Kauk v. Kauk ( 2021 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
12/03/2021 09:08 AM CST
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Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
KAUK v. KAUK
Cite as 310 Neb. 329Marcia A. Kauk, appellant, v.
Randall G. Kauk, appellee.
___ N.W.2d ___
Filed November 5, 2021. No. S-20-867.
1. Divorce: Child Custody: Child Support: Property Division: 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 determinations
based upon the record, and the court reaches its own independent con-
clusions with respect to the matters at issue.
3. ____: ____. When evidence is in conflict, the appellate court considers
and may give weight to the fact that the trial judge heard and observed
the witnesses and accepted one version of the facts rather than another.
4. 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.
5. Divorce: Property Division. In a dissolution action, the equitable divi-
sion of property is a three-step process. The first step is to classify the
parties’ property as either marital or nonmarital, setting aside the non-
marital property to the party who brought the property to the marriage.
The second step is to value the marital assets and marital liabilities of
the parties. And the third step is to calculate and divide the net marital
estate equitably between the parties.
6. ____: ____. 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.
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Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
KAUK v. KAUK
Cite as 310 Neb. 3297. Divorce: Property Division: Proof. The burden of proof rests with the
party claiming that property is nonmarital.
8. ____: ____: ____. The burden to show that a debt is nonmarital is on the
party making that assertion.
9. Divorce: Property Division. In a divorce action, the purpose of a
property division is to distribute the marital assets equitably between
the parties.
10. ____: ____. In a dissolution action, there is no mathematical formula
by which property awards can be precisely determined, but 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.
11. Equity: Parties: Contracts. All persons interested in the contract or
property involved in a suit, or whose interests therein may be affected
by the decree in equity, are necessary parties.
12. Contracts: Statute of Frauds: Proof. In order to establish that an oral
contract falls within the Neb. Rev. Stat. § 36-106 (Reissue 2016) excep-
tion to the statute of frauds found in Neb. Rev. Stat. § 36-103 (Reissue
2016), the proponent of the contract must establish by clear, satisfactory,
and unequivocal evidence the terms of the contract, that the acts done in
the performance thereof are referable solely to that contract, and that the
acts performed are of such a nature that nonperformance of the contract
by the other party would amount to a fraud upon the proponent.
13. Evidence. Admissions are words and conduct of a party opponent
offered as evidence against him or her.
14. Trial: Evidence. An extrajudicial admission is simply an item of evi-
dence in the mass of evidence adduced during a trial, admissible in
contradiction and impeachment of the present claim and other evidence
of the party making the admission.
15. Circumstantial Evidence: Proof. Circumstantial evidence is not inher-
ently less probative than direct evidence, and a fact proved by circum-
stantial evidence is nonetheless a proven fact.
16. Evidence: Proof. A finder of fact may draw reasonable inferences from
the facts and circumstances proved.
Appeal from the District Court for Howard County: Karin
L. Noakes, Judge. Affirmed.
Mark L. Eurek, of The Law Office of Eurek & Peterson,
L.L.C., for appellant.
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Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
KAUK v. KAUK
Cite as 310 Neb. 329John B. McDermott, of Wolf, McDermott, Depue, Sabott,
Butz & Porto, L.L.C., for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Cassel, J.
INTRODUCTION
Marcia A. Kauk appeals from a marital dissolution decree,
arguing the court erred in its marital classification determina-
tions and in awarding Randall G. Kauk the marital homestead
acreage. We find no abuse of discretion. Most of the issues
turn on credibility assessments where we give weight to the
district court’s findings. We cannot say that the court’s ulti-
mate division was unreasonable or unfair. Therefore, we affirm
the decree.
BACKGROUND
Marcia and Randall were married for 34 years. Marcia is
a retired kindergarten teacher, and Randall is a farmer. Prior
to separation, the parties lived on an acreage on the corner of
a quarter section of real estate that Randall farmed. In 2018,
Randall told Marcia that he was “done” and moved into a dif-
ferent house. Marcia then filed for dissolution of the marriage.
During the proceedings, the parties stipulated to the value
and division of most of the parties’ property and debts. The
district court conducted a trial regarding the remaining issues
relating to division of property and debts.
