Chmelka v. Chmelka ( 2020 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
12/15/2020 12:08 AM CST
- 265 -
Nebraska Court of Appeals Advance Sheets
29 Nebraska Appellate Reports
CHMELKA v. CHMELKA
Cite as 29 Neb. Ct. App. 265
Michelle M. Chmelka, appellant,
v. Kyle L. Chmelka, appellee.
___ N.W.2d ___
Filed December 8, 2020. No. A-20-043.
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 determinations
based upon the record, and the court reaches its own independent con-
clusions with respect to the matters at issue. However, when the evi-
dence 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. Appeal and Error. To be considered by an appellate court, an alleged
error must be both specifically assigned and specifically argued in the
brief of the party asserting the error.
5. Trial: Evidence. Evidence not directly contradicted is not necessarily
binding on the triers of fact, and may be given no weight where it is
inherently improbable, unreasonable, self-contradictory, or inconsistent
with facts or circumstances in evidence.
6. Child Custody. Joint physical custody is neither favored nor disfavored
under Nebraska law, and, in fact, no custody or parenting time arrange-
ment is either favored or disfavored as a matter of law.
- 266 -
Nebraska Court of Appeals Advance Sheets
29 Nebraska Appellate Reports
CHMELKA v. CHMELKA
Cite as 29 Neb. Ct. App. 265
7. ____. In addition to the “best interests” factors listed in Neb. Rev.
Stat. § 43-2923 (Reissue 2016), a court making a child custody deter-
mination may consider matters such as the moral fitness of the child’s
parents, including the parents’ sexual conduct; respective environments
offered by each parent; the emotional relationship between child and
parents; the age, sex, and health of the child and parents; the effect on
the child as the result of continuing or disrupting an existing relation-
ship; the attitude and stability of each parent’s character; and the paren-
tal capacity to provide physical care and satisfy the educational needs
of the child.
8. Divorce: Property Division. In a divorce action, the purpose of a
property division is to distribute the marital assets equitably between
the parties.
9. Property Division. The first step in property division is to classify the
parties’ property as marital or nonmarital.
10. Divorce: Property Division. The marital estate does not include prop-
erty that a spouse acquired before the marriage, or by gift or inheritance.
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. If the separate property remains segregated
or is traceable into its product, commingling does not occur.
12. Divorce: Property Division: Proof. The burden of proof rests with the
party claiming that property is nonmarital.
Appeal from the District Court for Saunders County:
Christina M. Marroquin, Judge. Affirmed.
John H. Sohl for appellant.
Amie C. Martinez and Megan M. Zobel, of Anderson,
Creager & Wittstruck, P.C., L.L.O., for appellee.
Pirtle, Chief Judge, and Bishop and Arterburn, Judges.
Pirtle, Chief Judge.
I. INTRODUCTION
Michelle M. Chmelka appeals from the decree entered by
the Saunders County District Court dissolving her marriage
to Kyle L. Chmelka. Michelle claims the district court abused
its discretion in awarding joint legal and physical custody as
well as equal parenting time. She also disputes the district
- 267 -
Nebraska Court of Appeals Advance Sheets
29 Nebraska Appellate Reports
CHMELKA v. CHMELKA
Cite as 29 Neb. Ct. App. 265
court’s finding that $312,725 of stored grain, seed, fertilizer,
and chemicals were Kyle’s premarital property. For the reasons
that follow, we affirm.
II. BACKGROUND
Michelle and Kyle married in December 2014. They have
two minor children: a son born in 2015 and a daughter born
in 2017. Neither child was of school age at the time of trial.
Michelle graduated from high school in 2009 and later received
an associate’s degree in business in 2011. During the marriage,
Michelle worked first at a clinic, then at her mother’s gas sta-
tion in David City, Nebraska. She also acted as the children’s
primary caretaker throughout the marriage. Kyle graduated
from high school in 2005 and later received a degree in heating
and air conditioning. During the marriage, Kyle was a self-
employed farmer. At all times during the marriage, the parties
lived rent free in a home owned by Kyle’s parents.
Michelle and the children moved out of the marital home
on May 28, 2018. She filed a complaint for dissolution of
marriage on July 23. Kyle did not file an answer. After a
contested hearing, the district court entered an order for tem-
porary custody, ordering Michelle and Kyle to share legal and
physical custody, each having 1 week of alternating parenting
time. Michelle was granted primacy in choices regarding the
children’s medical and religious upbringing; Kyle was given
primacy regarding education and activities. Testimony showed
that the parties were able to amicably abide by this parenting
arrangement for over a year prior to trial.
