Higgins v. Currier , 307 Neb. 748 ( 2020 )

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Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
HIGGINS v. CURRIER
Cite as 307 Neb. 748
Billy Meredith Higgins, appellee, v.
Rashell Rene Currier, appellant.
___ N.W.2d ___
Filed November 13, 2020. No. S-19-343.
1. Divorce: Child Custody: Child Support: Property Division:
Alimony: Attorney Fees: Appeal and Error. In a marital dissolution
action, an appellate court reviews the case de novo on the record to
determine whether there has been an abuse of discretion by the trial
judge. This standard of review applies to the trial court’s determinations
regarding custody, child support, division of property, alimony, and
attorney fees.
2. Evidence: Appeal and Error. In a review de novo on the record, an
appellate court is required to make independent factual determinations
based upon the record, and the court reaches its own independent con-
clusions with respect to the matters at issue.
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. All property accumulated and acquired by
either spouse during the marriage is part of the marital estate, unless it
falls within an exception to the general rule.
5. ____: ____. Any given property can constitute a mixture of marital and
nonmarital interests; a portion of an asset can be marital property while
another portion can be separate property.
6. ____: ____. The original capital or value of an asset may be nonmarital,
while all or some portion of the earnings or appreciation of that asset
may be marital.
7. ____: ____. The active appreciation rule sets forth the relevant test to
determine to what extent marital efforts caused any part of an asset’s
appreciation or income.
8. Divorce: Property Division: Presumptions. Accrued investment
earnings or appreciation of nonmarital assets during the marriage are
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Cite as 307 Neb. 748
presumed marital unless the party seeking the classification of the
growth as nonmarital proves: (1) The growth is readily identifiable and
traceable to the nonmarital portion of the account and (2) the growth is
not due to the active efforts of either spouse.
9. Divorce: Property Division: Words and Phrases. Appreciation caused
by marital contributions is known as active appreciation, and it consti-
tutes marital property.
10. ____: ____: ____. Passive appreciation is appreciation caused by sepa-
rate contributions and nonmarital forces.
11. Divorce: Property Division: Proof. The burden is on the owning
spouse to prove the extent to which marital contributions did not cause
the appreciation or income.
Petition for further review from the Court of Appeals,
Moore, Chief Judge, and Arterburn and Welch, Judges,
on appeal thereto from the District Court for Douglas County,
James M. Masteller, Judge. Judgment of Court of Appeals
affirmed in part, and in part reversed and remanded with
directions.
Corey J. Wasserburger, of Johnson, Flodman, Guenzel &
Widger, for appellant.
Megan E. Shupe and Richard W. Whitworth, of Reagan,
Melton & Delaney, L.L.P., for appellee.
Heavican, C.J., Miller‑Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Papik, J.
In its decree dissolving the marriage of Billy Meredith
Higgins and Rashell Rene Currier, the district court for Douglas
County found that Currier should be awarded $10,500 from
a 401K account owned by Higgins, but otherwise awarded
Higgins all funds in his retirement and investment accounts.
Currier appealed, challenging various aspects of the dis-
trict court’s dissolution decree, and the Nebraska Court of
Appeals affirmed. See Higgins v. Currier, No. A‑19‑343, 2020
WL 634183 (Neb. App. Feb. 11, 2020) (selected for posting
to court website). We granted Currier’s petition for further
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307 Nebraska Reports
HIGGINS v. CURRIER
Cite as 307 Neb. 748
review. We find that the Court of Appeals erred in concluding
that the district court did not abuse its discretion in its disposi-
tion of Higgins’ 401K accounts.
BACKGROUND
Parties’ Marriage.
Higgins and Currier were married in Washington on May
20, 2016. At the time of the marriage, Currier and her son from
a prior relationship lived in Washington and Higgins lived in
Council Bluffs, Iowa. Following the marriage, Currier and her
son moved to Council Bluffs to live with Higgins. Higgins and
Currier have no children together.
Higgins has been employed by TD Ameritrade since 1997.
During a portion of the 14 months Currier lived with Higgins,
she worked part time.
In July 2017, Currier and her son moved back to Washington.
Shortly thereafter, Higgins moved to Omaha, Nebraska. After
July 2017, the parties remained in contact and took occasional
trips to visit one another. The parties were unable to reconcile
and ended their relationship in March 2018.
Higgins initially filed a complaint for legal separation in
April 2018, but later filed an amended complaint for dissolu-
tion of marriage. Trial was held in December 2018. Higgins
was represented by counsel at trial. Currier represented herself.
