Osantowski v. Osantowski , 298 Neb. 339 ( 2017 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
01/19/2018 08:13 AM CST
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Nebraska Supreme Court A dvance Sheets
298 Nebraska R eports
OSANTOWSKI v. OSANTOWSKI
Cite as 298 Neb. 339Dori A nn Osantowski, appellee, v.
Brian Osantowski, appellant.
___ N.W.2d ___
Filed December 8, 2017. No. S-16-807.
1. Divorce: Child Custody: Child Support: Property Division:
Alimony: Attorney Fees: Appeal and Error. In a marital dissolution
action, an appellate court reviews the case de novo on the record to
determine whether there has been an abuse of discretion by the trial
judge. This standard of review applies to the trial court’s determinations
regarding custody, child support, division of property, alimony, and
attorney fees.
2. Evidence: Appeal and Error. In a review de novo on the record, an
appellate court is required to make independent factual determina-
tions based upon the record, and the court reaches its own independent
conclusions with respect to the matters at issue. When evidence is in
conflict, the appellate court considers and may give weight to the fact
that the trial court heard and observed the witnesses and accepted one
version of the facts rather than another.
3. 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.
4. Judgments: Appeal and Error. When reviewing questions of law, an
appellate court has an obligation to resolve the questions independently
of the conclusion reached by the trial court.
5. Divorce: Property Division. The ultimate test in determining the appro-
priateness of the division of property is fairness and reasonableness as
determined by the facts of each case.
6. ____: ____. Under Neb. Rev. Stat. § 42-365 (Reissue 2016), the equi-
table division of property is a three-step process. The first step is to clas-
sify the parties’ property as marital or nonmarital, setting aside the non-
marital property to the party who brought that property to the marriage.
The second step is to value the marital assets and marital liabilities
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OSANTOWSKI v. OSANTOWSKI
Cite as 298 Neb. 339of 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.
7. ____: ____. Generally, all property accumulated and acquired by either
spouse during a marriage is part of the marital estate. Exceptions
include property that a spouse acquired before the marriage, or by gift
or inheritance.
8. Divorce: Appeal and Error. Appeals in domestic relations matters are
heard de novo on the record, and thus, an appellate court is empow-
ered to enter the order which should have been made as reflected by
the record.
9. Agriculture: Crops: Animals. Agricultural crops are categorically dif-
ferent in nature from a herd of cattle and, therefore, are not entitled to
the same treatment for tracing purposes.
10. Agriculture: Crops: Equity. Courts are allowed flexibility in their
treatment of stored and growing agricultural crops to account for the
equities of the situation.
11. Property Division: Appeal and Error. As a general principle, the date
upon which a marital estate is valued should be rationally related to the
property composing the marital estate. The date of valuation is reviewed
for an abuse of the trial court’s discretion.
12. Appeal and Error. Absent plain error, errors argued but not assigned
will not be considered on appeal.
13. Appeal and Error: Words and Phrases. Plain error exists where there
is an error, plainly evident from the record but not complained of at
trial, which prejudicially affects a substantial right of a litigant and is of
such a nature that to leave it uncorrected would cause a miscarriage of
justice or result in damage to the integrity, reputation, and fairness of the
judicial process.
14. Appeal and Error. Plain error may be asserted for the first time on
appeal or be noted by an appellate court on its own motion.
15. Property Division. A nonowning spouse is entitled to some benefit
when marital funds have been expended to improve or reduce the debt
on the other spouse’s nonmarital property.
16. Divorce: Property Division: Alimony. In dividing property and consid-
ering alimony upon a dissolution of marriage, a court should consider
four factors: (1) the circumstances of the parties, (2) the duration of the
marriage, (3) the history of contributions to the marriage, and (4) the
ability of the supported party to engage in gainful employment.
17. ____: ____: ____. In addition to the specific criteria listed in Neb. Rev.
Stat. § 42-365 (Reissue 2016), in dividing property and considering
alimony upon a dissolution of marriage, a court should consider the
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OSANTOWSKI v. OSANTOWSKI
Cite as 298 Neb. 339income and earning capacity of each party and the general equities of
the situation.
18. Property Division. As a general rule, a spouse should be awarded one-
third to one-half of the marital estate, the polestar being fairness and
reasonableness as determined by the facts of each case.
Appeal from the District Court for Seward County: James C.
Stecker, Judge. Affirmed as modified.
John W. Ballew, Jr., and Adam R. Little, of Ballew, Covalt &
Hazen, P.C., L.L.O., for appellant.
Stan A. Emerson, of Sipple, Hansen, Emerson, Schumacher
& Klutman, for appellee.
Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy,
K elch, and Funke, JJ.
Funke, J.
Brian Osantowski appeals from a decree of dissolution
entered by the Seward County District Court, which dissolved
his marriage to Dori Ann Osantowski, divided the marital
assets and debts, and ordered Brian to make an equalization
payment of $680,000, distributing the estate about equally.
Brian argues that his premarital crops should have been
treated similarly to a herd of cattle—as a single asset for trac-
ing purposes, that the court made specific errors in the division
of marital assets, and that its distribution of the marital estate
was inequitable.
We reject Brian’s argument that crops are similar to cat-
tle herds for tracing purposes. However, we hold that the
court erred in its division of certain marital assets and debts.
Therefore, we affirm the district court’s order as modified by
this opinion.
I. BACKGROUND
Brian and Dori were married on September 23, 2011, and
separated on or about May 26, 2014. Dori filed a dissolution
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OSANTOWSKI v. OSANTOWSKI
Cite as 298 Neb. 339complaint in June 2014. Trial was held on January 14 and
February 12, 2016.
1. Parties’ M arriage
During the marriage, Brian resided primarily in Polk County,
Nebraska, at a residence owned by his parents. Dori main-
tained a residence in Lincoln, Nebraska, until May 2013. Dori
testified that while she was living in Lincoln, she spent a
minimum of three to four nights per week with Brian in Polk
County during the academic year and full time during the sum-
mers and other school breaks. As of May 2013, Dori resided in
Polk County full time and commuted to Lincoln for her final
semester of school.
In September 2013, Dori held a master’s degree in ento-
mology from the University of Nebraska-Lincoln (UNL) and
was enrolled in a doctoral program for plant health at UNL.
She testified that while she had originally intended to pur-
sue a Ph.D. in entomology at South Dakota State University,
she enrolled in a program at UNL instead because Brian had
objected to the distance. Dori also stated that she changed
her program to plant health so that she could gain a better
understanding of agriculture in Nebraska and contribute to the
Osantowski farming operation.
Dori received a scholarship and a stipend for her school and
living expenses. She also worked full time during the summers
in Lincoln, earning between $8,000 and $20,000 in wages for
2011, 2012, and 2013 each. Most of Dori’s income and schol-
arship money during the marriage went to tuition, insurance
payments, payments for her motorcycle, commuting expenses,
rent and utilities for the Lincoln apartment, and other living
expenses. She testified that Brian provided minimal financial
support to her during the marriage, but what he did provide
was used for the household expenses she paid for the Polk
County residence. In February 2014, Dori began working full
time for an annual salary of $75,000 and obtained medical and
dental insurance for herself and Brian.
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Cite as 298 Neb. 339Brian began farming in 2005. He has a farming operation
with his two brothers in and around Polk County. Under the
operation, Brian and his brothers own equipment separately
but jointly acquire land, which is owned in equal thirds.
