Stephens v. Stephens , 297 Neb. 188 ( 2017 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
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Nebraska Supreme Court A dvance Sheets
297 Nebraska R eports
STEPHENS v. STEPHENS
Cite as 297 Neb. 188
Robert L. Stephens, appellee, v.
Janet E. Stephens, appellant.
___ N.W.2d ___
Filed July 14, 2017. No. S-16-431.
1. Divorce: 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.
2. Judges: Words and Phrases. A judicial abuse of discretion exists if the
reasons or rulings of a trial judge are clearly untenable, unfairly depriv-
ing a litigant of a substantial right and denying just results in matters
submitted for disposition.
3. Appeal and Error. Errors must be specifically assigned and argued to
be considered by an appellate court.
4. Statutes: Words and Phrases. Traditionally, the word “include” in
a statute connotes that the provided list of components is not exhaus-
tive and that there are other items includable though not specifically
enumerated.
5. Property Division. Equitable property division under Neb. Rev. Stat.
§ 42-365 (Reissue 2016) 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 determine the marital liabilities 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.
6. Divorce: Property Division. All property accumulated and acquired by
either spouse during the marriage is part of the marital estate, unless it
falls within an exception to this general rule.
7. ____: ____. Any given property can constitute a mixture of marital and
nonmarital interests; a portion of an asset can be marital property while
another portion can be separate property.
8. Divorce: Property Division: Pensions. Investment earnings accrued
during the marriage on the nonmarital portion of a retirement account
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may be classified as nonmarital where the party seeking the classifica-
tion proves: (1) The growth is readily identifiable and traceable to the
nonmarital portion of the account and (2) the growth is due solely to
inflation, market forces, or guaranteed rate rather than the direct or indi-
rect effort, contribution, or fund management of either spouse.
9. Divorce: Property Division. The active appreciation rule sets forth the
relevant test to determine to what extent marital efforts caused any part
of the appreciation or income.
10. Property Division: Words and Phrases. Appreciation caused by mari-
tal contributions is known as active appreciation, and it constitutes mari-
tal property.
11. ____: ____. Passive appreciation is appreciation caused by separate con-
tributions and nonmarital forces.
12. Divorce: Property Division: Proof. The burden is on the owning
spouse to prove the extent to which marital contributions did not cause
the appreciation or income.
13. Divorce: Property Division. Appreciation or income of a nonmarital
asset during the marriage is marital insofar as it was caused by the
efforts of either spouse or both spouses.
14. Corporations: Employer and Employee. Despite the importance of
each employee in a company, a company’s value for purposes of active
appreciation is attributable only to the efforts of first-tier management or
similar persons with control over the asset’s value.
15. ____: ____. Courts have uniformly rejected arguments by the owning
spouse that the universe of persons in a company that effect its value is
so large that no one person has any significant effect.
16. Property Division: Proof. The burden of proof to show that property is
nonmarital remains with the person making the claim.
17. Divorce: Mental Competency. The amount of support awarded under
Neb. Rev. Stat. § 42-362 (Reissue 2016) is a matter initially entrusted
to the sound discretion of the trial judge, which award, on appeal to this
court, is reviewed de novo on the record and affirmed in the absence of
an abuse of the trial judge’s discretion.
Appeal from the District Court for Lancaster County: Robert
R. Otte, Judge. Affirmed in part, vacated in part, and in part
reversed and remanded with directions.
Stefanie Flodman and Steven J. Flodman, of Johnson,
Flodman, Guenzel & Widger, for appellant.
David P. Kyker for appellee.
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STEPHENS v. STEPHENS
Cite as 297 Neb. 188
Heavican, C.J., Wright, Miller-Lerman, Cassel, K elch,
and Funke, JJ.
Wright, J.
I. NATURE OF CASE
In this dissolution action, the husband is the cofounder and
president of a C corporation and owns 34 percent of its stock.
He asserts that only the appreciation, during the marriage, of
a business interest that is due to the active efforts of the non-
owning spouse is part of the marital estate. He claims, there-
fore, that none of the almost $5 million in appreciation of his
stock interest during the parties’ 25-year marriage was subject
to equitable division.
II. BACKGROUND
Janet E. Stephens and Robert L. Stephens were married on
September 8, 1991. Twin boys were born of the marriage in
1996. Robert filed for dissolution in 2014.
For approximately 15 years of the marriage, Janet worked
as a real estate agent. But during the last 10 years of the mar-
riage, Janet suffered from a mental illness that required peri-
odic hospitalization and left her unable to work. She receives
approximately $1,500 per month in Social Security disability
income. Robert testified that he did not expect Janet would
recover and become employable in the future.
A guardian ad litem (GAL) was appointed to protect Janet’s
interests at trial. The GAL is also Janet’s guardian and conser-
vator. Janet refused to participate in the dissolution proceed-
ings but was represented by counsel.
Both before and during the marriage, Robert worked full
time as president of Stephens & Smith Construction Co., Inc.
(Stephens & Smith), and his current annual salary is approxi-
mately $265,000 per year. Robert received additional income
from bonuses and from his other business interests. In 2014,
Robert’s total taxable income was $503,414. When Janet’s
mental health allowed, she shared equally with Robert the tasks
relating to the care of their children.
