Ramsey v. Ramsey ( 2021 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
04/06/2021 12:11 AM CDT
- 688 -
Nebraska Court of Appeals Advance Sheets
29 Nebraska Appellate Reports
RAMSEY v. RAMSEY
Cite as 29 Neb. App. 688Sarah Elizabeth Ramsey, appellee, v.
Kyle Patrick Ramsey, appellant.
___ N.W.2d ___
Filed March 30, 2021. No. A-20-035.
1. Divorce: 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.
2. Divorce: Property Division. Under Neb. Rev. Stat. § 42-365 (Reissue
2016), 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 accordance with the principles con-
tained in § 42-365.
3. ____: ____. The ultimate test in determining the appropriateness of the
division of property is fairness and reasonableness as determined by the
facts of each case.
4. ____: ____. 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.
5. Property Division. Any given property can constitute a mixture of mari-
tal and nonmarital interests; a portion of an asset can be marital property
while another portion can be separate property.
6. Property Division: Proof. Separate property becomes marital property
by commingling if it is inextricably mixed with marital property or with
the separate property of the other spouse. But if the separate property
remains segregated or is traceable into its product, commingling does
not occur. The burden of proof rests with the party claiming that prop-
erty is nonmarital.
- 689 -
Nebraska Court of Appeals Advance Sheets
29 Nebraska Appellate Reports
RAMSEY v. RAMSEY
Cite as 29 Neb. App. 6887. Divorce: Property Division: Proof: Testimony. A nonmarital interest
in property may be established by credible testimony.
8. Trial: Witnesses: Evidence. Triers of fact have the right to test the
credibility of witnesses by their self-interest and to weigh it against the
evidence, or the lack thereof.
9. Divorce: Property Division. Debts, like property, ought to also be con-
sidered in dividing marital property upon dissolution.
10. ____: ____. When one party’s nonmarital debt is repaid with marital
funds, the value of the debt repayments ought to reduce that party’s
property award upon dissolution.
Appeal from the District Court for Washington County:
John E. Samson, Judge. Affirmed as modified.
Virginia A. Albers and Dennis G. Whelan, of Slowiaczek
Albers, P.C., L.L.O., for appellant.
Donald A. Roberts and Justin A. Roberts, of Lustgarten &
Roberts, P.C., L.L.O., for appellee.
Bishop, Arterburn, and Welch, Judges.
Bishop, Judge.
The Washington County District Court dissolved the mar-
riage of Sarah Elizabeth Ramsey and Kyle Patrick Ramsey and
divided the parties’ property and debts. On appeal, Kyle chal-
lenges the district court’s decision (1) to not award him credit
for his premarital interest in proceeds from the sale of a home
and (2) to award him a credit for only one-half of the amount
of Sarah’s premarital student loan debt that was paid off with
marital funds. We affirm as modified.
BACKGROUND
Sarah and Kyle married in May 2011. Sarah filed a com-
plaint for dissolution of the marriage on October 2, 2018,
seeking an equitable division of the parties’ property and debts.
In his answer and “[c]ountercomplaint,” Kyle alleged that his
nonmarital assets should be awarded to him and that only the
marital property and debts should be equitably divided between
the parties.
- 690 -
Nebraska Court of Appeals Advance Sheets
29 Nebraska Appellate Reports
RAMSEY v. RAMSEY
Cite as 29 Neb. App. 688Trial was held in November 2019. Sarah and Kyle both
testified, and numerous exhibits were received into evidence.
We include only that evidence from trial which is relevant to
the issues on appeal.
Sarah and Kyle started dating in 2006. At that time, Kyle lived
in Kearney, Nebraska, in a home he purchased in 2002. Kyle
was employed as a corporate pilot. Beginning in 2009, Kyle
also had an ownership interest in, and did work for, Midwest
Management Solutions, a company that managed airplanes.
When the parties started dating in 2006, Sarah was a
student in Kearney, and then went to nursing school in
Omaha, Nebraska. Sarah earned a bachelor of science degree
in nursing in 2010, and then she moved back to Kearney to
live with Kyle in his home. She worked as a waitress until
she passed her licensing examination for nursing, and then she
began her job as a nurse in June. The parties also got engaged
that year.