Each brother, however, farms land independently and bears
the rental fees and input costs for his operation. Accordingly,
crops and expenses are completely separate and distinct to
each individual.
Brian testified that he receives benefits from his family
which increase the profitability of his farming operation,
including: discounted rental rates of $150 to $200 per acre ver-
sus the market rate of $300 to $400 per acre on the majority of
the land that he rents; the majority of his diesel fuel at no cost
to him; and the sharing of equipment, labor, shop space, and
various other expenses.
Dori testified that she made the following contributions
to Brian’s farming operation: Brian would consult her about
chemical and herbicide application and general soil welfare;
she created plat maps for all of the Osantowski fields to keep
field spray records and to help plan for the future; she scouted
fields for weed growth; she picked up parts and ran errands;
and she went with Brian to check fields, pivots, and lay irri-
gation pipe. Brian agreed that Dori performed these tasks
occasionally, except he explained that the plat maps created
by Dori were part of her summer employment and that when
Dori would ride with him to the fields, she did so because she
enjoyed riding a “four-wheeler” and not because she actually
helped with irrigation.
Dori also testified that she performed all of the household
duties at her Lincoln residence and that such duties in the Polk
County residence were a team effort with Brian.
2. Evidence Offered at Trial
The parties offered into evidence two versions of a joint
property statement, each listing premarital and marital debts
and assets. One of the statements was dated May 18, 2015,
and the other dated January 9, 2016. Each version listed the
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OSANTOWSKI v. OSANTOWSKI
Cite as 298 Neb. 339same assets and debts; however, slightly different values were
assigned to some. Additional documents were received into
evidence to support the property statements, including per-
sonal property appraisals from Grubaugh Auction Services,
LLC; inventory reports from a certified public accountant;
tax returns; settlement sheets from elevators; bank statements;
retirement accounts; and balance sheets from several banks,
including Great Western Bank.
(a) Stored and Growing Crops
In regard to the premarital and marital crop inventory, Brian
called Michael Hershberger as his expert witness to determine
the quantity of stored crops that Brian had on the date of mar-
riage and on the date of separation. Hershberger is a certified
public accountant who works with agricultural clients on a
regular basis. In reaching his conclusions on these issues,
Hershberger relied on Brian’s tax returns from 2011 to 2014;
the total annual yields in Brian’s crop insurance reports, which
were reported to him by Brian; two crop sales receipts; and
a spreadsheet summary of Brian’s recorded crop sales. The
spreadsheet summary was prepared by Brian’s mother, who
does all of Brian’s bookkeeping.
On the first day of trial, Hershberger gave testimony regard-
ing his determination of crop inventories and a report he
authored was received into evidence. However, that testi-
mony and the exhibit were stricken from the record, because
Hershberger had relied on grain elevator receipts which were
not provided to Dori through discovery. After Brian supple-
mented his discovery, Hershberger was again called to testify
regarding the crop inventory.
In regard to the premarital crop inventory, Hershberger
opined that Brian had a total of 57,156.26 bushels of corn
in storage on September 23, 2011, and 91,296.09 bushels
of corn and 10,405.99 bushels of soybeans ready for har-
vest. On September 23, the price at the local elevator was
$6.07 for a bushel of corn and $11.57 for a bushel of soy-
beans. Accordingly, Hershberger concluded that the fair market
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OSANTOWSKI v. OSANTOWSKI
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$346,938.50 and his unharvested crops were $554,167.27 for
corn and $120,397.30 for soybeans, totaling $1,021,503.07.
Based on the spreadsheet summary, he also concluded that
Brian sold these crops for a total of $1,207,465.53.
Hershberger testified that he believed his estimation of the
total bushels of crops produced in 2011 was very accurate,
because Brian had claimed on his crop insurance report that a
total of 91,863 bushels of corn and 10,151 bushels of soybeans
were produced.
In regard to the marital crop inventory, Hershberger con-
cluded that the parties had 95,300.36 bushels of corn in storage
on the date of separation and that a bushel of corn sold for
$4.66 on that day. Accordingly, he valued the corn in storage
on the date of separation as $444,099.68.
However, a balance sheet Brian had submitted to Great
Western Bank, dated March 20, 2014, stated that he had
135,000 bushels of corn on hand which had a value of
$573,750. Additionally, in Brian’s November 2014 response
to Dori’s interrogatories, he stated that the March 20 balance
sheet reflected the quantity and value of the stored crops. In
both joint property statements, Dori relied on the March 20
balance sheet for the quantity and value of crops that were
marital property.
In the May 2015 joint property statement, Brian failed to
list the quantity of crops in storage or assign a value thereto.
But in the January 2016 joint property statement, Brian listed
14,862 bushels of corn in storage on the date of separation
with a value of $69,257. At trial, Brian testified that his
January 2016 estimation of the quantity of corn in storage
on the date of separation was based on Hershberger’s ini-
tial analysis.
Hershberger admitted, however, that his opinions changed
dramatically from the first day of trial to the second day of
trial. His valuation of the stored crops on the date of sepa-
ration changed from $69,259.25 to $444,099.68. While his
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OSANTOWSKI v. OSANTOWSKI
Cite as 298 Neb. 339valuation of the stored and growing crops on the date of mar-
riage changed from $898,603.04 to $1,021,503.07. Hershberger
attributed these changes to his mistaken belief that all crops
were sold before the next harvest began. But after he requested
that Brian’s mother identify the year of production for each
crop at issue in the sale transactions on the spreadsheet sum-
mary, his analysis changed.
(b) Personal Property and
Farm Equipment
Minimal testimony was elicited regarding the parties’ pre-
marital and marital personal property and farm equipment. The
joint property statements set forth the items, and Brian and
Dori generally agreed to them. The values, however, were not
agreed upon by the parties. A personal property and equipment
appraisal was completed by Grubaugh Auction Services and
was received into evidence. The court generally adopted the
valuations established in that report.
(c) Real Estate
In regard to real estate, the record shows that Brian owned
four parcels of real estate prior to the marriage as follows: a
one-third interest in the “NW1⁄4 [of] Section 8, Township 15
North, Range 1 West[,] Butler County[, Nebraska]” (Bosshart/
Gruenwald farm); a one-third interest in the “SW1⁄4W1⁄2NW1⁄4
[of] Section 4, Township 15 North, Range 1, Butler County”
(Hondorfer farm); a one-third interest in the “W1⁄2NE1⁄4 [of]
Section 8, Township 16 North[, Butler County]” (Dodendorf
farm); and a one-third interest in the “E1⁄2SE1⁄4 [of] Section
13, Township 16 North, Range 1, Polk County” (Jahn farm).
During the marriage, the parties purchased a one-third inter-
est in the “SW1⁄4 of Section 10, Township 15 North, Range 2
West and the NW1⁄4 of Section 15, Township 15 North, Range
2 West, Polk County” (Roberts farm). Secured debt was owed
against each of the properties.
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OSANTOWSKI v. OSANTOWSKI
Cite as 298 Neb. 339(d) Premarital Debt
In regard to the division of debt, there was no direct evidence
of the value of Brian’s debts on September 23, 2011. However,
Brian annually submitted balance sheets to Great Western Bank
that listed his debts and their value on the date of submission.
