Krzycki v. Krzycki

KRZYCKI v. KRZYCKI 	729
Cite as 284 Neb. 729
be ordered to run concurrently with any other sentence, either
explicitly or implicitly.
CONCLUSION
We conclude that the district court did not err when it
rejected the constitutional challenges to § 28-1351. We further
reject Scott’s remaining assignments of error. We therefore
affirm Scott’s convictions. However, we note plain error in that
the court ordered the sentence for use of a deadly weapon to
run concurrently with the sentence for unlawful recruitment.
We vacate the sentences because the sentence for use of a
deadly weapon was erroneously ordered to run concurrently
with the sentence for unlawful recruitment, and we remand the
cause to the district court with directions to resentence so that
the sentence for use of a deadly weapon shall run consecutively
to all other sentences imposed.
A ffirmed in pArt, And in pArt vAcAted And remAnded
with directions for resentencing.
greg K rzycKi, As trustee of the shirley
m. K rzycKi trust, Appellee, v.
robin K rzycKi, AppellAnt.
824 N.W.2d 659
Filed November 30, 2012. 	No. S-11-1080.
1. Decedents’ Estates: Banks and Banking. All personal accounts in Nebraska are
subject to Neb. Rev. Stat. §§ 30-2715 through 30-2746 (Reissue 2008), concern-
ing nonprobate transfers of accounts.
2. Decedents’ Estates: Banks and Banking: Contracts. Pursuant to Neb. Rev.
Stat. § 30-2719(a) (Reissue 2008), a contract of deposit that contains provi-
sions in substantially the form provided in this subsection establishes the type
of account provided, and the account is governed by the provisions of Neb.
Rev. Stat. §§ 30-2716 to 30-2733 (Reissue 2008) applicable to an account of
that type.
3. Decedents’ Estates: Banks and Banking: Contracts: Evidence: Intent. Only
if a contract of deposit does not conform to the statutory forms provided in Neb.
Rev. Stat. § 30-2719(a) (Reissue 2008) may evidence be presented on the issue
of the intent of the depositor.
4. Decedents’ Estates: Banks and Banking: Contracts: Intent. Neb. Rev. Stat.
§ 30-2719(b) (Reissue 2008) provides that when a contract of deposit does
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:40 AM CST

730 	284 NEBRASKA REPORTS
not conform to any of the statutory forms, it is governed by the provisions of
Neb. Rev. Stat. §§ 30-2716 to 30-2733 (Reissue 2008) applicable to the type of
account that most nearly conforms to the depositor’s intent.
5. Decedents’ Estates: Banks and Banking: Presumptions: Proof. Neb. Rev. Stat.
§ 30-2719(b) (Reissue 2008) creates no presumption in favor of a type of account
and does not set any standards related to burdens of proof.
6. ____: ____: ____: ____. When a dispute exists regarding the proportional owner-
ship of multiple-party accounts during the lifetime of the parties, not a dispute
regarding who owns the account, the statutes provide that certain statutory pre-
sumptions may be overcome only by clear and convincing evidence.
7. Decedents’ Estates: Banks and Banking: Proof: Intent. Neb. Rev. Stat.
§ 30-2719(b) (Reissue 2008) does not provide a certain burden of proof with
which a movant must move forward. Thus, in order to succeed in proving intent,
pursuant to § 30-2719(b), a movant must prove his or her case by a greater
weight of the evidence only.
Appeal from the District Court for Lancaster County: steven
d. burns, Judge. Affirmed.
Clark J. Grant, of Grant & Grant, for appellant.
Wayne E. Janssen for appellee.
heAvicAn, c.J., wright, connolly, stephAn, mccormAcK,
miller-lermAn, and cAssel, JJ.
heAvicAn, c.J.
INTRODUCTION
Shirley M. Krzycki was the sole settlor, trustee, and bene-
ficiary of the Shirley M. Krzycki Trust (Trust) established to
hold annual payments from an insurance settlement. Shirley
died unexpectedly on August 19, 2009. She was survived by
her four children: Greg Krzycki, appellee; Dawn Vogt; Robin
Krzycki, 	appellant; 	and 	Zachary 	Krzycki. 	Upon 	Shirley’s
death, Greg was named successor trustee of the Trust. Greg
filed suit in Lancaster County District Court claiming that
sums on deposit in a Wells Fargo Bank (Wells Fargo) account,
formerly owned by Shirley as “Primary Joint Owner,” were
property of the Trust. Shirley’s daughter Robin was origi-
nally named “Secondary Joint Owner” on this account, and
Robin refused to give to the Trust the sums on deposit in this
account. After a bench trial, the district court held that the bal-
ance of the Wells Fargo account belonged to the Trust. Robin