Following the trial, the court entered a decree. Pertinent
to this appeal, the court decided three issues: (1) whether a
marital asset resulted from payments made during the marriage
regarding a quarter section of real estate, (2) whether crop-
related expenses were marital expenses because they related to
crops grown in 2018 (2018 crops) or were nonmarital because
they stemmed from those grown in 2019, and (3) how the
marital homestead acreage should be allocated. Each will be
discussed in turn.
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Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
KAUK v. KAUK
Cite as 310 Neb. 329Real Estate of Kauk Family L.L.C.
The district court determined that Randall’s payments regard-
ing a quarter section of real estate were rental payments and
therefore were not marital assets. Before the divorce, Randall
farmed this land and made yearly payments to Kauk Family
L.L.C. (LLC), which owned the land. The LLC’s members
consisted of Randall and his siblings. They had inherited their
membership rights from their parents.
Marcia argued that Randall’s payments should be included
in the marital estate, because they were made pursuant to
a land installment contract. She did not seek the specific
perform­ance of the contract. Instead, Marcia sought the pay-
ments to be included in the marital estate for purposes of equi-
table division.
Marcia presented two unsigned contracts that she asserted
were drafted and agreed to by the LLC and Randall—a deed of
trust agreement from 2013 and a land installment contract from
2015. The drafting attorney’s correspondence in 2015 noted
that the parties preferred to structure the transaction as a land
installment contract. The terms of the land installment contract
stated that Randall agreed to purchase the property from the
LLC for $612,000. It mandated that Randall pay $100,000
as a downpayment and make yearly payments thereafter of
$40,577.17. The contract noted that Randall had already paid
$202,000 to the LLC (the downpayment and subsequent yearly
payments). The contract also required Randall to pay real estate
taxes for 2015 and subsequent years and to repay the LLC
$16,755.32 for the 2012, 2013, and 2014 property taxes.
At trial, both Randall and his sister (a member of the LLC)
authenticated the documents and admitted that the parties
originally contemplated for the LLC to sell the real estate to
Randall. Randall testified that he paid the $100,000 down-
payment and made three yearly payments of $40,577.17, but
he denied making an additional $102,000 payment that was
reflected in the land installment contract. Randall also testified
that he never paid the property taxes for the real estate.
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Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
KAUK v. KAUK
Cite as 310 Neb. 329However, Randall and his sister refuted the enforceability
of the contracts, because neither they nor their siblings ever
signed either contract. Further, Randall’s sister explained that
they abandoned the plan for Randall to purchase the property
after he failed to make payments and pay the property taxes,
which forced the LLC to pay them. At that point, Randall and
the LLC agreed to a rental agreement, applying all of Randall’s
payments as “rent.” Randall testified that he has paid the LLC
$35,000 in yearly rent since 2018.
The court found that the contracts were not enforceable
because they were barred by the statute of frauds, explain-
ing that neither contract was signed nor was there sufficient
evidence that the parties partly performed either contract. The
court emphasized that Marcia failed to prove the existence
of an oral contract whose terms were clear, satisfactory, and
unequivocal. Further, the court found that the parties had
abandoned any plans for a potential oral purchase agreement,
and instead, they had allowed Randall to rent the real estate.
Therefore, the court concluded that the payments made toward
the real estate were not considered a marital asset.
Crop Expenses and Jorgensen Payment
The parties disputed the valuation of the 2018 crops. Marcia
presented testimony from an accountant who reviewed the
farm’s bank statements to calculate the total revenue generated
from the 2018 crops. The court agreed with Marcia’s valuation
of the crops, but deducted $46,158.44 from the valuation. The
court’s deduction was for four payments that Randall made
in the spring of 2019—two payments for seed ($3,477.23
and $26,061.10), one for fuel ($3,736.88), and one for land
($12,883.23) the parties referred to as the “Jorgensen farm.” 1
The court found that these payments resulted from growing the
2018 crops and characterized the Jorgensen payment as rent.
Marcia argued that it was more reasonably inferable that
the fuel and seed payments were for crops grown in 2019,
1
See brief for appellee at 10.
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Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
KAUK v. KAUK
Cite as 310 Neb. 329which were not marital assets. Further, Marcia claimed that
the Jorgensen payment was actually for real estate that she and
Randall were purchasing. She points to three items of real estate
and a corresponding marital debt shown on the joint property
statement, which were allocated by the court to Randall.