When the parties started living together in 2010, Kyle
already had a checking account ending in “6484” (checking
account #6484) and a savings account ending in “6105” (sav-
ings account #6105); he deposited his earnings into his check-
ing account #6484. Sarah deposited her paycheck into her own
account, and then she put money into Kyle’s checking account
#6484 each month for living expenses and the mortgage.
The parties married in May 2011. Sarah continued to trans-
fer money to checking account #6484 and/or savings account
#6105 throughout the marriage. Additionally, throughout the
marriage, there were recurring transfers from checking account
#6484 to savings account #6105; the number of transfers var-
ied each month. Money was also being transferred from sav-
ings account #6105 to checking account #6484; the frequency
of the transfers and the amounts of the transfers varied. In
December 2012, Kyle sold his ownership interest in Midwest
Management Solutions and deposited the proceeds of that
sale, $145,313, into savings account #6105. Sarah’s name was
added to checking account #6484 and savings account #6105
- 691 -
Nebraska Court of Appeals Advance Sheets
29 Nebraska Appellate Reports
RAMSEY v. RAMSEY
Cite as 29 Neb. App. 688in December 2015. Sarah’s paychecks from December 2015
through September 2018 were direct deposited into savings
account #6105, and she also made various deposits into check-
ing account #6484.
The parties agreed that Sarah’s student loan balance of
$43,258 was paid off during the marriage.
Kyle testified that he purchased the Kearney home in 2002
for $103,000. He then did “extensive” work on the home,
including a full remodel and landscaping. He also made “addi-
tions on the front garage” and added “a 20 by 20 detached
garage in the back.” According to Kyle, all of the upgrades
and construction were completed prior to the parties’ marriage.
After the marriage, “[t]here might have been some plants . . .
replaced, but . . . no major renovations inside or out.” However,
according to Sarah’s testimony, the detached garage was built
during the marriage, and the parties replaced an old shed with
a new one. Sarah also testified that she helped maintain the
Kearney home and that the parties did all of the landscaping,
got new carpeting, and painted.
The Kearney home was refinanced in January 2012, and
Sarah’s name was put on the home at that time. As part of the
refinancing, the home was appraised, and the appraised value
was $157,000. The Kearney home was sold in December 2015
for $198,000, with net proceeds of $125,454. The net proceeds
were deposited into savings account #6105 on December 7.
In January 2016, the parties purchased land in Fort Calhoun,
Nebraska. They subsequently built a home on that land and
moved into that home in November. The parties agree that
during the building process, they spent considerable sums of
money for costs associated with the construction. Sarah moved
out of the marital residence in August 2018.
Pursuant to the district court’s decree entered on December
18, 2019, and its order nunc pro tunc entered on January 13,
2020, the parties’ marriage was dissolved and their property
and debts divided. As relevant to this appeal, the district court
did not set aside any portion of the proceeds from the sale
- 692 -
Nebraska Court of Appeals Advance Sheets
29 Nebraska Appellate Reports
RAMSEY v. RAMSEY
Cite as 29 Neb. App. 688of the Kearney home as Kyle’s nonmarital property because
it found that Kyle had not met his burden of proof in regard
to tracing the nonmarital proceeds. The court concluded that
it was “impossible to distinguish the Kearney net proceeds
from the rest of the parties’ deposits and therefore no credit
should be given to [Kyle] from the sale of the Kearney home.”
With regard to Sarah’s premarital student loan debt, Kyle was
given a credit of $21,081.97 because the court determined
that “half” of the marital funds used to pay off Sarah’s pre-
marital student loan “should be considered [Sarah’s] and half
should be considered [Kyle’s].” And “[f]or that reason, only
half of the student loan payoff should reduce [Sarah’s] prop-
erty award.”
Kyle appeals.
ASSIGNMENTS OF ERROR
Kyle assigns that the district court erred by (1) finding that
he was not entitled to a credit for his premarital home and (2)
crediting him an incorrect amount for the payment of Sarah’s
premarital student loans. Another error assigned by Kyle has
since been resolved by stipulation of the parties and will there-
fore not be addressed in this opinion.
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. Burgardt v.
Burgardt, 304 Neb. 356, 934 N.W.2d 488 (2019).