KRZYCKI v. KRZYCKI 	731
Cite as 284 Neb. 729
appeals. We affirm, but for reasons different from those of the
district court.
FACTUAL BACKGROUND
On September 5, 1982, Shirley and her husband, Ronald
Krzycki, were involved in an automobile collision. Ronald was
seriously injured in the collision, leaving him incapacitated. On
December 27, 1984, Shirley entered into a settlement agree-
ment related to this accident on behalf of herself individually,
on behalf of her husband Ronald, and as guardian for their
three minor children—Dawn, Robin, and Zachary (Greg was
an adult at this time). Pursuant to the terms of the settlement,
Shirley was to be paid $20,000 each November 1 for a period
of 50 years, with the first payment due November 1, 1985. The
settlement called for the payments to be made to Shirley during
her life, and then to Shirley’s estate upon her death.
On October 29, 1985, Shirley executed a will that was
admitted to probate in Shirley’s estate after her death. In the
second paragraph, Shirley’s will provides: “All of the rest, resi-
due and remainder of my estate, both real, personal and mixed,
. . . I leave to my children, share and share alike.” In the third
paragraph, the will provides:
I intend to have in existence, at the time of my death, a
bank account through which the settlement proceeds of
a lawsuit which was filed in the year 1983 . . . . shall
pass. . . . I direct that as those payments are received into
said banking account, my children, or their issue by right
of representation . . . , share equally in such payments. I
intend to have one or more of my children listed on said
account so as to enable them to obtain the funds for dis-
tribution according to this paragraph in any manner which
may be convenient. I would recommend that my children
consult with an accountant or an attorney in regard to the
tax consequences, if any, of such payments to them, so
that they can make the necessary arrangements in regard
to the same.
In 1992, Shirley and Ronald divorced. A decree nunc pro
tunc was filed on September 3, 1992. It contained the follow-
ing language regarding the settlement payments:

732 	284 NEBRASKA REPORTS
[S]ubsequent to and a [sic] result of said automobile acci-
dent a settlement was made to the benefit of the family of
Ronald . . . , respondent herein; that said settlement results
in a payment of $20,000.00 to [Shirley] on each and every
November 1st with the final payment due on November
1, 2034; the settlement further requires that in the event
petitioner, Shirley . . . die [sic] before November 1, 2034,
any remaining payments set forth herein shall instead be
paid, as they become due, to her estate.
All remaining payments resulting from said insurance
settlement, beginning with the payment due November 1,
1992, shall be paid to the . . . Trust.
The Trust was executed on August 31, 1992, as a part of
the divorce settlement. Shirley was the sole settlor, trustee,
and beneficiary of the Trust. According to the Trust document,
the Trust was irrevocable. The Trust document provided that
during her life, Shirley could pay all net income of the Trust
to herself and could expend the principal of the Trust as she
determined. Upon Shirley’s death, after payment of expenses,
the remainder of the Trust was to be paid to her four children,
share and share alike. The Trust prohibited a beneficiary from
anticipating, transferring, selling, assigning, or encumbering
any payment or distribution of either principal or income.
Paragraph VI of the Trust document provided that the trustee’s
powers did not include the power to gift the proceeds of
the Trust.
The Trust document further provided that the property to
be deposited into the Trust was contained in “Exhibit ‘A’”
attached to the Trust. The evidence submitted at trial did not
contain an “Exhibit A.” A quitclaim deed to certain farmland
in Platte County, Nebraska, however, shows Shirley moved
the family residence into the Trust. There is no disagreement
between the parties that a valid Trust was created and still
exists. There was no evidence presented at trial indicating
Shirley sought legal advice or was given legal advice to assist
her in establishing a separate trust account in the name of
the Trust to hold the annual settlement payments. Ultimately,
Shirley never established a separate trust account within the
legal framework contemplated in the divorce decree.