Marital Acreage
Finally, the court awarded Randall the marital acreage. The
marital acreage is a 7-acre tract of land that Marcia and Randall
owned, which features the marital home. While Randall pre-
sented no testimony regarding the acreage, Marcia’s counsel
stated at the beginning of the trial that both parties sought the
marital acreage.
The court stated that it “underst[ood Marcia’s] attachment to
the home she has made over the last 30 years.” It summarized
Marcia’s testimony regarding her use of the home and her
plans for the future. Although the court noted Randall’s argu-
ment that his workshop and machinery were located nearby, the
parties essentially conceded at oral argument that the record
contains no direct evidence regarding the location of Randall’s
workshop and machinery.
The court explained that it was “mindful” of an unpublished
decision of the Nebraska Court of Appeals. 2 In the case cited
by the court, the appellate court modified a decree which had
awarded a tract of land, including the marital house, to the
nonfarming spouse. 3 The district court’s decree here character-
ized that appellate decision as having determined that awarding
the home property to the nonfarming spouse would needlessly
interfere with the farming spouse’s operation, based upon the
home property’s location near tracts of real estate used to feed
and pasture cattle and which included a barn, outbuildings, and
equipment used in the farming operation.
2
See Tierney v. Tierney, No. A-18-338, 2019 WL 2509047 (Neb. App. June
18, 2019) (selected for posting to court website).
3
See id.- 335 -
Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
KAUK v. KAUK
Cite as 310 Neb. 329Thus, “[i]n light of the [Court of Appeals’] decision, and
after considering the evidence presented,” the court here
awarded “the marital home and acreage” to Randall. We note
that no precise legal description of the disputed tract appears
in the record.
Marcia filed a timely appeal, which we moved to our docket. 4
ASSIGNMENTS OF ERROR
Marcia assigns, restated and reordered, that the district court
abused its discretion by (1) “failing to include in the mari-
tal estate any amount for the contract or payments made by
[Randall] with marital assets toward purchase of real estate”;
(2) classifying four payments as payments of marital debts in
valuing marital assets; and (3) awarding the marital acreage,
including the home, to Randall.
STANDARD OF REVIEW
[1,2] 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. 5 This
standard of review applies to the trial court’s determinations
regarding custody, child support, division of property, ali-
mony, and attorney fees. 6 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. 7
[3] When evidence is in conflict, the appellate court consid-
ers and may give weight to the fact that the trial judge heard
and observed the witnesses and accepted one version of the
facts rather than another. 8
4
See Neb. Rev. Stat. § 24-1106(3) (Cum. Supp. 2020).
5
Tierney v. Tierney, 309 Neb. 310, 959 N.W.2d 556 (2021).
6
Id.
7Id.
8
Onstot v. Onstot, 298 Neb. 897, 906 N.W.2d 300 (2018).
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Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
KAUK v. KAUK
Cite as 310 Neb. 329[4] A judicial abuse of discretion exists if the reasons or rul-
ings of a trial judge are clearly untenable, unfairly depriving a
litigant of a substantial right and denying just results in matters
submitted for disposition. 9
ANALYSIS
[5] In a dissolution action, the equitable division of property
is a three-step process. 10 The first step is to classify the parties’
property as either marital or nonmarital, setting aside the non-
marital property to the party who brought the property to the
marriage. 11 The second step is to value the marital assets and
marital liabilities of the parties. 12 And the third step is to cal-
culate and divide the net marital estate equitably between the
parties. 13 Here, the parties address three discrete issues within
the three-step process.
[6-8] The first two issues contest the district court’s deter-
minations regarding the extent to which assets and debts were
marital or nonmarital. Any given property can constitute a mix-
ture of marital and nonmarital interests; a portion of an asset
can be marital property while another portion can be separate
property. 14 The burden of proof rests with the party claiming
that property is nonmarital. 15 Likewise, the burden to show that
a debt is nonmarital is on the party making that assertion. 16
[9,10] The last issue addresses the division of specific
assets. In a divorce action, the purpose of a property division is
to distribute the marital assets equitably between the parties. 17
9
Tierney v. Tierney, supra note 5.
10
Vanderveer v. Vanderveer, ante p. 196, 964 N.W.2d 694 (2021).
11
Id.
12Id.
13Id.
14Higgins v. Currier, 307 Neb. 748, 950 N.W.2d 631 (2020).
15
Doerr v. Doerr, 306 Neb. 350, 945 N.W.2d 137 (2020).
16
Vanderveer v. Vanderveer, supra note 10.