At trial, Michelle testified that since the separation, she was
again working at the clinic for 38 hours a week at $17.75 per
hour. She testified that she had weekends off and had flexibil-
ity to care for the children if they were ill or injured. Michelle
lived within 2 miles of her parents, who were also available to
care for the children.
Regarding custody, Michelle testified that she was seek-
ing sole legal and physical custody of the children subject
to a parenting plan where she and Kyle would alternate time
- 268 -
Nebraska Court of Appeals Advance Sheets
29 Nebraska Appellate Reports
CHMELKA v. CHMELKA
Cite as 29 Neb. Ct. App. 265
between her 9 days and Kyle’s 5 days. She testified she was
qualified to be sole legal and physical custodian, because she
put the children’s best interests first, had a flexible job, and
had been the primary caretaker of the children throughout
the marriage. Michelle testified that during the marriage, she
would get the children ready in the morning, transport them to
and from daycare, bathe them, cook meals, and arrange medi-
cal appointments and social activities.
Michelle testified that there had been situations when “the
kids [were] in Kyle’s care that [she had] questioned their
safety” and where he had not placed the best interests of the
children at the forefront. She testified that Kyle abused alcohol
more than once in her presence during the marriage and regu-
larly “peed the bed” while intoxicated. However, she stated
that as long as Kyle remained sober, she was not concerned
for the children’s safety. She testified that since the separation,
Kyle called her a liar on the phone and in person, sometimes in
the presence of their children. She also recounted an occasion
in September 2019 when Kyle called her a “whore” in the pres-
ence of their daughter. However, she testified that all deroga-
tory text messages and threats had since stopped.
Michelle testified that during the separation, there was a
time when their son was sick during Kyle’s parenting time. She
testified that when she called to check on their son, Kyle told
her that “he gave [their son] a whole bottle of Tylenol, that he
was drugged up, that he would be just fine.” When Michelle
expressed concerns, Kyle claimed he had been joking. After
she got off the phone, Michelle called the sheriff’s department
to conduct a welfare check. However, the sheriff was unable
to make contact with Kyle either in person or via phone. On
cross-examination, she admitted that she had no other evidence
that Kyle had failed to give either of their children appropriate
medical attention.
Michelle also testified that Kyle had been physically abu-
sive to her on more than one occasion. She testified that in the
spring of 2016, she was sleeping in their bedroom with their
son when Kyle came home intoxicated. Michelle attempted
- 269 -
Nebraska Court of Appeals Advance Sheets
29 Nebraska Appellate Reports
CHMELKA v. CHMELKA
Cite as 29 Neb. Ct. App. 265
to stop Kyle from entering the room, and he “put [her] up
against the wall” by pressing his forearm into her throat.
Michelle then asked him to go downstairs, and Kyle went to
sleep on the couch.
Michelle testified about a second event that occurred a few
weeks before she moved out of the home. Around midnight,
while she was sleeping in the bedroom with the children, Kyle
came in the bedroom after climbing through an upstairs win-
dow. Michelle testified that she had blocked the stairs before
going to bed to keep Kyle off of the second floor. She testified
Kyle was lying down in their bed and was “being loud, so he
had woken up [their son],” who was on the bed beside her. She
testified Kyle “was trying to roll over towards [her], telling
[her] she was going to get screwed.” When Kyle would not
leave her and their son alone, Michelle took him to sleep in a
different room, but left their daughter sleeping in a crib next to
the bed. Kyle did not follow her out of the room.
Michelle began to testify about text messages she received
from Kyle acknowledging another incident of physical abuse.
However, the court sustained Kyle’s objection based on the
form of the question, noting that the question “wasn’t consist­
ent with the testimony only because she testified to two inci-
dents, and I don’t know what you’re referring to.” Michelle did
not testify about any other incidents of physical abuse.
Michelle testified that she was amenable to a provision that
prohibited both her and Kyle from consuming alcohol before or
during their parenting time. She testified that Kyle’s abstaining
from alcohol during his parenting time would allay concerns
she had regarding the safety of the children. She agreed that
she would be able to communicate with Kyle regarding their
children’s needs.
