Simons v. Simons , 312 Neb. 136 ( 2022 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
09/16/2022 09:07 AM CDT
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Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
SIMONS V. SIMONS
Cite as 312 Neb. 136Jonathan B. Simons, appellant, v.
Heather L. Simons, appellee.
___ N.W.2d ___
Filed August 5, 2022. No. S-21-599.
1. Pleadings: Appeal and Error. Permission to amend a pleading is
addressed to the discretion of the trial court, and an appellate court will
not disturb the trial court’s decision absent an abuse of discretion.
2. Constitutional Law: Due Process. The determination of whether the
procedures afforded to an individual comport with constitutional require-
ments for procedural due process presents a question of law.
3. Trusts: Equity: Appeal and Error. An action to impose a constructive
trust sounds in equity, which an appellate court reviews de novo on the
record, giving consideration, where the evidence is in conflict, to the
fact that the trial court observed the witnesses and their manner of testi-
fying and accepted one version of facts rather than the opposite.
4. Divorce: Child Custody: 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 in his or her determi-
nations regarding custody, child support, division of property, alimony,
and attorney fees.
5. 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.
6. Appeal and Error. Appellate courts do not generally consider argu-
ments and theories raised for the first time on appeal.
7. Antenuptial Agreements. As a contract, an antenuptial agreement is
governed by the same principles that are applicable to other contracts,
but is subject to the particular statutory requirement that an antenuptial
agreement must be based on fair disclosure.
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Cite as 312 Neb. 1368. Contracts: Intent. When the terms of a contract are clear, a court may
not resort to rules of construction, and terms are accorded their plain and
ordinary meaning as an ordinary or reasonable person would understand
them. In such a case, a court shall seek to ascertain the intention of the
parties from the plain language of the contract.
9. Due Process: Words and Phrases. While the concept of due process
defies precise definition, it embodies and requires fundamental fairness.
10. Rules of the Supreme Court: Pleadings. The key inquiry for “express
or implied consent” under Neb. Ct. R. Pldg. § 6-1115(b) is whether the
parties recognized that an issue not presented by the pleadings entered
the case at trial.
11. Divorce: Property Division. In an equitable property division governed
by Neb. Rev. Stat. § 42-365 (Reissue 2016), 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 general rule.
12. Antenuptial Agreements: Property Division. Spouses are able to con-
tract around the general rules of equitable division by using a premarital
agreement.
13. Trusts: Property: Title: Equity. Under a constructive trust, equity vests
title to the subject property in the wronged party and the court may issue
a decree that the title be so conveyed.
14. Trusts: Property: Title. A constructive trust is imposed when one has
acquired legal title to property under such circumstances that he or she
may not in good conscience retain the beneficial interest in the property.
15. Trusts: Property: Title: Equity. A constructive trust is a relationship,
with respect to property, subjecting the person who holds title to the
property to an equitable duty to convey it to another on the grounds that
his or her acquisition or retention of the property would constitute unjust
enrichment.
16. Trusts: Equity. In determining whether to impose a constructive trust,
the court will consider not only the original situation but also all events
which have occurred since the defendant began to hold inequitably.
17. Trusts: Proof. A party seeking the remedy of a constructive trust has the
burden to establish the factual foundation, by evidence which is clear
and convincing, required for a constructive trust.
18. Trusts: Equity. The constructive trust doctrine is equitable in nature
and should not be rigidly limited, and the absence of any one factor will
not itself defeat the imposition of a constructive trust when otherwise
required by equity.
19. Equity. Where a situation exists which is contrary to the principles of
equity and which can be redressed within the scope of judicial action, a
court of equity will devise a remedy to meet the situation.
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Cite as 312 Neb. 13620. ____. Equity is not a rigid concept, and its principles are not applied in
a vacuum.
21. ____. Equity is determined on a case-by-case basis when justice and
fairness so require.
22. Trusts: Property: Title: Equity: Proof. Generally, a court, sitting in
equity, will not impose a constructive trust and constitute an individual
as a trustee of the legal title for property unless it be shown, by clear
and convincing evidence, that the individual, as a potential constructive
trustee, had obtained title to property by fraud, misrepresentation, or
an abuse of an influential or confidential relationship and that, under
the circumstances, such individual should not, according to the rules of
equity and good conscience, hold and enjoy the property so obtained.
23. Trusts: Equity: Unjust Enrichment. A constructive trust is imposed to
do equity and to prevent unjust enrichment.
24. Unjust Enrichment. Unjust enrichment is a flexible concept, occurring
when a claim is based on the failure of consideration, fraud, or mistake
and in other situations where it would be morally wrong for one party to
enrich himself or herself at the expense of another.
25. Fraud. Fraud comprises all acts, omissions, and concealments involving
a breach of legal or equitable duty, trust, or confidence justly reposed,
and are injurious to another, or by which an undue and unconscientious
advantage is taken of another.
26. Appeal and Error. An appellate court will not consider an issue on
appeal that was not presented to or passed upon by the trial court.
27. ____. To be considered by an appellate court, an alleged error must be
both specifically assigned and specifically argued in the brief of the
party asserting the error.
28. Limitations of Actions: Waiver. A statute of limitations is nonjurisdic-
tional and waivable.
29. Expert Witnessess. The determination of the weight that should be
given expert testimony is uniquely the province of the fact finder.
30. Valuation. A trial court is not required to accept any one method of
valuation as more accurate than another accounting procedure.
31. Trusts: Property: Title: Declaratory Judgments. The ownership rights
of a constructive trust beneficiary, once recognized, are protected from
the moment the trustee acquired legal title, the constructive trust decree
being in the nature of a declaratory judgment about the state of title to
the property.
32. Alimony. The purpose of alimony is to provide for the continued main-
tenance or support of one party by the other when the relative economic
circumstances make it appropriate.
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Cite as 312 Neb. 13633. Alimony: Appeal and Error. In reviewing an alimony award, an appel-
late court does not determine whether it would have awarded the same
amount of alimony as did the trial court, but whether the trial court’s
award is untenable such as to deprive a party of a substantial right or a
just result.
Appeal from the District Court for Douglas County: Gregory
M. Schatz, Judge. Affirmed in part, and in part vacated.
John A. Kinney, Jill M. Mason, and Samantha M. Robb, of
Kinney Mason, P.C., L.L.O., for appellant.
Benjamin M. Belmont and Wm. Oliver Jenkins, of Brodkey,
Cuddigan, Peebles, Belmont & Line, L.L.P., for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Freudenberg, J.
I. INTRODUCTION
In a dissolution action governed by a premarital agreement,
the court imposed a constructive trust over certain limited
liability companies titled solely in the respondent’s name,
such that they were considered additions to the marital estate
under the agreement. The petitioner appeals the court’s judg-
ment, arguing that the court abused its discretion in allowing
the respondent to amend her pleadings to conform to the evi-
dence at trial to include the issue of the constructive trust, that
the trust was in conflict with the premarital agreement, that
the evidence did not support a constructive trust, and that the
amount of the trust was in error. The petitioner also challenges
the court’s award of a $150,000 lump-sum payment under the
terms of the premarital agreement, an order to maintain life
insurance to fund a support order, the inclusion of a truck in
the marital estate, and the amount of the alimony award.
II. BACKGROUND
Jonathan B. Simons brought a complaint for dissolution of
his marriage to Heather L. Simons. Jonathan and Heather were
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SIMONS V. SIMONS
Cite as 312 Neb. 136married in 2005. Two children, still minors at the time of fil-
ing, were born to the marriage. The complaint alleged that a
premarital agreement controlled the division of their assets and
debts. In her operative answer, Heather asked, among other
things, for an equitable division of the marital estate and for
alimony. She denied the validity of the premarital agreement.
However, the court ultimately found the agreement was valid,
and that finding is not challenged on appeal.
1. Issues in Controversy
The court issued a pretrial order directing the parties to sub-
mit a letter stating the issues in controversy, the issues not in
controversy, and a concrete statement of the relief sought. As
relevant to this appeal, the letter submitted by Heather’s coun-
sel set forth as issues in controversy the following:
4. Whether Jonathan holds one half of the membership
interest in JBS Kids Play & Fitness, LLC; JBS Properties,
LLC and Dogwatch, LLC in a constructive trust for the
benefit of Heather.
5. Does Jonathan have an equitable duty to convey
one half of the membership interest in JBS Kids Play &
Fitness, LLC; JBS Properties, LLC and Dogwatch, LLC
to Heather on the ground that his acquisition or reten-
tion of the membership interests would constitute unjust
enrichment.
6. If the Premarital Agreement is valid and enforceable,
whether three limited liability companies [Jonathan] orga-
nized to operate the parties’ businesses which were started
during the marriage and in which Heather was an owner
and held out to the public as being an owner are part of
the marital estate;
7. Whether the provision of the Premarital Agreement
stating, “Anything in this section 3.2 to the contrary not-
withstanding, in no event shall [Jonathan’s] Property or
Heather’s Property be made a part of or be considered in
determining any alimony award as herein contemplated”
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Cite as 312 Neb. 136is valid, or contrary to law and if contrary to law, is it able
to be severed from the Premarital Agreement.
8. Whether Jonathan has comingled any purported
separate funds with marital funds to subject those funds
to an equitable division;
9. The determination of what assets are part of the
marital estate and the equitable division of the marital
estate[.]
A copy of the letter was sent to opposing counsel, who raised
no objections.
Before trial commenced, Jonathan’s counsel argued to the
court that the premarital agreement was enforceable and that,
under the agreement, title controls—assets jointly titled are
marital while assets not jointly titled are not marital.
Heather’s counsel responded that even with the premarital
agreement, the court had equitable powers, there were issues
as to what exactly the agreement means, and “[i]t’s not just a
matter of title.” Heather’s counsel elaborated that at issue in
the case was a business Heather and Jonathan started together,
which they both worked for and which Jonathan represented
to Heather and to others that he and Heather jointly owned.
Heather’s counsel argued that the fact the business was titled
solely in Jonathan’s name should not be controlling of the dis-
tribution even under the premarital agreement.