17
Doerr v. Doerr, supra note 15.
- 337 -
Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
KAUK v. KAUK
Cite as 310 Neb. 329There is no mathematical formula by which property awards
can be precisely determined, but 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. 18
Real Estate of LLC
Marcia first assigns that the court abused its discretion in
finding that because the contracts were unenforceable, Randall’s
payments regarding a quarter section of real estate were rental
payments. Marcia argues that parties partly performed the land
installment contract, making it enforceable under the statute
of frauds.
[11] This argument addresses part of the first of the three
steps in the property division process. Marcia was not seeking
a decree to enforce a purported contract between Randall and
the LLC. The court here would not have had jurisdiction to do
so. All persons interested in the contract or property involved
in a suit, or whose interests therein may be affected by the
decree in equity, are necessary parties. 19 The LLC was not a
party to the dissolution action. Thus, the court could not have
enforced the purported contract. Rather, we understand Marcia
to be attacking the district court’s determination that payments
made during the marriage were not part of the marital estate
because they were properly viewed as rental payments rather
than purchase payments. Because the district court’s reasoning
rested on the requirements of the statute of frauds, we sum-
marize that law.
[12] Neb. Rev. Stat. §§ 36-103 and 36-105 (Reissue 2016)
require that contracts for the sale of real estate must be in
writing to be enforceable. However, pursuant to Neb. Rev.
Stat. § 36-106 (Reissue 2016), an oral real estate purchase
agreement is within the statute of frauds if the parties partly
18
Vanderveer v. Vanderveer, supra note 10.
19
Reed v. Reed, 277 Neb. 391, 763 N.W.2d 686 (2009).
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KAUK v. KAUK
Cite as 310 Neb. 329perform the contract. 20 In order to establish that an oral con-
tract falls within the § 36-106 exception to the statute of frauds
found in § 36-103, the proponent of the contract must establish
by clear, satisfactory, and unequivocal evidence the terms of
the contract, that the acts done in the performance thereof are
referable solely to that contract, and that the acts performed
are of such a nature that nonperformance of the contract by
the other party would amount to a fraud upon the proponent. 21
Here, in effect, Marcia is the proponent of the contract.
Marcia analogizes her claim to Herbstreith v. Walls. 22 There,
this court affirmed a district court’s decree granting specific
performance, where the parties had an unsigned written con-
tract and the buyer made payments on the contract and took
possession of the property. 23 Marcia asserts that the unsigned
land installment contract, Randall’s payment history, and his
possession of the property provided sufficient evidence that the
parties partly performed the contract.
But there is a fundamental difference between our decision
in Herbstreith v. Walls and the situation here. There, the district
court determined that the proponent satisfied his burden of
proof. Here, the district court concluded the opposite.
In the dissolution decree, the district court made exten-
sive findings of fact regarding witness testimony. The court
explained that Marcia did not satisfy her burden to prove
that the terms of the oral contract were clear, satisfactory,
and unequivocal. The court credited Randall’s and his sister’s
testimony that he and the LLC never came to complete and
final terms on an agreement to purchase the property. Further,
the court accepted the testimony that the LLC abandoned its
plans for Randall to purchase the real estate after Randall
missed payments.
20
See Halsted v. Halsted, 169 Neb. 325, 99 N.W.2d 384 (1959).
21
Johnson v. NM Farms Bartlett, 226 Neb. 680, 414 N.W.2d 256 (1987).
22
Herbstreith v. Walls, 147 Neb. 805, 25 N.W.2d 409 (1946).
23
See id.- 339 -
Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
KAUK v. KAUK
Cite as 310 Neb. 329We give weight to the fact that the trial judge heard and
observed the witnesses and accepted one version of the facts
rather than another. The district court did not abuse its discre-
tion in finding no marital value in the LLC’s real estate.
Crop Expenses and Jorgensen Payment
In another part of the first step of the property division
process, Marcia next contends that the district court abused
its discretion by crediting Randall for four payments he made
on marital debt. Marcia presents two arguments. Each will be
addressed in turn.
First, she argues that the court should not have credited seed
and fuel payments Randall made in 2019 as an adjustment to
the value of the 2018 crops. The parties agree that the 2018
crops were marital and that the 2019 crops were not. Thus,
if the seed and fuel payments were incurred in producing the
2018 crops, the adjustment was proper. If they were payments
toward expenses for crops grown in 2019, no adjustment
should have been allowed.