The balance sheets nearest to the date of marriage were dated
December 8, 2010, and March 8, 2012. The parties relied on
the debts listed on the March 2012 balance sheet in their joint
property statements, and the court awarded Brian the six debts
listed therein as premarital. The court, however, did not include
corresponding values to these debts.
Though the parties listed different amounts for certain debts,
the record indicates that the value of the premarital debts
awarded to Brian are as follows: Great Western Bank 2010
operating line of credit, $162,000; Great Western Bank loan
for a 2008 Mercury Milan, $6,927; Bosshart/Gruenwald farm
secured debt, $125,495; Dodendorf farm secured debt, $31,557;
“Ag Direct” loan for a Cat Challenger tractor, $49,250; and
Hondorfer farm secured debt (Great Western Bank account No.
xxx6688), $247,500. The six debts totaled $622,729.
Additionally, the record contains a 2011 “itemized catego-
ries report.” This report shows that Brian paid $296,046.69
in expenses after the date of the marriage. Brian testified at
trial that each of these expenses were incurred for his 2011
crop, which he claimed as a premarital asset, and the court
awarded him as such. Accordingly, these expenses were pre-
marital debts.
Therefore, Brian’s total premarital debts, as reflected in the
record, were approximately $918,775.69.
Dori had a $7,000 debt to her father on the date of the mar-
riage, and she was awarded this premarital debt by the court.
The court did not assign a value to this debt, but on the joint
property statements, Dori listed its value at $7,000. The record
does not reflect any reduction of the debt.
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OSANTOWSKI v. OSANTOWSKI
Cite as 298 Neb. 3393. Trial Court’s Decree
In June 2016, the court issued its decree dissolving the par-
ties’ marriage and ordering the division of the marital estate.
The court determined values for most of the premarital and
marital assets it awarded.
The court awarded premarital assets to Dori, with a total
value of $20,600, and to Brian, with a total value of $1,139,047.
Two of the premarital assets awarded to Brian were the value
of his 2010 crops, sold in 2011, and his 2011 crops, sold in
2012, but the court did not assign a value to these assets. It also
awarded him the funds present on the date of the marriage in
four separate bank accounts.
However, the court found that all of Brian’s premarital crops
had been liquidated by the date of separation. It also found that
Brian deposited the nonmarital proceeds from the liquidated
crops into his premarital bank accounts, along with the pro-
ceeds from the sale of the marital crops. Accordingly, the court
found that these premarital crops and monetary assets were
commingled with marital assets. Therefore, it ruled that Brian
was not entitled to a setoff from the marital estate for these
premarital assets.
The court also rejected Brian’s argument that crops should
be treated similarly to a herd of cattle—as a single asset for
tracing purposes. It reasoned that a herd of cattle is similar
to land in that it is a self-sustaining and income producing.
Conversely, it stated that crops are an end product that is mar-
keted and liquidated on a short-term basis to pay the expenses
of producing it, purchase the seed used for the next crop’s
production, purchase equipment, and provide the farmer his
income for the year. Accordingly, the court did not give Brian a
credit for any of the crops in storage on the date of separation;
instead, the court awarded Brian all of the crops in storage on
the date of separation at a value of $573,750.
The court listed the marital debt it awarded to Dori with a
corresponding value of $3,216. While the court also awarded
several marital debts to Brian, it did not assign values to all
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OSANTOWSKI v. OSANTOWSKI
Cite as 298 Neb. 339of them. Nevertheless, the court summarized its award of the
marital estate as follows: Brian received $2,517,950 in mari-
tal assets and $1,145,294 in marital debt for a total estate of
$1,372,656; Dori received $21,611 in marital assets and $3,216
in marital debt for a total estate of $18,395.
Regarding the equity of the distribution, the court found
that the marriage was of short duration and that neither party
gave up employment or educational opportunities, but that Dori
did change her educational program to benefit the marriage.
The court rejected Brian’s argument that Dori should receive
less than one-third of the marital assets. It reasoned that any
financial benefit Brian brought to the relationship, above his
income, was as the landlord of the premarital property he
farmed and that the proper way to account for such a benefit
would have been to charge the marriage a cash rent or a crop-
share arrangement and segregate it as nonmarital property, of
which Brian did not do or provide evidence.
The court ordered Brian to make an equalization payment of
$680,000 to Dori, awarding about half of the marital estate to
each party.
The court overruled Brian’s subsequent motion for new trial
or to alter and amend the judgment. Brian appealed.
II. ASSIGNMENTS OF ERROR
Brian assigns, restated and reordered, that the court erred
in (1) failing to set off premarital property awarded to him
from the marital estate; (2) failing to set off the value of his
premarital stored and growing crops; (3) twice awarding him
the same $78,500 as marital property; (4) valuing the crops
in storage 2 months prior to separation, when the vast major-
ity of the estate was valued as of the date of separation; (5)
making significant mathematical errors in its division of the
marital estate; and (6) dividing the marital estate inequitably
for a marriage of short duration where the marital estate was
almost entirely due to the efforts and premarital contributions
of one party.
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OSANTOWSKI v. OSANTOWSKI
Cite as 298 Neb. 339III. STANDARD OF REVIEW
[1] In a marital dissolution action, an appellate court reviews
the case de novo on the record to determine whether there has
been an abuse of discretion by the trial judge. This standard
of review applies to the trial court’s determinations regard-
ing custody, child support, division of property, alimony, and
attorney fees.1
[2] In a review de novo on the record, an appellate court
is required to make independent factual determinations based
upon the record, and the court reaches its own independent
conclusions with respect to the matters at issue.2 However,
when evidence is in conflict, the appellate court considers
and may give weight to the fact that the trial court heard and
observed the witnesses and accepted one version of the facts
rather than another.3
[3] 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.4
[4] When reviewing questions of law, an appellate court
has an obligation to resolve the questions independently of the
conclusion reached by the trial court.5
IV. ANALYSIS
[5,6] Under Nebraska’s divorce statutes, “[t]he purpose of
a property division is to distribute the marital assets equitably
between the parties.”6 The ultimate test in determining the
appropriateness of the division of property is fairness and
1
See Bergmeier v. Bergmeier, 296 Neb. 440, 894 N.W.2d 266 (2017).
2
See id.3
Id.4
Id.5
See White v. White, 296 Neb. 772, 896 N.W.2d 600 (2017).
6
Neb. Rev. Stat. § 42-365 (Reissue 2016).
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have stated that under § 42-365, the equitable division of
property is a three-step process. The first step is to classify
the parties’ property as marital or nonmarital, setting aside the
nonmarital property to the party who brought that property to
the marriage. The second step is to value the marital assets and
marital liabilities of the parties. The third step is to calculate
and divide the net marital estate between the parties in accord­
ance with the principles contained in § 42-365.8
1. District Court A bused Its Discretion
in Failing to Set Off Certain
Nonmarital Assets
[7] Generally, all property accumulated and acquired by
either spouse during a marriage is part of the marital estate.9
Exceptions include property that a spouse acquired before the
marriage, or by gift or inheritance.10 Setting aside nonmarital
property is simple if the spouse possesses the original asset,
but can be problematic if the original asset no longer exists.11
Separate property becomes marital property by commingling
if it is inextricably mixed with marital property or with the
separate property of the other spouse.12 If the separate property
remains segregated or is traceable into its product, commin-
gling does not occur.13 The burden of proof rests with the party
claiming that property is nonmarital.14
Brian contends that the court made several errors regard-
ing its determination of premarital assets. The court awarded
7
Bergmeier, supra note 1.