At the conclusion of the evidence presented at trial, Heather
moved to amend her pleadings to conform to the evidence so
as to allege constructive trust and unjust enrichment. A discus-
sion ensued with Jonathan’s counsel arguing that Heather’s
position relating to a constructive trust was simply a type of
equitable distribution that would not be applicable if the pre-
marital agreement, which distributed assets by title, was valid.
Heather’s counsel responded that the claimed constructive
trust was not mooted by a possible finding that the premarital
agreement is enforceable; rather, a constructive trust created
under equitable principles would simply make that asset mari-
tal under the terms of the premarital agreement. The record
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Cite as 312 Neb. 136does not reflect that Jonathan’s counsel raised the waiver pro-
vision of the agreement found in section 6.
The court granted the motion to amend the pleadings over
Jonathan’s objection, stating from the bench, “I don’t see how
the amendment to the pleadings would change the evidence,
nor would the Court’s equitable resolution of the issues pre-
sented.” The court reasoned further in its written order that
the issues were set forth in the pretrial letter and that Jonathan
raised no objection to the litigation of those issues either before
or during the trial in which those issues were actually litigated.
The court noted that a constructive trust and unjust enrichment
are equitable concepts and that Heather raised in her pleadings
the issue of the equitable division of the marital estate and
the court’s equitable jurisdiction. Finally, the court found that
Jonathan was not prejudiced by the amendment.
2. Premarital Agreement
The premarital agreement was entered into evidence at trial.
Section 1.5 of the agreement describes the “Marital Estate”:
Anything in this Agreement to the contrary notwithstand-
ing, to the extent that [Jonathan] or Heather have acquired
or in the future acquire and affirmatively transfer or
convey any assets the title to which, as evidenced by
some written instrument, is held by them after such
acquisition, transfer or conveyance in any form of co-
ownership, including but not limited to tenancy in com-
mon, joint tenancy, tenancy by the entirety or community
property, such property shall be deemed to constitute and
be part of the “Marital Estate.” The Marital Estate shall
include any appreciation or depreciation on the assets
forming a part of the Marital Estate but shall not include
any earnings thereon, proceeds therefrom or replacements
thereof unless such earnings, proceeds or replacements,
as the case may be, are also titled in some form of
co-ownership. . . . The Marital Estate shall be subject to
division, distribution and disposition as hereinafter pro-
vided in this Agreement.
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Cite as 312 Neb. 136Section 3.4, in turn, addresses division of the marital estate,
providing that “[i]n the event of a future legal separation,
divorce, annulment or other dissolution of this proposed mar-
riage, [Jonathan] and Heather agree that the Marital Estate
shall be divided equally between them.”
Section 3.3 sets forth the division of separate property in the
event of divorce, providing:
As further provided in Section 6 hereinafter, or in any
other part of this Agreement:
....
(b) Heather hereby waives any and all claims for divi-
sion of property or property settlement from [Jonathan]
with respect to [his] Property in the event of a future
legal separation, divorce, annulment or other dissolution
of this proposed marriage. Anything in this Agreement
to the contrary notwithstanding including the foregoing
sentence, in the event of a future legal separation, which
ultimately results in a divorce or dissolution; divorce,
annulment, or other dissolution of this proposed marriage
(for purposes of this Section, an “Action”) and at the
time of initiation of such Action, Heather and [Jonathan]
have children born to them or legally adopted by them
during the marriage or Heather is pregnant with a child
of [Jonathan] and Heather, [Jonathan] shall be required
to pay to Heather a lump sum of money based on the
number of Full Year(s) of Marriage subsequent to the
marriage date . . . .
Under the schedule, if the marriage ends after between 10
and 15 years of marriage, then Jonathan would have to give
Heather a lump sum of $150,000.
Jonathan’s property is defined in section 1.1 of the
agreement:
[Jonathan’s] Property. A listing of the assets and liabili-
ties of [Jonathan] has been prepared and a copy thereof
has been given to Heather and is also attached to this
Agreement as Exhibit “A,” and is, by this reference,
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Cite as 312 Neb. 136made a part of this Agreement. Such assets and liabilities
of [Jonathan] as set forth on Exhibit “A,” together with
proceeds and income therefrom, replacement(s) thereof
and appreciation or depreciation in value thereon as more
specifically described in Sections 1.4, 2.1, 2.2, 4.1, 4.2,
and 4.3, shall hereinafter be referred to as “[Jonathan’s]
Property.”
Section 4 of the agreement governs the treatment of assets,
liabilities, earnings, and expenses during the marriage. Section
4.1, “Assets as Separate Property,” states:
Each of the parties agrees that, unless and until trans-
ferred and conveyed to the Marital Estate as contemplated
by Sections 1.5 and 4.6, the following described property
shall remain the separate and solely owned property of its
owner (i.e., Heather’s Property or [Jonathan’s] Property
as the case may be):
(a) All property, whether real or personal, owned by
either party as of the effective date of this Agreement;
(b) All property and property rights acquired by a party
out of the proceeds or income from property at the effec-
tive date of this Agreement, or attributable to appreciation
in value of such property, whether the enhancement is due
to market conditions or to the services, skills, or efforts of
its owner or anyone else; and
(c) All property acquired by either party by gift, devise,
bequest or inheritance.
Section 4.3 sets forth “Earnings as Separate Property” and
states that earnings from the work of one of them is the sepa-
rate property of the person to whom they are attributable.
Section 4.6 describes “Additions to the Marital Estate”:
Nothing in Section 4 shall prohibit the parties from mak-
ing additions to the Marital Estate from [Jonathan’s]
Property or from Heather’s Property or from their indi-
vidual earnings but any such addition must be evidenced
by some written agreement or acknowledgment of the
same or some affirmative act resulting in the titling
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Cite as 312 Neb. 136of additional property as part of the Marital Estate as
described in Section 1.5 above.
Section 1.6 sets forth Jonathan’s obligation to carry life
insurance during the marriage, stating in relevant part:
[Jonathan] agrees to acquire, own and maintain, at his sole
cost and expense, a policy of life insurance insuring his
life, with a face amount of not less than $1,000,000.00.
. . . In the event of the parties’ legal separation or disso-
lution of the proposed marriage while said life insurance
policy is in effect, the parties agree any cash value attrib-
utable thereto shall be equally divided between them, and
Heather at her election, shall be entitled to retain such
policy at her sole cost and expense.
Section 6 sets forth a waiver as follows:
Except as otherwise specifically provided in this
Agreement, each party waives all rights he or she may
have in all or any part of the property of the other under
any law now or hereinafter in effect in any jurisdic-
tion, whether by way of dissolution of marriage, separa-
tion, descent, courtesy, dower, distributive share, exempt
property, homestead property, right to elect against a
will, augmented estate, or any other right or interest, and
each agrees he or she will not make any claim of any
kind to the property of the other in the event of death,
dissolution of marriage, or separation except as specifi-
cally contemplated by the provisions of this Agreement,
if at all. Without limitation, this Agreement shall be con-
strued to be a waiver similar to and with the same force
and effect as provided by Neb. Rev. Stat. § 30-2316 and
§ 42-1001, et seq. Stated otherwise, except as otherwise
provided therein, this Agreement is intended as a waiver
of all rights to alimony, support, property division, elec-
tive share, homestead allowance, exempt property, and
family allowance by each party in the property of the
other and a renunciation by each of all benefits which
would otherwise pass to him or her from the other by
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Cite as 312 Neb. 136intestate succession, or by virtue of the provisions of
any will executed before this waiver or by virtue of any
other law.
Section 8.3 further specifies that to the extent necessary to
implement its terms, the agreement shall be interpreted as
a “renunciation pursuant to Neb. Rev. Stat. § 30-2352,” a
“waiver pursuant to Neb. Rev. Stat. § 30-2316,” a “waiver as to
the augmented estate pursuant to Neb. Rev. Stat. § 30-2314(c),”
a “waiver as to homestead rights pursuant to Neb. Rev. Stat.
§ 40-104,” and a “waiver of spousal rights to qualified retire-
ment plan benefits.”
3. Trial
At trial it was undisputed that Backyard Adventures was
purchased in the summer of 2009. Heather had quit working in
2008 after the birth of her and Jonathan’s first child. Jonathan
was unhappy at his place of employment, and Jonathan and
Heather looked for a business that could be a good fit for their
family. Heather described that they were looking for “some-
thing we could do together that I would still be able to raise
our kids but that I would be able to be an active part in and do
something.” They found Backyard Adventures.
Jonathan worked with an attorney to form a limited liability
company, JBS Kids Play & Fitness, LLC (JBS Kids Play), to pur-
chase Backyard Adventures at a purchase price of $444,391.04.
The name “Backyard Adventures” was retained by the seller,
so Jonathan changed it to Backyard Adventures Playworld and,
eventually, around 2011, to Backyard Playworld.
Jonathan’s parents gifted $375,000 toward the purchase
price, transferring the gift directly into a checking account of
JBS Kids Play. Jonathan testified that the remaining $65,000 of
the purchase price came from the marital joint account.
At the time of the purchase, the marital joint account had
a balance of approximately $188,000. Jonathan denied that he
and Heather had been saving up to purchase a business, stat-
ing that “[i]t takes more than $188,000 to buy a business and
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Cite as 312 Neb. 136operate a business.” Heather, in contrast, understood that they
had been living frugally and saving the substantial income
they both made before Heather had their first child in order to
purchase a business. She testified she did not know that a gift
from Jonathan’s parents was made and used toward the pur-
chase price. Rather, she was led to believe the purchase money
came from the joint account.
The evidence was disputed concerning what representa-
tions were made by Jonathan with respect to the ownership of
the business. This line of questioning was not objected to by
Jonathan’s counsel.
Heather testified that she believed they were purchasing
Backyard Adventures together and that she had no idea that
Jonathan was going to be the sole owner under a limited liabil-
ity company (LLC) established for that purpose. She did not
learn of the LLC until after the divorce proceedings were com-
menced. Heather testified that Jonathan indicated to her they
were co-owners of Backyard Playworld. Heather testified that
Jonathan introduced her to people as a co-owner.