ANALYSIS
Premarital Interest in
Kearney Home
Kyle argues that the district court erred by finding that he
was not entitled to a credit for his premarital home.
[2-4] In a dissolution of marriage proceeding, “‘[i]f the
parties fail to agree upon a property settlement . . . the
- 693 -
Nebraska Court of Appeals Advance Sheets
29 Nebraska Appellate Reports
RAMSEY v. RAMSEY
Cite as 29 Neb. App. 688court shall order an equitable division of the marital estate.’”
Dooling v. Dooling, 303 Neb. 494, 507, 930 N.W.2d 481, 495
(2019). Under Neb. Rev. Stat. § 42-365 (Reissue 2016), the
equitable division of property is a three-step process. Dooling
v. Dooling, supra. 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 mar-
riage. The second step is to value the marital assets and mari-
tal liabilities of the parties. The third step is to calculate and
divide the net marital estate between the parties in accordance
with the principles contained in § 42-365. Dooling v. Dooling,
supra. The ultimate test in determining the appropriateness
of the division of property is fairness and reasonableness
as determined by the facts of each case. Id. Generally, all
property accumulated and acquired by either spouse during a
marriage is part of the marital estate. Id. Exceptions include
property that a spouse acquired before the marriage, or by gift
or inheritance. Id.[5,6] Any given property can constitute a mixture of marital
and nonmarital interests; a portion of an asset can be mari-
tal property while another portion can be separate property.
Marshall v. Marshall, 298 Neb. 1, 902 N.W.2d 223 (2017).
Setting aside nonmarital property is simple if the spouse pos-
sesses 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 mari-
tal property or with the separate property of the other spouse.
Id. But if the separate property remains segregated or is trace-
able into its product, commingling does not occur. Id. The
burden of proof rests with the party claiming that property is
nonmarital. Id.[7,8] A nonmarital interest in property may be established
by credible testimony. Burgardt v. Burgardt, supra. A spouse’s
own testimony can establish a “‘“tracing link,”’” i.e., track-
ing an asset to a nonmarital source. Id. at 364, 934 N.W.2d at
495. See, also, Brozek v. Brozek, 292 Neb. 681, 874 N.W.2d 17- 694 -
Nebraska Court of Appeals Advance Sheets
29 Nebraska Appellate Reports
RAMSEY v. RAMSEY
Cite as 29 Neb. App. 688(2016). Of course, triers of fact have the right to test the cred-
ibility of witnesses by their self-interest and to weigh it against
the evidence, or the lack thereof. Burgardt v. Burgardt, supra.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. Id.The parties agree that Kyle owned a home at the time of the
marriage that was subject to a mortgage. Kyle argues that he
“provided sufficient evidence of the value of the home at the
time of marriage as it was appraised shortly after the parties
got married.” Brief for appellant at 11. At trial, Kyle provided
evidence that he purchased the Kearney home in 2002 for
$103,000, the mortgage at the time of the marriage in May
2011 was $86,945, and the home was appraised at $157,000
in January 2012. He calculated the premarital equity in the
home at $70,055 ($157,000 - $86,945). The evidence at trial
established that the Kearney home was sold for $198,000 in
December 2015, with the net proceeds of $125,454 being
deposited into savings account #6105 on December 7. The
parties purchased land in Fort Calhoun in January 2016 for
$95,269.46—a “Bank Check OR Draft” for this amount was
withdrawn from savings account #6105 on January 25—and
subsequently made other expenditures from savings account
#6105 toward building a home on that land. Based on the
immediate turnaround from depositing the Kearney home net
proceeds into savings account #6105 on December 7, 2015, to
withdrawing $95,269.46 from that same account for the Fort
Calhoun land purchase in January 2016, the Kearney home net
proceeds are certainly traceable to being invested in the Fort
Calhoun property. The issue is how much of those Kearney
home net proceeds were nonmarital.
The district court determined that Kyle did not meet his
burden of proof to trace any nonmarital cash proceeds from
the sale of the Kearney home as separate property because
those nonmarital proceeds were commingled in the parties’
- 695 -
Nebraska Court of Appeals Advance Sheets
29 Nebraska Appellate Reports
RAMSEY v. RAMSEY
Cite as 29 Neb. App. 688bank accounts with marital assets. The court found that Sarah
contributed to checking account #6484 and savings account
#6105 both before and after the date of the marriage and
that it was “clear” that both parties were contributing to the
payment of the mortgage obligation on the Kearney home
through November 2015. After the home sold in December,
the net proceeds were deposited into savings account #6105.
