cost-of-living increases both from OPS and from Social
844 	17 NebRASKA APPeLLATe RePORTS

Security. Thus, at this time, Cheryl’s pretax yearly income
is $32,508, and by a rough estimate, the eLIP benefit will
increase her annual income by $7,000 once she begins receiv-
ing such.
Richard’s projected yearly income as the alimony and prop-
erty division currently stand is $32,000 from brownell-Talbot
School, $17,640 from OPS for his pension, and $13,945.44
in eLIP benefits for a total of $63,585.44 annually. However,
given our modification concerning the eLIP benefit, his income
will be closer to $56,000. The eLIP benefit terminates when
Richard turns 62 and he becomes eligible to draw Social
Security. Although the evidence was not complete on the point,
it is implicit that Richard’s Social Security benefits at age
62 will approximate the eLIP benefits he is receiving until
that time.
Given the length of the marriage, Cheryl’s severe disabil-
ity, Richard’s educational level and residual earning capacity
despite his retirement from OPS, and the parties’ relatively
young ages at 51 for Cheryl and 54 for Richard, we find that
the alimony term of a mere 60 months is significantly inade-
quate and was an abuse of discretion. Therefore, the term of
alimony should be 120 months. The monthly amount awarded
by the trial court is de minimus because of Richard’s agree-
ment to arrange for payment of one-half of his OPS pension
to Cheryl, but such was allowed for modification purposes in
the event of a material change of circumstances. However, we
find that such opportunity should not be limited to such a brief
timeframe, given the parties’ situations as summarized above.
That said, we decline to modify the amount of the alimony
as it is reasonable and appropriate considering the income
and resources available to each party and our treatment of the
eLIP moneys set forth above. Thus, we affirm the alimony
award in all respects, except that the term thereof shall be
120 months.
CONCLUSION
For the reasons discussed above, the eLIP benefits should
have been considered marital property and included in the
property division. Thus, the trial court abused its discretion by
SIMON v. SIMON 	845
Cite as 17 Neb. App. 834

awarding all of the eLIP benefits to Richard. Second, given the
circumstances of this case, the term of Richard’s alimony obli-
gation is hereby extended from 60 months to 120 months. In all
other respects, we affirm the trial court’s decision.
A ffirmed AS modified, And CAuSe
remAnded with direCtionS.
846 	17 NebRASKA APPeLLATe RePORTS