KRZYCKI v. KRZYCKI 	733
Cite as 284 Neb. 729
Sometime between 2003 and 2005, Robin was out of work
and needed a place to live, so she moved in with Shirley. Robin
lived with Shirley until Shirley’s death in 2009.
Beyond Shirley’s will, the divorce decree, and the Trust
document, no other writings were presented at trial express-
ing Shirley’s intent behind her various financial transactions.
The evidence does reference, however, several different bank
accounts used during the last years of Shirley’s life.
On 	September 	28, 	2001, 	Shirley 	completed 	a 	“Direct
Deposit/Bank By Mail Enrollment Form” instructing the insur-
ance company which was making the annual payments for the
settlement at that time to deposit the annual payments into a
Commercial Federal Bank (Commercial Federal) account she
owned that also bore the names of Greg and Dawn. For some
period prior to February 6, 2007, the annual settlement pay-
ments were deposited into this account.
The record shows that on October 28, 2005, a check for
$20,000, which derived from the settlement, was deposited into
the Commercial Federal account. This check was made payable
to said account “FBO Shirley Krzycki, Trust.” On November 1,
2006, another check for $20,000, which derived from the settle-
ment, was deposited into the Commercial Federal account. This
check was also made payable to said account “FBO Shirley
Krzycki, Trust.” Shirley withdrew funds from this account as
needed to pay bills through a separate checking account she
held with Commercial Federal, which also bore the names of
Greg and Dawn.
In March 2006, Robin’s name first appeared on an account
with Shirley at Commercial Federal. Two of Shirley’s cer-
tificates of deposit matured at this time, and she placed those
funds, together with $4,649.84 from her Commercial Federal
checking account, into this new account. One month later, most
of the $4,649.84 was returned to Shirley’s Commercial Federal
checking account.
On February 6, 2007, Shirley engaged in a transfer of
funds from accounts she owned with Commercial Federal to
new accounts she opened with Wells Fargo. The following
represents the facts of such transfer as relevant to this appeal.
Shirley closed one Commercial Federal account, which bore

734 	284 NEBRASKA REPORTS
the names of Greg and Dawn, and transferred $31,493.87, all
remaining funds, to her Commercial Federal checking account.
Shirley then transferred substantially all of the funds in her
Commercial Federal checking account into two new accounts
she opened with Wells Fargo.
From the checking account, Shirley transferred $23,000
to open the Wells Fargo account that is the subject of this
appeal. Shirley signed the documents necessary to open the
account as “Primary Joint Owner.” Robin was present when
Shirley opened the account, and Robin signed the documents
as “Secondary Joint Owner.” Robin testified that she did not
know why Shirley opened the account and that Shirley never
indicated to Robin her intent in opening the account.
From the Commercial Federal checking account, Shirley
also transferred $7,000 to a new checking account with Wells
Fargo that also bore Robin’s name. On the same day, Shirley’s
Commercial Federal account, which bore Robin’s name, was
also closed. Those proceeds, $42,222.82, were also moved to
the new Wells Fargo account that is the subject of this appeal.
On February 22, 2007, $4,000 of the $7,000 deposited into
Shirley’s new Wells Fargo checking account was transferred to
Shirley’s Wells Fargo account that is the subject of this appeal.
Such transactions show Wells Fargo became the primary bank
used by Shirley at this time.
On July 26, 2007, Shirley completed a “Direct Deposit
Enrollment Form” instructing the insurance company making
the settlement payments to thereafter deposit the payments
into the new Wells Fargo account that is the subject of this
appeal. On November 1, a check for $20,000 deriving from
the settlement was deposited into the Wells Fargo account.
Such check was made payable to said account “FBO Shirley
Krzycki, Trust.” On November 1, 2008, another check for
$20,000 deriving from the settlement was deposited into the
Wells Fargo account. Such check was also made payable to
said account “FBO Shirley Krzycki, Trust.”
Shirley managed the subject Wells Fargo account on her
own. Robin did not assist Shirley with the management of
this account or make any action on behalf of the account. It
is uncontested that beyond the annual settlement payments,