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STEPHENS v. STEPHENS
Cite as 297 Neb. 188
The principal issue at trial was what assets should be con-
sidered marital and subject to equitable division. The approxi-
mate total value of the assets under the court’s consideration in
the dissolution action was $9 million. There were 166 exhibits
entered into evidence without objection, and Robert was the
only witness.
1. Stephens & Smith
Stephens & Smith is a construction company specializing
in concrete work. At all relevant times before and during the
marriage, Robert owned stock totaling 34 percent of the stock
of Stephens & Smith. Robert cofounded Stephens & Smith in
1971 as a partnership with Michael Smith. Stephens & Smith
was incorporated as a C corporation in 1974. According to the
exhibits in the record, Robert’s stock in Stephens & Smith was
worth $298,459 in 1991 before the parties married. Robert’s
stock in Stephens & Smith at the time of dissolution was worth
$5,044,934.16.
Robert worked a “normal eight-hour day,” 5 days a week, in
his capacity as president. At other times during the marriage,
he worked more. He was also on the 12-member board of
directors. Robert admitted that he sets his own salary and has a
significant role in determining bonuses.
Robert testified that the leadership personnel of Stephens
& Smith has not changed since the marriage. He described
Stephens & Smith as consisting of six moneymaking depart-
ments, each with its own department head. Robert was involved
in selecting and training the leadership within Stephens &
Smith. At all times during the marriage, Stephens & Smith
had approximately 200 employees. Robert considered at least
20 of those employees “integral,” though he believed every
employee was important.
Robert described his role as president as “constantly chang-
ing.” He made financial and investment decisions for Stephens
& Smith and performed “some management real estate over-
sight.” As part of obtaining lending to fund Stephens &
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STEPHENS v. STEPHENS
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Smith’s projects, Robert also personally guaranteed millions of
dollars in loans for Stephens & Smith’s operations.
Robert attended human resources, rental management, share-
holder, and board meetings. He occasionally consulted with
and advised the department heads for the company. Robert con-
ceded that he was an integral part of the success of Stephens &
Smith. But Robert suggested that, based on his latest bonus of
6 percent, “maybe I provide 6 percent of the leadership.”
2. R.I.P., Inc.
R.I.P., Inc., is a wholly owned subsidiary of Stephens &
Smith. It holds Stephens & Smith’s real estate investments and
represents approximately two-thirds of Stephens & Smith’s
value. R.I.P. was created before the marriage with capital
from Stephens & Smith, and continued thereafter to be funded
by the profits of Stephens & Smith. R.I.P. owns a percent-
age of The Mystic Pines Apartments, L.L.C.; Eagles Landing
Apartments, LLC; Aardvark Antique Mall, LLC; and Village
Square Apartments, LLC. Although there was no testimony spe-
cifically on this point, Robert’s estimated interest in Stephens
& Smith of $5,044,934.16 apparently includes any interests
held through R.I.P.
3. Infinity S Development Co., Heritage Square
Partners, Smith and Stephens R eal Estate,
and A ardvark Partners
(a) Infinity S Development
Infinity S Development Co. (Infinity) is a partnership
between Robert, Smith, and one other partner. Infinity is pre-
dominantly involved in the self-storage business, and at the
time of trial, it owned approximately 900 storage units. At one
point, Robert testified that no capital has been added to Infinity
since the marriage. Its expansion has been paid for with the
partnership’s profits. Robert also indicated, however, that as
with Stephens & Smith, he had personally guaranteed bank
loans to Infinity.
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STEPHENS v. STEPHENS
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The day-to-day operation of Infinity is run by a hired man-
ager. But Robert and the two other partners make the larger
decisions, such as what to build. Robert participates in monthly
meetings to analyze occupancy rates and financial statements.
Robert owns one-fourth of Infinity. According to the exhibits
in evidence, at the time of trial, Robert’s equity interest in
Infinity was $1,243,232. In contrast, when the parties married,
Robert’s interest in Infinity was worth $270,553.
(b) Heritage Square Partners
Heritage Square Partners (Heritage) was formed as an off-
shoot of Infinity just prior to the marriage. The partnership
consists of Robert; Smith; and, originally, three other per-
sons. It owns one building that was capitalized with funds
from Infinity and with loans. No other funds have been
funneled into Heritage since the marriage. The building pro-
vides rental income and is managed by a person employed
by the partnership. Robert is not involved in the day-to-day
operation of Heritage. At the time of trial, Robert’s equity
interest in Heritage was $403,884. It was unclear what the
value of Robert’s interest in Heritage was at the time the par-
ties married.
(c) Smith and Stephens Real Estate
Smith and Stephens Real Estate was created by Robert
and Smith before the marriage and owns a single piece of
property that was purchased before the marriage. The value
of Robert’s interest in Smith and Stephens Real Estate when
the parties married was $88,830, and it was $140,000 at the
time of trial.
(d) Aardvark Partners
Aardvark Partners, LLC, was formed after the marriage. It
was formed by the five partners of Infinity and with R.I.P. as the
sixth partner. R.I.P. owns 50 percent of Aardvark Partners. The
$500,000 purchase of the real estate held by Aardvark Partners
was capitalized with $50,000 from each of five individual
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investor partners from Infinity and $250,000 from R.I.P. Each
individual obtained the $50,000 contribution through a distri-
bution of $55,000 from Infinity.