On cross-examination, Michelle admitted that during the
separation, she had sometimes denied Kyle parenting time
with the children. She admitted that in spite of the temporary
order granting Kyle final say in all educational matters, she
had taken their son to be evaluated for developmental issues
without consulting Kyle. Michelle agreed that she had become
- 270 -
Nebraska Court of Appeals Advance Sheets
29 Nebraska Appellate Reports
CHMELKA v. CHMELKA
Cite as 29 Neb. Ct. App. 265
intoxicated on more than one occasion during the marriage and
that she had driven with her children in the car after drinking.
She admitted that she had raised her voice when speaking to
Kyle while the children were present.
In regard to the marital estate, Michelle admitted that she
had been aware Kyle had premarital property, but did not know
the extent of it. She stated she “was not involved in the farming
portion” of the marriage. She admitted she had no evidence to
contradict Kyle’s assertions regarding farm supplies and equip-
ment he owned or had an interest in prior to the marriage.
Kyle testified that he began farming with his father in 2011.
He testified that although he and his father help out with each
other’s fields, all of the money earned from Kyle’s fields
belongs solely to him. Although it varies by season, Kyle’s
work schedule is flexible. During the marriage, he stated that
he was able to spend less time with the children than Michelle
because of his role as a self-employed farmer. However, he
testified that he was able to, and occasionally did, take the
children to daycare, bathe them, and feed them when his sched-
ule allowed. He has a large extended family that lives in the
area, and at the time of trial, he saw his parents and sister at
least weekly.
Kyle testified that he has a close relationship with his chil-
dren. During Kyle’s parenting time, he and the children play
outside, sled in the wintertime, read books, watch television,
and attend family gatherings. Kyle maintains a routine with
the children, bathes them, puts them to bed, feeds them, and
transports them to and from daycare.
Kyle testified regarding an incident when Michelle unilater-
ally removed the children from the daycare provider they had
been using since birth without telling Kyle. He requested that
the parties continue to share joint legal and physical custody
under the same conditions as the temporary custody order.
Regarding the marital estate, Kyle testified that he worked
solely as a farmer during the entire marriage. He testified
that prior to the marriage, he had stored certain amounts
of grain, seed, fertilizer, and other chemicals. He presented
- 271 -
Nebraska Court of Appeals Advance Sheets
29 Nebraska Appellate Reports
CHMELKA v. CHMELKA
Cite as 29 Neb. Ct. App. 265
documentation that showed the amounts and values of the
stored farming assets, which included checks he had written,
documents from his bank, and his tax returns. The evidence
showed that Kyle owned $242,362 of grain, $40,000 of seed,
$19,863 of fertilizer, and $10,500 of chemicals prior to the
marriage, for a total of $312,725.
On cross-examination, Kyle admitted that he had called him-
self a “piece of shit father” to Michelle at some point after the
separation in an attempt to win Michelle back. He also admit-
ted that he had confessed to Michelle that he had a drinking
problem. He admitted that he could not trace his premarital
assets to any property that existed at the time of trial.
Kyle called the children’s former daycare provider to testify.
She testified that prior to becoming a licensed in-home daycare
provider, she had been employed by Child Protective Services
for 10 years. She was familiar with child abuse, child neglect,
juvenile offenders, and behavioral difficulties in children. She
testified she had been acquainted with Michelle and Kyle
since their son started daycare at 6 weeks old. She testified
that Kyle’s parenting was always “[a]ppropriate” and that he
“was very open in conversations with [her] about what the kids
needed or how their day was.”
Kyle’s aunt, brother-in-law, and grandmother testified at
trial. They testified that Kyle was affectionate and caring with
the children and that they had never seen anything concerning
in his interactions with them. They also all testified generally
that Michelle frequently drank alcohol to the point of intoxica-
tion and that they had witnessed arguments between Michelle
and Kyle during the marriage.
The district court entered an order dissolving the marriage.
In its second amended decree of dissolution, the court found
that both Michelle and Kyle were fit and proper parents and
that awarding joint legal and physical custody was in the best
interests of the children. Specifically, the decree found that the
evidence failed to establish that the children were ever mis-
treated or neglected by Kyle during the course of the marriage
or subsequently. Parenting time was split into an alternating
- 272 -
Nebraska Court of Appeals Advance Sheets
29 Nebraska Appellate Reports
CHMELKA v. CHMELKA
Cite as 29 Neb. Ct. App. 265
week-on-week-off schedule. Michelle was granted primacy
in deciding matters related to religion and medical care; Kyle
was granted primacy in matters related to education and activi-
ties. Neither the second amended decree of dissolution nor the
court’s oral comments from the bench at trial referenced Neb.