As we noted above, a party claiming that a debt is non-
marital bears the burden of proving so. Here, Marcia sought to
establish that the seed and fuel payments were made for crops
grown in 2019—that is, that the debts paid were nonmarital.
Thus, she had the burden of proving so.
Marcia relied solely upon her accountant’s opinion to
argue that those payments were not related to the 2018 crops.
However, the accountant admitted on cross-examination that
she did not conduct any research to determine whether the pay-
ments were made for debts resulting from the 2018 crops or
crops grown in 2019. Instead, the accountant based her opinion
solely on the payments’ timing and “figured” Randall was pay-
ing for expenses related to the crops grown in 2019 rather than
paying past due bills.
The district court did not find the accountant’s assumptions
credible. The court concluded that Marcia failed to prove the
fuel and seed payments were nonmarital. We give weight to
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Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
KAUK v. KAUK
Cite as 310 Neb. 329the court’s credibility assessments. We cannot find that the
court abused its discretion in making this finding.
Next, Marcia asserts that Randall should not receive a credit
for the Jorgensen payment, because the payment was to pur-
chase a marital asset. Marcia claims that she and Randall were
purchasing the Jorgensen farm and that it was included in the
parties’ stipulated property statement as real estate that Randall
was receiving. Marcia argues crediting Randall for the payment
was improper as “[Randall] would receive double the benefit
because th[e] debt has already been used to reduce the value of
the real estate he is receiving.” 24
The joint property statement does not describe any of the
real estate using the word “Jorgensen.” Nor do any of the other
exhibits set forth legal descriptions (even cryptic ones) that
would enable us to identify particular items in the joint prop-
erty statement as “Jorgensen” land.
Whether the payment was for the purchase or rental of the
Jorgensen farm was disputed. Marcia primarily relies upon a
colloquy between the court and the respective attorneys, during
Randall’s testimony, which alternatively characterized the pay-
ment as a “land payment” and a “[r]ental payment.” During the
course of the colloquy, Marcia, who was not then testifying,
interjected, “That’s the land we own.” But when she actually
testified, both in her case in chief and again in rebuttal, no tes-
timony was elicited regarding the Jorgensen payment.
Marcia also relies on a document that Randall provided
to his bank, where Randall listed “Jorgensen Ground” under
“Other Real Estate.” But in another document provided to the
same bank, Randall’s projected income and expense schedules
listed the Jorgensen payment under the “Rent - Land / Animals”
category, along with his $35,000 rent payment on the real estate
owned by the LLC.
[13,14] While both documents were included in the evi-
dence, neither was conclusive. Admissions are words and
24
Brief for appellant at 13.
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Nebraska Supreme Court Advance Sheets
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KAUK v. KAUK
Cite as 310 Neb. 329conduct of a party opponent offered as evidence against him
or her. 25 But unlike judicial admissions, extrajudicial admis-
sions are not conclusive. An extrajudicial admission is simply
an item of evidence in the mass of evidence adduced during a
trial, admissible in contradiction and impeachment of the pres-
ent claim and other evidence of the party making the admis-
sion. 26 The statements given to the bank were simply items of
evidence in the trial of this matter. They were not binding on
the trial court.
Once again, our standard of review permits us to give
weight to the district court’s resolution of disputed evidence. 27
Doing so, we find the court did not abuse its discretion finding
that the Jorgensen payment was a rental payment.
Marital Acreage
Marcia finally assigns that the court abused its discretion by
awarding Randall the marital acreage. Marcia argues that the
court incorrectly inferred that an unpublished Court of Appeals
decision 28 precluded it from awarding a marital acreage to
a nonfarming spouse where the farming spouse maintains a
nearby farming operation. Marcia also argues that there was
no evidence on the record to support the court’s reasoning
that Randall should receive the marital acreage because of the
home’s close proximity to Randall’s farming operation.
Without commenting upon the merits of the Court of
Appeals’ unpublished decision, we believe that Marcia reads
both too much and too little into the district court’s statements
regarding the allocation of the marital acreage to Randall.
The district court did not state that it was bound by the
Court of Appeals’ unpublished decision. A statute authorizes
25
Anson v. Fletcher, 192 Neb. 317, 220 N.W.2d 371 (1974).