Aardvark Partners owns a property that consists of a clus-
ter of buildings and parking lots. Robert is not involved in
the day-to-day operation of Aardvark Partners, which is run
by a hired manager. At the time of trial, Robert’s interest in
Aardvark Partners was valued at $306,429.
4. A ardvark A ntique M all, The Mystic
Pines A partments, and Eagles
Landing A partments
Robert conceded at trial that his ownership interests in
Aardvark Antique Mall, The Mystic Pines Apartments, and
Eagles Landing Apartments were marital property. At the time
of trial, Aardvark Antique Mall was valued at $66,474, The
Mystic Pines Apartments were valued at $923,687, and Eagles
Landing Apartments were valued at $381,385. Robert’s com-
bined interest in the three properties produced approximately
$60,000 per year in owner draws, and he proposed that it
would be most beneficial for all parties to transfer to Janet the
ownership interest in these properties.
Janet’s attorney and GAL questioned the practicality of
making Janet part-owner of the properties. Janet’s counsel also
pointed out that transfer of ownership would require the coop-
eration of the other partners, since at least two of the entities
required owner approval before allowing new members. Robert
assured the court that the partners having an interest in these
properties would cooperate.
5. Decree
The court awarded to Robert the marital home, valued at
$542,000, and the mortgage debt therein, in the amount of
$337,078. Also awarded to Robert, subject to liens or encum-
brances, were a “60-foot Gen[i]e Manlift” valued at $20,000, a
jet ski valued at $1,740, a 1998 motorcycle valued at $7,625,
a 2003 automobile valued at $16,904, and a 2005 recreation
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vehicle valued at $60,250. The only debt associated with
these items appears to be an automobile loan in the amount
of $19,893.
Robert was awarded $31,965 in household goods and art-
work. Robert was awarded a credit union checking account
with a balance of $553.50 and a bank checking account with a
balance of $100. Robert was awarded Stephens & Smith retire-
ment plans valued at $326,104.79. The retirement plans were
formed after the marriage, and Robert had conceded they were
marital assets.
Robert was solely responsible for a personal loan in 2009
from his sister in the amount of $480,589, for the purpose of
investing in Eagles Landing Apartments and The Mystic Pines
Apartments. Robert was awarded any and all bank or invest-
ment accounts, life insurance policies and annuities, and any
household goods or personal property in his possession not
otherwise allocated.
The court awarded to Janet, along with any indebtedness
thereon, a 2012 automobile valued at $27,357. The court
awarded to Janet $18,510 in household goods and artwork,
any and all jewelry, including a $10,000 ring that Janet had
purportedly flushed down the toilet. It was unclear to what
extent the other jewelry could be located at the time of trial.
The jewelry, minus the ring, was appraised at $72,760. Janet
was awarded an account at a local bank with a balance at the
time of trial of $10,010. She was awarded any and all bank or
investment accounts, life insurance policies and annuities, and
any household goods or personal property in her possession not
otherwise allocated.
The court found that Robert’s combined interest in Aardvark
Antique Mall ($66,474), The Mystic Pines Apartments
($923,687), and Eagles Landing Apartments ($381,385) was
part of the marital estate. In light of the tax disadvantages of
the forced buying or selling of the business interests, and the
court’s trust that Robert would conduct his business affairs so
as not to disadvantage Janet, the court awarded Robert and
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Janet each one-half of the total interest in these properties
through a transfer of ownership. Robert was ordered to com-
plete all documentation of such joint ownership within 30 days
of the decree.
The court found that Robert’s ownership interests in Infinity,
Heritage, Smith and Stephens Real Estate, and Aardvark
Partners were traceable to premarital assets and that the entirety
of the appreciation in value of these interests during the mar-
riage was excludable from the marital estate, because Robert
had a “passive” role in such appreciation. It noted that no
marital assets and no active effort by Janet contributed to these
entities. The court awarded these interests in their entirety
to Robert.
The court also found that Robert’s 34 percent ownership
interest in Stephens & Smith was, in its entirety, nonmarital.
It did not specifically mention R.I.P. in its decree, which was
presumably treated as part of Stephens & Smith.
The court noted that no marital funds were contributed to
Stephens & Smith. And, as for the substantial appreciation of
the company’s value during the marriage, the court cited Van
Newkirk v. Van Newkirk1 and Buche v. Buche.2 Ultimately, the
court concluded that Robert had met his burden of proof that
his stock, including the appreciation during the marriage, was
premarital property. In this regard, the court reasoned that
the appreciation was “due to a combination of factors, not
the least of which is organic growth” and that “[t]here is no
evidence to suggest what part of that growth can be attributed
to [Robert].”
Although the court concluded that the entirety of Stephens
& Smith was nonmarital property, it nevertheless awarded
a “Grace award”3 to Janet based on the court’s valuation of
Robert’s stock interest in Stephens & Smith. The court found
1
Van Newkirk v. Van Newkirk, 212 Neb. 730, 325 N.W.2d 832 (1982).
2
Buche v. Buche, 228 Neb. 624, 423 N.W.2d 488 (1988).