Rev. Stat. § 43-2932 (Reissue 2016) or made findings related
to that section.
Regarding distribution of property, the district court found
that Kyle had met his burden of proof regarding the amount
and value of stored grain and farm inputs he had owned at the
time of the marriage, and it ordered an amount of $312,725 to
be set off to him. This appeal followed.
III. ASSIGNMENTS OF ERROR
Michelle asserts, restated, that the district court abused its
discretion in (1) failing to find this is a case involving domes-
tic abuse as defined in Nebraska’s Parenting Act, (2) awarding
joint legal and physical custody, (3) awarding equal parenting
time, and (4) finding Kyle should receive a $312,725 set off for
farming assets he held prior to the marriage.
IV. STANDARD OF REVIEW
[1-3] 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.
Dooling v. Dooling, 303 Neb. 494, 930 N.W.2d 481 (2019).
This standard of review applies to the trial court’s determina-
tions regarding custody, child support, division of property, ali-
mony, and attorney fees. Id. 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. Id. However, when the evidence is in conflict, the appel-
late 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. Id. A judicial abuse of
discretion exists if the reasons or rulings of a trial judge are
- 273 -
Nebraska Court of Appeals Advance Sheets
29 Nebraska Appellate Reports
CHMELKA v. CHMELKA
Cite as 29 Neb. Ct. App. 265
clearly untenable, unfairly depriving a litigant of a substantial
right and denying just results in matters submitted for disposi-
tion. Id.
V. ANALYSIS
1. Custody and Parenting Time
(a) Evidence of Domestic Abuse
Michelle first argues that the district court erred when it
found that she did not prove by a preponderance of the evidence
that Kyle had committed domestic abuse and therefore did not
make specific written findings as required by the Parenting
Act. She argues that the evidence at trial showed “a pattern of
abusive, violent behavior by Kyle toward Michelle after Kyle
becomes intoxicated.” Brief for appellant at 16.
Here, the district court did not impose any limitations on
Kyle’s custody of the parties’ children, let alone make spe-
cial written findings that such limitations would protect the
children or Michelle from harm. Neither did the district court
explicitly find that § 43-2932 did not apply in this case, either
in its decree or at trial. However, the Nebraska Supreme Court
has, in the past, presumed that where a district court does not
impose limitations or make special findings, it fails to do so
because it found that § 43-2932 did not apply. See Randy S. v.
Nicolette G., 302 Neb. 465, 924 N.W.2d 48 (2019) (presuming
in bench trial that judge was familiar with and applied proper
rules of law unless it clearly appears otherwise). We thus simi-
larly presume that the court found Michelle did not meet her
burden of proof under § 43-2932. And, for reasons explained
below, we find no basis upon which to reverse the district
court’s determination that neither limitations nor special find-
ings were required in this case.
Nebraska’s Parenting Act establishes certain requirements
which must be met where a parent is found by a preponder-
ance of the evidence to have committed child abuse or neglect,
child abandonment, or domestic intimate partner abuse,
or to have interfered with the other parent’s access to the
- 274 -
Nebraska Court of Appeals Advance Sheets
29 Nebraska Appellate Reports
CHMELKA v. CHMELKA
Cite as 29 Neb. Ct. App. 265
child. Section 43-2932(3) sets forth these additional require-
ments, stating:
If a parent is found to have engaged in any activity speci-
fied in subsection (1) of this section, the court shall not
order legal or physical custody to be given to that parent
without making special written findings that the child and
other parent can be adequately protected from harm by
such limits as it may impose under such subsection. The
parent found to have engaged in the behavior specified in
subsection (1) of this section has the burden of proving
that legal or physical custody, parenting time, visitation,
or other access to that parent will not endanger the child
or the other parent.
In this case, evidence that Kyle abused Michelle is limited
to two incidents. First, Michelle testified that in the spring
of 2016, Kyle pushed Michelle against the wall with his
forearm when she tried to physically block his entry to their
bedroom. Michelle then asked Kyle to sleep downstairs, and
he complied.
The second incident occurred in May 2018, shortly before
the parties separated. After Michelle blocked off the stairs to
keep Kyle off of the second floor, Kyle climbed through an
upstairs window and went to their bedroom. Kyle got into
the bed where Michelle and their son were sleeping and said
to Michelle that she was “going to get screwed.” Kyle then
attempted to roll over toward Michelle. Michelle left the bed-
room with their son, but left their daughter sleeping in her crib
in the same room as Kyle.
