Rohde v. Rohde , 303 Neb. 85 ( 2019 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
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Nebraska Supreme Court A dvance Sheets
303 Nebraska R eports
ROHDE v. ROHDE
Cite as 303 Neb. 85
Sharon L. Rohde, appellee, v.
K eith E. Rohde, appellant.
___ N.W.2d ___
Filed May 10, 2019. No. S-18-179.
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. Evidence: Appeal and Error. In a review de novo on the record, an
appellate court is required to make independent factual determina-
tions based upon the record, and the court reaches its own independent
conclusions with respect to the matters at issue. When evidence is in
conflict, the appellate court considers and may give weight to the fact
that the trial court heard and observed the witnesses and accepted one
version of the facts rather than another.
3. Judges: Words and Phrases. A judicial abuse of discretion exists if the
reasons or rulings of a trial judge are clearly untenable, unfairly depriv-
ing a litigant of a substantial right and denying just results in matters
submitted for disposition.
4. Divorce: Property Division. The ultimate test in determining the appro-
priateness of the division of property is fairness and reasonableness as
determined by the facts of each case.
5. Property Division. As a general rule, a spouse should be awarded one-
third to one-half of the marital estate, the polestar being fairness and
reasonableness as determined by the facts of each case.
6. 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.
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ROHDE v. ROHDE
Cite as 303 Neb. 85
7. Property Division: Appeal and Error. As a general principle, the date
upon which a marital estate is valued should be rationally related to the
property composing the marital estate. The date of valuation is reviewed
for an abuse of the trial court’s discretion.
8. Divorce: Property Division: Equity. The purpose of assigning a date
of valuation in a decree is to ensure that the marital estate is equita-
bly divided.
9. Property Division: Equity: Time. The choice of a date as of which
assets available for equitable distribution should be identified and val-
ued must be dictated largely by pragmatic considerations.
10. Divorce: Property Division. 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.
11. Property Division: Proof. The burden of proof rests with the party
claiming that property is nonmarital.
Appeal from the District Court for Douglas County: J
Russell Derr, Judge. Affirmed.
A. Bree Robbins and Nancy R. Shannon, of Cordell Cordell,
L.L.P., for appellant.
Christopher A. Vacanti, of Vacanti Shattuck, for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Cassel, J.
INTRODUCTION
Keith E. Rohde appeals from a decree dissolving his mar-
riage to Sharon L. Rohde, challenging the division of prop-
erty. Keith proposes two novel theories: (1) All assets must
be valued using a single date and (2) a coverture formula is
required to establish the premarital value of a business. We
decline both invitations. The first would impinge upon the
discretion necessary to equitably divide a marital estate. And
the second depends upon speculation and assumptions gener-
ally incon­sistent with such valuations. Keith’s remaining argu-
ments lack merit. We affirm the decree.
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Nebraska Supreme Court A dvance Sheets
303 Nebraska R eports
ROHDE v. ROHDE
Cite as 303 Neb. 85
BACKGROUND
Before Sharon filed a complaint for dissolution in November
2016, she and Keith were married for 21 years. During the
period between filing and trial, the parties lived separate and
apart for 1 year. The assets relevant on appeal include real
estate, notes receivable, businesses, accounts, household goods,
jewelry, and vehicles.
R eal Estate and Notes R eceivable
The parties owned three properties in Omaha, Nebraska.
One property was the marital home (184th Plaza home); one
property was their friend’s home (140th Ave. home), which
was secured by a note receivable from the friend; and one
property was occupied by another person (Polk St. home),
which was secured by a note receivable.
The parties offered appraisals of the 184th Plaza home.
Sharon’s appraiser valued the home at the date of filing. Keith’s
appraiser valued the home at the date of trial. Sharon testified
to the value of the 140th Ave. home note receivable at the
date of trial and presented evidence of the outstanding note.
Keith stated that prior to the marriage, he put a downpay-
ment on the parties’ first home and acknowledged that Sharon
repaid him part of the downpayment. He asked the court to
classify the downpayment as nonmarital.
Businesses
Since 1989, Keith has owned Metro Excavating Inc. (Metro).
Keith continued to operate the business throughout the mar-
riage. Keith testified that Metro was operational for over 70
months before the marriage. Keith asked the district court to
offset the current value of the business by 23.13 percent as the
value of the nonmarital business.
Additionally, Keith owns Storage Road Sales & Service
Inc. (Storage Road). Before Keith married Sharon, he pur-
chased the land for $34,000. He then constructed a building
on the property that cost $17,000 for the steel framework and
tin exterior.