Both parties testifed and offered exhibits, which were received
into evidence by the district court.
Summary of Trial Evidence.
Much of the evidence at trial concerned investment and
retirement accounts owned by Higgins. Higgins testified that
he had a TD Ameritrade account with an account number end-
ing in “3733” (the 3733 account). He testified that the 3733
account was in existence prior to the marriage and that he did
not make any deposits into the 3733 account during the mar-
riage. Higgins’ counsel referred to the account as a “brokerage
account” during direct examination. Higgins asked that the
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HIGGINS v. CURRIER
Cite as 307 Neb. 748
court award all funds in that account to him as a premari-
tal asset.
In addition, Higgins testified that he had a 401K account,
which was established prior to the marriage. He also asked
that the district court award that account to him, but he did not
provide any other testimony or documentation with respect to
that account.
Currier also presented evidence regarding Higgins’ accounts.
She testified that Higgins had two different 401K accounts and
that he was depositing $1,500 per month into the accounts.
Currier also introduced and the court received two account
statements for a TD Ameritrade 401K account with an account
number ending in “0510” (the 0510 account). The account state-
ments are in Higgins’ name and are from May 2016 and March
2018. These statements show that the 0510 account had a value
of $218,182.02 as of May 2016 and a value of $359,128.29 as
of March 2018. The statements show that Higgins held stocks
and mutual funds within the account and that securities were
sold and purchased and interest income was received during
the period summarized by each statement. When referencing
the account statements for the 0510 account, Currier noted that
the account statements corresponded to the month the parties
were married and the month the parties separated and asked the
district court to divide the account equitably.
The district court also received evidence regarding the pur-
chase and sale of the Council Bluffs house in which the parties
resided together. Higgins testified that he purchased that house
in 2014 for approximately $675,000 and that, at the time, the
house was appraised at $625,000. Higgins testified that he
made a downpayment on the purchase of about $350,000, and
a closing statement shows that he and his previous wife bor-
rowed $315,000 to purchase the house.
Higgins testified that, at Currier’s request, he sold the
Council Bluffs house in July 2017. Higgins testified that the
house sold for $615,000, about $58,000 less than its purchase
price, and that he paid about $31,000 in fees and closing
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HIGGINS v. CURRIER
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costs. He testified that he realized about $300,000 from its
sale. Following the sale of the house, Higgins used $25,000 of
the proceeds to pay off a marital credit card debt. He applied
the rest of the proceeds to the purchase of a new house in
Omaha. Higgins asked the district court to award him the
Omaha house as nonmarital property traceable to his premarital
Council Bluffs house.
District Court Decree.
In March 2019, the district court entered a decree of dissolu-
tion, dissolving the marriage and identifying and dividing the
marital estate. Perhaps unsurprisingly, given the duration of the
marriage, relatively little property was identified as marital and
subject to equitable division. The district court awarded Currier
$303, representing half of the balance in a bank account in
both parties’ names. The court also awarded her $3,570, a sum
representing half of an income tax refund that accumulated
during the portion of 2016 the parties were married.
The district court found that the TD Ameritrade account end-
ing in “0733” (presumably the 3733 account) was Higgins’ pre-
marital asset and that “all accumulations to [that] account were
from that premarital asset.” It awarded Higgins that account
and any other “TD Ameritrade accounts which belonged to
[Higgins] prior to the marriage.”
In a separate subsection of the decree, the district court
discussed retirement plans. It found that Higgins had a
401K account through TD Ameritrade which was established
prior to the marriage. It found that during the marriage, he
made monthly contributions of $1,500 from marital funds
to that account. The court found that for purposes of divid-
ing the marital portion of the 401K account, the operative
dates for the marriage were from May 2016 to July 2017
and that Higgins thus made $21,000 in contributions to the
401K account that were subject to division. Accordingly, it
awarded Currier $10,500 from Higgins’ 401K and ordered it
transferred through a qualified domestic relations order. The
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HIGGINS v. CURRIER
Cite as 307 Neb. 748
district court awarded the parties any other retirement plans
held in their own names.
In a subsection of the decree addressing real property, the
district court concluded that the Council Bluffs house was not
a marital asset. It also concluded that the equity in the Council
Bluffs house could be traced to the house Higgins purchased in
Omaha. It found that the Omaha house was not a marital asset
and thus awarded Higgins all right, title, interest, and equity in
that property.
Court of Appeals.