3
See Grace v. Grace, 221 Neb. 695, 380 N.W.2d 280 (1986).
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that other considerations and equities present in the case justi-
fied an award to Janet of $1.1 million to be paid in installments
of $100,000 per year, with interest of 2.51 percent on the out-
standing balance. The court explained as to the mathematical
basis for such award that if the appreciation of Robert’s own-
ership interest in Stephens & Smith were marital, one-third
of that interest would be $1.55 million and one-half would be
$2.35 million.
Other marital property, a coin collection and various items
held in storage units, had not yet been given an estimated
value and were ordered divided by equal value or sold with
the proceeds to be divided equally between Robert and Janet.
The court found that Janet was suffering from a mental ill-
ness as defined by Neb. Rev. Stat. § 42-362 (Reissue 2016)
and awarded alimony under § 42-362 in the amount of $1,000
per month for 120 months. It ordered Robert to maintain until
August 20, 2020, a life insurance policy in the amount of
$1 million, with Janet as the beneficiary.
Janet appeals from the decree. Robert did not cross-appeal.
III. ASSIGNMENTS OF ERROR
Janet assigns that the district court erred in (1) finding that
the appreciation in the value of Stephens & Smith during the
parties’ marriage should be considered nonmarital, (2) failing
to find that the spousal support ordered under § 42-362 should
continue until Janet’s mental disability is corrected, and (3)
ordering the division of marital property held in a small busi-
ness or partnership when the articles of organization do not
allow for the same.
IV. STANDARD OF REVIEW
[1,2] 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.4 A judicial abuse of discretion exists if the reasons or
4
Stanosheck v. Jeanette, 294 Neb. 138, 881 N.W.2d 599 (2016).
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rulings of a trial judge are clearly untenable, unfairly depriv-
ing a litigant of a substantial right and denying just results in
matters submitted for disposition.5
V. ANALYSIS
1. Property Division
[3] Janet first assigns as error the district court’s finding
that the appreciation during the parties’ marriage of Robert’s
interest in Stephens & Smith should be considered nonmari-
tal. She does not assign as error the court’s determination that
other assets at issue at trial were nonmarital. Errors must be
specifically assigned and argued to be considered by an appel-
late court.6
Thus, we consider only whether the district court erred
in its classification of Stephens & Smith, together with its
wholly owned subsidiary, R.I.P.—which we hereafter refer
to collectively as “Stephens & Smith.” We do not consider
whether the court erred with respect to its classification
of Infinity, Heritage, Smith and Stephens Real Estate, or
Aardvark Partners as nonmarital assets. And because Robert
did not cross-appeal, neither do we consider whether the
court erred in designating Aardvark Antique Mall, The Mystic
Pines Apartments, and Eagles Landing Apartments as marital.
We do consider the propriety of the “Grace award,” as it is
inseparable from the court’s determination that Stephens &
Smith was nonmarital.
Neb. Rev. Stat. § 42-365 (Reissue 2016) provides that when
a dissolution of marriage is decreed, the court may order the
division of property as may be reasonable, having regard
for the circumstances of the parties, duration of the mar-
riage, a history of the contributions to the marriage by
each party, including contributions to the care and educa-
tion of the children, and interruption of personal careers
5
Id.
6
Shipler v. General Motors Corp., 271 Neb. 194, 710 N.W.2d 807 (2006).
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or educational opportunities, and the ability of the sup-
ported party to engage in gainful employment without
interfering with the interests of any minor children in the
custody of such party.
Section 42-365 provides that “[t]he purpose of a property divi-
sion is to distribute the marital assets equitably between the
parties.” (Emphasis supplied.)
No statute defines “marital assets.” Neb. Rev. Stat.
§ 42-366(8) (Reissue 2016) states that in the event the parties
fail to agree upon a property settlement that is conscionable,
the court shall order the equitable division of the marital
estate, which “shall include . . . any pension plans, retirement
plans, annuities, and other deferred compensation benefits
owned by either party, whether vested or not vested.” But no
statutory provision relating to the equitable division of prop-
erty specifically addresses business entities or the concept
of appreciation.
[4] We find no merit to Robert’s argument that § 42-366
is a legislative mandate to exclude from the marital estate
items not specifically listed in § 42-366. Traditionally, the
word “include” in a statute connotes that the provided list of
components is not exhaustive and that there are other items
includable though not specifically enumerated.7 And § 42-366
seems particularly concerned with clarifying the status of
nonvested assets. Business interests like Stephens & Smith,
and indeed many other assets such as the marital home, do
not fall into that category. Thus, it is no surprise that they
are not enumerated. Moreover, while the Legislature speci-
fied the condition in § 42-366(8) “owned by either party” as
7
See Samantar v. Yousuf, 560 U.S. 305, 130 S. Ct. 2278, 176 L. Ed.
2d 1047 (2010). See, also, Stansell v. Revolutionary Armed Forces of
Colombia, 704 F.3d 910 (11th Cir. 2013); Federal Election Com’n v. Mass.
