Cook v. Cook

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
07/31/2018 09:08 AM CDT
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COOK v. COOK
Cite as 26 Neb. Ct. App. 137
Deena M. Cook, appellee, v.
Joshua J. Cook, appellant.
___ N.W.2d ___
Filed July 31, 2018. No. A-17-480.
1. Divorce: Child Custody: Child Support: Property Division:
Alimony: Attorney Fees: Appeal and Error. In a marital dissolution
action, an appellate court reviews the case de novo on the record to
determine whether there has been an abuse of discretion by the trial
judge. This standard of review applies to the trial court’s determinations
regarding custody, child support, division of property, alimony, and
attorney fees.
2. Evidence: Appeal and Error. In a review de novo on the record, an
appellate court reappraises the evidence as presented by the record and
reaches its own independent conclusions with respect to the matters
at issue.
3. Judges: Words and Phrases. A judicial abuse of discretion exists if the
reasons or rulings of a trial judge are clearly untenable, unfairly depriv-
ing a litigant of a substantial right and denying just results in matters
submitted for disposition.
4. Child Custody: Visitation: Courts. A trial court has an independent
responsibility to determine questions of custody and visitation of minor
children according to their best interests, which responsibility cannot be
controlled by an agreement or stipulation of the parties.
5. Divorce: Child Custody: Evidence. If the court disapproves of a cus-
tody stipulation, it must give the parties an opportunity to present evi-
dence relevant to a complete reexamination of the question of custody.
6. Divorce: Child Custody. Personal observations by the court are not suf-
ficient to support an award of custody in a dissolution proceeding in the
absence of evidence establishing the best interests of the child.
7. ____: ____. A court is required to review a parenting plan and determine
if it meets the requirements of the Parenting Act and if it is in the best
interests of the minor child or children.
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8. ____: ____. If a parenting plan lacks any of the elements required by
the Parenting Act or is not in the child’s best interests, the court shall
modify and approve the parenting plan as modified, reject the parenting
plan and order the parties to develop a new parenting plan, or reject the
parenting plan and create a parenting plan that meets all the required
elements and is in the best interests of the child.
9. ____: ____. If a court rejects a stipulated parenting plan, it must provide
written findings as to why the parenting plan is not in the best interests
of the child.
10. Divorce: Property Division. Equitable division of property is a three-
step process: (1) classify the parties’ property as marital or nonmarital,
setting aside the nonmarital property to the party who brought that prop-
erty to the marriage; (2) value the marital assets and marital liabilities of
the parties; and (3) calculate and divide the net marital estate between
the parties in accordance with the principles contained in Neb. Rev. Stat.
§ 42-365 (Reissue 2016).
11. ____: ____. 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. A premarital agreement
allows prospective spouses to avoid the application of the general rule
that all property accumulated and acquired by either spouse during mar-
riage is part of the marital estate.
13. Antenuptial Agreements: Proof. The party opposing enforcement of
a premarital agreement has the burden of proving that the agreement is
not enforceable.
14. Antenuptial Agreements. Nebraska’s Uniform Premarital Agreement
Act broadly allows prospective spouses to protect their interests dur-
ing a marriage and in contemplation of a divorce through a premari-
tal agreement.
15. Antenuptial Agreements: Property Division. Nebraska’s Uniform
Premarital Agreement Act specifically allows prospective spouses to
create premarital agreements providing that property acquired by each
of the parties during the marriage, which by definition includes income
separately earned, is to be his or her separate property.
16. Property Division. A marital debt is one incurred during the marriage
and before the date of separation by either spouse or both spouses for
the joint benefit of the parties.
Appeal from the District Court for Custer County: K arin
L. Noakes, Judge. Affirmed in part as modified, and in part
reversed and remanded for further proceedings.
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COOK v. COOK
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Nathan T. Bruner, of Bruner Frank, L.L.C., for appellant.
Michael S. Borders, of Borders Law Office, for appellee.
Moore, Chief Judge, and A rterburn and Welch, Judges.
Moore, Chief Judge.
I. INTRODUCTION
The marriage of Deena M. Cook and Joshua J. Cook was
dissolved by a decree of the district court for Custer County.
Before the marriage, Joshua and Deena signed a premarital
agreement that provided for separate ownership of their present
or future property. They also submitted a stipulated parenting
plan that provided the parties would share joint final say in
certain parenting decisions regarding their children. The dis-
trict court found certain agricultural assets and a joint operating
debt to be part of the marital estate. The court also altered the
stipulated parenting plan, giving Deena final decisionmak-
ing authority over the children. On appeal, Joshua challenges
these findings as contrary to the respective agreements. For the
foregoing reasons, we affirm in part as modified and in part
reverse, and remand for further proceedings.