And in January 2016, money was withdrawn from savings
account #6105 to purchase land to build a new home. The
court stated:
By depositing the sale proceeds into the parties’ joint
account, those funds were com[m]ingled with not only the
account balance in savings as of that time, but over time,
the parties continued to use that money plus their incomes
and monies from all other sources toward their new
residence. Over time, it is impossible to distinguish the
Kearney net proceeds from the rest of the parties’ deposits
and therefore no credit should be given to [Kyle] from the
sale of the Kearney home.
Earlier in its decree, the court noted that “[i]n regard to the
issue of com[m]ingling of marital and nonmarital cash pro-
ceeds,” the exhibits showed that Kyle, “who handled the
finances of the parties, commonly and regularly transferred
monies of the parties back and forth” between checking
account #6484 and savings account #6105. In addition, prior
to and during the marriage, Sarah contributed thousands of
dollars to those accounts, Kyle deposited marital earnings into
those accounts, and “thousands of dollars of marital expenses
and unaccounted-for withdrawals” were deducted from those
accounts. The court stated, “Given the extensive com[m]ingling
of marital and nonmarital funds, and the large amount of mari-
tal expenditures withdrawn, [Kyle] failed to meet his burden
of proof in regard to tracing nonmarital contributions into
these accounts.”
Kyle contends he “provided sufficient evidence of the value
of the [Kearney] home at the time of marriage as it was
- 696 -
Nebraska Court of Appeals Advance Sheets
29 Nebraska Appellate Reports
RAMSEY v. RAMSEY
Cite as 29 Neb. App. 688appraised shortly after the parties got married.” Brief for appel-
lant at 11. He claims that the proceeds from the sale of the
Kearney home “went towards payment of the parties’ current
home” in Fort Calhoun, id. at 13, and that using the bank state-
ments in evidence, the payments are traceable. Kyle believes
that his premarital portion of the proceeds from the sale of his
Kearney home, $70,055, should be set aside as his separate,
nonmarital property and that his share of the property division
should be reduced by such an amount.
Sarah contends the trial court was correct in denying Kyle
a credit for any premarital equity in the Kearney home. She
points to her testimony that improvements, e.g., the garage and
shed, were made to the property during the marriage; given
these items were listed in the January 2012 appraisal, the impli-
cation from Sarah’s testimony was that the improvements were
made between May 2011, when the parties were married, and
January 2012. She argues the appraisal completed 8 months
after the parties’ marriage was “at a time not ­rationally related
to the home’s value at the date of marriage, and there was no
breakout of the value of the home with or without a new shop.”
Brief for appellee at 13. She also points out that the mortgage
balance was reduced both when the parties were living together
and during the marriage and that the sale proceeds were depos-
ited into a joint account and commingled with marital funds
such that it was impossible to distinguish the net proceeds from
the sale of the home.
After reviewing the record, we conclude that although Kyle
did have a premarital interest in the Kearney home, he did not
meet his burden of proof as to the $70,055 value he calculated
as his premarital interest. The district court focused much of
its analysis on the commingling of the net sale proceeds with
the marital funds in the parties’ bank accounts; however, we
focus our attention elsewhere. Kyle claims that his premarital
equity in the home was $70,055—the difference between the
January 2012 appraisal value and the May 2011 mortgage
balance. But Sarah claims the appraisal value should not be
- 697 -
Nebraska Court of Appeals Advance Sheets
29 Nebraska Appellate Reports
RAMSEY v. RAMSEY
Cite as 29 Neb. App. 688used because it was completed 8 months after the parties’
marriage and did not contain a valuation of the home without
the detached garage and/or shed, which, contrary to Kyle’s
testimony, she claims was added during the marriage. As
noted previously, because the detached garage was listed in
the January 2012 appraisal, the implication from Sarah’s tes-
timony was that the improvements were made between May
2011 and January 2012.