Citizens for Life, 769 F.2d 13 (1st Cir. 1985); Highway & City Freight
Drivers, Etc. v. Gordon, 576 F.2d 1285 (8th Cir. 1978); Matter of Adoption
by W.P. and M.P., 308 N.J. Super. 376, 706 A.2d 198 (1998); Auer v. Com.,
46 Va. App. 637, 621 S.E.2d 140 (2005).
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to the assets listed, we have held as to these listed assets that
only the portion of such deferred compensation benefits that
was earned or contributed to during the marriage is part of the
marital estate.8 In sum, § 42-366 does not indicate whether
appreciation during the marriage of a nonmarital business or
property interest is a marital asset. That question has instead
long been determined by case law.
[5] Since 2000, we classify as a threshold matter the parties’
property as either marital or nonmarital. In Meints v. Meints,9
we said:
Equitable property division under § 42-365 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 determine the marital liabilities 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.
Such division between the marital and nonmarital estate is
known as dual classification. Prior to Meints, our case law
was not entirely clear as to whether we operated under a dual
classification system. Most jurisdictions adopt the dual clas-
sification model and preclude under this model the equitable
distribution of separate property.10 “Equitable considerations
are generally no excuse for failing to follow the statutory clas-
sification process.”11
[6,7] We have said 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 this
8
See, e.g., Coufal v. Coufal, 291 Neb. 378, 866 N.W.2d 74 (2015).
9
Meints v. Meints, 258 Neb. 1017, 1023, 608 N.W.2d 564, 569 (2000). See,
also, 3 Brett R. Turner, Equitable Distribution of Property, appendix A at
274 (3d ed. 2005).
10
See 1 Brett R. Turner, Equitable Distribution of Property § 2:10 (3d ed.
2005).
11
See id., § 5:7 at 266.
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general rule.12 Thus, for example, income from either party
that accumulates during the marriage is a marital asset.13 Any
given property can constitute a mixture of marital and non-
marital interests; a portion of an asset can be marital property
while another portion can be separate property.14 Therefore,
the original capital or value of an asset may be nonmarital,
while all or some portion of the earnings or appreciation of
that asset may be marital.15
[8] In the recent case of Stanosheck v. Jeanette,16 we said
that investment earnings accrued during the marriage on the
nonmarital portion of a retirement account may be classified as
nonmarital where the party seeking the classification proves:
(1) The growth is readily identifiable and traceable to the non-
marital portion of the account and (2) the growth is due solely
to inflation, market forces, or guaranteed rate rather than the
direct or indirect effort, contribution, or fund management of
either spouse. In Coufal v. Coufal,17 we similarly examined
whether the increase in the value of the premarital capital in a
retirement account was a marital asset. After examining cases
from other jurisdictions discussing the active appreciation rule,
we held that the appreciation was nonmarital, because it was
not caused by the direct or indirect efforts of “either spouse.”18
[9-11] Other jurisdictions have reached a “remarkable
degree of consensus” that appreciation or income of separate
property is marital property to the extent that it was caused
by marital funds or marital efforts.19 The active appreciation
12
See Heald v. Heald, 259 Neb. 604, 611 N.W.2d 598 (2000).
13
See Harris v. Harris, 261 Neb. 75, 621 N.W.2d 491 (2001).
14
See 1 Turner, supra note 10, § 5:20.
15
See id.
16
Stanosheck v. Jeanette, supra note 4.
17
Coufal v. Coufal, supra note 8.
18
Id. at 384, 866 N.W.2d at 79.
19
1 Turner, supra note 10, § 5:54 at 546. See, also, Annot., 39 A.L.R. 6th 205
(2008).
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rule sets forth the relevant test to determine to what extent
marital efforts caused any part of the appreciation or income.20
“Appreciation caused by marital contributions is known as
active appreciation, and it constitutes marital property in the
first instance.”21 In contrast, passive appreciation is apprecia-
tion caused by separate contributions and nonmarital forces.22
And most states, by statute or case law, define marital contribu-
tion broadly to include the efforts of either the owning or the
nonowning spouse.23
Robert, however, argues that Stanosheck and Coufal, inas-
much as they recognize as marital property growth due to
the efforts of the owning spouse, are limited to retirement
accounts. He argues that appreciation of business interests
outside of retirement accounts should be considered a marital
asset only if the appreciation during the marriage was caused
by the efforts of the nonowning spouse.
In support of this position, Robert relies on statements by
this court in cases decided before we clearly adopted a dual
classification system24 and under facts demonstrating that the
appreciation of the nonmarital asset was due principally to
inflation and market forces.25 Under these circumstances, in
Van Newkirk v. Van Newkirk, we said that property acquired
by gift or inheritance is not considered part of the marital
estate unless
20
See 1 Turner, supra note 10, § 5:55.
21
Id. at 549.
22
Id.
23
Id., § 5:56. See, also, e.g., Hanson v. Hanson, 125 P.3d 299 (Alaska
2005); Horton v. Horton, 299 Ga. 46, 785 S.E.2d 891 (2016); Nardini
v. Nardini, 414 N.W.2d 184 (Minn. 1987). See, generally, 39 A.L.R.6th,
supra note 19.
24
See Matlock v. Matlock, 205 Neb. 357, 287 N.W.2d 690 (1980)
(consideration of inherited property depends on equities involved).
25
See, Preston v. Preston, 241 Neb. 181, 486 N.W.2d 902 (1992); Ross v.