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ROHDE v. ROHDE
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Both parties obtained appraisals of the property and busi-
nesses. Keith’s appraiser valued the Storage Road property
at the date of trial. Sharon’s appraiser gave two valuations
for the property at the date of filing: the lower appraisal used
the income capitalization approach, and the higher appraisal
used the direct sales comparison approach. The higher valu-
ation was rebutted by Keith’s appraiser. Keith testified that
the nonmarital value of the Storage Road property was
$252,000.
In June 2016, Keith entered into three leases with Walvoord
Finish Grading Inc. (collectively Walvoord Leases). The leases
were for the equipment of both Metro and Storage Road, as
well as a property lease. The leases were valued at the date
of trial, which excluded the first payments made during the
pendency of the action. Keith asked the district court to take
into consideration the tax consequences when awarding the
leases, and specifically in reducing the value by 32 percent.
Additionally, during the pendency of the action, Keith sold
several pieces of business equipment.
Sharon presented evidence that she is the sole owner of
KMT Storage Company, Inc. (KMT), which was appraised at
the date of filing.
Accounts
The parties had several bank and retirement/investment
accounts. There are three categories of accounts: joint
accounts, commercial accounts, and investment accounts. The
parties submitted evidence that allowed the court to value
the joint and commercial accounts on both the date of fil-
ing and trial. Sharon submitted evidence of the value of the
investment accounts on a separate date. Keith did not offer
any evidence as to the value of the investment accounts on a
separate date.
During the pendency of the action, Sharon removed $50,000
from one of the joint accounts. She testified that she removed
the money at the advice of counsel to pay bills that Keith used
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ROHDE v. ROHDE
Cite as 303 Neb. 85
to pay for. Sharon presented evidence of her personal bank
accounts with a value at the date of filing. The account bal-
ance did not account for the full $50,000 removed from the
joint account.
R emaining Assets
Keith offered an appraisal of Sharon’s jewelry valued at the
date of trial. Keith and Sharon offered the same appraisals of
the household goods at the date of trial.
Sharon offered an appraisal of her Ford Explorer. The vehi-
cle was valued at the date of trial. At the date of filing, Keith
owned a GMC pickup, and during the pendency of the action,
he sold the GMC pickup and purchased a Dodge Ram pickup.
In Sharon’s statement of assets and debts, she valued Keith’s
Dodge Ram pickup at the date of trial.
Decree
The district court valued the following assets at the date
of filing: the 184th Plaza home, the commercial accounts, the
Storage Road property, and the KMT property. It valued the
following assets at the date of trial: the 140th Ave. home note
receivable, the joint accounts, the Walvoord Leases, house-
hold goods, jewelry, and vehicles. It valued the investment
accounts and equipment sales on a separate date.
The district court awarded the following assets to Sharon:
the 184th Plaza home, KMT, the commercial accounts for
KMT, her personal checking accounts, her jewelry, and the
Ford Explorer. The district court awarded the following assets
to Keith: the 140th Ave. home note receivable, Metro and
Storage Road, the commercial accounts for Metro and Storage
Road, the Walvoord Leases, the equipment sale, and the Dodge
Ram pickup. The district court equally split between the par-
ties the Polk St. home note receivable, the joint accounts, the
investment accounts, and the household goods.
When dividing the marital estate, the district court made
findings. Regarding the nonmarital value of Metro, it reasoned
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ROHDE v. ROHDE
Cite as 303 Neb. 85
there was no testimony or evidence as to the value of Metro
on the date of the marriage 22 years ago and “to sit here and
for me to place a value on Metro . . . as a going concern in
1995, I just don’t know that I can do that.” It declined to clas-
sify a nonmarital value for the first home downpayment, it
offset the purchase price and cost of the Storage Road build-
ing as nonmarital, it did not consider tax consequences of
the Walvoord Leases, and it classified Keith’s inherited tools
as nonmarital.
Keith filed a timely appeal, which we moved to our docket.1
ASSIGNMENTS OF ERROR
Keith assigns that the district court erred (1) by valuing
assets and debts on different dates, (2) by finding that all of
Metro was a marital asset and failing to offset any portion as
nonmarital, and (3) in its classification, valuation, and division
of assets and debts in the marital estate.
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.2
[2] In a review de novo on the record, an appellate court
is required to make independent factual determinations based
upon the record, and the court reaches its own independent
conclusions with respect to the matters at issue. When 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
[3] A judicial abuse of discretion exists if the reasons or rul-
ings of a trial judge are clearly untenable, unfairly depriving a
1
See Neb. Rev. Stat. § 24-1106(3) (Cum. Supp. 2018).