26
Federal Nat. Mortgage Assn. v. Marcuzzo, 289 Neb. 301, 854 N.W.2d 774(2014).
27
See Onstot v. Onstot, supra note 8.
28
See Tierney v. Tierney, supra note 2.
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KAUK v. KAUK
Cite as 310 Neb. 329the Court of Appeals to designate a particular opinion for pub-
lication. 29 And the rules of the Nebraska Supreme Court dictate
that opinions of the Court of Appeals “which the deciding
panel has designated as ‘For Permanent Publication’ shall be
followed as precedent by the courts and tribunals inferior to the
Court of Appeals until such opinion is modified or overruled
by the Nebraska Supreme Court.” 30 But the decision cited by
the court here was not designated for permanent publication
and was not related to these parties. Consequently, the district
court was not obligated to follow the unpublished opinion,
and we do not read its decree as doing so. Marcia argues
that the district court “ruled that [the unpublished decision]
required that the [c]ourt award the marital home and acreage
to [Marcia].” 31 In this respect, Marcia reads too much into the
district court’s decree.
Marcia also reads too much into the part of the explanation
summarizing Randall’s closing arguments, which are not in
our record. “[Randall] argue[d],” the district court stated, that
“his workshop and machinery are located on the home site, the
home site borders farm ground that he rents from the . . . LLC,
and the home site is in close proximity to the other ground he
farms.” The court also noted his argument that “it would be
easier for [Marcia] to relocate than for him to find or build a
new work site for his farming operation.” However, the court
did not characterize these arguments as evidence.
[15,16] Marcia also reads too little into the district court’s
explanation. While Marcia is correct that the record does not
show the location of Randall’s workshop and machinery, it does
include circumstantial evidence of the relationship between
the acreage and Randall’s farming operation. Circumstantial
evidence is not inherently less probative than direct evidence,
and a fact proved by circumstantial evidence is nonetheless a
29
See Neb. Rev. Stat. § 24-1104 (Reissue 2016).
30
Neb. Ct. R. App. P. § 2-102(E)(5) (rev. 2021).
31
Brief for appellant at 17.
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KAUK v. KAUK
Cite as 310 Neb. 329proven fact. 32 A finder of fact may draw reasonable inferences
from the facts and circumstances proved. 33 The parties’ stipu-
lated property statement identified the location of the marital
acreage by an imprecise legal description. The statement also
set forth cryptic legal descriptions of real estate that Randall
farms. The statement described the former as 7 acres in the
“SW1/4SW1/4 of 31-15-11” and two of the latter as “SW 1/4
31-15-11” and “NW 1/4 32-15-11.” These are obvious refer-
ences to section, township, and range. From these descriptions,
the court could draw inferences of the proximity of the acreage
to the farmed tracts and thus to their relationship to Randall’s
farming operation. Marcia’s testimony at trial did not include
any suggestion that there was no relationship between the acre-
age and the farming operation. The district court, in reaching
its conclusion, stated that it did so “[i]n light of the [unpub-
lished] decision, and after considering the evidence presented
. . . .” Marcia’s argument reads too much into the first part of
the court’s statement and too little into the latter part.
Ultimately, this court reviews the division of property,
including the allocation of specific assets, de novo on the
record for an abuse of discretion. Marcia does not argue that
the overall division of property falls outside of the one-third to
one-half range. While we do not minimize Marcia’s attachment
to or personal feeling about the marital acreage, we cannot
say that the district court abused its discretion in awarding the
marital acreage, including the house, to Randall.
In passing, we observe that the court’s decree included a
provision under Neb. Rev. Stat. § 25-1304 (Reissue 2016)
giving the decree the effect of a conveyance of real estate. In
addition, Neb. Rev. Stat. § 42-372.02 (Cum. Supp. 2020) pro-
vides a method for recording of a “Certificate of Dissolution
of Marriage” with the register of deeds in the appropriate
32
Jacobs Engr. Group v. ConAgra Foods, 301 Neb. 38, 917 N.W.2d 435(2018).
33
Id.- 344 -
Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
KAUK v. KAUK
Cite as 310 Neb. 329county or counties. The provisions of both statutes may be
frustrated by the failure to include a complete and proper legal
description in the evidence and ultimately in the decree.
CONCLUSION
The district court did not abuse its discretion in its marital
asset determinations and in awarding Randall the marital acre-
age. We affirm the court’s divorce decree.
Affirmed.