8
Id.9
Id.10
Sellers v. Sellers, 294 Neb. 346, 882 N.W.2d 705 (2016).
11
Id.12
Id.13
Id.14
Bergmeier, supra note 1.
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Cite as 298 Neb. 339Brian the aggregate balance of his four bank accounts on the
date of the marriage, which was $182,471. However, it failed
to include any credits for that amount. The court awarded
Brian the 2010 and 2011 crops, but it did not determine a
value for those crops. Brian claims that he used $80,000 from
the premarital crops for a downpayment on real estate pur-
chased during the marriage, but that the court did not give him
credit for the $80,000.
Brian further contends that based on his testimony and
that of Hershberger, he had met his burden to trace the value
of his crops on the date of marriage. In the alternative, he
asserts that we should treat crops as a single unit for tracing
purposes, as the Nebraska Court of Appeals did with live-
stock in Shafer v. Shafer.15 He asserts that both livestock and
crops are biological commodities that are sustained through
the reinvestment of the proceeds from their sales and that
crops are not self-sustaining merely as a result of the propri-
etary nature of seeds which producers are contractually obli-
gated to not replant. Accordingly, he asserts that we should
deduct the crops he had on the date of marriage from the
crops in storage on the date of separation and set it off from
the marital estate. Additionally, he argues that the $80,000
downpayment he made on the Roberts farm was traceable to
premarital funds.
Dori contends that under our decision in Brozek v. Brozek,16
the court correctly found that Brian was not entitled to a setoff
of his premarital crops or the proceeds from those crops and
the premarital funds in his accounts because they no longer
existed or had been commingled with marital assets at the
time of separation. She also argues that Brian is not cred-
ible and that therefore, Hershberger’s analysis should not be
relied on.
15
Shafer v. Shafer, 16 Neb. App. 170, 741 N.W.2d 173 (2007), modified on
denial of rehearing 16 Neb. App. 327, 743 N.W.2d 781 (2008).
16
Brozek v. Brozek, 292 Neb. 681, 874 N.W.2d 17 (2016).
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Cite as 298 Neb. 339(a) Valuing Brian’s Premarital
Stored and Growing Crops
We begin by noting that the court awarded Brian the 2011
stored and growing crops as premarital assets, but did not
assign a value to those crops.
In exhibit 37, Hershberger’s detailed analysis showed the
number of bushels of crops Brian possessed on the date of
marriage. While Dori vigorously contested Brian’s credibil-
ity and Hershberger’s reliability, she presented no alterna-
tive estimations. Further, Hershberger’s estimation of Brian’s
stored crops and growing crops in 2011 was supported by
the crop insurance reports, tax returns, balance sheets, and
sales receipts in the record. Exhibit 37 stated the value of
Brian’s stored and growing crops on the date of marriage was
$1,021,503.07.
[8] Appeals in domestic relations matters are heard de novo
on the record, and thus, an appellate court is empowered to
enter the order which should have been made as reflected by
the record.17 Because the record shows the appropriate non-
marital value of these assets, we assign $1,021,503.07 as the
value of Brian’s premarital stored and growing crops.
(b) Crops Are Not Similar to
Livestock for Tracing
In Sellers v. Sellers,18 we adopted the Court of Appeals’
reasoning it posited in Shafer that a cattle herd owned at the
time of the marriage could, based on the totality of the circum-
stances, be treated as a single asset for tracing purposes and set
off from the marital estate as separate property if such a result
was equitable.
There, the husband had been engaged in the cattle business
throughout the marriage and continually reinvested the pro-
ceeds from the sale of cattle into the acquisition of new cattle.
We recognized that
17
Schuman v. Schuman, 265 Neb. 459, 658 N.W.2d 30 (2003).
18
Sellers, supra note 10.
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Cite as 298 Neb. 339“one cannot draw a straight line from a cow owned [at
the time of the marriage] to a cow owned [at the time of
divorce,] which is the prototypical ‘tracing’ of a premari-
tal asset so as to set it aside to the party who owned it at
the time of the marriage.”19
However, we reasoned that treating a cattle herd as a sin-
gle asset “‘acknowledged the realities of what happens over
time in a cattle operation’” rather than “‘exalt[ing] form over
substance and ignor[ing] the equitable nature of a dissolu-
tion action.’”20
In Brozek, however, we declined to extend this exception
to the tracing requirement to premarital machinery because
unlike a herd of cattle, which is self-sustaining through repro-
duction, equipment depreciates in value as it deteriorates and
becomes outdated.21
We agree with the trial court’s reasoning in this case: A
herd of cattle is more similar to real property than to personal
property. As we stated in Brozek, a herd of cattle is generally
self-sustaining, through reproduction and reinvestment, and is
not subject to depreciation, because it consistently maintains
its number- and income-producing capabilities. Crops, on the
other hand, are more similar to milk products produced by
a herd of dairy cattle. Both are short-term assets that are the
product of investing input, maintenance, and equipment costs.
They are liquidated on a short-term basis and continuously
rolled into production. While a crop cycle is longer and crops
may be stored for several years, crops, like milk products, are
still end products that account for the income of the individuals
raising them.
[9] Brian’s argument that crops would be self-sustaining
absent contractual requirements to not replant is unavailing.
Even if a crop could be used as a source of seed for replanting,
19
Id. at 354, 882 N.W.2d at 711, quoting Shafer, supra note 15.
20
Id. at 355, 882 N.W.2d at 712, quoting Shafer, supra note 15.
21
Brozek, supra note 16.
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Cite as 298 Neb. 339it would result only in a decrease in the input cost of the pro-
duction of the short-term asset that is produced through the
continued cycle of cultivation and liquidation. Accordingly, we
hold that agricultural crops are categorically different in nature
from a herd of cattle and, therefore, are not entitled to the same
treatment for tracing purposes.
(c) Brian Is Entitled to Setoff of
Certain Nonmarital Assets
In Brozek, we also considered whether the husband was
entitled to a setoff for the balance of his bank accounts and
the value of crops he possessed on the date of the marriage.
In that case, the parties had been married nearly 20 years
and the stored crops at the time of their separation, valued at
$1.2 million, were the most substantial asset of the $2.5 mil-
lion net marital estate. At trial, the husband estimated, through
“an armful of exhibits,” that the premarital balance of his
accounts was $79,000.22 Additionally, he was not able to show
the actual number of crop bushels he harvested the year of the
marriage, but, relying on the acres he farmed and the average
yield of the area, he estimated the crop’s value at $190,000.
He claimed that proceeds of the premarital crop were reflected
in the current crop, because he continually rolled his proceeds
into the subsequent year’s expenses.
We held that the husband was not entitled to a setoff from
either source of premarital assets, because after 20 years, he
could “not identify the different permutations that his premari-
tal property underwent during the marriage.”23 We reasoned
that his reinvestment was “mixed with the proceeds of marital
harvests and subject to the vicissitudes of the farming economy
for nearly 20 years” and that he presented no evidence of
the unknown number of deposits and withdrawals from his
accounts during the marriage.24
22
Id. at 698, 874 N.W.2d at 31.
23
Id. at 699, 874 N.W.2d at 31.
