Blaine v. Blaine

Blaine v. Blaine 	87
Cite as 275 neb. 87
S tephanie B laine , appellant , v .
D enniS B laine , appellee .
744 n.W.2d 444
Filed February 15, 2008. 	no. S-06-927.
1. Divorce: Contempt: Equity. Dissolution of marriage cases are equitable in
nature, and a civil contempt proceeding cannot be the means to afford equitable
relief to a party.
2. Divorce: Contempt: Property Division. Under certain circumstances in a divorce
action, it may be necessary for an individual to cite another party for contempt to
determine whether the other party is holding property that properly belongs to that
individual under the terms of a decree.
3. Divorce: Final Orders: Intent. Once a decree for dissolution becomes final,
its meaning is determined as a matter of law from the four corners of the
decree itself.
4. Divorce: Pensions: Final Orders. Where the terms of a final decree are unam-
biguous, a qualified domestic relations order enforcing that decree must dispose
of assets in the manner required by the decree.
5. Divorce: Property Division: Equity. The purpose of assigning a date of valuation
in a decree is to ensure that the marital estate is equitably divided.
6. Contempt: Damages. an award of damages is unavailable in a civil
contempt proceeding.
appeal from the District Court for Douglas County: G eralD
e. M oran, Judge. Reversed and remanded with directions.
Charles M. Bressman, Jr., of anderson & Bressman law
Firm, P.C., for appellant.
Donald a. Roberts, of lustgarten & Roberts, P.C., l.l.O.,
for appellee.
heavican, 	C.J., 	W riGht, 	connolly, 	G errarD, 	S tephan,
M ccorMack, and M iller -lerMan, JJ.
G errarD, J.
Stephanie Blaine and Dennis Blaine were divorced in 1998,
and a consent decree divided the marital estate. Dennis was
responsible for preparing qualified domestic relations orders to
divide certain investments that Dennis held. Dennis failed to
do so for several years, and some of the investments depreci-
ated. The question presented in this appeal is whether, when
the investments were finally divided in 2006, Stephanie should
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:54 AM CST

88 	275 neBRaSka RePORTS
have been awarded her share based on the existing value of the
investments or the value of the investments on the date specified
in the decree.
BaCkGROUnD
The parties were divorced by a consent decree entered in the
district court on October 5, 1998. The decree divided a sub-
stantial marital estate and included, as relevant, the following
three provisions:
US Software Profit Sharing 401k Plan - This Plan will
be divided pursuant to a Qualified Domestic Relations
Order, equally between the parties as of February 3, 1998.
Sitel Corporation 401k Plan - This account shall be
divided pursuant to a Qualified Domestic Relations Order
equally between the parties as of February 3, 1998.
. . . .
intrust iRa account . . . - This account shall be divided
pursuant to a Qualified Domestic Relations order equally
between the parties as of February 3, 1998.
Other asset divisions, not at issue in this case, more specifi-
cally stated that accounts were to be divided “based upon [their]
value as of February 3, 1998.” The decree further ordered
the parties to “execute any and all documents necessary or
proper to fulfill the terms and/or requirements of their Property
Settlement agreement as hereinabove set forth.”
On December 15, 1998, Stephanie moved for an order requir-
ing Dennis to, among other things, complete a qualified domes-
tic relations order (hereinafter QDRO) with respect to each of
the following accounts: US Software, inc.; Sitel Corporation
(Sitel); and intrust independent Trust Corporation (intrust).
a hearing was held the next day, at which Dennis’ attorney
explained that with respect to the QDRO’s, he was “preparing
those for division of those assets.” The court noted on the record
that Dennis’ attorney “has agreed that he will now prepare the
qualified domestic relations orders.” Stephanie’s counsel clari-
fied that she wanted “to make sure that all documents reflect that
February 3rd, 1998 date.” She requested that “all of those docu-
ments reflect that date specifically for division of those assets
pursuant to the decree.” Dennis’ counsel replied, “We have no
problem with that.” The court explained that