II. BACKGROUND
Before Joshua and Deena were married on September 5,
2009, they signed a premarital agreement that defined and val-
ued both parties’ premarital property. The attached schedules to
the premarital agreement show that Joshua owned real estate,
pickup trucks, a horse, a “[t]racker,” a stock trailer, a saddle,
and guns and that he had real estate debt. Joshua’s amortization
schedules also included two cows. Deena’s schedule showed
that she owned a vehicle and a gun collection and that she
had a vehicle loan. The agreement also included the follow-
ing provision:
3. SEPARATE OWNERSHIP OF PROPERTIES
It is understood and agreed by each of the parties
hereto that each party will retain full and complete
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ownership of all real and personal property that they now
own, and shall retain full and complete ownership of all
property which shall come into their possession as the
result of each party’s work and labor, investments, inher­
itance or otherwise. No property now owned or hereinaf-
ter acquired by either party shall be considered marital or
jointly owned property unless said property is specifically
transferred into a joint or survivorship account by mutual
consent of the parties. Each party shall continue to man-
age and operate their own investments and business inter-
ests, and the other party shall take no action which would
be detrimental to the business or investments of the other,
and shall make no claim of a right to use, or inherit said
property, whether now owned or hereinafter acquired.
Each party agrees to execute any documents necessary to
allow the other to conduct their business affairs, so long
as the execution of such documents do [sic] not adversely
impact the party being asked to sign such document. If
either party desires to sell, transfer or otherwise convey
his or her separate property, the other shall join in the
deed of conveyance or other instrument as may be neces-
sary to make the same effectual.
On August 19, 2015, Deena filed a complaint for dissolu-
tion of marriage. Joshua filed an answer and countercomplaint
for dissolution of marriage, requesting, among other things,
that the court divide the parties’ assets in compliance with
their premarital agreement. The parties filed a stipulated
parenting plan on January 5, 2017, which plan provided that
Deena would have physical custody of the parties’ two minor
children, subject to Joshua’s parenting time. In the plan,
Joshua and Deena agreed to share joint legal custody of the
children and to share joint final say in the choices regard-
ing the children’s education, religious upbringing, and medi-
cal needs.
Trial was held on February 28, 2017. The court admitted the
parties’ stipulated parenting plan into evidence. Neither Joshua
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nor Deena presented evidence concerning custody, parenting
time, decisionmaking, or the ability of the parties to communi-
cate on issues pertaining to the children. The parties did present
evidence, however, about the enforceability and interpretation
of their premarital agreement. Although Deena initially argued
the premarital agreement was unenforceable, she eventually
stipulated at trial to its validity and enforceability. Still, Deena
argued that the agreement did not apply to various property,
including a house, a “40 × 40 [b]uilding,” and agricultural
assets Joshua used to produce income.
The parties submitted a joint property statement to the court,
which listed the parties’ assets and debts, each party’s estima-
tion of the value of each asset or debt, and each party’s claim
regarding whether the asset or debt was separate or marital
property. The listed assets relevant to this appeal were a cow,
item G1; corn, item G2; “[c]ash [r]ent,” item G3; and 30 head
of yearling steers, item G4. Deena valued item G1 at $900,
item G2 at $35,000, item G3 at $4,225, and item G4 at $45,000
based on the values assigned to them in a balance sheet pre-
pared for Bruning State Bank in 2015. Joshua listed no values
for these items, instead claiming them as his separate property.
Also listed on the joint property statement as item I1 was a
secured debt from the Bank of Broken Bow, which each party
claimed to be marital and valued at $27,000. At trial, Joshua
and Deena stipulated that this debt corresponds to the corn,
item G2.
A loan officer at the Broken Bow branch of Bruning State
Bank, also known as Bank of Broken Bow, testified that Joshua
and Deena have an operating loan with his bank. The court
admitted into evidence the loan note, which both Joshua and
Deena signed. The operating loan is a line of credit that Joshua
uses to fund his agricultural operation. To maintain the loan,
the bank required Joshua and Deena to file a balance sheet of
their assets and debts each year. The balance sheets contained
property belonging to both Joshua and Deena. Although the
loan officer had not researched the values the parties assigned
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to equipment or real estate in the balance sheet, he verified
the values assigned to corn, feed, and cattle using local market
prices. The court admitted into evidence two of those balance
sheets, the first dated July 6, 2015, and the second dated June
24, 2014. Deena’s signature appeared on the June 2014 balance
sheet but not on the July 2015 balance sheet. The loan officer
indicated the discrepancy was a clerical error. The court also
admitted the transaction history for this line of credit into evi-
dence, which showed the loan had an outstanding balance of
$27,000 at the time Deena filed for divorce.