[4] Michelle argues, but does not specifically assign, that the
district court erred in sustaining Kyle’s objection to testimony
regarding a third incident of alleged abuse. To be considered
by an appellate court, an alleged error must be both specifically
assigned and specifically argued in the brief of the party assert-
ing the error. Diamond v. State, 302 Neb. 892, 926 N.W.2d 71
(2019). Therefore, we do not consider this argument.
[5] In considering the record, we do not find testimony that
there existed a pattern or history of similar abusive actions
- 275 -
Nebraska Court of Appeals Advance Sheets
29 Nebraska Appellate Reports
CHMELKA v. CHMELKA
Cite as 29 Neb. Ct. App. 265
by Kyle. Although Michelle references “years of misdeeds” by
Kyle, she did not present any evidence of such at trial. Brief
for appellant at 18. It is correct that Kyle did not refute
Michelle’s testimony, but Michelle incorrectly asserts that
merely presenting uncontroverted evidence of abuse automati-
cally meets her burden of proof. The rule is well established
in this jurisdiction that evidence not directly contradicted is
not necessarily binding on the triers of fact, and may be given
no weight where it is inherently improbable, unreasonable,
self-contradictory, or inconsistent with facts or circumstances
in evidence. Burgardt v. Burgardt, 304 Neb. 356, 934 N.W.2d
488 (2019).
An 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. Blank v.
Blank, 303 Neb. 602, 930 N.W.2d 523 (2019). Here, we give
weight to the fact that the district court heard and observed
both Michelle and Kyle while at trial and did not find sufficient
evidence of domestic abuse.
On this record, we cannot say that the district court erred
in not applying § 43-2932. As in Randy S. v. Nicolette G.,
supra, we believe that the district court’s decision not to apply
§ 43-2932 is most sensibly understood as reflecting that the
district court did not accept Michelle’s trial testimony to prove
by a preponderance of the evidence that Kyle engaged in a
pattern of domestic abuse against Michelle. Therefore, the
court was not required to make written findings as outlined in
§ 43-2932(3). This argument fails.
(b) Lack of Notice
Michelle next argues that the district court abused its discre-
tion in awarding joint legal and physical custody because Kyle
“never filed an Answer or otherwise pled placing custody at
issue.” Brief for appellant at 20. However, she does not argue
this claim beyond a single sentence.
We construe Michelle’s claim as an argument that she was
not afforded due process, because she lacked notice that the
- 276 -
Nebraska Court of Appeals Advance Sheets
29 Nebraska Appellate Reports
CHMELKA v. CHMELKA
Cite as 29 Neb. Ct. App. 265
court might award joint legal and physical custody. In Blank
v. Blank, supra, a wife argued that the trial court had erred in
awarding joint custody, because neither side requested joint
custody and the court did not provide notice of its consider-
ation. In Blank, the court found no error and determined that
both parties had received notice prior to trial that joint custody
was at issue through the wife’s initial pleadings, proposed par-
enting plans, and hearings for temporary custody.
Here, Michelle’s initial complaint clearly placed the chil-
dren’s custody at issue by requesting sole legal and physical
custody. Prior to trial, Kyle appeared at the hearing for tem-
porary custody and testified regarding his desire for custody
and parenting time. At trial, Kyle presented his own proposed
parenting plan requesting joint legal and physical custody and
equal parenting time. Considering these factors, it is clear that
Michelle received adequate notice that custody of the children
was at issue and that Kyle desired both joint legal and physical
custody and parenting time. This argument fails.
(c) Best Interests
Michelle further argues that even if the court did not abuse
its discretion in failing to find this case was one governed by
§ 43-2932(3), the court erred in finding joint legal and physical
custody was in the children’s best interests.
[6] Joint physical custody is neither favored nor disfavored
under Nebraska law, and, in fact, no custody or parenting time
arrangement is either favored or disfavored as a matter of law.
State on behalf of Kaaden S. v. Jeffery T., 303 Neb. 933, 932
N.W.2d 692 (2019). When determining the best interests of the
child in deciding custody, a court must consider, at a minimum,
(1) the relationship of the minor child to each parent prior to
the commencement of the action; (2) the desires and wishes of
a sufficiently mature child, if based on sound reasoning; (3) the
general health, welfare, and social behavior of the child; (4)
credible evidence of abuse inflicted on any family or household
member; and (5) credible evidence of child abuse or neglect or
domestic intimate partner abuse. § 43-2923(6).