In its decree, the district court stated, “After listening to
[Kyle’s] testimony and observing his demeanor during trial,
the Court has difficulty giving much weight to [his] testimony
in regard to . . . alleged nonmarital assets without some type
of corroborating evidence.” Other than the parties’ conflict-
ing testimony, there was no evidence as to when the detached
garage and/or shed was built. See Yori v. Helms, 307 Neb. 375,
949 N.W.2d 325 (2020) (where credible evidence is in conflict
on material issue of fact, appellate court considers, and may
give weight to, fact that trial court heard and observed wit-
nesses and accepted one version of facts rather than another).
As noted by Sarah, the January 2012 appraisal did not include
a value of the Kearney home without the detached garage
and/or shed. And Kyle failed to put on any other evidence as to
the value of those structures. The 2012 appraisal did not pro-
vide any information about when the detached garage and/or
shed was built or what improvement value they added to the
remainder of the property. Nor did Kyle testify about the value
of those improvements. Without evidence as to the value of
those items, and deferring to the district court’s determinations
regarding the credibility of conflicting facts on this issue, the
2012 appraisal is of little help. As a result, we cannot discern
the fair market value of the Kearney home at the time of the
parties’ marriage in order to attribute any increase in premarital
value from 2002 when Kyle purchased the home until the time
of his marriage in May 2011.
That said, there is no question that Kyle had some amount
of premarital value in the home, and Kyle’s desire to receive
- 698 -
Nebraska Court of Appeals Advance Sheets
29 Nebraska Appellate Reports
RAMSEY v. RAMSEY
Cite as 29 Neb. App. 688credit for his premarital interest in the Kearney home is
understandable. This court’s ability to set off the increase in
premarital value for the home, however, is limited to the only
verifiable information that appears in the record. The evidence
at trial was that Kyle purchased the Kearney home in 2002
for $103,000, which was arguably its fair market value at that
time. The mortgage at the time of the marriage in May 2011
was $86,945. These amounts were not disputed by Sarah. We
therefore conclude that Kyle had at least $16,055 in equity in
the home at the time of the marriage. That amount was trace-
able and verified by undisputed evidence, and it should have
been set aside as Kyle’s premarital interest in the home. The
decree is modified to reflect this premarital interest; the impact
on the marital equalization is addressed later in this opinion.
Student Loan Payoff
Kyle argues that the district court erred by crediting him an
incorrect amount for the payment of Sarah’s premarital student
loans that were paid off during the marriage with marital funds.
At trial, the parties agreed that Sarah’s student loan balance of
$43,258 was paid off during the marriage. In its decree, the
district court stated:
[H]alf of the money in the checking and savings accounts[,]
used to pay off the student loan, should be considered
[Sarah’s] and half should be considered [Kyle’s]. For that
reason, only half of the student loan payoff should reduce
[Sarah’s] property award. Therefore, the Court’s Balance
Sheet should give [Kyle] a credit of $21,081.97.
At the outset, Kyle points out that, despite the parties’ agree-
ment that Sarah’s student loan balance of $43,258 was paid off
during the marriage, the court’s decree states that $42,163.94
was paid off during the marriage. However, in her brief, Sarah
says the evidence shows the parties paid “approximately”
$13,100 through September 2012 and then made a lump-sum
payment of $29,063.94 on April 12, 2013, that paid off the
balance of the student loans; therefore, the total paid during
- 699 -
Nebraska Court of Appeals Advance Sheets
29 Nebraska Appellate Reports
RAMSEY v. RAMSEY
Cite as 29 Neb. App. 688the marriage was $42,163.94. Brief for appellee at 18. We note
that one of the exhibits received into evidence at trial was a
student loan billing statement showing a “Current Balance” of
$43,258.38 as of July 24, 2011. We find that any discrepancy
in the amount of marital funds used to pay off Sarah’s premari-
tal student loan debt was nominal and did not make the overall
property distribution unfair or unreasonable. We will therefore
continue to use $42,163.94 as the amount of Sarah’s premarital
student loan debt that was paid off with marital funds.