there isn’t going to be any more fooling around with this
case. We are getting it over with. after today the only
thing i expect to see are those qualified domestic relations
orders which i will have to sign. Other than that, i do not
expect to see the parties down here going over things that
they have already been ordered to do.
But it was not until February 27, 2001, that a QDRO was
filed in the court with respect to the US Software account,
awarding “50% of the Plan as of February 3, 1998.” However,
US Software’s corporate successor informed Dennis’ counsel
in a letter dated March 12, 2001, that it could not honor the
QDRO because Dennis had moved the account to Piper Jaffray
in September 2000. We note at this point that all of the accounts
either moved or changed names at various times between the
entry of the original decree and the contempt proceeding that
is the subject of this appeal. While the relevant transfers are
discussed below in more detail, for clarity’s sake, each account
is generally referred to by its original designation.
On July 2, 2004, Stephanie filed an application to show
cause, asking the court to order Dennis to show cause why he
should not be held in contempt of court for preparing only one
of the three QDRO’s necessary to transfer Stephanie’s share
of the investments at issue. The court issued such an order. a
hearing was eventually held on June 28, 2006. The issue at the
hearing was not whether the QDRO’s should finally be entered,
but the value of the assets to be transferred. Stephanie sought
50 percent of the value of the accounts as of February 3, 1998,
while Dennis argued that the accounts should be divided at their
existing value.
Stephanie testified that at the time of the hearing, she had not
been presented with any QDRO’s for any of the three accounts.
She explained that the QDRO filed in 2001 had never been
provided to her. Stephanie said she had, over the years, made
several efforts to try to get her share of the accounts transferred
to her. She testified that in 1999, she had called US Software,
and that in 2000, she had written a letter, enclosing a copy
of the divorce decree, but had not received a reply. Stephanie
had also called Sitel in 1999 and written a letter in 2000. in
response, Sitel had sent a letter to Dennis, copied to Stephanie,
Blaine v. Blaine 	89
Cite as 275 neb. 87

90 	275 neBRaSka RePORTS
instructing him how to divide the account. Stephanie said she
wrote Dennis in 2000, asking him to help her transfer the
accounts, but Dennis did not respond.
in 2000, Dennis attempted to transfer the intrust account
to Piper Jaffray. intrust refused, informing Dennis that one of
the reasons for the refusal was that Stephanie had sent intrust
a copy of the decree of dissolution. Dennis moved the Sitel
account to Piper Jaffray in 2000, and then to Robert W. Baird
& Co. inc. The US Software account was also moved from
US Software’s corporate successor to Piper Jaffray and then
to Robert W. Baird & Co. Dennis testified that he “assume[d]”
that someone had prepared the QDRO’s on his behalf and did
not recall receiving a call or written communication suggesting
that the US Software account could not be transferred. nor did
he recall receiving a letter from Stephanie asking him to help
her transfer the accounts. Dennis explained that when he moved
the accounts, he believed that Stephanie had already received
her half. Dennis testified that although some of the accounts
had been moved, he had not withdrawn any assets from any of
the accounts.
George Morgan, a financial advisor, testified for Stephanie at
the hearing and evaluated the worth of the US Software account
as of February 3, 1998, as $360,963. The Sitel account had a
value of $9,900 on January 1, 1998, but as of March 31, 1998,
had a balance of $14,836.76. The intrust account was valued,
in a statement for the period from October 1 to December
31, 1998, at $17,880.58. Stephanie testified that the valua-
tions for the Sitel and intrust accounts were the closest dates
of valuation to February 3, 1998, available in the records for
each company.
The intrust account, as of March 31, 2006, had appreciated
in value to $42,400.17. The Sitel account, at the time of trial,
had a value of “about $10,000.” The value of the US Software
account at the time of trial is more uncertain. as previously
noted, Morgan valued the account at the time of the decree at
$360,963. When the account was moved in September 2000, it
was worth $147,176. and Dennis’ counsel argued at the con-
tempt hearing that “the account today is worth about $83,000.”
But there does not appear to be testimony or evidence in the
record to substantiate that figure.