24
Id. at 699, 874 N.W.2d at 32.
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Cite as 298 Neb. 339In Kalkowski v. Kalkowski,25 “we decline[d] to adopt any
bright-line rule as to whether or not crops which will eventu-
ally generate income may be treated as divisible marital prop-
erty in a dissolution proceeding.” Our analysis considered at
the forefront our long-standing principle that the ultimate test
in determining the appropriateness of the division of property
is fairness and reasonableness as determined by the facts of
each case.26
There, the parties were married for over 10 years and
the wife was the primary caregiver to the four marital chil-
dren while the husband farmed. The husband argued that his
stored and growing crops were inventory, not a traditional
asset, because they represented income he had already earned
but not realized and income that he had not yet earned.
Nevertheless, he included the crops with an assigned value as
an asset in the joint property statement and at trial, requested
that they be awarded to him. Therefore, we held that the court
did not abuse its discretion in including the crops in the mari-
tal estate.
[10] Income earned from one or both spouses’ employment
during a marriage is a marital asset.27 However, as we recog-
nized in Kalkowski, crops are a product of a farming operation
that are not income but generate income upon their liquidation.
Under this reasoning, crops produced before the marriage and
sold during the marriage would generally be considered marital
income, but crops produced during the marriage but sold after
would not. Accordingly, we allow courts flexibility in their
treatment of stored and growing agricultural crops to account
for the equities of the situation.
In this case, Brian entered the marriage with a large amount
of income from his liquidated crops and unrealized income in
the form of growing and stored crops. The court determined
25
Kalkowski v. Kalkowski, 258 Neb. 1035, 1042, 607 N.W.2d 517, 524
(2000).
26
Id.27
Davidson v. Davidson, 254 Neb. 656, 578 N.W.2d 848 (1998).
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Cite as 298 Neb. 339that this income and unrealized income should not be consid-
ered a marital asset because it was fully earned prior to the
marriage. On the other hand, the court chose to include the
stored crops and proceeds from the sale of crops produced dur-
ing the marriage in the marital estate but not the crops growing
at the time of separation, because the cultivation and risk for
these crops remained predominantly with Brian. This decision
by the court fairly accounted for the realities of this situation;
Brian should not have been punished for holding crops pro-
duced and fully grown before the marriage.
The court, however, set off no value from its award of these
premarital assets to Brian because it found that the income
had been commingled with marital assets. We recognize the
law concerning tracing, but we also recognize the overarching
principle in the division of marital property is equity, ulti-
mately guided by fairness and reasonableness.
We reject Brian’s proposition that providing evidence of
the value of growing and stored crops on the date of marriage
is sufficient for purposes of tracing; instead, it would simply
be a necessary prerequisite for the analysis. Nevertheless, we
hold that applying the rigid requirements of tracing in this
case would unfairly deprive Brian of his premarital efforts
and result in his being double charged in the division of the
marital estate by depriving him of his premarital assets and
then awarding him the real or personal property in which they
were invested.
Hershberger testified that had grain prices not been rising to
historic levels, the standard practice would have been for Brian
to liquidate his stored crops before the next harvest, which
began around the time of the marriage. Further, Brian would
likely not have held his 2011 crops through the 2012 harvest
when they were no longer traceable.
In Brozek, the court included in the marital estate the crops
in storage and the balance of the husband’s bank accounts,
which held the income from crop sales, on the date of the
separation. It also included in the marital estate the hus-
band’s premarital crops and proceeds therefrom in his bank
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Cite as 298 Neb. 339accounts. However, this case is distinguishable for a number
of reasons.
First, in Brozek, the husband could not definitively identify
the values of his premarital assets. Just as one could not trace
an unknown value of assets, it would be unreasonable to set off
a value of assets that is not proved. As mentioned above, Brian
clearly established that the value of his stored and growing
crops was $1,021,503.07. Further, while Brian did not produce
bank statements proving the premarital balance of his accounts,
Dori did not contest the values he provided on the second joint
property statement. Accordingly, the balance of the accounts,
as assigned by the court, was $182,471.
Second, the equities in Brozek were vastly different than
in this case. In Brozek, the estimated value of the premarital
assets was less than 10 percent of the net marital estate. Here,
the value of Brian’s premarital assets was nearly 87 percent of
what the court stated was the net marital estate.
Third, the parties in Brozek had been married nearly 20
years. Brian and Dori’s marriage, on the other hand, lasted
only 31 months, spanning only 2 full crop cycles. Through
the course of a long-term marriage, proceeds reinvested in
crops are subject to the vicissitudes of the market, equipment
purchased with such proceeds deteriorates and is replaced
with equipment purchased through solely marital funds, and
the equity of commingling funds becomes less severe. In light
of the short-term marriage here, it would be inequitable to
allow Dori to benefit from an increase to the marital estate
of over $1.2 million in assets because of Brian’s inability to
trace them.
Accordingly, based on the equities of the situation in this
case, the court’s failure to set off the value of Brian’s premari-
tal bank accounts and crops placed Brian at a vast disadvantage
in the division of marital property. Therefore, fairness and
reasonableness require a determination that the court abused
its discretion in not setting off $1,203,974.07 from the mari-
tal estate.
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Cite as 298 Neb. 3392. Valuation and Distribution
of M arital Assets
(a) Trial Court Abused Its Discretion
by Double Counting Assets
Brian argues that the court double counted assets by award-
ing him check No. 1718, for $78,500, and the 2011 John Deere
tractor model 9630T without deducting the downpayment on
the tractor as evidenced by check No. 1718.
In exhibit 20, Dori listed the checks and their values that
she argued were prepayments for farming expenses associ-
ated with the 2014 crop that Brian paid with marital funds
before the separation. She did not claim any interest in the
2014 crops but argued that the prepayments with marital assets
should be considered marital property. Included in the exhibit
20 list was check No. 1718 for $78,500, which was dated
February 3, 2014. At trial, however, both parties testified that
check No. 1718 was used as a downpayment for the 2011 John
Deere tractor.
In its decree, the court awarded Brian all of the prepaid farm
expenses listed in exhibit 20 as marital assets, including check
No. 1718 with the value of $78,500. The court also awarded
Brian the 2011 John Deere tractor model 9630T, at a value of
$140,000, which represented its fair market value of $205,000
minus the premarital value of a Cat Challenger tractor that was
sold for $65,000 and used toward its purchase.
The court’s failure to deduct the $78,500 prepayment on
the 2011 John Deere tractor model 9630T from the tractor’s
value resulted in an increase to Brian’s net marital estate of
$78,500. Accordingly, the court abused its discretion in sub-
stantially increasing the value of the marital estate it awarded
to Brian.
(b) Court Abused Its Discretion
by Valuing Crops in Storage
as of March 20, 2014
Brian contends that the court erred in accepting Dori’s value
of the stored crops that relied on his March 20, 2014, balance
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Cite as 298 Neb. 339sheet. He argues this valuation is inequitable, because it repre-
sents the quantity of stored crops and the price per bushel on
March 20, 2014, rather than the actual date of separation over 2
months later. Accordingly, he argues that the quantity and value
of crops in storage should be valued at $444,099.68, because
the evidence shows that he had only 95,300.36 bushels of corn
on May 31, 2014, and the price per bushel of corn on that day
was $4.66.