2
See Osantowski v. Osantowski, 298 Neb. 339, 904 N.W.2d 251 (2017).
3
Id.
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litigant of a substantial right and denying just results in mat-
ters submitted for disposition.4
ANALYSIS
[4,5] We begin by reciting familiar propositions from the law
controlling equitable division of marital property and debts. The
ultimate test in determining the appropriateness of the division
of property is fairness and reasonableness as determined by the
facts of each case.5 This is the polestar guiding our analysis of
the issues. And as we have often repeated, a spouse should be
awarded one-third to one-half of the marital estate.6
[6] Under Neb. Rev. Stat. § 42-365 (Reissue 2016), the equi­
table division of property is a three-step process. The first step
is to 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 contained in
§ 42-365.7
As we have already noted, when evidence is in conflict, an
appellate court 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 This rule drives the outcome of
the issues presented—other than the novel theories that Keith
asserted. We turn first to those theories.
Valuation Dates
In brief, Keith argued that the district court erred when it
failed to value all the assets and debts on a single date. He
4
Id.
5
Id.
6
See id.
7
Id.
8
See id.
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contended that the court contradicted itself when it valued
assets on separate dates and stated:
To be consistent, these values to me appear to be the most
credible given — I’m not saying the others aren’t cred-
ible — the most accurate, trying to suggest a time and a
place for division, so — I don’t want to pick one date for
one account, one date for another account.
More specifically, Keith contends that the district court erred
when valuing the 184th Plaza home, the Storage Road and
KMT properties, and business accounts on the date of filing;
the 140th Ave. home, jewelry, household goods, joint accounts,
and vehicles on the date of trial; and the investment accounts
and business equipment on an unrelated date. He requests us
to remand the matter back to the district court “with instruc-
tions to value the property as of one particular date that is
relationally related to the [marital] estate or remand for a new
trial on the issue.”9 We decline to do so.
[7] As a general principle, the date upon which a marital
estate is valued should be rationally related to the property
composing the marital estate. The date of valuation is reviewed
for an abuse of the trial court’s discretion.10
Although we have never explicitly stated that more than
one valuation date may be utilized in valuing marital assets
and liabilities, we have alluded to that understanding.11 In
Brozek v. Brozek,12 the appellant argued that the date of sepa-
ration rather than the date of trial was the appropriate date
to value the marital assets. The district court valued most of
the marital property at the date of separation, valued farm
equipment a year after separation, and valued the corporate
9
Brief for appellant at 15.
10
Osantowski, supra note 2.
11
See, Brozek v. Brozek, 292 Neb. 681, 874 N.W.2d 17 (2016); Davidson v.
Davidson, 254 Neb. 656, 578 N.W.2d 848 (1998).
12
Brozek, supra note 11.
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shares 3 years later at the date of trial. Although the corporate
shares were classified as a nonmarital asset for the appel-
lee, the district court found the value at trial, rather than the
value at separation, to be more persuasive. We did not disturb
this method.
In Davidson v. Davidson,13 the district court did not value
individual assets to establish the marital estate; instead, it used
the difference in the appellant’s net worth immediately prior to
marriage and 4 months after filing for dissolution. We relied on
a Nebraska Court of Appeals’ case, where evidence supported
valuations made 1 week before trial and were rationally related
to the property to be divided. We reasoned that the valuation
of the appellant’s net worth 4 months after filing for dissolu-
tion was rationally related to the property composing the mari-
tal estate. We concluded that the district court did not abuse
its discretion.
In Walker v. Walker,14 the Court of Appeals discussed how a
valuation date should be determined. The appellant argued that
the real estate should have been valued at the date of dissolu-
tion and not the date of separation. The court acknowledged
that there is case law to support the proposition that the date of
trial is the appropriate date for valuation. But, “we find no hard
and fast rule that prohibits the district court from using other
times as the appropriate date for valuation purposes so long as
the value selected bears ‘a rational relationship to the property
to be divided upon dissolution.’”15
Although many states use a uniform date of separation or
date of dissolution for their valuation date, several states fol-
low an approach similar to ours.16 New York and Ohio courts
13
Davidson, supra note 11.
14
Walker v. Walker, 9 Neb. Ct. App. 694, 618 N.W.2d 465 (2000).
15
Id. at 699, 618 N.W.2d at 470.