The district court found that since February 3, 1998, the
value of the three accounts had decreased because of conditions
in the stock market. But the court found that Stephanie had
failed to prove that had the QDRO’s been properly executed,
she would have been able to increase the value of the assets
from their present value. Thus, the court concluded that Dennis’
one-half of the accounts was of equal value to Stephanie’s at
the time of trial and that Dennis had not increased his value
over that to which Stephanie was entitled. The court concluded
that Dennis was in contempt for failing to prepare the QDRO’s
and that Stephanie was entitled to “one-half of the current
value” of the accounts.
On July 20, 2006, the court entered an order finding Dennis
to be in contempt. On august 9, 2006, two QDRO’s were filed
in the court, apparently with respect to the Sitel and intrust
accounts, although this is not entirely clear from the record
because of the movement of accounts to Robert W. Baird & Co.
each of these QDRO’s awarded Stephanie “50% of the Plan,”
without specifying a date of valuation or division. On august
15, the court entered an order finding that Dennis had complied
with the earlier order of the court and purged himself of con-
tempt. On august 17, Stephanie appealed.
aSSiGnMenT OF eRROR
Stephanie assigns, as consolidated, that the district court
erred in awarding her one-half the current value of the accounts,
instead of one-half the value as of February 3, 1998.
analYSiS
as a general principle, the date upon which a marital estate
is valued should be rationally related to the property composing
the marital estate,1 and the date of valuation is reviewed for an
abuse of the trial court’s discretion.2 But the issue in this case
is not the date upon which the accounts were to be valued for
division. instead, the issue is whether the QDRO’s should have
1 See, Tyma v. Tyma, 263 neb. 873, 644 n.W.2d 139 (2002); Brunges v.
Brunges, 260 neb. 660, 619 n.W.2d 456 (2000); Walker v. Walker, 9 neb.
app. 694, 618 n.W.2d 465 (2000).
2 See, Tyma, supra note 1; Walker, supra note 1.
Blaine v. Blaine 	91
Cite as 275 neb. 87

92 	275 neBRaSka RePORTS
incorporated the February 3, 1998, date specified in the decree.
a QDRO is, generally speaking, simply an enforcement device
of the decree of dissolution.3 and Dennis has not argued in this
proceeding that the original decree should be modified based
on fraud or gross inequity. Thus, Stephanie argues that the
QDRO should reflect the date of valuation she contends was
expressed in the decree.4
[1,2] We note that Stephanie’s notice of appeal was filed on
august 17, 2006—within 30 days of both the august 9 filing
of the QDRO’s and the august 15 discharge of Dennis’ con-
tempt. it is not clear from which order or orders she intended to
appeal. in Klinginsmith v. Wichmann,5 an appeal from the denial
of an application for contempt, we observed that dissolution
of marriage cases are equitable in nature, and a civil contempt
proceeding cannot be the means to afford equitable relief to a
party. But we also recognized that under certain circumstances,
it may be necessary for an individual to cite the other party
for contempt to determine whether the other party is holding
property that properly belongs to that individual under the
terms of a decree.6 and we acknowledged that in making that
determination, the trial court must attempt to resolve the ques-
tion based upon the language of the decree and the evidence
then presented.7
[3] Thus, a contempt proceeding is appropriate to resolve
the meaning of disputed language in the decree under these
circumstances.8 even though that may involve “interpretation”
of the decree, the interpretation must be based on the language
of the decree.9 it is well settled that once a decree for dissolu-
tion becomes final, its meaning is determined as a matter of
law from the four corners of the decree itself.10 in other words,
3 Koziol v. Koziol, 10 neb. app. 675, 636 n.W.2d 890 (2001).
4 See, e.g., Hoshor v. Hoshor, 254 neb. 743, 580 n.W.2d 516 (1998).
5 Klinginsmith v. Wichmann, 252 neb. 889, 567 n.W.2d 172 (1997).
6 Id.
7 Id.
8 See id.
9 Id.
10 Id.