Kyle also argues that the district court erred by finding that
he should receive a credit for only half of the amount of the
premarital student loans that were paid off during the mar-
riage. He claims Sarah’s share of the property division should
be reduced by $43,258, the full amount by which her student
loans were reduced and paid off during the marriage; thus “a
full credit of the premarital debt that was paid off with marital
monies should be given to Kyle.” Brief for appellant at 19.
[9,10] Debts, like property, ought to also be considered
in dividing marital property upon dissolution. Anderson v.
Anderson, 27 Neb. App. 547, 934 N.W.2d 497 (2019). When
one party’s nonmarital debt is repaid with marital funds, the
value of the debt repayments ought to reduce that party’s
property award upon dissolution. Id. See, also, Gangwish v.
Gangwish, 267 Neb. 901, 678 N.W.2d 503 (2004).
In Gangwish v. Gangwish, supra, the wife had approxi-
mately $12,000 in student loan debt at the time of the mar-
riage, and the loans were paid off with marital funds during
the marriage. When dissolving the parties’ marriage and divid-
ing marital property, the trial court failed to account for the
entirety of the loans that the wife brought into the marriage.
On appeal, the Nebraska Supreme Court determined that the
wife’s portion of the marital estate should have been reduced
by the total student loan debt that she brought into the mar-
riage because that debt was paid off with marital assets. Id.The court, however, found no abuse of discretion under the
circumstances because the marital estate totaled well over
- 700 -
Nebraska Court of Appeals Advance Sheets
29 Nebraska Appellate Reports
RAMSEY v. RAMSEY
Cite as 29 Neb. App. 688$1 million and the alleged mistake constituted less than one-
half of 1 percent of this total. Id.Sarah claims that the case law “does not indicate that 100%
of the debt repayment should be restored to Kyle.” Brief for
appellee at 20-21. As Sarah points out, “To provide Kyle a
credit of 100% of the amounts paid toward the student loan,
would require the . . . Court to ignore that money Sarah had
contributed to the marital estate before the debt was paid.” Id.
at 21. We agree.
In Gangwish v. Gangwish, supra, the Nebraska Supreme
Court faulted the district court for failing to account for the
entirety of the student loans that the wife brought into the
marriage. However, the district court in the present case did
account for the entirety of the student loans that Sarah brought
into the marriage. During the parties’ marriage, their marital
estate was reduced by $42,163.94, the amount of Sarah’s pre-
marital student loan debt paid off with marital funds. Although
not explicitly shown on the court’s calculation attached to the
decree, in order to account for the $42,163.94 reduction in the
marital estate, the court necessarily restored that $42,163.94 to
the marital estate by attributing it as a marital asset allocated
wholly to Sarah. If, for example, that was the only marital
“asset” between the parties, Sarah would have had to pay
$21,081.97 to Kyle to equalize the estate; Kyle was entitled
to his one-half share, not the whole. The court credited Kyle
with his one-half share, although our method of calculation for
reaching an equalization amount varies from that used by the
district court, as we discuss next.
Equalization Modification
The district court attached to the decree a table reflecting the
allocation of property and debts and the resulting equalization
amount. As pertinent here, the table reflects the following:
Sarah Kyle
Subtotal of marital estate $112,125.50 $419,420.00
Amount to equalize $153,647.00 ($153,647.00)
Subtotal $265,772.50 $265,773.00
- 701 -
Nebraska Court of Appeals Advance Sheets
29 Nebraska Appellate Reports
RAMSEY v. RAMSEY
Cite as 29 Neb. App. 688Notably, the district court then took the equalization amount
of $153,647, and reduced it to account for Kyle’s premarital
interests and Sarah’s student loan debt as follows:
Amount to equalize $153,647.00
Premarital savings ($25,929.00)
Premarital checking ($3,993.00)
Wildcat trailer ($11,000.00)
Student loan debt ($21,081.97)
FINAL EQUALIZATION AMOUNT $91,643.03
Neither party assigned error to the method of calculation
used by the district court despite an apparent error. The dis-
trict court first calculateed a marital equalization amount. It
then directly reduced the equalization amount by subtracting
Kyle’s various premarital assets and one-half of Sarah’s student
loan payoff. However, the setoffs for Kyle’s premarital credits
and the student loan debt should have been accounted for in
determining the net marital estate before calculating the equal-
ization. By using the same values and making adjustments
in the net marital estate before calculating an equalization,
Kyle’s resulting equalization amount owed to Sarah becomes
$122,645.27, instead of $91,643.03, as we illustrate in the
table below.