Ross, 219 Neb. 528, 364 N.W.2d 508 (1985); Van Newkirk v. Van Newkirk,
supra note 1.
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both of the spouses have contributed to the improvement
or operation of the property which one of the parties
owned prior to the marriage or received by way of gift
or inheritance, or the spouse not owning the property
prior to the marriage or not receiving the inheritance or
gift has significantly cared for the property during the
marriage.26
But in Rezac v. Rezac,27 decided only 3 years after Van
Newkirk, we recognized as a marital asset the appreciation
of nonmarital property due solely to the contributions of the
owning spouse during the marriage. We held in Rezac that
the lower court did not err in dividing as marital property the
entirety of the appreciated value of the husband’s premarital
stock in a corporation. We explained that if the husband’s own-
ership of the corporation had been merely “nominal” or the
increase in the value of the stock during the marriage had been
“strictly an inflationary increase,”28 there would have been a
better argument that the stock should be viewed as continuing
to be separate property. But such was not the case.
We observed in Rezac that the lower court was correct in
treating the appreciation of stock as marital property, because
the corporation had paid for substantial improvements that
increased the corporate value, in lieu of distributing profits to
its owners as income. We explained that “had the corporation
not made substantial investments in improving its facility, the
value of the stock may have remained about the same but this
respondent would have received additional income resulting in
marital assets which would be subject to division at the time
of the dissolution.”29
26
Van Newkirk v. Van Newkirk, supra note 1, 212 Neb. at 733, 325 N.W.2d
at 834.
27
Rezac v. Rezac, 221 Neb. 516, 378 N.W.2d 196 (1985).
28
Id. at 518, 378 N.W.2d at 198.
29
Id. See, also, Sughroue v. Sughroue, 19 Neb. Ct. App. 912, 815 N.W.2d 210
(2012).
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Though we observed in Rezac that the appreciation was
through reinvestment of income, other courts and legal
authorities find no meaningful distinction between apprecia-
tion through reinvestment of income and appreciation through
active efforts other than reinvestment.30 Income from and
appreciation of an asset are fundamentally similar insofar as
they are both ways that the property generates value.31 The
only difference is that income takes the form of a new asset,
while appreciation takes the form of added value.32 This dif-
ference in form bears “no relation to the policies behind equi-
table distribution.”33
Nevertheless, in Grace v. Grace,34 a case decided a few
years after Van Newkirk and Rezac, we implicitly accepted
without analysis an appreciation/income distinction. There,
because of the inequities created by the application of such
a distinction, we were compelled to consider the value of
nonmarital assets in determining the equitable amount of the
property division.
In Grace, we applied our statement in Van Newkirk to hold
that the husband’s interest in a premarital family business was
nonmarital. Then we said that whether an asset is marital is
but one consideration in the equitable division of property.35
Especially in light of the minimal accumulation of marital
assets due to the provision by the business of the marital home
and other expenses, we held that the wife should be awarded
a lump sum representing her portion of the husband’s corpo-
rate interest—even though the wife did not contribute to the
improvement or operation of the business.
30
See 1 Turner, supra note 10, § 5:50 (and cases cited therein).
31
See id., § 5:50.
32
See id.
33
Id. at 524.
34
Grace v. Grace, supra note 3.
35
Id.
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A series of cases from the Nebraska Court of Appeals have
since recognized so-called Grace awards in order to achieve an
equitable result when the application of our statement in Van
Newkirk renders appreciation during the marriage nonmarital.36
It has not been clear under this line of case law what excep-
tional circumstances warrant a Grace award. The mathematics
behind the amount of such Grace awards have likewise never
been clear. But Grace awards generally represent a smaller
division of the asset in question than the expected division if
the asset were considered marital.37
We find inapplicable to the modern dual classification
system any statements in Van Newkirk and its progeny which
fail to recognize as a marital asset appreciation through the
active efforts of the owning spouse. For purposes of the active
appreciation rule, there is no reason to treat appreciation of
a nonmarital asset differently from income derived from a
nonmarital asset during the marriage. We conclude, likewise,
that the principles set forth in Grace are no longer applicable
to the dual classification system set forth by this court in
Meints v. Meints.38 This is not to say that a court would, in
every conceivable circumstance, be forbidden from taking
into account nonmarital assets in its equitable division of the
marital estate, but our adoption of the active appreciation
rule as set forth herein limits the need for such an extraordi-
nary recourse.
[12] We hold, therefore, that the principles set forth in
Stanosheck apply equally to appreciation or income during
the marriage of any nonmarital asset. Thus, accrued invest-
ment earnings or appreciation of nonmarital assets during
36
See, Keig v. Keig, 20 Neb. Ct. App. 362, 826 N.W.2d 879 (2012); Shuck v.
Shuck, 18 Neb. Ct. App. 867, 806 N.W.2d 580 (2011); Charron v. Charron,
16 Neb. Ct. App. 724, 751 N.W.2d 645 (2008); Walker v. Walker, 9 Neb. Ct. App.
834, 622 N.W.2d 410 (2001).
37
See id.
38
Meints v. Meints, supra note 9.