Currier appealed. Among other things, she assigned that
the district court had erred in classifying the increase in value
of the 0510 account and the Council Bluffs house as non-
marital property. The Court of Appeals affirmed the district
court’s decree.
The Court of Appeals found that the district court did not
abuse its discretion by declining to include in the marital estate
the amount by which the 0510 account increased during the
marriage. The Court of Appeals recognized that the question
of whether the increase in value was appropriately treated
as nonmarital called for the application of the active appre-
ciation rule, whereby the burden is on the owning spouse to
prove the extent to which marital contributions did not cause
the appreciation or income. It also acknowledged the district
court’s receipt of account statements showing that the value
of that account increased from $218,182.02 in May 2016 to
$359,128.29 in March 2018 and that stocks and mutual funds
were sold and purchased within the account during that time.
It concluded, however, that those statements did not indicate
that active appreciation was the cause of the increase in value,
but, rather, they suggested that “the account fluctuates, pre-
sumably depending on market forces.” Higgins v. Currier,
No. A‑19‑343, 2020 WL 634183 at *6 (Neb. App. Feb. 11,
2020) (selected for posting to court website).
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HIGGINS v. CURRIER
Cite as 307 Neb. 748
The Court of Appeals also concluded the district court did
not err by finding that the Council Bluffs residence was a non-
marital asset.
ASSIGNMENTS OF ERROR
Currier argues on further review that the Court of Appeals
erred by improperly shifting the burden to her to prove that
the increase in value in the 0510 account during the parties’
marriage was due to active appreciation. She argues that, in
this regard, the Court of Appeals’ opinion is at odds with our
recent opinion in White v. White, 304 Neb. 945, 937 N.W.2d
838 (2020). She contends that the increase in value of the 0510
account during the marriage should have been treated as mari-
tal property subject to equitable division.
Currier also claims that the Court of Appeals erred by failing
to find that mortgage payments made during the marriage were
inextricably comingled with the equity in the marital residence.
We find no error in the district court’s disposition of this issue,
and we see no need for further comment on it. Therefore, our
analysis below is limited to the assignment of error concerning
the disposition of the 0510 account.
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. This standard of
review applies to the trial court’s determinations regarding cus-
tody, child support, division of property, alimony, and attorney
fees. White v. White, supra.
[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. Id.
[3] A judicial abuse of discretion exists if the reasons or rul-
ings of a trial judge are clearly untenable, unfairly depriving a
litigant of a substantial right and denying just results in matters
submitted for disposition. Id.
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307 Nebraska Reports
HIGGINS v. CURRIER
Cite as 307 Neb. 748
ANALYSIS
Currier introduced evidence showing that the value of the
0510 account increased during the course of the marriage. The
account statements Currier introduced showed that the value of
the account was $218,182.02 in May 2016 and $359,128.29 in
March 2018. Currier argues that the district court should have
classified this increase in value as marital property and divided
it equitably.
[4‑6] We have said that all property accumulated and
acquired by either spouse during the marriage is part of the
marital estate, unless it falls within an exception to this gen-
eral rule. Stephens v. Stephens, 297 Neb. 188, 899 N.W.2d 582
(2017). Thus, for example, income from either party that accu-
mulates during the marriage is a marital asset. Id. Any given
property can constitute a mixture of marital and nonmarital
interests; a portion of an asset can be marital property while
another portion can be separate property. Id. Therefore, the
original capital or value of an asset may be nonmarital, while
all or some portion of the earnings or appreciation of that asset
may be marital. Id.
Currier argues that is the case here. Although she concedes
that the value of the 0510 account at the time of the parties’
marriage was Higgins’ nonmarital property, she contends that
the growth in that account during the marriage was marital.
She argues that this result is compelled by the active apprecia-
tion rule.
[7‑11] The active appreciation rule sets forth the relevant
test to determine to what extent marital efforts caused any
part of an asset’s appreciation or income. White v. White, 304
Neb. 945, 937 N.W.2d 838 (2020). Under the rule, accrued
investment earnings or appreciation of nonmarital assets dur-
ing the marriage are presumed marital unless the party seeking
the classification of the growth as nonmarital proves: (1) The
growth is readily identifiable and traceable to the nonmarital
portion of the account and (2) the growth is not due to the
active efforts of either spouse. Id. Appreciation caused by
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HIGGINS v. CURRIER
Cite as 307 Neb. 748
marital contributions is known as active appreciation, and it
constitutes marital property. Id. Passive appreciation is appre-
ciation caused by separate contributions and nonmarital forces.