KRZYCKI v. KRZYCKI 	735
Cite as 284 Neb. 729
Shirley did not have any other large source of income dur-
ing her life. Shirley’s other sources of income included a
small pension payment of $22.25 per month and a Social
Security payment of approximately $1,249 per month. The
monthly Social Security payments were deposited into her
checking accounts.
Shirley died unexpectedly of cardiac arrest on August 19,
2009. After Shirley died, Robin presented to Wells Fargo and
had the account which bore her name as “Secondary Joint
Owner” transferred to her name only.
On January 28, 2011, Greg, as trustee of the Trust, filed a
complaint claiming that the funds in the Wells Fargo account
in the approximate amount of $77,937.09 were funds of the
Trust. Greg alleged in his first cause of action that Robin had
converted the funds of the Trust to her own use and asked for
judgment against Robin in the amount of $77,937.09, plus
interest and costs. Greg alleged in his second cause of action
that Robin had come into possession of such funds subject
to a constructive trust on behalf of the Trust and should be
required to account for such funds and to turn such funds
over to the Trust for administration according to the terms of
the Trust.
Robin filed an answer alleging that when Shirley opened the
Wells Fargo account, said account was owned by Shirley and
Robin as joint tenants with rights of survivorship, that the Trust
had no ownership interest in such account, and that Shirley
intended the result at the time. After a bench trial, the district
court found in favor of Greg, finding he had succeeded on both
of his claims.
Specifically, the district court held that all of the funds in
the Wells Fargo account were trust funds because they could
be “traced” as originating from settlement payments and that to
the extent Robin is the owner of that account, she owned it in
constructive trust for the benefit of the Trust.1 The district court
held Robin correctly argued that the creation of a joint tenancy
account establishes a presumption that Shirley intended Robin
1 See In re Estate of Redpath, 224 Neb. 845, 847, 402 N.W.2d 648, 650
(1987).

736 	284 NEBRASKA REPORTS
to receive the funds in the account upon Shirley’s death. The
district court found, however, that Greg had overcome that
presumption based upon the clear and convincing evidence he
presented at trial.2
ASSIGNMENTS OF ERROR
On appeal, Robin assigns that the district court erred in
(1) determining that the funds in the Wells Fargo account
are trust funds belonging to the Trust, (2) determining that
Greg adduced clear and convincing evidence to overcome the
presumption that Shirley intended to create a joint tenancy
account at Wells Fargo, and (3) imposing a constructive trust
on the Wells Fargo account without any evidence that Robin
obtained title to the account by fraud, misrepresentation, or an
abuse of an influential or confidential relationship.
STANDARD OF REVIEW
An action for conversion sounds in law. A district court’s
factual determination in a bench trial in an action at law has
the same effect as a jury verdict and will not be set aside unless
clearly wrong.3
ANALYSIS
Whether Funds in Wells Fargo
Account Are Trust Funds.
Robin assigns that the district court erred in finding the
sums remaining on deposit in the Wells Fargo account are
“trust” funds and that such funds belong to the Trust. We find
the district court did not err in finding that the sums on deposit
in the account are “trust” funds, because in signing her divorce
decree, Shirley agreed to have the remaining settlement pay-
ments be paid to the Trust. Although Shirley never created a
designated trust account within the legal framework contem-
plated in the divorce decree, the evidence shows the subject
2 See In re Estate of Lienemann, 222 Neb. 169, 382 N.W.2d 595 (1986)
(superseded by statute as stated in Eggleston v. Kovacich, 274 Neb. 579,
742 N.W.2d 471 (2007)).
3 Imperial Empire Trading Co. v. City of Omaha, 246 Neb. 919, 524 N.W.2d
314 (1994).