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the marriage are presumed marital unless the party seeking
the classification of the growth as nonmarital proves: (1) The
growth is readily identifiable and traceable to the nonmarital
portion of the account and (2) the growth is not due to the
active efforts of either spouse.39 We agree with many other
jurisdictions that the burden is on the owning spouse to prove
the extent to which marital contributions did not cause the
appreciation or income.40 This is the better policy, because it
places the burden on the party who has the best access to the
relevant evidence.41
[13] We expressly adopt the active appreciation rule that
does not distinguish between the efforts of the owning spouse
and the efforts of the nonowning spouse. We agree that the
majority rule recognizing as a marital contribution the efforts
of either the owning or the nonowning spouse is “clearly cor-
rect, as the marital estate should include the fruits of either
spouse’s efforts during the marriage.”42 We hold that the appre-
ciation or income of a nonmarital asset during the marriage is
marital insofar as it was caused by the efforts of either spouse
or both spouses.
Under the district court’s interpretation of our admittedly
confusing line of case law, it concluded that appreciation
39
Stanosheck v. Jeanette, supra note 4.
40
1 Turner, supra note 10, § 5:56.
41
See id., citing Harrower v. Harrower, 71 P.3d 854 (Alaska 2003); Chapman
v. Chapman, 866 So. 2d 118 (Fla. App. 2004); Macdonald v. Macdonald,
532 A.2d 1046 (Me. 1987); Berenberg v. Berenberg, 474 N.W.2d 843
(Minn. App. 1991); Waring v. Waring, 747 So. 2d 252 (Miss. 1999);
Klaus v. Klaus, 918 S.W.2d 407 (Mo. App. 1996); Jurado v. Jurado, 119
N.M. 522, 892 P.2d 969 (N.M. App. 1995); Pulice v. Pulice, 242 A.D.2d
527, 661 N.Y.S.2d 675 (1997); Ciobanu v. Ciobanu, 104 N.C. App. 461,
409 S.E.2d 749 (1991); Thielenhaus v. Thielenhaus, 890 P.2d 925 (Okla.
1995); Garfinkel v. Garfinkel, 945 S.W.2d 744 (Tenn. App. 1996); Mayhew
v. Mayhew, 205 W. Va. 490, 519 S.E.2d 188 (1999); In re Marriage of
Popp v. Popp, 146 Wis. 2d 778, 432 N.W.2d 600 (Wis. App. 1988).
42
1 Turner, supra note 10, § 5:56 at 564.
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of Stephens & Smith due to Robert’s active efforts was not
includable in the marital estate. The court accordingly made no
findings concerning what portion of Stephens & Smith’s appre-
ciation was attributable to Robert’s active efforts. Because
Janet did not directly contribute to Stephens & Smith, the court
concluded that the entirety of Stephens & Smith’s appreciation
during the marriage was nonmarital. In its attempt to make an
equitable distribution after having thus excluded approximately
$5 million from the marital estate, the court awarded as a
Grace award approximately one-fourth of Robert’s 34-percent
interest in Stephens & Smith.
Based upon the active appreciation rule, the court should
not have excluded Stephens & Smith from the marital estate
and substituted a Grace award. We reverse the court’s deter-
mination of the marital property to the extent that it did not
include the increase in value of Robert’s interest in Stephens
& Smith, and we vacate the court’s Grace award.
The classification of the growth in value of Robert’s stock,
including that due to retained earnings by Stephens & Smith,43
depends on the extent that the overall growth of the company
was caused by Robert’s active efforts. In this case, there was
no dispute that Stephens & Smith appreciated significantly
during the marriage and that Robert’s active efforts played a
significant role in that appreciation. Indeed, the underlying
facts were not contested. Robert, cofounder and president of
Stephens & Smith, worked full time in that capacity during the
entirety of the 25-year marriage.
[14,15] Despite the importance of each employee in a com-
pany, a company’s value for purposes of active appreciation
is attributable only to the efforts of first-tier management or
similar persons with control over the asset’s value.44 First-tier
management is responsible for ensuring the policy, direction,
and good will that contributes most directly to the value of a
43
See id., § 5:53.
44
See id., § 5:57.
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company’s stock.45 Courts have uniformly rejected arguments
by the owning spouse that the universe of persons in a com-
pany that effect its value is so large that no one person has any
significant effect.46
Even favorable market conditions are not passive inasmuch
as they create merely the opportunity that the skilled, own-
ing spouse detects and seizes.47 Nor does an argument that
the “‘ground work’” for growth was laid before the marriage
preclude as a marital asset substantial appreciation of a com-
pany’s value during the marriage.48 No person wears all hats
in a complex business operation, but it is nevertheless possible
for one person to be critical to such operation’s growth and
development.49 The appreciation of a company’s stock may be
due not just to a first-tier manager’s direct efforts, but to his or
her mere presence, when the individual is identified with the
business entity and tied to its good will.50
[16] It was Robert’s burden to demonstrate that any portion
of Stephens & Smith’s appreciation was due to passive forces
or the active efforts of third parties who would qualify as first-
tier management or similar. In presenting the evidence at trial,
Robert was on notice of the possibility that the court would
apply the active appreciation rule. And it has been the long-
standing position of this court that the burden of proof to show
that property is nonmarital remains with the person making
the claim.51 In light of this burden of proof, it is clear on the
record presented that Robert’s active efforts were responsible
45
See, Hanson v. Hanson, supra note 23; Berrie v. Berrie, 252 N.J. Super.