Dori contends that the quantity and valuation of the parties’
stored crops is a disputed factual matter and that we should
defer to the trial court’s decision, because it had the opportu-
nity to evaluate the credibility of the witnesses. She contends
that unlike Brian and his expert, Hershberger, she has consist­
ently maintained her opinion that the stored crop’s marital
value was $573,750, which the court accepted.
[11] As a general principle, the date upon which a mari-
tal estate is valued should be rationally related to the prop-
erty composing the marital estate. The date of valuation is
reviewed for an abuse of the trial court’s discretion.28
As discussed in the background section, the parties spent a
considerable period of time at trial contesting the quantity and
value of corn that the parties owned at the time of separation.
Hershberger testified that his determination in exhibit 37 of
the quantity of corn in storage was based on Brian’s or Brian’s
mother’s determination as to what year of crops were reflected
in the sales receipts in the fall of 2014. He also testified that
if the information he was provided was inaccurate, then so
was exhibit 37. Exhibit 37 is the final valuation that Brian
relied upon and what he argues we should find the value as
on appeal.
Exhibit 37 shows that the bushels of corn the parties owned
on March 20, 2014, was 142,040.44. Hershberger’s report
showed the bushels of corn the parties owned on May 31,
2014, was 95,300.36. The record also contains five sales
28
Stanosheck v. Jeanette, 294 Neb. 138, 881 N.W.2d 599 (2016).
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Cite as 298 Neb. 339receipts which show the quantity of stored crops decreased
between March 20 and May 31, 2014, by 46,740.08 bushels as
a result of Brian’s selling the grain. In addition, the record con-
tains deposit slips showing that the proceeds from each of the
five sales were deposited into Brian’s farm checking account
between April 8 and May 12, 2014. The value of Brian’s farm
checking account was determined as of May 31, 2014.
The court’s reliance on the corn values as of March 20,
2014, and its reliance on the bank account balance as of
May 31, 2014, creates a double counting of the corn’s value.
Accordingly, the court abused its discretion in disregarding this
evidence and relying on the March 20, 2014, balance sheet
alone, because it resulted in a valuation that was not rationally
related to the property composing the marital estate. Therefore,
the value of crops in storage on the date of separation awarded
to Brian is $444,099.68.
(c) Errors Argued But Not Assigned
Dori contends that on the date of separation, Brian had
45,024.032 bushels of corn stored at Husker Coop, with a
value of $209,811.93, which was not included in the court’s
award. Her argument is based on an August 23, 2013, settle-
ment sheet from Husker Coop, which shows that Brian had
70,024.02 bushels of corn stored there and that he sold 25,000
bushels of the stored corn. She argues that there is no record of
this remaining corn being sold and that it is not accounted for
on Brian’s March 20, 2014, balance sheet.
Brian argues that the court incorrectly added the value of
the bank accounts it awarded to Dori as marital property.
If Brian were correct, the court’s mistake would constitute
plain error.29 His argument, however, is more properly char-
acterized as asserting that the court incorrectly valued the
marital assets in Dori’s First National Bank savings account
29
See Clason v. Clason, No. A-15-626, 2016 WL 6210946 (Neb. App. Oct.
25, 2016) (selected for posting to court website).
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Cite as 298 Neb. 339No. xxx632 by relying on the value listed in the first joint
property statement, $500, rather than the second joint prop-
erty statement, $4,627.
[12] Absent plain error, errors argued but not assigned will
not be considered on appeal.30 The court’s findings and its
award concerning both the crops in storage on the date of sepa-
ration and account No. xxx632 were supported by evidence
presented to the court. Therefore, we do not consider either
parties’ argument.
3. Plain Error Committed by Court
[13,14] Plain error exists where there is an error, plainly
evident from the record but not complained of at trial, which
prejudicially affects a substantial right of a litigant and is of
such a nature that to leave it uncorrected would cause a mis-
carriage of justice or result in damage to the integrity, reputa-
tion, and fairness of the judicial process.31 Plain error may be
asserted for the first time on appeal or be noted by an appellate
court on its own motion.32
(a) Trial Court Erred in Valuing
Marital Debt on Roberts Farm
In its decree, the court explained that Brian had listed
secured debt on the real estate, including the Bosshart/
Gruenwald farm, the Dodendorf farm, and the Roberts farm,
in the amount of $1,063,797. As a result, the court calculated
the value of the secured marital debt on the Roberts farm by
deducting the value of Brian’s premarital debt on the Bosshart/
Gruenwald farm and the Dodendorf farm on the date of the
marriage from the total stated amount. After making the deduc-
tion, it determined that the marital debt secured by real estate
was $894,081.
30
Hike v. State, 297 Neb. 212, 899 N.W.2d 614 (2017).
31
State v. Robbins, 297 Neb. 503, 900 N.W.2d 745 (2017).
32
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Cite as 298 Neb. 339However, in the January 2016 joint property statement, both
parties listed the amount of the debt on the Roberts farm to be
$871,297, which is the amount stated in the March 20, 2014,
balance sheet. Accordingly, the court mistakenly valued the
Roberts farm debt to be $22,784 more than it actually was.
The court’s valuation of the Roberts farm was not based on
the evidence and resulted in Brian’s being awarded an addi-
tional $22,784 in marital debt. In doing so, the court committed
plain error in this valuation.
Since we give Brian credit for his premarital crop inventory,
his argument that he used $80,000 from the premarital crops
for a downpayment on the Roberts farm is without merit.
(b) Court Failed to Set Off Brian’s
Premarital Dodendorf Farm
Debt From Marital Estate
The court awarded Brian the debt owed on the Dodendorf
farm as a marital debt but did not assign a value. The par-
ties agreed in both joint property statements that the value of
this debt at the time of separation was $17,451. Under Dori’s
valuation of the debt, however, she stated on both joint prop-
erty statements that the debt was premarital, and Brian did
the same on the second joint property statement. This debt
is listed in Brian’s February 18, 2010, balance sheet, and the
court awarded the Dodendorf farm to Brian as a premari-
tal asset.
In awarding Brian the debt on the Dodendorf farm as a
marital debt, it committed plain error in failing to set off the
debt as premarital in the amount of $17,451.
(c) Trial Court Failed to Value and Award
Certain Marital Assets and Debts
As mentioned above, under § 42-365, a court has a duty to
value and divide all of the assets and debts constituting the
marital estate. In this case, the court’s failure to do so in the
following instances significantly affected the valuation and
equitable distribution of the marital estate.
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Cite as 298 Neb. 339As mentioned above, because appeals in domestic relations
matters are heard de novo on the record, an appellate court is
empowered to enter the order which should have been made
as reflected by the record.33 In each of the following instances,
the court’s findings and the record provide a sufficient basis to
value and award the assets and debts.
(i) Marital Property That Should Have
Been Awarded to Brian as Assets
Both joint property statements and both of the personal
property and equipment appraisals from Grubaugh Auction
Services contain the following items of property: “2012 Brandt
Grain Deck,” “2010 Polaris 550 ATV,” a one-third inter-
est in two pivots (Roberts farm), a one-third interest in the
Hondorfer farm well pump, a 48-foot grain bin, and a 24-foot
enclosed car trailer. Brian valued these items at a combined
total of $25,900, and Dori valued them at a combined total
of $78,010. At trial, Brian testified that his valuations were
based on the appraisals from Grubaugh Auction Services, and
Dori testified that her valuations were based on the deprecia-
tion schedules from Brian’s tax returns or the May 20, 2014,
balance sheet.