16
1 Barth H. Goldberg, Valuation of Divorce Assets § 1:16 (rev. ed. 2005 &
Cum. Supp. 2018-19).
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have discussed the issue of valuing separate assets on separate
dates. In Collins v. Donnelly-Collins,17 the Appellate Division
of the Supreme Court of New York stated that “selection of the
appropriate valuation dates for various assets is addressed to
the sound discretion of the trial court, upon consideration of all
of the relevant facts and circumstances in the case.” In Berish
v. Berish,18 the Ohio Supreme Court discussed the pragmatic
difficulties of finding one date that the court could always use
to value the marital estate. It was reluctant to accept such a
simple formula, because “‘[t]he formula for division derives
from the facts of the individual case’” and the court must have
the “necessary flexibility to exercise its discretion.”19 We find
these cases persuasive.
[8,9] We decline to mandate that a trial court must use only
one valuation date in equitably dividing a marital estate. The
date for valuation must be rationally related to the property
being divided. Frequently, a single valuation date will be
appropriate; but sometimes, it will not. The purpose of assign-
ing a date of valuation in a decree is to ensure that the marital
estate is equitably divided.20 This harkens back to the polestar
of equitable division, which is fairness and reasonableness
under the facts of the case. What may be a fair and reasonable
valuation on one date for an asset may be unfair and unreason-
able for another asset on the same date. “The choice of a date
as of which assets available for equitable distribution should
be identified and valued must be dictated largely by pragmatic
considerations.”21 It can become arduous for the district court
to determine one date that fairly and reasonably values the
17
Collins v. Donnelly-Collins, 19 A.D.3d 356, 357, 796 N.Y.S.2d 159, 160
(2005).
18
Berish v. Berish, 69 Ohio St. 2d 318, 432 N.E.2d 183 (1982).
19
Id. at 321, 432 N.E.2d at 185.
20
Blaine v. Blaine, 275 Neb. 87, 744 N.W.2d 444 (2008).
21
Berish, supra note 18, 69 Ohio St. 2d at 319, 432 N.E.2d at 184.
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entire marital estate.22 We choose not to tie the hands of the
district court; thus, the court need not find “‘[o]ne [date] to
rule them all.’”23
During oral argument, Keith retreated somewhat from the
original contention made in his brief. He conceded that at trial,
he had failed to present evidence to value the entire marital
estate on a single date. In other words, his evidence did not
attempt to value all of the marital property as of one, and only
one, date. Therefore, it seems disingenuous to now argue that
the district court should have selected a single valuation date
despite his own failure to adduce evidence accordingly.
The dates used by the district court to value the marital
estate were rationally related to the respective items of prop-
erty. The value at the date of filing was rationally related
to the 184th Plaza home, the commercial accounts, and the
business properties, because once the parties separated, these
assets no longer benefited them both. The value at the date of
trial was rationally related to the 140th Ave. home, jewelry,
joint accounts, household goods, and vehicles, because sev-
eral assets had no variation in value and the joint accounts
were still used by both parties until the time of trial. The
values of the investment accounts and equipment sales were
rationally related to the valuation date, because the parties
presented only one date to value each asset. We conclude
that the district court did not abuse its discretion in valuing
marital assets on dates that rationally related to the property
being divided.
Nonmarital Business Value
Keith argues that the district court abused its discretion
when it failed to classify any portion of Metro as nonmari-
tal. He requests this court to adopt the coverture formula to
22
See Berish, supra note 18.
23
See J.R.R. Tolkien, The Fellowship of the Ring 49 (Houghton Mifflin
1994) (1954).
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determine the nonmarital value of Metro. He testified that
Metro had been in existence for 320 months and that over
70 of those months were prior to the marriage. He contends
that 23.13 percent of Metro’s value was nonmarital, which, he
argues, we should deduct from the marital estate.
We note that at trial, Keith argued that his nonmarital valu-
ation of Metro is “not really a coverture method.” The district
court responded that “the manner in which the value is try-
ing to be determined is more or less a coverture method.”
The district court acknowledged that the business was worth
something when the parties married, but declined to adopt
the valuation because there was no testimony or evidence
presented as to the worth of the business at the time of
the marriage.
[10,11] 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.24 The burden of
proof rests with the party claiming that property is nonmari-
tal.25 Because Keith claimed that a portion of Metro was non-
marital, it was his burden to show what interest or value was
nonmarital.