- 277 -
Nebraska Court of Appeals Advance Sheets
29 Nebraska Appellate Reports
CHMELKA v. CHMELKA
Cite as 29 Neb. Ct. App. 265
[7] In addition to these statutory “best interests” factors, a
court making a child custody determination may consider mat-
ters such as the moral fitness of the child’s parents, including
the parents’ sexual conduct; respective environments offered
by each parent; the emotional relationship between child and
parents; the age, sex, and health of the child and parents; the
effect on the child as the result of continuing or disrupting an
existing relationship; the attitude and stability of each parent’s
character; and the parental capacity to provide physical care
and satisfy the educational needs of the child. Schrag v. Spear,
290 Neb. 98, 858 N.W.2d 865 (2015).
The Parenting Act also provides that the best interests of a
child require a parenting plan that provides for a child’s safety,
emotional growth, health, stability, physical care, and regular
school attendance and which promotes a child’s continued
contact with his or her families and parents who have shown
the ability to act in the child’s best interests. § 43-2923(1)
and (3).
In support of her position that joint legal and physical cus-
tody was not in the children’s best interests, Michelle points
to the fact that Kyle once described himself as a “piece of shit
father,” that he told the children Michelle was a liar, and that
Michelle was the primary caretaker throughout the marriage.
Brief for appellant at 20. She also references Kyle’s history
with alcohol and the incident when he told her on the phone
that he had given their son an entire bottle of Tylenol.
However, Michelle also testified that Kyle had stopped
making derogatory statements about her in the presence of
their children. She admitted that aside from the incident with
the Tylenol, she had no concerns about Kyle’s ability to care
for the children’s medical needs. There was no evidence pre-
sented that Kyle was ever violent or harmful to the children
or to Michelle when he was sober or that Kyle was ever
intoxicated during his parenting time. She described Kyle as
a good father. Furthermore, at the time of trial, the parties had
been successfully sharing joint legal and physical custody and
- 278 -
Nebraska Court of Appeals Advance Sheets
29 Nebraska Appellate Reports
CHMELKA v. CHMELKA
Cite as 29 Neb. Ct. App. 265
equal parenting time for over a year. Both Michelle and Kyle
testified that their children were doing well and were happy
under the current arrangement.
Upon our de novo review of the record, we cannot say that
the district court abused its discretion in awarding the parties
joint legal and physical custody of their children. This argu-
ment fails.
2. Division of Marital Estate
Michelle was awarded a property equalization judgment of
$59,704.34. However, she argues that the district court abused
its discretion in setting off $312,725 of stored grain and farm
inputs (seed, fertilizer, and chemicals) to Kyle. Specifically,
she alleges that Kyle did not meet his burden of proof in trac-
ing the premarital property to any property that existed at the
time of the divorce decree.
[8-12] In a divorce action, the purpose of a property division
is to distribute the marital assets equitably between the parties.
Doerr v. Doerr, 306 Neb. 350, 945 N.W.2d 137 (2020). The
first step is to classify the parties’ property as marital or non-
marital. Id. The marital estate does not include property that a
spouse acquired before the marriage, or by gift or inheritance.
Id. Setting aside nonmarital property is simple if the spouse
possesses the original asset, but can be problematic if the
original asset no longer exists. Id. Separate property becomes
marital property by commingling if it is inextricably mixed
with marital property or with the separate property of the other
spouse. Id. If the separate property remains segregated or is
traceable into its product, commingling does not occur. Id. The
burden of proof rests with the party claiming that property is
nonmarital. Id.
A nonmarital interest in property may be established by
credible testimony. Burgardt v. Burgardt, 304 Neb. 356, 934
N.W.2d 488 (2019). The Supreme Court has recognized that
a spouse’s own testimony can establish a “‘“tracing link,”’”
i.e., tracking an asset to a nonmarital source. Id. at 364, 934
- 279 -
Nebraska Court of Appeals Advance Sheets
29 Nebraska Appellate Reports
CHMELKA v. CHMELKA
Cite as 29 Neb. Ct. App. 265
N.W.2d at 495 (quoting Brozek v. Brozek, 292 Neb. 681, 874
N.W.2d 17 (2016)).