Jonathan testified that at some point before closing, he told
Heather the business would be titled solely in his name. In his
prior deposition testimony that was adduced at trial, however,
Jonathan had stated that he did not recall ever discussing the
ownership interest of the business. Later in his testimony at
trial, Jonathan stated with respect to whether he told Heather
“she was not a co-owner of the business,” that “I don’t have
any recollection of saying one or the other.”
Heather was present at closing but did not sign any of the
paperwork. She described that she did not think this unusual
given her prior work experience at a car dealership and her
understanding that with cash transactions there can be two
names on the title but only one person needs to sign it.
The closing statement for the purchase described Jonathan
as “Managing Partner, Buyer.” Heather was not present when
Jonathan went to his attorney to establish JBS Kids Play.
Jonathan admitted that he never had a conversation with
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Cite as 312 Neb. 136Heather explaining that he was forming an LLC in his own
name for the purpose of being the sole owner of Backyard
Playworld.
In his deposition testimony adduced at trial, Jonathan had
stated he did not know why Heather’s name was not on any of
the paperwork for the purchase of the business. Jonathan testi-
fied at trial he did not know if there was any reason Heather
would have believed for the previous 14 years that she was
not the co-owner of Backyard Playworld. Jonathan testified
that when the purchase was made, he and Heather trusted
each other.
Heather was the only authorized signatory other than
Jonathan for the bank account associated with JBS Kids Play.
Without objection, the court accepted into evidence the picture
of a sign displayed for the public at the entrance of Backyard
Playworld with a message welcoming customers. It was signed
by “Heather and Jon Simons - Owners.” Also entered into
evidence without objection was a copy of the business cards
provided by Jonathan to Heather, which described a “family
company” and Heather as “[o]wner.”
A former employee of Backyard Playworld, who had
worked for Backyard Adventures before the purchase, testi-
fied he was introduced to Jonathan and Heather as co-owners
of the business. He testified that Jonathan specifically intro-
duced Heather to him as an owner and that he had witnessed
Jonathan introduce Heather to other people as an owner of
the business.
Heather described that after they purchased Backyard
Adventures, she worked on site, bringing their 11-month-old
child to work with her. She generally worked 7 days a week
from opening at 10 a.m. until 3 p.m. when their child took
a nap. She worked in the “front of the store” in sales while
Jonathan worked in the “back.” She continued to work in
that manner, later bringing their second child to work as well
or asking the children’s grandparents to babysit, until the
children’s activities required Heather to be away from work
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Cite as 312 Neb. 136more often, approximately 3 or 4 years before Jonathan filed
for divorce. Heather continued to work on an “as-needed”
basis.
Heather also described contributing and implementing suc-
cessful new ideas for the business, such as hosting birthday
parties on a larger scale than the prior owner had and having
“pay to play” hours. It was also Heather’s idea to host end-of-
the-year school parties, to rent the facilities to organizations,
to host parties for a charitable foundation, and to set up spon-
sorship tents at various events.
Jonathan testified that before purchasing Backyard
Adventures, he and Heather had discussed that she was going
to work in the business. Jonathan testified that Heather worked
at Backyard Playworld on the sales floor and answered phone
calls, explaining “there wasn’t a lot of money to go around as
far as starting a new business, and . . . my spouse, was, you
know, not only a reliable employee but obviously a way to
have a staff without having an expense.”
Jonathan testified that he paid Heather a yearly salary of
around $10,000 to be able to fund her individual retirement
account to the maximum allowable each year. Heather was
paid at the end of the year, and Jonathan would sign the
checks and deposit them into the marital joint account. The
record contains copies of yearly checks made out to Heather
from JBS Kids Play for approximately $7,000 each and signed
by Jonathan.
Heather described a division of marital responsibilities
under which she was not privy to their finances. During the
marriage, Heather did not maintain a separate bank account.
Jonathan maintained a separate, personal checking account,
which Heather testified at trial she was not aware of. Heather
stated she believed all income and gifts were going into
the joint marital account. However, Jonathan described that
each year his parents gifted the maximum allowable tax-free
amount to both him and to Heather and that he deposited
the check made out to him into his personal account and
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Cite as 312 Neb. 136deposited the check made out to Heather into their marital
joint account. Jonathan testified that he took care of all the
“financials” in their relationship.
The parties’ second child was born in 2010. According to
Jonathan, he and Heather began experiencing marital difficul-
ties in 2013 and sought legal advice concerning a possible
divorce in 2017. But they continued to work on their mar-
riage, and Jonathan did not move out until the spring of 2020.
Heather confirmed the dates of these marital difficulties and
testified that Jonathan asked her not to leave because he could
not run Backyard Playworld without her.
In 2017, Jonathan formed DogWatch, LLC, to separate a
hidden fencing business from Backyard Playworld for pur-
poses of selling it. The proceeds of the sale of DogWatch was
held in an account under DogWatch’s name, which has a bal-
ance of $333,497.24. Heather testified she worked in sales for
the hidden fencing aspect of the business and handled those
customers’ needs. According to Heather, it was a joint deci-
sion to sell that aspect of the business. She knew a separate
checking account had been established for DogWatch but did
not know it had been separated into an LLC under Jonathan’s
sole ownership.
While Backyard Playworld originally operated out of a
leased space, Jonathan and Heather decided to purchase a
building in 2019 from which to operate. Jonathan formed JBS
Properties, LLC, to make the purchase.
Jonathan testified that Heather was not involved in the
decision as to which building was ultimately purchased for
Backyard Playworld in 2019—at least he did not recall that she
was. Jonathan described that he took Heather to see the build-
ing, but he testified she did not help him find it. Jonathan did
not recall that Heather was involved in planning the layout of
the new building.
Jonathan testified that Heather had no involvement in the
formation of JBS Properties. The money to purchase the new
building came from cash out of JBS Kids Play with the
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Cite as 312 Neb. 136remainder from financing. Heather’s name is not on any of the
documents associated with the purchase of the building.
Heather testified it was always their long-term goal to pur-
chase a different location for the business rather than lease
space. She testified she was involved in discussions regarding
the move and accompanied Jonathan in looking for possible
buildings. Once the new building was purchased, according to
Heather, she helped plan the layout for the new space. Heather
had no knowledge of the existence of JBS Properties.
At the time of trial, Jonathan’s personal net worth, not
including the businesses, was approximately $5.3 million.
Jonathan’s net worth had increased by approximately $4 mil-
lion during the course of the marriage.
Jonathan testified that the only asset jointly titled to both
himself and Heather was their house. Their jointly held check-
ing account had been dissolved. Jonathan denied making
any representations to Heather that she jointly owned JBS
Kids Play.
Gregory Harr, an accredited business valuator, testified as an
expert for Heather concerning the value of Backyard Playworld.
Harr testified that there are three different approaches in
assigning a value to a business: the asset approach, the income
approach, and the market approach. Harr explained that the
asset approach is typically used for companies that are going to
be liquidated or that are heavy in real estate or securities. Harr
explained that the market approach uses several different fac-
tors to determine a probable sale price. The income approach
attempts to value a future economic benefit.
Harr valued JBS Kids Play as of 2019 using the “fair value”
approach, valuing it as a “going concern” utilizing both the
market approach and the income approach versus the asset
approach.
Harr testified, without objection, that it was his professional
opinion that the “fair value” approach was the more accurate
valuation approach for divorces. Harr explained there is a dif-
ference between “fair value” and “fair market value”:
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mined by a hypothetical buyer and a hypothetical seller,
neither one of which is being forced to make a decision as
to what the — what it’s going to be selling for. The value
of fair market value, depending upon what you’re going
to have is if it’s a controlling interest or a noncontrolling
interest. Discounts come into play for that situation, and
the size of the discount will depend upon whether it’s
controlling or non-controlling. But then you also in all
cases with fair market value you’re going to have a lack
of marketability that comes into play. And the difference
between fair market value and fair value is that there
[are] no discounts in fair value versus fair market value
because of the situation.
In sum, Harr affirmed he was “just not including in some cases
the discount for lack of control,” which he would not apply
anyway in this case.
Daniel Morris, who was accredited in business valuations,
was the expert retained by Jonathan to assess the value of JBS
Kids Play, doing business as Backyard Playworld. He testified
that he chose fair market value as opposed to fair value as the
standard to determine the valuation of Backyard Playworld
because
there’s a reasonable expectation that if this business were
to be sold — not to a specific buyer but to a buyer, which
is supposed to represent any potential buyer — that the
price would need to be fair market value in order for that
transaction to occur.
Morris opined that fair value was not an appropriate method-
ology in a divorce in Nebraska, explaining that while “both
methods are used because they are commonly both accepted
practices,” he did not believe Jonathan would be able to get
a fair value in the real world if he were to actually sell the
business. He explained that “therefore, a discount for lack of
marketability must be applied.”
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fair value and fair market value is fair value does not allow
discounting. In his valuation, Morris discounted 28 percent
from the net book value of the going concern, for what Morris
perceived to be its lack of marketability.
Morris conceded in cross-examination that his valuation uti-
lizing fair market value for JBS Kids Play as a going concern
was significantly lower than its net book value that could be
received if liquidated. Morris explained the discrepancy by
stating that he did not use the asset approach.
Morris conceded that “[p]otentially,” fair value, as opposed
to fair market value, of a business in a divorce case means
“we’re not going to use discount because a property isn’t up
for sale, it isn’t going to be sold.” Morris testified that in his
experience, he has seen both fair value and fair market value
approaches utilized in divorce cases. Morris conceded that in
his interviews with Jonathan there was no indication of an
intention to sell Backyard Playworld, but he thought that the
use of fair value favors one spouse by “using a specific buyer.”
Both experts testified as to the unusual amount of cash
equity being held by JBS Kids Play in comparison to its oper-
ating expenses. Its bank account held over $700,000 in cash.