KRZYCKI v. KRZYCKI 	737
Cite as 284 Neb. 729
account was clearly designated as the account to receive the
settlement payments for the benefit of the Trust.
Shirley never created a separate trust account with any bank-
ing institution to receive the annual settlement payments. There
is no evidence in the record that Shirley sought legal advice
or was given legal advice as to how to do so upon signing her
divorce decree. The evidence shows that from at least 2001
until her death, Shirley simply directed the annual settlement
payments be deposited into regular bank accounts.
Significantly, the last four annual settlement payments for
a total of $80,000 were deposited into Shirley’s designated
accounts “FBO Shirley Krzycki, Trust.” A portion of the first
two of these four payments, $27,000 of $40,000, was trans-
ferred to the subject Wells Fargo account by Shirley, while
the final two of these four payments were deposited into the
Wells Fargo account upon Shirley’s direction, for a total of
$67,000 of settlement proceeds deposited into the account
“for the benefit” of the Trust. The only other deposit made
into this account was a transfer in the amount of $42,222.82
from the account Shirley opened with Commercial Federal
when two of her certificates of deposit matured. Because
it is uncontested that Shirley had no other large source of
income, it is likely this money originated from two annual
settlement payments and gained interest through Shirley’s
various deposits. Thus, we find the district court did not err
in finding that the remaining $77,937.09 on deposit in the
Wells Fargo account “for the benefit” of the Trust are trust
proceeds belonging to the Trust, because no other separate
trust account was created.
Whether Shirley Created Joint Tenancy
Account at Wells Fargo.
We next address Robin’s second assignment of error on
appeal. Robin asserts that she has survivorship rights to the
funds on deposit in the Wells Fargo account because Shirley
named her as “Secondary Joint Owner” of the account. Robin
argues that in doing so, Shirley created a joint tenancy account
with rights of survivorship. Robin argues the district court cor-
rectly held, pursuant to this court’s holding in In re Estate of

738 	284 NEBRASKA REPORTS
Lienemann,4 that Shirley’s creation of an account with Robin
produces a presumption that Shirley intended for Robin to have
the remainder of the account upon her death, and that such
presumption can be overcome only by clear and convincing
evidence. Robin asserts the district court erred in finding that
Greg overcame this presumption based upon the evidence he
presented at trial.
[1] Prior to 1993, in In re Estate of Lienemann, this court
held that if a party opens a joint bank account, there is a pre-
sumption that the depositor intended the joint owner to own
the funds upon the depositor’s death, but that that presumption
may be overcome by clear and convincing evidence.5 In 1993,
the relevant statutory provision upon which the In re Estate of
Lienemann holding was based was repealed and the Nebraska
Legislature passed Neb. Rev. Stat. §§ 30-2715 through 30-2746
(Reissue 2008), concerning nonprobate transfers of accounts.
All personal accounts are subject to these statutes,6 and the
statutes are based upon §§ 6-201 through 6-227 of the Uniform
Probate Code.7 Thus, the In re Estate of Lienemann case, to
the extent it addresses legal presumptions related to ownership
of joint bank accounts, is no longer good law, and the district
court erred in relying upon it.
[2,3] Pursuant to § 30-2719(a) of the new statutes, “[a]
contract of deposit that contains provisions in substantially the
form provided in this subsection establishes the type of account
provided, and the account is governed by the provisions of
sections 30-2716 to 20-2733 applicable to an account of that
type.” Thus, as this court held in Eggleston v. Kovacich,8 even
with clear and convincing evidence of intent, the provisions of
a contract of deposit cannot be altered. Only if the contract of
deposit does not conform to the statutory forms provided in
4 In re Estate of Lienemann, supra note 2.
5 Id.
6 See § 30-2718(b).
7 Unif. Probate Code, rev. art. VI, §§ 6-201 through 6-227, 8 (part II)
U.L.A. 433-48 (1998).
8 Eggleston v. Kovacich, supra note 2. See § 30-2719(a).