whether this appeal is regarded as having been taken from the
district court’s entry of the QDRO’s or discharge of Dennis’
contempt, the underlying issue is the same, and is determined as
a matter of law: Were the QDRO’s entered on august 9, 2006,
consistent with the terms of the October 5, 1998, decree?
We addressed a similar issue in Hoshor v. Hoshor.11 There,
the parties were divorced pursuant to a consent decree provid-
ing that the wife “‘should receive one-fourth of any payments
received from the [husband’s] pension and retirement plan
by [the husband] at the time such payments are received.’”12
Several years later, the district court granted the wife’s request
to enter a QDRO consistent with the decree, distributing one-
fourth of the pension, without offsetting postdecree accumula-
tions to the pension. On appeal, we affirmed the court’s entry of
the QDRO, reasoning that
because the plain language of the parties’ settlement agree-
ment refers to the husband’s pension plan, without limiting
that term to pension benefits earned during the marriage,
we conclude that the trial court was correct in finding that
the parties intended that the wife would be entitled to the
pension benefits that were earned by the husband both
during the parties’ marriage and after dissolution.13
[4] although we concluded in Hoshor that the parties were
required to share the effect of the postdecree change to the
value of the disputed assets, Hoshor stands for the broader
proposition that where the terms of a final decree are unambigu-
ous, a QDRO enforcing that decree must dispose of assets in the
manner required by the decree.
[5] in particular, the QDRO should reflect the value assigned
and awarded in the decree. The purpose of assigning a date of
valuation in a decree is to ensure that the marital estate is equi-
tably divided. a specific, predictable date of valuation has the
effect of clearly allocating the risk of any change in the value
of the asset.14 an early valuation date, as in this case, sensibly
11 Hoshor, supra note 4.
12 Id. at 745, 580 n.W.2d at 518.
13 Id. at 752, 580 n.W.2d at 522.
14 Quillen v. Quillen, 671 n.e.2d 98 (ind. 1996).
Blaine v. Blaine 	93
Cite as 275 neb. 87

94 	275 neBRaSka RePORTS
assigns the risk of a decline in the value of the asset to the
party in control of the asset.15 and because the valuation and
distribution of a particular asset rarely takes place in a vacuum,
a specific, consistent, and enforceable date of valuation permits
the trial court to allocate all the assets of the marital estate in
an equitable and fair manner.16 Thus, the equitable distribution
of the marital estate depends on enforcing the date of valuation
expressed in the decree.
and contrary to Dennis’ suggestion, the decree in this case
clearly provided that February 3, 1998, was to be the valuation
date of the disputed accounts. While some assets in the decree
were more specifically divided “based upon [their] value as of
February 3, 1998,” Dennis does not explain what the language
dividing the disputed accounts “equally between the parties as
of February 3, 1998” means, if it is not the date upon which the
value of the accounts was to be assessed.
The financial statements in the record illustrate that the iRa
and 401k plans in which the disputed assets were invested at
the time of the divorce were not portfolios of stocks, commodi-
ties, or other assets—they were simply investment accounts,
with stated dollar values. The only reasonable interpretation of
the decree is that Stephanie was awarded one-half of the dollar
value of each account as of February 3, 1998. as a matter of
law, that award controls the date of valuation for purposes of
subsequent QDRO’s.17 (The allocation of changes in value in
the US Software account, by the 2001 QDRO, does not reflect
on the meaning of the original 1998 decree. The evidence indi-
cates that the 2001 QDRO was prepared and submitted to the
court by Dennis’ counsel, without Stephanie’s approval.)
This is not a situation, like Hoshor,18 in which the decree
clearly contemplated that postdecree changes in value were to
15 See Reese v. Reese, 671 n.e.2d 187 (ind. app. 1996).
16 See, e.g., In re Marriage of Priddis, 132 Cal. app. 3d 349, 183 Cal. Rptr.
37 (1982).
17 See, e.g., Kremenitzer v. Kremenitzer, 81 Conn. app. 135, 838 a.2d 1026
(2004); Grecian v. Grecian, 140 idaho 601, 97 P.3d 468 (idaho app. 2004);
Perry v. Perry, 143 S.W.3d 632 (ky. app. 2004).
18 Hoshor, supra note 4.