Heather testified that she graduated from high school and
does not have a college degree. When she and Jonathan were
married, Heather was working in aftermarket sales in the parts
department at a car dealership. It required her to work approxi-
mately 50 hours a week and included working well into the
evening and on weekends. She earned approximately $95,000
per year her final 2 years at that job. Prior years averaged
around $70,000 annually. She had not worked outside the home
anywhere other than at Backyard Playworld since the birth of
the oldest child of the marriage approximately 12 years prior
to the hearing. Heather did not think she could go back to sales
work at a car dealership due to her obligations caring for the
children and because of the use of newer technology that she
has no experience with.
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Cite as 312 Neb. 136Heather submitted a list of monthly living expenses in
the amount of $13,630. There was evidence that Jonathan’s
monthly net income was $31,154 and that Heather’s monthly
net income was $1,098. Other evidence showed Jonathan had a
net cashflow of $590,990.37, derived from Backyard Playworld
and various personally owned investment accounts.
4. Decree
(a) Constructive Trust
The court found the premarital agreement to be valid and
enforceable. However, the court concluded that Heather had
proved by clear and convincing evidence the existence of a
constructive trust in Backyard Playworld such that Jonathan
had an equitable duty to hold half of those businesses in trust
for Heather; otherwise, Jonathan would be unjustly enriched.
The court found that the entity the parties originally purchased,
Backyard Adventures, was ultimately composed of JBS Kids
Play, JBS Properties, and DogWatch.
The court found that Jonathan and Heather jointly looked
into business opportunities and decided on purchasing Backyard
Adventures. Heather believed, based on the discussions with
Jonathan, that they were purchasing the business together.
Jonathan told Heather it was not necessary for her to sign any
documents at closing because it would be a cash transaction.
Of the $445,000 purchase price for the business, $375,000
came from a gift from Jonathan’s father.
The court found that when Jonathan and Heather decided in
2019 to purchase a separate building for Backyard Playworld,
Heather accompanied Jonathan to see the real estate agent,
after which Jonathan and Heather jointly decided upon a
building to purchase, and Heather assisted in planning the
layout. Heather was led to believe from Jonathan that the
building was an asset they owned together and was part of
the business. The money to purchase the building came from
Backyard Playworld. Heather was unaware until the com-
mencement of the divorce proceedings that Jonathan had
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by Jonathan.
The court found that Jonathan led Heather to believe they
owned Backyard Playworld together and that Heather was
unaware Jonathan had formed JBS Kids Play to hold their
company. The court noted statements by Jonathan to Heather
and employees working at Backyard Playworld that Heather
was an owner. The sign at the entry of the building, as well
as business cards, referred to Heather as an “[o]wner” of
Backyard Playworld. The court found that Heather worked sig-
nificant hours at the business up to approximately 3 to 4 years
before Jonathan filed for divorce, when she reduced her hours
in order to take their children to and from activities. The court
found that Heather worked without getting a paycheck and was
unaware that Jonathan was issuing paychecks in her name,
which he would deposit into their joint account that held the
earnings from the business. The court found that Heather con-
tributed toward the growth of the business not only by working
on the sales floor but also through marketing, the creation of
paid playtime as a new vehicle for revenue, the expansion of
the party room rental, and the use of the play areas for events.
She was also actively involved in the most recent acquisition of
the new location and its interior layout.
The court observed that under section 4.6 of the premarital
agreement, neither party was prevented from adding to the
marital estate from their separate property and that, under sec-
tion 3.4, the marital estate is to be divided equally. The court
found that Jonathan contributed Backyard Playworld (which
included JBS Kids Play, JBS Properties, and DogWatch) to the
marital estate and that it should be divided equally between
Jonathan and Heather.
The court found that the value of JBS Kids Play was
$1,444,722. It found the value of DogWatch to be $333,497.24,
which reflected the cash balance of the DogWatch account
that held the proceeds from its sale. The court found that JBS
Properties had an “equity value” of $500,000. Thus, the court
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ated entities—to be divided equally between the parties—was
$2,278,219.24.
(b) Gift of $375,000
The court specifically found that the $375,000 gifted to
Jonathan by his father and utilized in the purchase of Backyard
Adventures was added to the marital estate pursuant to section
4.6 of the premarital agreement. Thus, it became a marital asset
subject to division.
(c) Truck
The court found that Jonathan’s 2019 Ram pickup truck with
a value of $57,141 should be made part of the marital estate.
(d) $150,000
Pursuant to section 3.3(b) of the agreement, the court found
that Jonathan was obligated to pay Heather $150,000 from
Jonathan’s separate estate. This was above and beyond the
division of the marital estate.
(e) Alimony and Life Insurance
The court awarded Heather monthly alimony of $5,500 for
72 months. The court also ordered child support, which is not
at issue in this appeal.
The court ordered Jonathan to maintain life insurance cov-
erage in an amount sufficient to fund his child support and
spousal support obligations in the event of his death.
III. ASSIGNMENTS OF ERROR
Jonathan assigns that the trial court erred (1) by allow-
ing Heather to amend her pleadings to include claims of
fraud, unjust enrichment, and constructive trust after the trial,
unfairly surprising him with new claims and denying him due
process; (2) in its finding that Heather proved by clear and
convincing evidence that Jonathan engaged in fraud and would
be unjustly enriched unless Backyard Playworld were added
to the marital estate via constructive trust; (3) in dividing the
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Cite as 312 Neb. 136marital estate and ordering life insurance to fund support; (4)
in using the opinion of Heather’s expert in valuing Backyard
Playworld; (5) in its award of alimony; (6) in the specific find-
ings related to documents signed at closing and the purchase of
Backyard Adventures; and (7) in failing to impose the waiver
in the Premarital Agreement.
IV. STANDARD OF REVIEW
[1] Permission to amend a pleading is addressed to the dis-
cretion of the trial court, and an appellate court will not disturb
the trial court’s decision absent an abuse of discretion. 1
[2] The determination of whether the procedures afforded
to an individual comport with constitutional requirements for
procedural due process presents a question of law. 2
[3] An action to impose a constructive trust sounds in equity,
which we review de novo on the record, giving consideration,
where the evidence is in conflict, to the fact that the trial court
observed the witnesses and their manner of testifying and
accepted one version of facts rather than the opposite. 3
[4] 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 in his or her
determinations regarding custody, child support, division of
property, alimony, and attorney fees. 4
[5] 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. 5
1
United Gen. Title Ins. Co. v. Malone, 289 Neb. 1006, 858 N.W.2d 196(2015).
2
Dycus v. Dycus, 307 Neb. 426, 949 N.W.2d 357 (2020).
3
See, ProData Computer Servs. v. Ponec, 256 Neb. 228, 590 N.W.2d 176(1999); Ford v. Jordan, 220 Neb. 492, 370 N.W.2d 714 (1985).
4
See Vanderveer v. Vanderveer, 310 Neb. 196, 964 N.W.2d 694 (2021).
5
Devney v. Devney, 295 Neb. 15, 886 N.W.2d 61 (2016).
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Cite as 312 Neb. 136[6] Appellate courts do not generally consider arguments
and theories raised for the first time on appeal. 6
[7] As a contract, an antenuptial agreement is governed by
the same principles that are applicable to other contracts, but is
subject to the particular statutory requirement that an antenup-
tial agreement must be based on fair disclosure. 7
[8] When the terms of a contract are clear, a court may not
resort to rules of construction, and terms are accorded their
plain and ordinary meaning as an ordinary or reasonable person
would understand them. In such a case, a court shall seek to
ascertain the intention of the parties from the plain language of
the contract. 8
V. ANALYSIS
Several issues are presented in this appeal pertaining to the
constructive trust, the first of which is whether the court erred
in considering the question of a constructive trust at all, given
that it was not specifically mentioned in Heather’s responsive
pleading. Beyond that, Jonathan argues that the constructive
trust was inconsistent with the premarital agreement and that
the evidence was generally insufficient to establish a construc-
tive trust. Lastly, Jonathan argues that the valuation of the trust,
based on fair value, was an abuse of discretion.
The remaining issues presented in this appeal concern (1) a
$150,000 lump-sum payment under the terms of the premarital
agreement, which Jonathan claims to be inconsistent with the
constructive trust; (2) an order to maintain life insurance to
fund the support order, which he argues is inconsistent with the
premarital agreement; (3) the inclusion of a truck in the marital
estate, which Jonathan argues was already part of the business
valuation informing the constructive trust; and (4) the alimony
award, which Jonathan argues was excessive.
6
Maria T. v. Jeremy S., 300 Neb. 563, 915 N.W.2d 441 (2018).
7
In re Estate of Jakopovic, 261 Neb. 248, 622 N.W.2d 651 (2001).
8
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Cite as 312 Neb. 1361. Amendment of Pleadings
Before addressing the merits of the constructive trust, we
first consider Jonathan’s argument that the court erred in
allowing amendment of the pleadings to include the issue
of a constructive trust, as well as his related argument that
his procedural due process rights were violated by a lack of
timely notice to defend against the alleged constructive trust.
Permission to amend a pleading is addressed to the discretion
of the trial court, and an appellate court will not disturb the
trial court’s decision absent an abuse of discretion. 9 The deter-
mination of whether the procedures afforded to an individual
comport with constitutional requirements for procedural due
process presents a question of law. 10
[9] While the concept of due process defies precise defini-
tion, it embodies and requires fundamental fairness. 11 Generally,
procedural due process requires parties whose rights are to be
affected by a proceeding to be given timely notice, which is
reasonably calculated to inform the person concerning the sub-
ject and issues involved in the proceeding; a reasonable oppor-
tunity to refute or defend against a charge or accusation; a
reasonable opportunity to confront and cross-examine adverse
witnesses and present evidence on the charge or accusation;
representation by counsel, when such representation is required
by constitution or statute; and a hearing before an impartial
decisionmaker. 12
Nebraska’s pleading rules provide for amendments to con-
form to the evidence, stating:
When issues not raised by the pleadings are tried by
express or implied consent of the parties, they shall be
treated in all respects as if they had been raised in the
pleadings. Such amendment of the pleadings as may
9
United Gen. Title Ins. Co. v. Malone, supra note 1.