The court awarded Brian “[a]ny property not specifically
listed, but in [his] possession.” Further, the court relied on the
Grubaugh Auction Services appraisals over Brian’s deprecia-
tion schedule for valuing all of the items it valued. Dori did not
assign error to the court’s reliance on those appraisals, so we
will defer to the court’s judgment on that issue.
Accordingly, we award these remaining assets to Brian
and find their value as follows: “2012 Brandt Grain Deck,”
$10,500; “2010 Polaris 550 ATV,” $3,500; a one-third inter-
est in two pivots (Roberts farm), $2,000; a one-third interest
in the Hondorfer farm well pump, $4,000; a 48-foot grain bin,
$1,500; and a 24-foot enclosed car trailer, $4,400.
33
Schuman, supra note 17.
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Cite as 298 Neb. 339(ii) Value of Marital Debts
Awarded to Brian
When listing the unsecured marital debts that were awarded
to Brian, the court provided no corresponding values. It sum-
marized the total marital debts awarded to Brian as $1,145,294.
We can find no combination of debts in the record that total
this amount.
The value of the following debts awarded to Brian were
undisputed: Roberts Farm, $871,297; “Ag Direct” loan for
the Cat Challenger tractor, $30,548; “John Deere Financial,”
$183,000; and “Chase Auto Finance,” $30,785. As a result,
we determine the amount of debt awarded to Brian to be
$1,115,630.
However, other debts were inconsistently listed on the joint
property statements or the evidence varied as to the amounts
owed, including the Great Western Bank operating line of
credit, a Sears credit card debt, and a Cabela’s credit card debt.
At trial, the president of Great Western Bank and Brian’s
primary lender testified that the March 20, 2014, balance
sheet accurately stated that Brian owed $1,486 on the operat-
ing line of credit on that date but that it had no balance owed
on the date of separation. Dori did not challenge this wit-
ness’ credibility, and the court made no finding that he was
not credible.
In regard to the Sears and Cabela’s credit cards, Dori intro-
duced evidence to show that both debts were paid in full on
the date of separation.
Brian also claimed for the first time on the second joint
property statement that he had a marital debt from unpaid
property taxes. Under the title of the debt, Brian listed the four
properties, presumably, from which the taxes were owed. One
of these was the Roberts farm, but the others were premarital
properties. Real estate taxes on nonmarital property are non-
marital debts.34 Brian did not submit any supporting evidence
34
2 Brett R. Turner, Equitable Distribution of Property § 6:97 (3d ed. 2005
& Supp. 2016-17).
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Cite as 298 Neb. 339of this claim or of the value attributable to the Roberts farm.
The court did not award or value this debt.
Based on the record, we conclude that there was no debt
owed on the Sears and Cabela’s credit cards or the Great
Western Bank operating line of credit on the date of separa-
tion. We also conclude that Brian failed to submit sufficient
evidence to show how much, if any, unpaid taxes he owed on
the Roberts farm; accordingly, the court did not err in failing
to assign it.
(iii) Brian Should Have Been Awarded
Value of Reduction in His
Premarital Debts as Asset
[15] “[A] non-owning spouse is entitled to some ben-
efit when marital funds have been expended to improve or
reduce the debt on the other spouse’s nonmarital property.”35
As discussed above, Brian had $918,775.69 in premarital
debts between loans on his nonmarital property and expenses
incurred in the production of his 2011 crop. According to
Brian’s premarital debts listed on the March 20, 2014, bal-
ance sheet, only $209,951 of these debts existed on the date of
separation. As a result, Brian’s premarital debts were reduced,
during the marriage, by approximately $708,824.69. In light
of the fact that we set off the premarital value of Brian’s bank
accounts and stored and growing crop inventory, it would be
inequitable to not also include in the marital estate this benefit
conferred to Brian. Accordingly, we award Brian the value of
his premarital debts reduced with marital funds.
4. Division and Valuation of
M arital Property
Brian argues that the court committed mathematical errors
in totaling the parties’ assets and debts, which created errors
in the equalization payment it ordered. After reviewing the
35
Jones v. Jones, 2014 Ark. 96, at 5, 432 S.W.3d 36, 40 (Feb. 27, 2014).
Accord 24 Am. Jur. 2d Divorce and Separation § 486 (2008). See, also,
Gangwish v. Gangwish, 267 Neb. 901, 678 N.W.2d 503 (2004).
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Cite as 298 Neb. 339order, we agree that the court committed an abuse of discre-
tion by incorrectly totaling the values of its award and relying
on those values to calculate the marital estate and equaliza-
tion payment.
Having resolved Brian’s assignments of error and noticing
plain error on the division of the marital estate, we provide the
following division of debts and assets of the parties:
Item Brian Dori
Bank Accounts $  218,120.00 $ 5,272.00
Real Estate 981,333.00 0.00
Vehicles 59,500.00 17,500.00
Farm Equipment 280,701.00 0.00
Crop Inventory 444,099.68 0.00
Prepaid Farm Expenses 164,643.00 0.00
401K 0.00 1,739.00
Household Goods & Furnishings 5,200.00 0.00
Reduction in Premarital Debt 708,824.69 0.00
Debt (1,115,630.00) (3,216.00)
Premarital Crop Inventory (1,021,503.07) (0.00)
Premarital Bank Accounts (182,471.00) (0.00)
TOTAL $   542,817.30 $21,295.00
Based on the balance sheet above, the total value of the
marital estate is $564,112.30. The value of the marital estate
awarded to Brian is $542,817.30, and the value awarded to
Dori is $21,295. An equal distribution would require a payment
from Brian to Dori in the amount of $260,761.15.
5. Division of M arital Estate
Brian contends that the court’s equal distribution of the
marital estate is inequitable based on our principles for dis-
tributing the marital estate. Additionally, Brian argues that we
should award Dori less than the standard 33 to 50 percent of
the marital estate, under Davidson v. Davidson.36 He argues
this case is factually analogous to Davidson, except the wife
in Davidson abandoned a promising career for the marriage,
36
Davidson, supra note 27.
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Cite as 298 Neb. 339while Dori did not forgo any opportunities. Further, he asserts
that the division does not provide him a means to pay the
award, because it will likely put him out of business.
Dori contends that the court’s distribution was warranted
because both parties worked hard during the marriage and she
changed her field of study and college for her doctoral program
to benefit the marriage. She argues that the unique circum-
stances in Davidson are not applicable here, because Brian had
been farming only a short time before the marriage and held no
stock options or retention shares. Further, she asserts that there
is no evidence to support Brian’s claim that he cannot make
the equalization payment, because at the time of separation, he
had little short-term debt and significant liquid assets and had
prepaid many of his 2014 farm expenses.
[16-18] In dividing property and considering alimony upon
a dissolution of marriage, a court should consider four fac-
tors: (1) the circumstances of the parties, (2) the duration of
the marriage, (3) the history of contributions to the marriage,
and (4) the ability of the supported party to engage in gain-
ful employment.37 In addition to the specific criteria listed in
§ 42-365, in dividing property and considering alimony upon
a dissolution of marriage, a court should consider the income
and earning capacity of each party and the general equities of
the situation.38 As a general rule, a spouse should be awarded
one-third to one-half of the marital estate, the polestar being
fairness and reasonableness as determined by the facts of
each case.39
In Davidson, the marital estate was valued at $7,886,119, of
which the husband’s employee stock options and stock reten-
tion shares alone accounted for $5,655,974.40 At the time of the
37
Anderson v. Anderson, 290 Neb. 530, 861 N.W.2d 113 (2015).