be shared by the parties. nor is this a situation in which the
decree did not assign a specific date of valuation.19
instead, the situation in this case is apparent: the decree
specified a valuation date for the disputed accounts, assign-
ing the risk of a decline in the value of the assets to Dennis,
the party in control of them. Had all the assets appreciated in
value, Dennis, but not Stephanie, would have benefited from
the increases.20 instead, some of the assets depreciated. But
the date at which the value was to be determined was agreed
upon by the parties and set forth in the decree.21 any perceived
inequality was the result of a falling stock market, not an
unequal distribution in the decree.22
and more importantly, that Dennis bears the brunt of that
decline in value was solely precipitated by Dennis’ inexcusable
delay in entering the QDRO’s required by the decree.23 There
is no suggestion in this case that any funds were added to, or
withdrawn from, the disputed accounts after the decree was
entered.24 nor was the delay in distribution the result of court
proceedings, such as a bifurcated proceeding,25 or an intervening
appeal.26 The record is clear that Dennis was responsible for fil-
ing the QDRO’s to segregate the assets awarded by the decree—
and, obviously, that Dennis (or his attorney) was responsible for
the 8-year delay in complying.
19 Compare, e.g., Austin v. Austin, 748 a.2d 996 (Me. 2000); Bradley v.
Bradley, 194 S.W.3d 902 (Mo. app. 2006); Musick v. Musick, 144 Md. app.
494, 798 a.2d 1213 (2002).
20 See, e.g., Perry, supra note 17.
21 See Grecian, supra note 17.
22 See id.
23 Compare, e.g., In re Marriage of Hayden, 124 Cal. app. 3d 72, 177 Cal.
Rptr. 183 (1981), with Bradley, supra note 19.
24 See, e.g., Thompson v. Thompson, 811 n.e.2d 888 (ind. app. 2004); Sample
v. Sample, 152 ariz. 239, 731 P.2d 604 (ariz. app. 1986).
25 See, e.g., Leis v. Hustad, 22 P.3d 885 (alaska 2001); Fastner v. Fastner, 427
n.W.2d 691 (Minn. app. 1988); In re Marriage of Walters, 91 Cal. app. 3d
535, 154 Cal. Rptr. 180 (1979). See, also, Koziol, supra note 3.
26 See, e.g., In re Marriage of Hitchcock, 309 n.W.2d 432 (iowa 1981);
Fastner, supra note 25; Sample, supra note 24.
Blaine v. Blaine 	95
Cite as 275 neb. 87

96 	275 neBRaSka RePORTS
Dennis argues that because the intrust account was an iRa,
instead of a 401k, no QDRO was actually necessary to distrib-
ute the funds. The accuracy of that contention is not entirely
clear, at least as far as the tax consequences are concerned.27
But regardless, Dennis’ contention is not on point. The decree
directed Dennis to file a QDRO for the intrust account, and he
did not do so until after this contempt proceeding was brought.
if proved, a good faith belief that a QDRO was not needed
for division of the asset might be relevant to whether Dennis
was willfully in contempt of court. But it would not obviate
Stephanie’s underlying right to one-half of the value of the
account on the date specified by the decree.
[6] Dennis also relies on the district court’s reasoning that
Stephanie “failed to prove at trial that, had the QDROs been
timely executed, that she would have been able to increase the
assets from what they currently are.” But it was not Stephanie’s
burden, in this proceeding, to prove that she was damaged
by Dennis’ failure to comply with the decree. in fact, an
award of damages is unavailable in a civil contempt proceed-
ing.28 instead, the purpose of this proceeding was to determine
whether Dennis was holding property that properly belonged to
Stephanie under the terms of the decree.29 She was not required
to prove what she would have done with the property, had it
been made available to her earlier, in order to establish her legal
right to possess it.
in short, we conclude that the district court erred in entering
QDRO’s that did not divide the disputed assets as of February
3, 1998, and in determining that by filing those QDRO’s,
Dennis had complied with the requirements of the decree. The
court, in effect, permitted Dennis to modify the terms of the
decree without establishing the factual basis for a modification.
Stephanie’s assignment of error has merit.
We note that the evidence at the contempt hearing was not
entirely clear with respect to the value of the accounts as of
27 See Bougas v. Commissioner, 86 T.C.M. (CCH) 9 (2003).
28 See, Smeal Fire Apparatus Co. v. Kreikemeier, 271 neb. 616, 715 n.W.2d
134 (2006); Klinginsmith, supra note 5.
29 See Klinginsmith, supra note 5.