10
Dycus v. Dycus, supra note 2.
11
Eric H. v. Ashley H., 302 Neb. 786, 925 N.W.2d 81 (2019).
12
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Cite as 312 Neb. 136be necessary to cause them to conform to the evidence
and to raise these issues may be made upon motion of
any party at any time, even after judgment; but failure
so to amend does not affect the result of the trial of
these issues. If evidence is objected to at the trial on the
ground that it is not within the issues made by the plead-
ings, the court may allow the pleadings to be amended
and shall do so freely when the presentation of the merits
of the action will be subserved thereby and the objecting
party fails to satisfy the court that the admission of such
evidence would prejudice the party in maintaining the
party’s action or defense upon the merits. The court may
grant a continuance to enable the objecting party to meet
such evidence. 13
Even when a party does not move to amend pleadings, a court
may constructively amend pleadings on unpleaded issues in
order to render a decision consistent with the trial. 14
[10] A court’s determination of questions raised by the facts,
but not presented in the pleadings, should not come at the
expense of due process, 15 and thus, our standards governing
whether a court has abused its discretion in ordering construc-
tive amendment of the pleadings are generally consistent with
the fundamental fairness standards of procedural due process.
We have said that the key inquiry for “express or implied
consent” under § 6-1115(b) is whether the parties recognized
that an issue not presented by the pleadings entered the case
at trial. 16
We have held that express consent may thus be found when
a party has stipulated to an issue or the issue is set forth in
13
Neb. Ct. R. Pldg. § 6-1115(b).
14
Denali Real Estate v. Denali Custom Builders, 302 Neb. 984, 926 N.W.2d
610 (2019).
15
Eric H. v. Ashley H., supra note 11.
16
R & B Farms v. Cedar Valley Acres, 281 Neb. 706, 798 N.W.2d 121(2011).
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Cite as 312 Neb. 136a pretrial order. 17 As the court below rightly emphasized,
Jonathan had actual notice before trial that the issue of a con-
structive trust was to be tried, and he did not object or move
for a continuance. The letter by Heather’s counsel, which was
ordered by the court to set forth the issues in controversy,
explicitly set forth the question of a constructive trust, unjust
enrichment, and whether, even if the premarital agreement
were valid, Heather was entitled to an ownership interest due
to Jonathan’s representations. Jonathan’s counsel was given a
copy of this letter and did not raise any objections to the issues
in controversy stated therein.
Jonathan’s arguments that the letter was not a “pleading”
and that it did not explicitly use the words “fraud” or “misrep-
resentation” miss the point. Fraud and misrepresentation are
concepts inherent to any constructive trust claim, and a filing
need not be a pleading in order to give the other party a timely
and clear indication of the issues to be tried. Under the facts
presented, we hold that the court did not abuse its discretion in
ordering amendment of the pleadings pursuant to § 6-1115(b).
We relatedly hold that because Jonathan had timely notice of
the issues to be tried, the litigation of the constructive trust
claim did not violate Jonathan’s constitutional right to pro-
cedural due process. We turn to the merits of the construc-
tive trust.
2. Imposing Constructive Trust
[11] In an equitable property division governed by Neb.
Rev. Stat. § 42-365 (Reissue 2016), 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
general rule. 18 Under equitable property division, even if
an asset was acquired before the marriage, accrued invest-
ment earnings or appreciation of nonmarital assets during
17
Blinn v. Beatrice Community Hosp. & Health Ctr., 270 Neb. 809, 708
N.W.2d 235 (2006).
18
See Stephens v. Stephens, 297 Neb. 188, 899 N.W.2d 582 (2017).
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Cite as 312 Neb. 136the 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. 19
[12] Spouses are able to contract around the general rules of
equitable division by using a premarital agreement. 20 Neb. Rev.
Stat. § 42-1004 (Reissue 2016) permits parties to a premarital
agreement to contract with respect to, among other things, “The
rights and obligations of each of the parties in any of the prop-
erty of either or both of them whenever and wherever acquired
or located” and “[t]he disposition of property upon separation,
marital dissolution, death, or the occurrence or nonoccurrence
of any other event.” In this appeal, there is no dispute that the
premarital agreement between Heather and Jonathan was valid
and enforceable.
(a) Coexistence With Premarital Agreements
The district court implemented the terms of the premarital
agreement after imposing upon Jonathan a constructive trust
with respect to one-half of the interest in the limited liabil-
ity companies (LLCs) of Backyard Playworld, deeming them
part of the marital estate under the agreement. It is true that
this result happens to be similar to what would have occurred
under equitable division under § 42-365, unless Jonathan had
sustained his burden to prove the assets to be nonmarital. It is
also true that “[t]he remedy of constructive trust may not be
applied randomly to adjust general equities between spouses or
as a punitive measure . . . .” 21 It does not follow, however, that
the court conflated the remedy of constructive trust with simple
equitable division.
19
See id.
20
See Cook v. Cook, 26 Neb. App. 137, 918 N.W.2d 1 (2018).
21
Saff v. Saff, 61 A.D.2d 452, 456, 402 N.Y.S.2d 690, 693 (1978). See,
also, 9 Alan D. Scheinkman, West’s McKinney’s Forms Matrimonial and
Family Law § 3:11 (Feb. 2022).
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Cite as 312 Neb. 136[13-15] A constructive trust can coexist with valid premari-
tal agreements setting forth separate and marital property simi-
larly to the one here presented, 22 and the principles governing
a constructive trust are meaningfully different from those
governing the general equitable division of marital property.
Under a constructive trust, equity vests title to the subject
property in the wronged party and the court may issue a decree
that the title be so conveyed. 23 A constructive trust is imposed
when one has acquired legal title to property under such cir-
cumstances that he or she may not in good conscience retain
the beneficial interest in the property. 24 In such a situation,
equity converts the legal titleholder into a trustee holding the
title for the benefit of those entitled to the ownership thereof. 25
A constructive trust is a relationship, with respect to property,
subjecting the person who holds title to the property to an
equitable duty to convey it to another on the grounds that his
or her acquisition or retention of the property would constitute
unjust enrichment. 26
We disagree with Jonathan’s general assertion that a con-
structive trust cannot be utilized to establish ownership for
purposes of implementing a valid premarital agreement. And
we find nothing in the ownership provisions of the premarital
agreement set forth above that precludes the remedy of a con-
structive trust as the means of recognizing that certain assets,
regardless of their original legal titling, are co-owned and
therefore part of the marital estate to be divided equally under
the premarital agreement.
22
See Martin v. Farber, 68 Md. App. 137, 510 A.2d 608 (1986). See, also,
Peden v. Peden, 972 So. 2d 106 (Ala. Civ. App. 2007); Leathers and
Leathers, 98 Or. App. 152, 779 P.2d 619 (1989).
23
See Caryl A. Yzenbaard et al., Bogert’s The Law of Trusts and Trustees
§ 471 (3d ed. 2009).
24
Dreesen Enters. v. Dreesen, 308 Neb. 433, 954 N.W.2d 874 (2021); Wait
v. Cornette, 259 Neb. 850, 612 N.W.2d 905 (2000).
25
Wait v. Cornette, supra note 24.
26
Dreesen Enters. v. Dreesen, supra note 24.
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Jonathan alternatively asserts that the court erred in finding
the evidence presented at trial supported a constructive trust
and that thus, it misused the vehicle of a constructive trust to
adjust the general equities between the parties. We review a
court’s determination of a constructive trust de novo on the
record, giving consideration to the fact that the trial court
observed the witnesses and accepted one version of facts rather
than another. 27
[16-21] In determining whether to impose a constructive
trust, the court will consider not only the original situation but
also all events which have occurred since the defendant began
to hold inequitably. 28 A party seeking the remedy of a construc-
tive trust has the burden to establish the factual foundation, by
evidence which is clear and convincing, required for a con-
structive trust. 29 However, it has been said that the constructive
trust doctrine is equitable in nature and should not be rigidly
limited and that the absence of any one factor will not itself
defeat the imposition of a constructive trust when otherwise
required by equity. 30 We have explained that where a situation
exists which is contrary to the principles of equity and which
can be redressed within the scope of judicial action, a court
of equity will devise a remedy to meet the situation. 31 Equity
is not a rigid concept, and its principles are not applied in a
vacuum. 32 Equity is determined on a case-by-case basis when
justice and fairness so require. 33
[22,23] Generally, a court, sitting in equity, will not impose
a constructive trust and constitute an individual as a trustee
27
See ProData Computer Servs. v. Ponec, supra note 3.
28
See Yzenbaard, supra note 23.
29
Dreesen Enters. v. Dreesen, supra note 24.
30
In re Koreag, Controle et Revision S.A., 961 F.2d 341 (2d Cir. 1992).
31
Anderson v. Bellino, 265 Neb. 577, 658 N.W.2d 645 (2003).
32
Manker v. Manker, 263 Neb. 944, 644 N.W.2d 522 (2002).
33
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and convincing evidence, that the individual, as a potential
constructive trustee, had obtained title to property by fraud,
misrepresentation, or an abuse of an influential or confidential
relationship and that, under the circumstances, such individual
should not, according to the rules of equity and good con-
science, hold and enjoy the property so obtained. 34 A con-
structive trust is imposed to do equity and to prevent unjust
enrichment. 35
[24,25] We have explained that unjust enrichment is a flex-
ible concept, 36 occurring when a claim is based on the failure
of consideration, fraud, or mistake and in other situations
where it would be morally wrong for one party to enrich him-
self or herself at the expense of another. 37 We have explained
in the context of a constructive trust that “fraud” comprises all
acts, omissions, and concealments involving a breach of legal
or equitable duty, trust, or confidence justly reposed, and are
injurious to another, or by which an undue and unconscien-
tious advantage is taken of another. 38 Similarly, with respect
to “confidential relationship,” it has been said that “[e]quity
has never bound itself by any hard and fast definition of the
phrase ‘confidential relation’ and has not listed the neces-
sary elements for such a relationship to exist but rather has
reserved discretion to apply the doctrine whenever it believes
that a suitable occasion has arisen,” 39 but “[o]ften the par-
ties are related by blood or marriage and that relationship
when coupled with the status of the parties as to health, age,
34
Dreesen Enters. v. Dreesen, supra note 24.