Id. The burden is on the owning spouse to prove the extent to
which marital contributions did not cause the appreciation or
income. Id.
In Stephens v. Stephens, 297 Neb. at 205, 899 N.W.2d at
595, we made clear that these principles “apply equally to
appreciation or income during the marriage of any nonmarital
asset.” We also explained that placing the burden on the own-
ing spouse to prove that the growth is not due to active efforts
“is the better policy, because it places the burden on the party
who has the best access to the relevant evidence.” Id. at 206,
899 N.W.2d at 595.
We recently had occasion to apply the active appreciation
rule in White v. White, supra. In that case, the husband created
an investment account with funds he inherited. He argued that
the district court abused its discretion by treating the appre-
ciation in that account during the course of the marriage as
marital property. We rejected the argument. We explained that
under the active appreciation rule articulated in Stephens v.
Stephens, supra, it was the husband’s burden to establish that
the growth in the account was attributable solely to passive
market forces or separate contributions. We also noted ways
in which the husband might have been able to carry this bur-
den: by showing that the growth was consistent with “some
recognized benchmark of general market growth,” that the
annual rate of return was guaranteed or statutorily prescribed,
or that he relied on the recommendations or management of
his account by a third party. White v. White, 304 Neb. at 961,
937 N.W.2d at 851. But because the husband failed to present
evidence on any of these points or any evidence showing that
his efforts did not cause the appreciation, we found that the
district court did not err in classifying the appreciation in the
account as marital.
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HIGGINS v. CURRIER
Cite as 307 Neb. 748
Currier argues that under the active appreciation rule, as
applied in White, the increase in the value of the 0510 account
is also marital property subject to equitable division. She does
not dispute that Higgins satisfied the first element of the active
appreciation rule by showing that the growth in the 0510
account was readily identifiable and traceable to the nonmarital
portion of the account. But she contends that like the husband
in White, Higgins introduced no evidence showing that the
growth was not due to the active efforts of either spouse.
In response to this argument, Higgins has not directed us
to any evidence in the record that might tend to show that the
increase in the value of the 0510 account came about as a result
of something other than the active efforts of either spouse.
Indeed, during closing argument, Higgins’ counsel seemed to
acknowledge the lack of such evidence, stating “there’s been
absolutely no testimony that would guide the Court in deter-
mining how to divvy up any income and interest that would
have come into that account during the time . . . that these folks
have been married.”
Unable to point to evidence that the increase in value in the
0510 account was the result of passive appreciation, Higgins
attempts to undermine Currier’s argument in other ways. First,
he contends that Currier did not adequately raise this issue in
the district court. We disagree. In referencing the exhibit she
offered into evidence showing the increase in value of the
0510 account between May 2016 and March 2018, Currier
mentioned that the account statements corresponded with the
month the parties were married and the month they sepa-
rated, and she asked the district court to “divide that equi-
tably.” Higgins’ counsel appeared to understand that Currier
was asking that at least some portion of Higgins’ accounts
be treated as marital property subject to equitable division.
On cross‑examination, he had Currier confirm that she was
asking the district court to award her a portion of Higgins’
401K, and, in closing argument, he contended that, with the
possible exception of funds that were contributed to accounts
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HIGGINS v. CURRIER
Cite as 307 Neb. 748
during the marriage, Higgins should be awarded the entirety
of any investment or retirement accounts. We believe Currier
adequately informed the district court and Higgins that she
sought the equitable division of the 0510 account.
Higgins also argues that despite the lack of evidence that
the increase in the value of the 0510 account was the result of
passive appreciation, the Court of Appeals correctly applied
the active appreciation rule. Again, we disagree. The Court
of Appeals stated that the exhibits Currier offered regarding
the 0510 account did not show any funds being deposited,
but instead showed stocks and mutual funds being sold and
purchased within the account along with the receipt of inter-
est income. It noted that the March 2018 statement showed
a $20,000 loss for the month. It concluded that this evidence
“does not indicate that active appreciation is the cause of
the increase in value during the marriage; rather, it indicates
that the account fluctuates, presumably depending on market
forces.” Higgins v. Currier, No. A‑19‑343, 2020 WL 634183
at *6 (Neb. App. Feb. 11, 2020) (selected for posting to
court website).
Although the Court of Appeals recognized earlier in its
opinion that the burden is on the owning spouse to prove the
extent to which marital contributions did not cause the appre-
ciation or income, its analysis treated Currier as if she had the
burden to show that the increase was caused by active appre-
ciation. After concluding that the exhibits Currier offered did
not demonstrate active appreciation, the Court of Appeals pre-
sumed that the account increased due solely to market forces.