February 3, 1998, and that because of its disposition of this
case, the district court made no findings with respect to valu-
ation. On remand, it will be necessary for the district court to
determine the sum to which Stephanie is entitled, representing
one-half of the value of the accounts on February 3, 1998. We
recognize, from the representations of counsel, that at least one
of the accounts may have lost more than half of its February 3,
1998, value. if that proves to be the case, then it will be neces-
sary for the court and parties to consider other ways in which
Dennis can comply with the decree.
We also note that it is unclear whether valid QDRO’s
have, even now, been entered with respect to all of the dis-
puted accounts. The record does not specify which assets were
divided by the two august 9, 2006, QDRO’s. The February
27, 2001, QDRO for the US Software account was apparently
ineffective because the account had already been transferred to
another investment. in other words, the record before us evi-
dences three disputed accounts, but only two effective QDRO’s,
neither of which are consistent with the decree. On remand, it
will be necessary for the district court to enter QDRO’s effec-
tive as to all of the disputed assets.
COnClUSiOn
We reverse the judgment of the district court and remand the
cause with directions. Specifically, the district court is directed
to (1) determine the value of each of the disputed accounts as
of February 3, 1998, and (2) supervise the entry of QDRO’s
transferring one-half of the February 3, 1998, value of each
account to Stephanie. if the balance of any of the accounts is
insufficient to satisfy the award, then the district court, assisted
by the parties, should determine how Dennis will comply with
the decree. any other issues arising during those proceedings
should be resolved by the district court in a manner consistent
with this opinion.
reverSeD anD reManDeD With DirectionS.
S tephan, J., dissenting.
i disagree with the majority’s central premise that the decree
established February 3, 1998, as a “valuation date” for the
retirement plan assets, resulting in an award to Stephanie of
Blaine v. Blaine 	97
Cite as 275 neb. 87

98 	275 neBRaSka RePORTS
“one-half of the dollar value of each account as of February
3, 1998.” Had the award of a specific amount been the district
court’s intent, it could easily have done so in explicit terms,1
but it did not.
in its division of the retirement plan assets, the court did not
use a sum certain nor did it include a reference to “value,” as it
did with other marital assets. Rather, it provided that the retire-
ment plan accounts were to be “divided . . . equally between
the parties as of February 3, 1998.” i interpret this language as
identifying the assets held in the accounts on that date to con-
stitute marital property subject to division and to award each
party one-half of those assets.
For purposes of division of property in the dissolution of
marriage, the marital estate includes “any pension plans, retire-
ment plans, annuities, and other deferred compensation benefits
owned by either party, whether vested or not vested.”2 The mari-
tal estate includes only that portion of a pension plan which is
earned during the marriage, and contributions to pensions before
marriage or after dissolution are not assets of the marital estate.3
We have held that parties may agree to the division of pension
and retirement plan assets acquired outside the marriage, not-
withstanding that a court could not divide such assets without
such an agreement.4 That is not what the parties did in this case;
here, they simply agreed that the assets held in the three retire-
ment plan accounts as of February 3, 1998, were a part of the
marital estate, to be divided equally between them.
The record reflects that the retirement plan accounts included
stock, annuities, mutual funds, and some cash. The district court
specifically found that the value in the accounts had decreased
“due to conditions in the Stock Market.” as the named par-
ticipant in the plans, Dennis had the power to withdraw assets
and thus controlled whether the assets held in each account
1 See, e.g., In re Marriage of Knutson, 114 Wash. app. 866, 60 P.3d 681
(2003).
2 neb. Rev. Stat. § 42-366(8) (Reissue 2004).
3 Hoshor v. Hoshor, 254 neb. 743, 580 n.W.2d 516 (1998), citing Shockley v.
Shockley, 251 neb. 896, 560 n.W.2d 777 (1997); Priest v. Priest, 251 neb.
76, 554 n.W.2d 792 (1996).
4 Hoshor v. Hoshor, supra note 3.