35
Vogt v. Town & Country Realty of Lincoln, Inc., 194 Neb. 308, 231 N.W.2d
496 (1975).
36
City of Scottsbluff v. Waste Connections of Neb., 282 Neb. 848, 809
N.W.2d 725 (2011).
37
In re Graphics Technology, Inc., 306 B.R. 630 (8th Cir. 2004).
38
See Fisher v. Keeler, 142 Neb. 728, 7 N.W.2d 659 (1943).
39
Yzenbaard, supra note 23, § 482 at 281.
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Cite as 312 Neb. 136education, and dominance may lead a court to find that a con-
fidential relationship exists.” 40
Only a few cases in Nebraska have addressed construc-
tive trusts in property accumulated during a marital or similar
relationship.
In Manker v. Manker, 41 we affirmed the imposition of a
constructive trust upon one half of the personal property titled
solely in the name of the ex-husband whom the plaintiff mis-
takenly believed she was still married to. 42 The parties cohabi-
tated for 19 years and held themselves out to be married. Less
than a year after the parties were married, the defendant filed
a petition for dissolution and then falsely told the plaintiff he
had dismissed the action when, in reality, he received a default
judgment. Believing them to be married, the plaintiff allowed
the defendant to handle all the couple’s finances and control all
the assets. While occupying a “superior position in the relation-
ship,” the ex-husband placed nearly all of the property accumu-
lated during their cohabitation in his sole name. 43 These facts,
we said, supported the district court’s finding of a constructive
trust. Moreover, while the plaintiff had learned more than 4
years before bringing the action that she was not married to
the defendant, we affirmed the lower court’s conclusion that
the defendant, who had acted inequitably and dishonestly and
cajoled the plaintiff into delaying any action, could not rely on
the statute of limitations as a defense.
In contrast, in Dreesen Enters. v. Dreesen, 44 also involv-
ing a cohabitating relationship that continued after the parties’
divorce, albeit only sporadically, we affirmed the court’s denial
of a constructive trust against the ex-husband’s corporation for
40
Id. at 292-93.
41
Manker v. Manker, supra note 32.
42
See, also, Blome v. Blome, 201 Neb. 687, 271 N.W.2d 466 (1978);
Workman v. Workman, 174 Neb. 471, 118 N.W.2d 764 (1962).
43
Manker v. Manker, supra note 32, 263 Neb. at 962, 644 N.W.2d at 537.
44
Dreesen Enters. v. Dreesen, supra note 24.
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Cite as 312 Neb. 136one-half of the value of a house the ex-wife was living in and
where, for awhile, the ex-husband also lived. 45 The lower court
ultimately found more credible the ex-husband’s testimony that
he had fully disclosed to the ex-wife that the subject property
would be titled solely in his company’s name, that the parties
had explicitly agreed the ex-wife would pay rent to live there,
and that $50,000 for the downpayment provided by the ex-wife
was, under the parties’ express oral agreement, merely a bridge
loan. We affirmed the lower court’s monetary judgment in
favor of the ex-wife for the unpaid $50,000 loan.
Similarly, in Peterson v. Massey, 46 we affirmed the court’s
denial of a constructive trust, given the dearth of evidence
presented by the decedent wife’s heirs from a prior marriage to
support their claim to one half of the widower husband’s farm
under the theory that the couple had orally agreed to enter into
a partnership. There were no allegations of wrongdoing or of
dominance or disparities in health, age, or education. The evi-
dence consisted only of statements by the husband referring to
the farm as “‘our’” property and saying “‘[i]t’s your’s as well
as mine,’” 47 a one-time contribution by the wife of $750 in
capital and goods, and the fact that the wife had occasionally
worked in the field.
Cases from other jurisdictions provide further illustration
of when and how constructive trusts are imposed in favor of a
spouse upon closely held business enterprises.
In Janke v. Janke, 48 the appellate court affirmed the lower
court’s imposition of a constructive trust in half of a tavern
business titled solely in the husband’s name. 49 Both parties
45
See, also, Wells v. Wells, 3 Neb. App. 117, 523 N.W.2d 711 (1994).
46
Peterson v. Massey, 155 Neb. 829, 53 N.W.2d 912 (1952).
47
Id. at 833, 53 N.W.2d at 915.
48
Janke v. Janke, 47 A.D.2d 445, 366 N.Y.S.2d 910 (1975).
49
See, also, e.g., West v. Christensen, 576 B.R. 223 (D. Utah 2017); Brown v.
Odom, 425 S.C. 420, 823 S.E.2d 183 (S.C. App. 2019); Keeney v. Keeney,
223 S.W.3d 843 (Ky. App. 2007); Levin v. Levin, 43 Md. App. 380, 405
A.2d 770 (1979); Genter v. Genter, 270 So. 2d 388 (Fla. App. 1972).
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Cite as 312 Neb. 136were signatories to the bank loan used for its purchase, it was
the parties’ intention to operate the tavern as a husband and
wife operation, the wife worked extensive hours at the tavern,
the husband’s salary and a small inheritance by the wife were
contributed to the business, and all family needs were paid for
by business proceeds. The court explained that though a prom-
ise in words might have been lacking, the promise underlying
the constructive trust may be implied. “The understanding of
the parties should be interpreted not literally and irrespective
of its setting but sensibly and broadly with all its reasonable
implications.” 50 Under the facts of the case, noted the court,
“the entire relationship and the actions and contributions made
by both parties were instinct with a mutual promise of a joint
endeavor for the benefit of both.” 51 In other words, “[t]he
absence of any express promise formalizing the venture grows
out of the very confidence and trust implicit in the marriage
relationship.” 52 The court concluded that it would constitute
unjust enrichment to permit the husband to retain for himself
all of the business assets to which each contributed and which
each rightfully expected to share.
In Leathers and Leathers, 53 the court likewise affirmed
an award to the wife of an undivided one-half interest in
properties purchased by the business titled solely in the hus-
band’s name. 54 It did so despite a valid antenuptial agreement
assigning to the husband all property owned by the husband
or thereafter acquired “‘by any means whatsoever.’” 55 The
court found that the evidence supported a partnership in the
business and that the property purchased when the business
was titled solely in the husband’s name was therefore held
50
Janke v. Janke, supra note 48, 47 A.D.2d at 448, 366 N.Y.S.2d at 914.
51
Id.
52
Id., 47 A.D.2d at 448-49, 366 N.Y.S.2d at 914.
53
Leathers and Leathers, supra note 22.
54
See, also, Scull v. Scull, 94 A.D.2d 29, 462 N.Y.S.2d 890 (1983).
55
Leathers and Leathers, supra note 22, 98 Or. App. at 155, 779 P.2d at 620.
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Cite as 312 Neb. 136in partnership by the parties. The evidence of the partner-
ship was that the business was later changed to a jointly
owned proprietorship that held 80 percent of the company
assets, the wife worked for the business without compensation
for 22 years, the wife was consulted before purchasing any
property, the wife was registered with the commissioner as a
“co-proprietor,” and the wife was held out to employees as a
co-owner of the business. 56
In a somewhat similar case, Scull v. Scull, 57 the court
imposed a constructive trust based on an implied agreement
of a joint venture, noting that “an agreement for joint venture
between spouses is rarely spelled out in writing” and can be
implicit. Such promises within the confines of a marital asso-
ciation combined with independent evidence “of a pattern or a
lifestyle indicating that the parties were engaged in a joint ven-
ture,” when combined with unjust enrichment, were sufficient
to establish a constructive trust in that case. 58
In contrast, under the facts presented in Turner v. Turner, 59
the court found the evidence insufficient to impose a con-
structive trust in 50 percent of a closely held corporation and
affirmed the lower court’s determination also so finding. The
business in question was a lighting business that had evolved
from the husband’s childhood hobby. The husband was the
president, owning 65 shares of its stock. His technical knowl-
edge and skill, noted the court, were crucial to the business’
success. The wife held 10 shares of the stock. The wife per-
formed many tasks for the business but was compensated at
a significantly higher salary than the salary drawn by the hus-
band. 60 During the marriage, the parties discussed the wife’s
desire to hold more stock and, despite her explicit requests,
56
Id. at 158, 779 P.2d at 622.
57
Scull v. Scull, supra note 54, 94 A.D.2d at 34, 462 N.Y.S.2d at 893.
58
Id.
59
Turner v. Turner, 147 Md. App. 350, 809 A.2d 18 (2002).
60
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Cite as 312 Neb. 136there was no evidence her husband ever promised to give her
an equal number of shares. 61
The district court observed Heather’s and Jonathan’s testi-
monies and accepted one version of facts rather than another.
Viewing the evidence in that light, we find the evidence more
similar to those cases finding support for a constructive trust
than to those that do not. Heather testified as to an implied
promise or understanding between her and Jonathan that they
were acquiring a business with their joint savings and that
they were going to run the business together. She noted that
they had worked together since the day they had met and have
the same work ethic, so it was always their long-term goal to
find their own business that both of them could have an active
role in. The parties had in fact accumulated from their joint
earning $188,000 in their joint bank account at the time of the
initial purchase of Backyard Adventures, and Heather had no
idea that there was a substantial gift utilized for the purchase
such that only $65,000 from their joint account ultimately
was used.
Jonathan represented to Heather, employees, and the public
at large that they were co-owners of the business. Heather was
designated as “[o]wner” on business cards and signage, and
she was a cosignatory on JBS Kids Play’s account. Heather
contributed a substantial amount of labor over the years with
minimal pay, which Jonathan described as a way of having
staff without having expense. Additionally, Heather contributed
toward the growth of the business by being the public face of
the venture, working the “front of the store,” and through mar-
keting events and her ideas that expanded the business’ offer-
ings to the public and maximized the layout of their showroom
and party rooms. She claimed that Jonathan had told her he
could not run the business without her.
