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


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    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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    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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    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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    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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    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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    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
    
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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 
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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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    Nebraska Supreme Court A dvance Sheets
    303 Nebraska R eports
    ROHDE v. ROHDE
    Cite as 
    303 Neb. 85
    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.