KRZYCKI v. KRZYCKI 	739
Cite as 284 Neb. 729
§ 30-2719(a) may evidence be presented on the issue of the
intent of the depositor.9
[4,5] The parties do not dispute that the contract establish-
ing the Wells Fargo account does not conform to any of the
statutory forms provided in § 30-2719(a). The Wells Fargo
contract named Shirley as “Primary Joint Owner” and Robin
as “Secondary Joint Owner.” These titles are not listed or
defined in § 30-2719(a). Pursuant to § 30-2719(a), an account
may be a single-party account, a single-party account with
a pay-on-death designation, a multiple-party account with a
right of survivorship, a multiple-party account with a right
of survivorship and a pay-on-death designation, a multiple-
party account without a right of survivorship, or a single-party
or multiple-party account with an agency designation. The
agency designation may survive the disability or incapacity of
the party or parties or terminate upon the disability or inca-
pacity of the party or parties.10 An agent “may make account
transactions for parties but [has] no ownership or rights at
death unless named as [a pay-on-death beneficiary].”11 Section
30-2719(b) provides that when a contract does not conform
to any of the statutory forms, it “is governed by the provi-
sions of sections 30-2716 to 30-2733 applicable to the type of
account that most nearly conforms to the depositor’s intent.”
Section 30-2719(b) creates no presumption in favor of a type
of account and does not set any standards related to burdens
of proof.
[6,7] Accordingly, this court may look to the evidence
beyond the contract of deposit establishing Shirley’s intent in
forming the Wells Fargo account. The court must then make
a finding as to what kind of statutory account “most nearly
conforms” to the account Shirley intended to create.12 Because
the proceeds of the account in dispute are in the hands of
Robin, Greg has the burden to move forward with evidence
9 Eggleston v. Kovacich, supra note 2. See § 30-2719(b).
10 § 30-2719(a).
11 Id.
12 § 30-2719(b). See, e.g., In re Carstens, No. BK10-83693-TJM, 2011 WL
869748 (Bankr. D. Neb. 2011).

740 	284 NEBRASKA REPORTS
on Shirley’s intent. The court notes that when a dispute exists
regarding the proportional ownership of multiple-party accounts
during the lifetime of the parties, not a dispute regarding who
owns the account as in this case, the statutes provide that cer-
tain statutory presumptions may be overcome only by “clear
and convincing evidence.”13 However, § 30-2719(b) does not
provide a certain burden of proof with which Greg must move
forward.14 Thus, the court will not write in a heightened burden
of proof. We find that in order to succeed, Greg must prove his
case as to Shirley’s intent in creating the subject account by
a greater weight of the evidence only. This appears to be the
procedure Nebraska’s federal bankruptcy court followed in In
re Carstens.15
We find that based upon the evidence Greg provided
through Shirley’s will, the divorce decree, and the Trust docu-
ment at trial, Shirley did not intend to create a survivorship
account as Robin asserts. In her will, Shirley declared: “I
intend to have in existence, at the time of my death, a bank
account through which the settlement proceeds of a lawsuit
which was filed in the year 1983 . . . shall pass.” The parties
do not dispute that the last 4 years of annual settlement pay-
ments were either directly deposited into the subject account
or transferred to the account by Shirley. Shirley further
expressed in her will:
I direct that as those payments are received into said
banking account, my children, or their issue by right of
representation . . . , share equally in such payments. I
intend to have one or more of my children listed on said
account so as to enable them to obtain the funds for dis-
tribution according to this paragraph in any manner which
may be convenient.
In keeping with these documents, Shirley named Robin, one
of her children, on this account. Subject to the will, it is
Robin’s duty as one of Shirley’s children “listed” on the des-
ignated account to receive the settlement payments in order
13 See § 30-2722(b).
14 See id.
15 In re Carstens, supra note 12.