Both parties testified that Jonathan handled the parties’
finances and sorted through their mail. All family needs were
61
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Cite as 312 Neb. 136paid by business proceeds. Heather described a “traditional”
spousal relationship where Jonathan handled their accounting.
Heather stated, “[H]e was very dominant and ‘I’m the man’
type person, and I allowed it, I guess.” Despite not signing the
relevant paperwork, Heather testified she did not suspect at any
point during the marriage that she was not in fact a co-owner of
Backyard Playworld. Jonathan, with the help of attorneys and
without Heather’s knowledge, crafted several LLCs in his own
name. The family needs were paid for almost exclusively by
business proceeds, although a significant amount of proceeds
were left as cash assets in the business accounts titled solely in
Jonathan’s name. The family was also supported in small part
by cash gifts to Heather, which were deposited into the par-
ties’ joint account. Only after the divorce action was filed did
Heather learn that “this whole time he’d been lying to me, he’d
been using me, he had been completely taking advantage of my
trust in him, and it was all a lie.”
Jonathan focuses on Heather’s prior experience at a car
dealership as evidence that she should have known she was not
a co-owner because she did not sign any paperwork. In cases
where a constructive trust is imposed on a business venture
titled in only one spouse’s name, some paperwork is usually
involved that the plaintiff spouse is aware of. This is but one
circumstance for a court to consider in determining whether
equity requires the imposition of a consructive trust. There is
little support for the premise that the plaintiff spouse should
be foreclosed from a constructive trust claim simply because
that spouse has some knowledge of paperwork involved in the
formation of the subject business venture, which the plaintiff
spouse did not sign. We defer to the trial court’s determina-
tion that, despite knowing she did not sign certain paperwork,
Heather did not have actual knowledge she was not a co-owner.
The court did not err in determining that, under all the relevant
circumstances, the equities lay with Heather.
The evidence was sufficient to show a confidential rela-
tionship under which Heather contributed to and rightfully
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Cite as 312 Neb. 136expected to share in the business as a partner or co-owner.
There was an implied promise of a joint venture that Jonathan
did not act in accordance with when he surreptitiously orches-
trated several LLCs in his sole name. The evidence was suf-
ficient to prove Jonathan would be unjustly enriched if he were
allowed to keep for himself the benefit of Heather’s substantial
contributions to the business made under that understanding
between them. Viewing the evidence de novo, but with con-
sideration for the fact that the district court observed the wit-
nesses and accepted one version of facts rather than another,
we conclude that Heather established the factual foundation,
by evidence which is clear and convincing, required for a
constructive trust. The district court did not err in finding the
evidence sufficient to support the imposition of a constructive
trust in one-half of Backyard Playworld.
Jonathan asserts the court erroneously made a finding that
he told Heather there was no need to sign paperwork because
the purchase of Backyard Adventures was going to be a cash
transaction. This finding appears to be derived from Heather’s
cross-examination, wherein she was questioned as to why she
did not suspect she was not a co-owner by virtue of the fact
that she was not asked to sign anything during the closing of
the purchase of Backyard Adventures. She explained that “we
were paying cash, so [Jonathan] signed, and [I] trusted my
husband’s word.” The court also refers in its order to closing
arguments and “proposed findings,” which are not in the appel-
late record. As we have already explained, the failure to sign
the paperwork was at best marginally material to the overall
question of whether Heather proved a constructive trust. The
technical misstatement in the court’s order does not call into
question its ultimate finding of a constructive trust.
Jonathan similarly takes issue with the court’s statement in
its order that “Backyard Playworld was originally purchased
by [Jonathan] and [Heather] as Backyard Adventures, Inc.” He
argues there is no support for this finding in any witness state-
ment or document from the trial record. It appears from the
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Cite as 312 Neb. 136context that the court was well aware that Backyard Playworld
was not legally purchased by both parties. We understand this
statement as referring to the understandings and representa-
tions that led to the imposition of the constructive trust. This
also is not sufficient grounds to call into question the court’s
judgment.
(c) Consistency With Waiver Provision
of Premarital Agreement
[26] Jonathan raises for the first time in this appeal the argu-
ment that establishing title under a constructive trust was pro-
hibited by section 6 of the Premarital Agreement, wherein each
party agreed “he or she will not make any claim of any kind
to the property of the other in the event of death, dissolution
of marriage, or separation except as specifically contemplated
by the provisions of this Agreement.” The section also states,
“[E]ach party waives all rights he or she may have in all or any
part of the property of the other under any law . . . whether by
way of dissolution of marriage . . . or any other right or inter-
est.” This section was not specifically addressed by the court.
An appellate court will not consider an issue on appeal that
was not presented to or passed upon by the trial court. 62
In any case, we do not read this provision as prohibiting
Heather from claiming title through a constructive trust. Unlike
other rights to someone else’s property, which are established
under laws such as the homestead allowance, 63 a constructive
trust does not give rights to the property of another; it estab-
lishes who actually owns the property. The constructive trust
established that the Backyard Playworld LLCs were never the
sole property of Jonathan; rather, title to the LLCs were equally
Jonathan’s and Heather’s. Heather’s waiver of any rights to
Jonathan’s property under section 6 and other provisions of the
premarital agreement is therefore consistent with the district
court’s order.
62
de Vries v. L & L Custom Builders, 310 Neb. 543, 968 N.W.2d 64 (2021).
63
See Neb. Rev. Stat. § 30-2322 (Reissue 2016).
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Cite as 312 Neb. 136(d) Mention of Statute of Limitations
[27,28] Jonathan also raises for the first time on appeal the
statute of limitations in relation to the constructive trust. He
does so not in his assignments of error but only in passing
in the argument section of his appellate brief concerning the
alleged unfair surprise of the possibility of a constructive trust.
To be considered by an appellate court, an alleged error must
be both specifically assigned and specifically argued in the
brief of the party asserting the error. 64 A statute of limitations
is nonjurisdictional and waivable. 65 As the statute of limita-
tions was not presented to or passed upon below and was not
specifically assigned, or clearly argued, on appeal, we will not
address in this appeal any question of the statute of limitations
as pertains to the constructive trust.
(e) Fair Value Versus Fair Market Value
We turn to Jonathan’s challenge to the monetary value of
the LLCs upon which the constructive trust was imposed.
Jonathan argues the court erred in accepting the valuation
by Heather’s expert, who utilized fair value rather than fair
market value in making that valuation. Jonathan did not seek
to exclude Harr’s testimony, and he did not object to Harr’s
opinion that fair value was a more accurate valuation approach
for divorces. Jonathan states on appeal that the “problem”
with using fair value is its failure to contemplate minority
discounts and discounts for lack of marketability, but he con-
cedes that “[t]rial courts should have the discretion to reject
or apply such discounts in the divorce context, to be sure.” 66
While Jonathan’s arguments respecting fair value versus fair
market value are somewhat unclear, we view the issue pre-
served below and presented to us on appeal as an attack on the
weight the court accorded Harr’s opinions as opposed to their
admissibility.
64
Diamond v. State, 302 Neb. 892, 926 N.W.2d 71 (2019).
65
State v. Wiemer, 3 Neb. App. 821, 533 N.W.2d 122 (1995).
66
Brief for appellant at 46.
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Cite as 312 Neb. 136[29,30] Even in equity actions, which are generally subject
to de novo review, we have said that the determination of the
weight that should be given expert testimony is uniquely the
province of the fact finder. 67 And we have also said in this con-
text that a trial court is not required to accept any one method
of valuation as more accurate than another accounting proce-
dure. 68 We have held that a trial court’s valuation of a closely
held corporation is reasonable if it has an acceptable basis in
fact and principle, 69 and there is no reason to hold the valuation
of an LLC to a different standard.
We hold that the district court did not abuse its discretion
in the weight it accorded Harr’s expert opinion. Heather’s and
Jonathan’s experts’ opinions as to the proper method of valua-
tion under the circumstances of this case were in conflict, and
the district court gave more weight to Harr’s testimony, which
had an acceptable basis in fact and principle. The court’s valu-
ation of Backyard Playworld was reasonable. It did not err in
valuing Backyard Playworld in accordance with Harr’s fair
value methodology.
Jonathan argues somewhat abstractly that “experts should be
required to articulate their opinions” about discounts and that
“falsely claiming” fair value has been used in Nebraska divorce
cases as “at best, a clever way to avoid cross-examination
on your failure to intellectually address important valuation
issues” and “[a]t worst,” the presentation of an “artificially
inflated business value in the hopes that a court might ‘bite’ if
not conversant with business valuations.” 70 But we observe that
Jonathan’s own expert, Morris, testified that both fair value and
fair market value were commonly accepted practices and that
he had seen both types of valuation utilized in divorce cases.
67
See Anderson v. A & R Ag Spraying & Trucking, 306 Neb. 484, 946
N.W.2d 435 (2020).
68
See, id.; Bryan v. Bryan, 222 Neb. 180, 382 N.W.2d 603 (1986).
69
Id.70
Brief for appellant at 46.
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Cite as 312 Neb. 136Further, Harr did in fact articulate his opinions about the use of
discounts in a dissolution case, such as this one, where the sale
of the business is not being contemplated. We find no support
for Jonathan’s apparent argument that Harr’s testimony was
impermissibly misleading.
(f) $375,000 Gift
Next, Jonathan argues the court should have, at a minimum,
set off the $375,000 gift that his parents contributed toward
the purchase of Backyard Playworld and considered it part of
Jonathan’s personal property for purposes of the division of
assets. Jonathan’s only support for this assertion is the general
proposition that under equitable division, a marital estate does
not include property that a spouse has acquired before the
marriage or by gift or inheritance. 71 However, the $375,000
became part of Backyard Playworld, the division of which was
governed by the premarital agreement and the constructive
trust, not equitable division governed by § 42-365.