on February 3, 1998, remained in the account at the time of
the decree and subsequent entry of the QDRO’s. However,
Dennis had no control over the value of the assets held in
the accounts.
The majority cites Reese v. Reese5 for the proposition that
an early valuation date “sensibly assigns the risk of a decline
in the value of the asset to the party in control of the asset.” in
Reese, the valuation date concerned a business over which the
appellant “had complete control of the company both before and
after the petition for dissolution was filed.”6 in this case, unlike
Reese, the value of the retirement accounts was determined by
the market, not by any action or inaction by Dennis.
Under the majority’s reasoning, Dennis would bear the risk
of any decline in market value from February 3, 1998, until the
entry of the QDRO, even if that entry were accomplished in a
timely manner, and Stephanie would be deprived of the benefit
of any appreciation in the value of the assets during the same
period. There is no language in the decree to support this rea-
soning. instead, the decree is entirely silent as to how market
gains or losses occurring after February 3, 1998, and prior to
entry of the QDRO’s are to be treated by the parties in dividing
the retirement plans “equally.” Other courts have held that even
where a decree refers to a specific “valuation date” for retire-
ment plan assets, in the absence of express language stating
otherwise, the decree implicitly contemplates that both parties
will share all of the rewards and risks associated with an invest-
ment account, so that the parties share equally in gains or losses
occurring after the valuation date and before division pursuant
to a QDRO is accomplished.7
From the record, i conclude that this is what the court
intended in this case. The 2001 QDRO for the US Software
5 Reese v. Reese, 671 n.e.2d 187 (ind. app. 1996).
6 Id. at 191-92.
7 Shorter v. Shorter, 851 n.e.2d 378 (ind. app. 2006); Case v. Case, 794
n.e.2d 514 (ind. app. 2003); Taylor v. Taylor, 258 Wis. 2d 290, 653 n.W.2d
524 (Wis. app. 2002); Niccum v. Niccum, 734 n.e.2d 637 (ind. app. 2000);
In re Marriage of Gardner, 973 S.W.2d 116 (Mo. app. 1998). See, Rivera v.
Zysk, 136 Md. app. 607, 766 a.2d 1049 (2001); Austin v. Austin, 748 a.2d
996 (Me. 2000).
Blaine v. Blaine 	99
Cite as 275 neb. 87

100 	275 neBRaSka RePORTS
account was entered by the same judge who entered the decree,
and thus presumably reflected the court’s intent. it states that
“[a]ny gains, losses, income, depreciation or appreciation on
[Stephanie’s] interest in the Plan from and after February 3,
1998, shall be hers exclusively.” it further states that any “gain,
losses, income, depreciation or appreciation” on Dennis’ inter-
est, as well as “any new deposits to the Plan by or on behalf of
[Dennis] from and after February 3, 1998” shall belong exclu-
sively to Dennis. Stephanie’s application to show cause filed in
2004 alleged that Dennis’ counsel had prepared only one of the
three QDRO’s required by the decree, but did not take issue with
the language of the 2001 QDRO. although this language does
not appear in the two subsequent QDRO’s entered by the court
in 2006, those later orders simply award Stephanie “50% of the
Plan” with no reference to the February 3, 1998, date. Because
the record reflects that Dennis did not withdraw any assets from
any of the plans after February 3, 1998, i submit that all three
QDRO’s accomplished precisely what the decree intended: an
equal division of the retirement plan assets which existed as
of February 3, 1998, with fluctuation in market value shared
equally by the parties. Under the majority’s disposition, how-
ever, Stephanie will receive much more than 50 percent of the
accounts, perhaps even 100 percent plus an additional payment.
This is hardly the equal division required by the decree.
What Stephanie really seeks in this case is damages resulting
from Dennis’ delay in preparing the QDRO’s. Citing cases from
other jurisdictions, she argues: “if a former spouse is culpable
for the delay in distribution, the other spouse can be awarded
damages for the other’s actions or, as in this case, inactions.”8
This argument fails for two reasons. First, as the district court
noted, Stephanie did not prove that earlier execution of the
QDRO’s would have prevented the decline in market value of
her interest in the retirement plans. Second, and more basic,
damages are not recoverable in a civil contempt proceeding.9
For these reasons, i respectfully dissent.
8 Brief for appellant at 12.
9 Smeal Fire Apparatus Co. v. Kreikemeier, 271 neb. 616, 715 n.W.2d 134
(2006).