In dissolution actions in Nebraska, the coverture formula
has been extended only to dividing pensions26 and termination
payments from employment by an insurance company.27
“‘Simplified, the coverture formula provides that the
numerator of the fraction used to determine the marital
portion is essentially the number of months of cred-
ible service of the employed spouse while married and
therefore is the pension contribution while married and
that the denominator is the total number of months
24
Osantowski, supra note 2.
25
Stanosheck v. Jeanette, 294 Neb. 138, 881 N.W.2d 599 (2016).
26
See Webster v. Webster, 271 Neb. 788, 716 N.W.2d 47 (2006).
27
See Bergmeier v. Bergmeier, 296 Neb. 440, 894 N.W.2d 266 (2017).
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that the spouse has [been] or will be employed which
resulted in the pension the employee will receive. This
denominator number includes and will include the time
the employed spouse worked before, during, and after
the marriage.’”28
We have not applied the coverture formula to the valua-
tion of the premarital portion of a business. We suspect that
the variations in revenue and expenses from year to year, the
growth or decline of a business due to numerous factors, and
the variations in business cycles make it extremely unlikely
that the coverture formula would produce anything other than
mere speculation or conjecture. While we are not prepared to
definitively preclude a trial court from ever using the coverture
formula for such a purpose, we think it is unlikely to be appro-
priate except in very unusual circumstances.
We note that in other states, there have been isolated
instances where intermediate appellate courts have accepted
the use of the coverture formula as a method to determine
nonmarital business value.29 But in each of those cases, the
appellate court affirmed a valuation method selected by a trial
court; in none did the appellate court mandate the use of such
a method. No state supreme court has expressly adopted the
coverture formula as a method to determine nonmarital busi-
ness value.
We are not satisfied that the coverture formula was appro-
priate under the facts of this case. Therefore, the district court
did not abuse its discretion when it declined to apply that
method.
We next look to whether other evidence was presented for
the nonmarital value of Metro. Other than the notion of using
the coverture formula, no evidence was submitted to value
28
Id. at 451-52, 894 N.W.2d at 275 (quoting Klimek v. Klimek, 18 Neb. Ct. App.
82, 775 N.W.2d 444 (2009) (emphasis in original)).
29
See, Haslem v. Haslem, 133 Ohio App. 3d 257, 727 N.E.2d 928 (1999);
Edwards and Edwards, 141 Or. App. 11, 917 P.2d 504 (1996).
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Metro as a going concern at the time when the parties were
married. Where there is nothing on the record to show the
source of premarital funds, they should be considered part
of the marital estate.30 There was no credible evidence in the
record to support a nonmarital value of Metro. It necessarily
follows that the district court did not abuse its discretion when
it classified all of Metro as marital property.
R emaining A rguments
Keith makes several additional arguments pertaining to
the valuation and division of marital and nonmarital assets.
He argues that the district court failed to classify the first
home down payment as nonmarital, failed to consider tax
consequences of the Walvoord Leases, failed to separate the
Walvoord Leases payments made to the joint account before
division, incorrectly valued the nonmarital value of the Storage
Road property, and incorrectly adopted Sharon’s appraisals for
the 184th Plaza home and the Storage Road property. After
reviewing the record de novo, we conclude that the district
court did not abuse its discretion in equitably dividing the
marital and nonmarital assets. These arguments lack merit.
Additionally, Keith argues that the district court failed to
reduce an award of the joint accounts to Sharon by $50,000;
erroneously valued nonmarital tools as part of the marital
estate; and accounted twice for money used to purchase the
Dodge Ram pickup.
Although there appear to have been some mathematical
variations from the pronounced decision to the written decree,
the difference in the adjusted equalization amount would
amount to less than one-half of 1 percent of the entire mari-
tal estate. And Keith did not avail himself of the remedies to
correct this at the trial court level. His trial counsel approved
the form of the decree. Thus, Keith was clearly aware of its
content. And he did not pursue a motion to alter or amend the
30
Stanosheck, supra note 25.
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judgment. As we have stated throughout this opinion, fairness
and reasonableness is our guiding polestar. We cannot say
that mathematical variations amounting to less than one-half
of 1 percent of the entire marital estate resulted in an unfair
or unreasonable division. We conclude that these mathemati-
cal variations are not clearly untenable, nor do they deprive
Keith of a just result; therefore, the district court did not abuse
its discretion.
CONCLUSION
Having reviewed the record de novo, we conclude that
the district court did not abuse its discretion in determining
the valuation dates for the marital assets and in classifying,
valuing, and dividing the marital estate. Therefore, we affirm
the decree.
A ffirmed.