[31] Jonathan fails to make any argument under the law of
constructive trusts that the gift utilized toward the purchase
price of Backyard Adventures should be set off as Jonathan’s
personal property. The money was deposited directly into the
account held by JBS Kids Play. Jonathan’s parents did not
intervene in the action to claim any interest therein; rather, it
was undisputed that it was a gift. The ownership rights of a
constructive trust beneficiary, once recognized, are protected
from the moment the trustee acquired legal title, the construc-
tive trust decree being in the nature of a declaratory judgment
about the state of title to the property. 72 Thus, the gift was to
the jointly owned business. We have already held in our de
novo review that the constructive trust was not in error, and we
do not find reason to set off from that trust the amount of the
$375,000 gift to the LLC.
71
See Doerr v. Doerr, 306 Neb. 350, 945 N.W.2d 137 (2020).
72
See Restatement (Third) of Restitution and Unjust Enrichment § 55,
comment e. (2011).
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Cite as 312 Neb. 136(g) Truck
Jonathan argues that the truck owned at the time of filing for
divorce, and valued at $57,141, should not have been calcu-
lated as part of the marital estate because it was owned by the
corporation and therefore was already included in the construc-
tive trust that was given a separate value. It was undisputed at
trial that the truck was titled in the name of the business. The
court found the truck became part of the marital estate pursu-
ant to section 4.6 of the premarital agreement. And from the
court’s calculations dividing the marital estate, it is clear the
court awarded the value of the truck to be divided twice, once
as part of the constructive trust and again as separately listed
marital property. We agree with Jonathan that this was in error.
That part of the order itemizing the truck as part of the marital
estate is vacated.
3. Lump-Sum Payment Under Agreement
The court explained that the sum of $981,180 to equal-
ize the division of the marital estate did not include the
$150,000 owed under section 3.3(b) of the premarital agree-
ment. Jonathan takes issue with the court’s order awarding the
agreed-upon property equalization lump-sum payment in addi-
tion to the constructive trust. He presents no law to support this
argument. Nor does he appeal to the terms of the premarital
agreement in relation to the lump sum. Rather, in a brief argu-
ment, Jonathan characterizes the court’s order of a lump sum
in addition to the constructive trust on Backyard Playworld as
turning “the divorce decree into a kind of Frankenstein of con-
tract and equity.” 73
The premarital agreement in section 3.3 sets forth that
Heather waived “any and all claims for division of prop-
erty or property settlement from [Jonathan] with respect to
[Jonathan’s] Property in the event of a future legal separa-
tion, divorce, annulment or other dissolution of this pro­
posed marriage” in exchange for a lump sum of money
73
Brief for appellant at 45.
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Cite as 312 Neb. 136based on the number of “Full Years of Marriage Subsequent
to Marriage Date,” which, in this case of the marriage end-
ing after between 10 and 15 years of marriage, is $150,000.
(Emphasis supplied.) As already discussed, the constructive
trust means that title to the Backyard Playworld LLCs is
held in co-ownership. The premarital agreement contemplated
the lump-sum settlement to be made in addition to the equal
division of the marital estate, which included assets held in
co-ownership. What was waived was Heather’s right to an
equitable share in property solely owned by Jonathan which,
due to the constructive trust, the LLCs were not. We disagree
with Jonathan’s assertion that the court’s enforcement of the
lump-sum settlement was improper.
4. Alimony Award
Jonathan argues on appeal that the award of alimony was
an abuse of discretion because it was excessive. He makes no
argument that Heather’s right to alimony was waived in the
prenuptial agreement. In a marital dissolution action, an appel-
late court reviews the case de novo on the record to determine
whether there has been an abuse of discretion by the trial judge
in his or her determinations regarding custody, child support,
division of property, alimony, and attorney fees. 74
Under § 42-365, “The purpose of alimony is to provide for
the continued maintenance or support of one party by the other
when the relative economic circumstances and the other crite-
ria enumerated in this section make it appropriate.” The court
may order payment of such alimony by one party to the other
as may be
reasonable, having regard for the circumstances of the
parties, duration of the marriage, a history of the contri-
butions to the marriage by each party, including contribu-
tions to the care and education of the children, and inter-
ruption of personal careers or educational opportunities,
and the ability of the supported party to engage in gainful
74
See Vanderveer v. Vanderveer, supra note 4.
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minor children in the custody of such party. 75
[32] Accordingly, we have articulated four factors that are
relevant to alimony: (1) the circumstances of the parties, (2)
the duration of the marriage, (3) the history of contributions
to the marriage, and (4) the ability of the supported party to
engage in gainful employment without interfering with the
interests of any minor children in the custody of each party. 76
In addition, a court should consider the income and earning
capacity of each party and the general equities of the situ-
ation. 77 Alimony is not a tool to equalize the parties’ income,
but a disparity of income or potential income might partially
justify an alimony award. 78 The purpose of alimony is to pro-
vide for the continued maintenance or support of one party by
the other when the relative economic circumstances make it
appropriate. 79
[33] In reviewing an alimony award, an appellate court does
not determine whether it would have awarded the same amount
of alimony as did the trial court, but whether the trial court’s
award is untenable such as to deprive a party of a substantial
right or a just result. 80 The ultimate criterion is one of reason-
ableness. 81 An appellate court is not inclined to disturb the
trial court’s award of alimony unless it is patently unfair on
the record. 82
Heather does not have a college degree. She has not
worked outside the home anywhere other than at Backyard
Playworld since the birth of the oldest child of the marriage
75
§ 42-365.
76
See Seivert v. Alli, 309 Neb. 246, 959 N.W.2d 777 (2021).
77
Id.78
Id.79
Id.80
Id.81
Id.82
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calculator entered into evidence without objection showed
Jonathan’s monthly net income as $31,154 and Heather’s
monthly net income as $1,098. Other evidence showed that
Jonathan had a net cashflow for 2019 of $590,990.37, derived
from the Backyard Playworld LLCs, as well as various invest-
ment accounts. Before having children, Heather worked at
a car dealership where she earned approximately $95,000
per year her final 2 years at that job. In previous years, she
had earned around $70,000 annually. Heather did not think
she could go back to sales work at a car dealership due to
her obligations caring for the children and because of the
use of newer technology that she has no experience with.
Heather submitted a list of her monthly living expenses total-
ing $13,630.
The district court found that based on this evidence and con-
sidering the factors in § 42-365, Jonathan should pay alimony
in the sum of $5,500 per month for 72 months. Jonathan’s
argument challenging this alimony award is that the construc-
tive trust based on Heather’s being a former “dynamic and
energetic leader and owner” of Backyard Playworld is irrec-
oncilable with an alimony award based on Heather’s being
a “homemaker” and “housewife.” 83 According to Jonathan,
Heather “cannot be both.” 84 If Heather is a business leader
then, according to Jonathan, “she has the talent and acumen
to earn a substantial income and the alimony claim cannot
stand.” 85 We find no merit to this argument. Under the evi-
dence presented and arguments made, we cannot conclude that
the court’s award of alimony was patently unfair.
5. Life Insurance to Fund Support
Lastly, Jonathan argues that the court’s order that he maintain
life insurance covering his support obligations is inconsistent
83
Brief for appellant at 47.
84
Id.
85
Id.
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Cite as 312 Neb. 136with the premarital agreement. He asserts that because of
the court’s order, he is being required to maintain an addi-
tional life insurance policy beyond that required by the agree-
ment. Heather responds that the premarital agreement does not
require Jonathan to maintain this life insurance after the dis-
solution of the marriage.
Section 1.6 of the premarital agreement sets forth Jonathan’s
obligation to carry life insurance during the marriage in the
amount of at least $1 million; however, Heather is correct that
it provides:
In the event of the parties’ legal separation or dissolution
of the proposed marriage while said life insurance policy
is in effect, the parties agree any case value attribut-
able thereto shall be equally divided between them, and
Heather at her election, shall be entitled to retain such
policy at her sole cost and expense.
While Jonathan points out that he testified at trial that he was
maintaining life insurance in accordance with the premarital
agreement, this provision is plain that the agreement no longer
obligates him to do so upon the dissolution of the marriage.
Thus, the court’s decree does not impose upon Jonathan a
life insurance obligation that is duplicative of an obligation
imposed under the agreement. We find no merit to this assign-
ment of error.
VI. CONCLUSION
We affirm the decree in all respects with the exception of
the court’s itemization of the truck as part of the marital estate,
which we vacate. The truck is part of the constructive trust.
Affirmed in part, and in part vacated.
Cassel, J., concurring.
Lest the bar and trial bench misunderstand the court’s deci-
sion—believing that it sanctions the remedy of a constructive
trust in run‑of‑the‑mill marital dissolution actions—I write
separately. I address two aspects.
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Cite as 312 Neb. 136First, the application here was driven by the enforcement of
a premarital agreement. The parties utilized a premarital agree-
ment to circumvent (at least partially) the principles of equi-
table division of property dictated by the dissolution statutes. 1
Had they not done so, I suggest that a constructive trust would
have had no application. In other words, where parties bring
individual property to a marriage and do not attempt to use a
premarital agreement regarding division of property, the divi-
sion of property would be controlled solely by §§ 42‑365 and
42‑366 and our decisions construing those statutes.
Second, I have considerable doubt that the remedy of a
constructive trust would apply to parties’ actions prior to mar-
riage. In the absence of a premarital agreement, the status of
property brought to a marriage is governed by the first step
of a three‑step process. 2 The first step is to classify the par-
ties’ property as either marital or nonmarital, setting aside the
nonmarital property to the party who brought the property to
the marriage. 3 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 prop-
erty. 4 The burden of proof rests with the party claiming that
property is nonmarital. 5 Here, the disputed property was not
“property brought to a marriage.” 6 Today’s decision should not
be misunderstood as precedent for applying a constructive trust
in the first step of the three‑step process. It is not necessary
to consider the issue here, and I do not understand the court’s
opinion as doing so.
With this understanding, I join the court’s opinion.
1
See Neb. Rev. Stat. §§ 42‑347 to 42‑381 (Reissue 2016 & Cum. Supp.
2020).
2
See Kauk v. Kauk, 310 Neb. 329, 966 N.W.2d 45 (2021).
3
Id.4
Id.5
Id.6
See id.