KRZYCKI v. KRZYCKI 	741
Cite as 284 Neb. 729
to obtain the funds for equal distribution between herself and
her siblings.
In signing the divorce decree to which the Trust document
was attached, Shirley did not change her intent regarding the
settlement funds as described in her will. The Trust document
reiterates Shirley’s intent that the funds from the settlement
payments remaining upon her death are to be divided among
her four children equally, not given solely to Robin.
We reject Robin’s assertion that she had survivorship rights
to the funds on deposit in the subject account. The statutes
speak in terms of single-party or multiple-party accounts.16
Based upon all the evidence presented, we find the subject
account most nearly conforms to a single-party account with
an agency designation. And under § 30-2720(c), the “[d]eath
of the sole party or last surviving party terminates the authority
of an agent.” Thus, Shirley’s death terminated Robin’s author-
ity as an agent. Hence, we conclude that Robin did not have
survivorship rights to the funds upon Shirley’s death.
Constructive Trust Claim.
Finally, Robin assigns that the district court erred in impos-
ing a constructive trust on the Wells Fargo account without
any finding that Robin obtained ownership of the account by
fraud, misrepresentation, or abuse of an influential or confi-
dential relationship. Greg sued Robin under the theories of
both conversion and constructive trust. The district court found
Greg succeeded on both claims. Because we have affirmed the
district court’s order finding Greg succeeded on his conversion
claim, it is unnecessary for the court to address Robin’s assign-
ment of error related to Greg’s alternate theory of recovery
sounding in constructive trust. 17
CONCLUSION
We conclude that the remaining sums on deposit in the
subject Wells Fargo account “for the benefit” of the Trust are
16 See, e.g., §§ 30-2718(a) and 30-2719(a).
17 See Monahan v. School Dist. No. 1, 229 Neb. 139, 425 N.W.2d 624
(1988).

742 	284 NEBRASKA REPORTS
trust funds belonging to the Trust. In creating the account,
Shirley did not intend for Robin to have survivorship rights
to the remaining balance of $77,937.09, and the account most
nearly conforms to an agency or convenience account. Robin
converted the funds in the account for her own use by refusing
to turn them over to the Trust. Accordingly, we affirm the deci-
sion of the district court.
A ffirmed.
stAte of nebrAsKA, Appellee, v.
dAmien d. wAtKins, AppellAnt.
825 N.W.2d 403
Filed November 30, 2012. 	No. S-11-1105.
1. Postconviction: Proof: Appeal and Error. A defendant requesting postconvic-
tion relief must establish the basis for such relief, and the findings of the district
court will not be disturbed unless they are clearly erroneous.
2. Postconviction: Constitutional Law: Proof. A court must grant an eviden-
tiary hearing to resolve the claims in a postconviction motion when the motion
contains factual allegations which, if proved, constitute an infringement of the
defendant’s rights under the Nebraska or federal Constitution.
3. Postconviction: Proof. If a postconviction motion alleges only conclusions of
fact or law, or if the records and files in the case affirmatively show that the
defendant is entitled to no relief, the court is not required to grant an eviden-
tiary hearing.
4. Postconviction: Constitutional Law: Appeal and Error. In appeals from post-
conviction proceedings, an appellate court reviews de novo a determination that
the defendant failed to allege sufficient facts to demonstrate a violation of his or
her constitutional rights or that the record and files affirmatively show that the
defendant is entitled to no relief.
5. Postconviction: Appeal and Error. Whether a claim raised in a postconviction
proceeding is procedurally barred is a question of law.
6. Judgments: Appeal and Error. When reviewing questions of law, an appellate
court resolves the questions independently of the lower court’s conclusion.
7. Postconviction. The need for finality in the criminal process requires that a
defendant bring all claims for relief at the first opportunity.
8. Postconviction: Appeal and Error. It is fundamental that a motion for postcon-
viction relief cannot be used to secure review of issues which were known to the
defendant and could have been litigated on direct appeal.
9. ____: ____. An appellate court will not entertain a successive motion for post-
conviction relief unless the motion affirmatively shows on its face that the