Sarah Kyle
Subtotal of marital estate $112,125.50 $419,420.00
Premarital savings ($25,929.00)
Premarital checking ($3,993.00)
Wildcat trailer ($11,000.00)
Student loan debt ($21,081.97)
NET MARITAL ESTATE $112,125.50 $357,416.03
As noted, this calculation results in a marital equaliza-
tion amount owed by Kyle of $122,645.27 ($357,416.03 -
$112,125.50 = $245,290.53 ÷ 2), rather than $91,643.03 as
determined by the district court.
In addition to the error in the method of calculation used,
adjustments are needed to account for Kyle’s premarital inter-
est in the Kearney house ($16,055) and the entirety of Sarah’s
- 702 -
Nebraska Court of Appeals Advance Sheets
29 Nebraska Appellate Reports
RAMSEY v. RAMSEY
Cite as 29 Neb. App. 688student loan debt ($42,163.94). We point out that the district
court’s “credit” to Kyle for $21,081.97 of Sarah’s student loan
debt was not incorrect so long as it was included before calcu-
lating the net marital estate. But to avoid confusion related to
the arguments about whether the whole or one-half of the debt
should be included in the division of property, we include the
entire premarital student loan debt as an asset attributable to
Sarah. This makes it easier to see that the entire debt is being
factored into the calculations. Therefore, when starting with the
same subtotal amounts used above, and then using the correct
method of calculation with these value adjustments, the modi-
fied equalization amount Kyle owes to Sarah is $104,076.78,
as illustrated below:
Sarah Kyle
Subtotal of marital estate $112,125.50 $419,420.00
Add entire student loan debt $42,163.94
Revised subtotal $154,289.44 $419,420.00
Premarital savings ($25,929.00)
Premarital checking ($3,993.00)
Wildcat trailer ($11,000.00)
Premarital Kearney house ($16,055.00)
NET MARITAL ESTATE $154,289.44 $362,443.00
As noted, the amount Kyle would owe to Sarah under this
revised calculation is $104,076.78 ($362,443.00 - $154,289.44
= $208,153.56 ÷ 2). However, as also previously noted, neither
party assigned any error related to the method of calculation
used by the district court. We therefore consider whether the
resulting difference between the court’s determination of an
equalization amount of $91,643.03 versus our revised equaliza-
tion amount of $104,076.78 constitutes plain error. Plain error
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. See Hajenga v.
Hajenga, 257 Neb. 841, 601 N.W.2d 528 (1999).
We conclude the difference in the resulting calculation does
not rise to the level of plain error. The total net marital estate
- 703 -
Nebraska Court of Appeals Advance Sheets
29 Nebraska Appellate Reports
RAMSEY v. RAMSEY
Cite as 29 Neb. App. 688was worth $516,732.44. If Kyle pays Sarah the $91,643.03
equalization amount determined by the district court, Sarah
will receive an adjusted net marital estate of $245,932.47
($154,289.44 + $91,643.03), which equals 48 percent of the
net marital estate. Kyle will receive $270,799.97 ($362,443
- $91,643.03), which equals 52 percent of the net marital
estate. Our revised calculations resulting in an equalization of
$104,076.78 would provide an equal split of the net marital
estate. We cannot say that the receipt by Sarah of 48 percent
rather than 50 percent of the net marital estate constitutes plain
error. The overall distribution of the marital estate results in the
receipt by each party of within one-third to one-half of the total
marital estate. See Doerr v. Doerr, 306 Neb. 350, 945 N.W.2d
137 (2020) (as general rule, spouse should be awarded one-
third to one-half of marital estate, polestar being fairness and
reasonableness as determined by facts of case).
CONCLUSION
For the reasons stated above, we modify the decision of the
district court to reflect (1) a credit of $16,055 to Kyle for his
premarital interest in the Kearney house, (2) the placement
of the entirety of Sarah’s student loan debt as an asset in the
property division formula, and (3) our revised calculations.
However, finding no plain error in the district court’s equaliza-
tion amount when considered against our revised calculations,
we affirm.
Affirmed as modified.