38
Id.39
See Lorenzen v. Lorenzen, 294 Neb. 204, 883 N.W.2d 292 (2016), citing
Millatmal v. Millatmal, 272 Neb. 452, 723 N.W.2d 79 (2006).
40
Davidson, supra note 27.
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Cite as 298 Neb. 339marriage, the husband was Union Pacific Railroad’s president
and chairman. About 1 year into the marriage, he was named
president of the Union Pacific Corporation, and about 2 years
into the marriage, he was promoted to chief operating officer
of that same corporation. We acknowledged that the bulk of the
marital estate consisted of stock options and retention shares
that were earned as a result of those promotions.
In considering the equitable division of the estate, we noted
that the husband’s “33-year career in the railroad industry had
reached its zenith at the time the parties were married” and
that he had been receiving stock options and retention annu-
ally for the 10 years preceding the marriage.41 We also noted
that the wife provided social support, tutored the husband’s
college-age son, and interrupted a successful career for the
marriage. On the other hand, the husband’s nonmarital chil-
dren did not reside permanently with the parties and the wife
was able to finish her Ph.D. during the marriage. Further,
we reasoned:
Considering that no children were born to the parties,
that the parties separated after 2 years, that the marriage
lasted 38 months, that [the husband’s] career was well
established, and that [the wife] is highly educated and
capable of finding employment, we conclude that the trial
court’s adherence to the general guidelines was an abuse
of discretion.42
Accordingly, based on the circumstances of the case, which
we stated were “unique,” we reversed the court’s order grant-
ing the wife 33 percent of the marital estate and held that the
wife was entitled to only $950,000, or about 12 percent of the
marital estate.43
In the instant case, we reject Brian’s argument that the
circumstances warrant deviating from our general rule for
41
Id. at 670, 578 N.W.2d at 859.
42
Id. at 671, 578 N.W.2d at 859.
43
Id. at 672, 578 N.W.2d at 860.
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Cite as 298 Neb. 339dividing the marital estate. While some of the factors for
dividing the marital estate in this case are similar to those in
Davidson, the unique circumstances in Davidson that war-
ranted the deviation is not.
The facts in Davidson were unique because the husband’s
career reached its zenith at the same time that the parties mar-
ried. As a result of the husband’s career-long efforts, he was
twice promoted during the short-term marriage, which resulted
in his receiving employee stock options and stock retention
shares far in excess of his regular salary. While we accounted
for the portion of the option and shares that were nonmari-
tal, the remaining value had still resulted substantially from
his premarital efforts and the husband had no ability to pre-
vent these assets from becoming marital as they were income
from employment.
Because we decided that Brian was entitled to a setoff of
his premarital assets above, there is nothing in this case that
approaches the inequity we found in Davidson.
Admittedly, the following factors in this case are similar
to those in Davidson: the marriage was short term, no chil-
dren were born of the marriage, Brian contributed a dispro-
portionate amount of finances to the estate, Dori received a
professional doctoral degree during the marriage, and both
parties are well situated to engage in gainful employment.
Also, unlike in Davidson, Dori did not forgo any employment
opportunities, and, while she changed her educational plans,
Dori received a comparable education to what she would have
in South Dakota.
While these factors may support awarding Dori only 33 per-
cent of the marital estate, as the lower court in Davidson had,
the circumstances of the parties and their contributions to the
marriage support a more equal distribution.
In Davidson, the wife made little contribution to the mar-
riage, financially or through other efforts, which we described
as occasional tutoring of the husband’s son and volunteer work.
Here, Dori worked full time during her breaks from school
and after graduation, and she received financial support from
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OSANTOWSKI v. OSANTOWSKI
Cite as 298 Neb. 339her scholarship for living expenses. While she earned less than
Brian, she bore most of the costs of the apartment in Lincoln,
her living expenses in Lincoln, and her travel expenses. Brian,
on the other hand, lived in a house provided by his parents
and provided no evidence of expenses outside of his farming
operation. Brian provided little financial support to Dori dur-
ing the marriage, which prevented her from accruing savings
or other assets.
Further, while her education was comparable to what she
would have received, she changed her field of study to enable
her to contribute to the farming operation. While her contribu-
tions to the farming operation during the marriage were mini-
mal, what she did contribute was based primarily on knowl-
edge she obtained from her studies, which showed the utility of
the educational decisions she made.
Additionally, Dori bore the majority of the burden of travel
during the marriage to allow the parties to see each other.
During the portion of the marriage when Dori resided in
Lincoln, she still traveled to the Polk County residence 3 or
4 days a week. During the other portion of the marriage when
Dori resided in Polk County, she commuted to Lincoln for
school and her full-time summer employment. Brian traveled
to Lincoln frequently during the first winter of the marriage
but carried little of the burden thereafter. Further, Dori was
solely responsible for maintaining her Lincoln residence and
also put in considerable efforts at the Polk County residence.
Brian testified that she would provide extra assistance at the
Polk County residence during his busy season, which allowed
him to focus on his farming operation.
While reasonable minds could differ as to what the appropri-
ate distribution of the marital estate within the general range
should have been in this case, an abuse of discretion is a highly
deferential standard of review. Our opinion, based on an inde-
pendent review of the record, supplants the court’s decision
only in the instance where its decision was untenable. Brian
contributed more financially to the marital estate, but Dori also
earned income throughout the marriage and was responsible
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OSANTOWSKI v. OSANTOWSKI
Cite as 298 Neb. 339for much of the expenses. She also bore a disproportionate
amount of homemaking duties and the burden to ensure she
and Brian could spend time together regularly during the mar-
riage. Finally, as the trial court reasoned, Brian had the oppor-
tunity to keep his family gifts and nonmarital property con-
tributions, which contributed heavily to his earnings, separate
from the estate, but did not. Accordingly, we cannot say that
the decision by the district court was unreasonable or unfair.
Brian presented no evidence to support his claim that the
equalization payment would threaten the continuation of his
business. He was awarded substantial cash assets, prepaid
farming expenses for 2014, and the crops produced that year,
the expenses of which would likely have been paid in the prior
year when they were produced. Accordingly, we find no merit
to his claim that requiring him to make an equalization pay-
ment was unfair.
V. CONCLUSION
We affirm the court’s decision that stored and growing
crops should not be treated the same as cattle herds for trac-
ing purposes, but we hold that the court committed an abuse
of discretion and plain error in its distribution of nonmarital
and marital assets and debts. Notably, based on the circum-
stances of this case, we find that the court erred in not setting
off the value of Brian’s stored and growing crops on the date
of marriage and not assigning a credit to the marital estate for
the substantial amount of Brian’s premarital debts that were
reduced during the marriage.
Further, we hold that the court did not abuse its discretion
in awarding Dori one-half of the marital estate. In light of our
holdings above, we modify the court’s order consistent with
this opinion and order Brian to make an equalization payment
of $260,761.15.
A ffirmed as modified.
Wright, J., not participating in the decision.