This was an incorrect application of the active appreciation
rule. The burden was on Higgins to show that the increase
in the 0510 account was the result of passive appreciation.
Higgins was obligated to adduce evidence to carry that burden
as opposed to relying on presumptions. He did not do so. Thus,
under the active appreciation rule, the increase in value of the
0510 account during the marriage should have been treated as
marital property.
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HIGGINS v. CURRIER
Cite as 307 Neb. 748
We are not swayed from this conclusion by Higgins’ conten-
tion at oral argument that Currier’s argument is flawed because
the district court, for purposes of determining contributions to
Higgins’ 401K, treated the marriage as effectively concluded
in July 2017 when Currier returned to Washington. Higgins
pointed out that although Currier offered evidence of the value
of the account in March 2018, she did not offer evidence of
the value of the account in July 2017. He claimed that there is
thus no evidence of how much the value of the 0510 account
increased from the beginning of the marriage until its effective
conclusion as determined by the district court.
Higgins is correct that Currier did not introduce evidence
showing the value of the 0510 account in July 2017, but that
does not affect our conclusion that under these circumstances,
the increase between May 2016 and March 2018 should have
been treated as marital property subject to equitable division.
As we have discussed, because Higgins did not show that the
increase in the 0510 account resulted from passive apprecia-
tion, the increase in the account during the marriage should
have been treated as marital property under the active appre-
ciation rule. To the extent the value of the account increased
after the effective end of the marriage as determined by the
district court and rendered any marginal increase after that
time nonmarital property, Higgins had the burden to prove
it. See Burgardt v. Burgardt, 304 Neb. 356, 363, 934 N.W.2d
488, 494 (2019) (“[i]n a marital dissolution proceeding, the
burden of proof rests with the party claiming that property
is nonmarital”). Higgins, however, introduced no evidence
regarding the value of the 0510 account in July 2017 or any
other time.
For all these reasons, we conclude that the increase in the
value of the 0510 account should have been treated as marital
property subject to equitable division. The district court abused
its discretion by finding otherwise, and the Court of Appeals
erred by failing to reverse on this issue.
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Disposition.
Currier argues that given the district court’s error, we should
modify the decree to award her half of the increase in the value
of the 0510 account. While our de novo on the record stan-
dard of review permits us to modify a dissolution decree, we
believe it best to instead reverse, and remand with directions
in this case.
As we have noted, while the district court did not treat the
entire increase of the 0510 account as marital property, it did
find that Higgins deposited $21,000 into a 401K account dur-
ing the marriage. It determined those were marital contribu-
tions and, as a result, awarded Currier $10,500 from the 401K
account. It is not clear to us from the decree or the broader
record, however, whether the district court determined that
those contributions were made to the 0510 account or another
account. If the contributions were found to be made to the 0510
account, it would be double counting to treat both those contri-
butions and the full $140,946.27 increase in the 0510 account
as marital property. If the contributions were found to be made
to some other account, however, then the entire increase in the
0510 account should be treated as marital property in addition
to the $21,000 in marital contributions the district court treated
as marital in its initial decree.
Given this uncertainty in the record and because the district
court is in a better position to make an equitable division, we
will return this case to the district court. We do so by remand-
ing the cause to the Court of Appeals and directing that it
reverse the district court’s decree in part and remand the cause
to the district court with the following directions. The district
court should clarify whether the $21,000 in contributions
found by the district court to be marital property were made to
the 0510 account. If so, an additional $119,946.27 should also
be treated as marital. If not, an additional $140,946.27 should
be treated as marital. The district court should also determine
the equitable division of marital property. See Stephens v.
Stephens, 297 Neb. 188, 899 N.W.2d 582 (2017) (remanding
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to district court to determine equitable distribution of asset
found to be marital). All such determinations should be made
based on the existing record.
CONCLUSION
The Court of Appeals and the district court erred in their
application of the active appreciation rule. We reverse the
decision of the Court of Appeals to the extent it affirmed the
district court’s award of all but $10,500 from Higgins’ 401K
account to Higgins. On that issue, we remand the cause to the
Court of Appeals and direct that it reverse the district court’s
decree in part and remand the cause with directions to the dis-
trict court as outlined above. In all other respects, we affirm.
Affirmed in part, and in part reversed
and remanded with directions.