The Supreme Court has addressed the issue of tracing stored
crops and farm inputs multiple times. In Brozek v. Brozek,
supra, the Supreme Court determined the husband was not
entitled to a set off because he was unable to give more than
a rough estimate of the number of bushels of grain he had
harvested and stored at the time of marriage. Further, after 20
years of marriage, the husband could not “identify the differ-
ent permutations that his premarital property underwent during
the marriage.” Id. at 699, 874 N.W.2d at 31. Therefore, the
Supreme Court concluded the premarital crops were inextric­
ably mixed with the marital estate.
The Supreme Court refined its holding in Brozek in
Osantowski v. Osantowski, 298 Neb. 339, 904 N.W.2d 251
(2017). There, the husband had grain stored at the time of the
marriage, and at trial, he presented evidence establishing the
value of that grain. Applying the principles stated in Brozek,
the trial court determined he was not entitled to a set off of
the value of the premarital grain. However, the Supreme Court
disagreed, writing, “We recognize the law concerning tracing,
but we also recognize the overarching principle in the division
of marital property is equity, ultimately guided by fairness and
reasonableness.” Osantowski v. Osantowski, 298 Neb. at 357,
904 N.W.2d at 266.
The Supreme Court went on to distinguish Osantowski from
Brozek in three respects. First, in Brozek, the husband could not
definitively identify the value of his premarital assets, whereas
in Osantowski, the value was established and was uncontro-
verted. Second, in Brozek, the estimated value of the premarital
asset was less than 10 percent of the net marital estate, whereas
in Osantowski, it was nearly 87 percent. Finally, in Brozek, the
parties had been married for 20 years, whereas in Osantowski,
the marriage lasted only 21⁄2 years.
In applying the principles articulated in Brozek and
Osantowski, we determine that the district court did not
- 280 -
Nebraska Court of Appeals Advance Sheets
29 Nebraska Appellate Reports
CHMELKA v. CHMELKA
Cite as 29 Neb. Ct. App. 265
abuse its discretion in granting Kyle a setoff for his stored
grain and farm inputs. Kyle testified that at the time of the
marriage, he had invested in seed, fertilizer, and chemicals that
he intended to use the following year. He also had stored grain
from the previous year’s harvest. His testimony and supporting
documentation also demonstrated the exact quantity of grain
and supplies he owned, as well as the value of the assets at
the time of the marriage. While Kyle could not perfectly trace
the proceeds he derived from the stored grain, he established
the exact value of the grain that he did have in storage as of the
date of the marriage. At trial, Michelle offered no evidence to
contradict Kyle’s testimony or exhibits, although she admitted
he owned farming assets at the time they married.
Michelle argues in her brief that the fact that she and Kyle
have two minor children and that Michelle was regularly
employed during the marriage weigh against a similar finding
to that in Osantowski. She also points to medical expenses she
paid for the children which the court “refused to equitabl[y]
divide between the parties.” Brief for appellant at 23. However,
Michelle does not explain why those facts necessarily exclude
consideration of Kyle’s premarital investments as applied in
this case. Further, Michelle does not explain, nor is it clear
from the district court’s table of assets and liabilities, just
how the attribution of the premarital credit adversely affected
Michelle. While the district court discussed the premarital
credit, its calculations do not reflect that the credit was applied
to Kyle’s net marital estate; thus, Kyle was left owing Michelle
$59,704.34 to equalize the marital estate. We can only surmise
from the record that the district court determined it would be
inequitable to Michelle if the court credited Kyle with the
entire premarital investment, as this would have left Michelle
potentially owing an equalization judgment to Kyle. Instead, it
appears the court found it more equitable to simply exclude the
current value of stored grain in its calculation of Kyle’s assets,
which the record reflects was $46,480. We find no abuse of
discretion in the court’s doing so.
- 281 -
Nebraska Court of Appeals Advance Sheets
29 Nebraska Appellate Reports
CHMELKA v. CHMELKA
Cite as 29 Neb. Ct. App. 265
VI. CONCLUSION
Upon our de novo review, we conclude that the district court
did not abuse its discretion in determining § 43-2932(3) did not
apply in this case and that the court did not abuse its discretion
in awarding joint legal and physical custody and equal parent-
ing time. We also conclude there was no abuse of discretion by
the district court in setting off to Kyle an amount representing
stored grain, seed, fertilizer, and chemicals he owned prior to
the marriage. The order of the district court is affirmed.
Affirmed.