635, 600 A.2d 512 (1991); 1 Turner, supra note 10, § 5:57.
46
1 Turner, supra note 10, § 5:57.
47
See id.
48
See Innerbichler v. Innerbichler, 132 Md. App. 207, 231, 752 A.2d 291,
304 (2000).
49
Id.
50
See Berrie v. Berrie, supra note 45.
51
Heald v. Heald, supra note 12.
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for at least 34 percent of Stephens & Smith’s growth during
the 25 years that Robert and Janet were married.
We accordingly direct the court to consider as marital
the entirety of the increase during the marriage of Robert’s
34-­percent stock interest in Stephens & Smith. Because the
district court is in the better position to make an equitable
division, we remand the cause with directions to determine the
equitable distribution of that marital asset.
2. Spousal Support
We turn next to Janet’s allegation that the district court erred
in failing to award spousal support under § 42-362 for so long
as she remains mentally ill. Janet does not take issue with the
monthly amount that was awarded, only its duration.
Section 42-362 states in relevant part:
When a marriage is dissolved and the evidence indicates
that either spouse is mentally ill, the court may, at the
time of dissolving the marriage or at any time thereafter,
make such order for the support and maintenance of such
mentally ill person as it may deem necessary and proper,
having due regard to the property and income of the par-
ties, and the court may require the party ordered to pro-
vide support and maintenance to file a bond or otherwise
give security for such support. Such an order for support
may be entered upon the application of the guardian or
guardian ad litem or of any person, county, municipality,
or institution charged with the support of such mentally
ill person. The order for support may, if necessary, be
revised from time to time on like application.
[17] The amount of support awarded under § 42-362 is a
matter initially entrusted to the sound discretion of the trial
judge, which award, on appeal to this court, is reviewed de
novo on the record and affirmed in the absence of an abuse of
the trial judge’s discretion.52
52
Black v. Black, 223 Neb. 203, 388 N.W.2d 815 (1986).
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Section 42-362 empowers the court to order the payment of
such support and maintenance “‘as it may deem necessary and
proper, having due regard to the property and income of the
parties’” and, to that extent, parallels the alimony contemplated
by § 42-365, but provides an additional specific ground to be
considered—the mental illness of a spouse.53
However, support and maintenance of a mentally ill spouse
and alimony are not the same in all respects.54 In Black v.
Black,55 we said that although allowances of alimony in the
form of requiring one to pay a fixed sum for an indefinite
period of time are not favored, payment of support and main-
tenance of a mentally ill spouse “should continue so long as,
and only so long as, the mental illness continues” or the spouse
remarries. We accordingly modified the dissolution court’s
award of spousal support under § 42-362 until death or remar-
riage to provide that it shall continue only so long as the men-
tal illness continued and the spouse did not remarry.
We have never held that a court must always award sup-
port under § 42-362 for so long as the mental illness con-
tinues. Nothing in the language of the statute indicates this
is required. Rather, § 42-362 contemplates that the order of
support under this section “may, if necessary, be revised from
time to time on like application.” We find that the district
court did not abuse its discretion in making the award for 120
months. Because of our determination that Stephens & Smith
is a marital asset, the court in its discretion may reconsider the
amount of alimony.56
53
Id. at 208, 388 N.W.2d at 819.
54
Id.
55
Id. at 209, 388 N.W.2d at 820.
56
See, Pendleton v. Pendleton, 242 Neb. 675, 496 N.W.2d 499 (1993);
Olson v. Olson, 195 Neb. 8, 236 N.W.2d 618 (1975); Corn v. Corn, 190
Neb. 383, 208 N.W.2d 678 (1973) (although alimony and distribution of
property are technically distinct and have different purposes in marriage
dissolution proceedings, they are closely related and circumstances may
require that they be considered together).
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3. A rticles of Incorporation
Janet last assigns as error the fact that the court ordered
the transfer to her of ownership interests in Aardvark Antique
Mall, The Mystic Pines Apartments, and Eagles Landing
Apartments, instead of a cash award. Janet’s sole objection
is her concern that the other partners will not consent to her
co-ownership. Robert was ordered to complete all documen-
tation of such joint ownership within 30 days of the decree.
In the event that did not occur, and it appears that a transfer
of ownership will not take place in spite of Robert’s best
efforts, then the parties are free to seek modification of the
decree.57 The court did not abuse its discretion in not ordering
a cash award.
VI. CONCLUSION
We affirm the distribution of ownership interests in
Aardvark Antique Mall, The Mystic Pines Apartments, and
Eagles Landing Apartments, instead of a cash award. We
reverse the division of the property described as Stephens &
Smith and direct the court to include the increase in value
from the date of the marriage to the dissolution as a marital
asset. The Grace award is reversed and vacated, because the
court is directed to include the increase in value of Robert’s
interest in Stephens & Smith as a marital asset. We affirm the
award of alimony subject to the court’s discretion as set forth
in this opinion.
A ffirmed in part, vacated in part, and in part
reversed and remanded with directions.
Stacy, J., not participating.
57
See Whitesides v. Whitesides, 290 Neb. 116, 858 N.W.2d 858 (2015).