Deena testified about the extent and value of the property
she claimed to be marital, specifically stating that items G1
through G4 were not included by name in the premarital agree-
ment. She noted that item G4, the 30 head of yearling steers,
must have been purchased during the marriage because they
were not listed on Bruning State Bank’s June 2014 balance
sheet. Deena admitted that, consistent with their premarital
agreement, she and Joshua kept their finances separate during
their marriage, having separate bank accounts, vehicles, and,
with some exceptions, debts. At the time of trial, Deena had
been employed for 5 years and was earning an annual salary
of $40,100. Deena’s employment provides health and dental
insurance for the family, as well as a retirement account. Deena
deposited her earnings into her separate bank account.
Joshua testified that he farms, ranches, and drives a truck
for a living and that he custom farms corn and raises cattle
on leased ground. Joshua further testified that he attempts to
sell the corn and cattle at the high points of their respective
markets, although each year’s corn crop and yearling steers
are grown or raised and sold in the same year. He subleases
some of his rental land, but does not charge his sublessees
more for the land than he pays to rent it. Joshua’s 2015 tax
return does not reflect any rental income, and he could not
explain the $4,225 in cash rent shown as an asset on Bruning
State Bank’s July 2015 balance sheet. The balance sheet
includes cash rent of $6,500 as a current liability. Joshua uses
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his separate bank accounts for his farming, ranching, and
trucking operations. The court admitted bank statements for
Joshua’s separate accounts into evidence, which demonstrate
that Joshua deposited the income from his various operations
into those accounts.
At the conclusion of evidence, the trial court expressed the
following concerns with the premarital agreement:
I’m just going to point out to the parties my concern with
the language in the Prenuptial Agreement in section three
where it says, shall retain full and complete ownership
of all property which shall come into their possession
as the result of each party’s work and labor. You know,
typically I’ve upheld prenuptial agreements where it is
income-­produced [sic] on premarital property that remains
separate. But, this appears as though it’s too broad to
be allowed. The result of each party’s work and labor
typically goes into a marital estate . . . . So, anyway, that
wording concerns me that that may not be equitable.
The court filed the decree in April 2017. The decree recited
that the parties submitted a stipulated parenting plan, which the
court found to be fair, reasonable, and in the best interests of
the minor children. The court awarded the parties joint legal
custody of the children and awarded Deena the primary care,
custody, and control of the children subject to the parenting
plan. The court then stated:
The parenting plan (Exhibit 24) is approved and ordered
EXCEPT that the mother shall have the final say in
decisions regarding the children upon which the par-
ties cannot agree. The court does not approve the por-
tion of the plan under the Parenting Responsibilities and
Cooperation section that states the parents shall have the
“joint final say in the choices regarding the children’s
education, religious upbringing and medical needs” and
the parties are not ordered to comply with that provision.
The parties are ordered to comply with the remaining
terms of the parenting plan.
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The decree further acknowledged that the parties stipulated
to the premarital agreement’s validity and enforceability. It
explained, “The findings and orders hereinafter made incor-
porate such stipulations insofar as they go, and the Court
determines the other issues upon the evidence presented.” The
court found various property and debts to be nonmarital or
separate property under the premarital agreement. The court
awarded to Deena as her separate property two bank accounts,
a life insurance policy, and a retirement account. And to
Joshua as his separate property, the court awarded a 2006
Chevy Silverado pickup, a 2006 Kawasaki, a residence in
Custer County, a “40 × 40 [b]uilding,” a life insurance policy,
and three investment accounts. The court found the mortgage
on the residence to be Joshua’s nonmarital debt under the
premarital agreement. But the court included the property dis-
puted here—items G1, G2, G3, G4, and the debt, item I1—in
the marital estate. The court awarded assets to Deena valued
at $12,622 and did not assign her any marital debt. The court
awarded assets to Joshua, including those presently disputed,
with a total value of $137,733, and assigned him the $27,000
operating debt, resulting in a net marital estate of $110,733.
To equalize the marital estate, the court awarded Deena a
judgment of $49,056.
Joshua appeals.
III. ASSIGNMENTS OF ERROR
Joshua assigns, restated, that the district court erred in (1)
modifying the parties’ stipulation contained in the joint par-
enting plan to give Deena final decisionmaking authority over
the children and (2) including items G1, G2, G3, G4, and I1
in the marital estate.
IV. STANDARD OF REVIEW
[1-3] 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.
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Becher v. Becher, 299 Neb. 206, 908 N.W.2d 12 (2018).
This standard of review applies to the trial court’s determi-
nations regarding custody, child support, division of prop-
erty, alimony, and attorney fees. Id. In a review de novo
on the record, an appellate court reappraises the evidence
as presented by the record and reaches its own independent
conclusions with respect to the matters at issue. Connolly v.
Connolly, 299 Neb. 103, 907 N.W.2d 693 (2018). A judicial
abuse of discretion exists if the reasons or rulings of a trial
judge are clearly untenable, unfairly depriving a litigant of a
substantial right and denying just results in matters submitted
for disposition. Id.
V. ANALYSIS
1. Parenting Plan
Joshua assigns the district court erred in giving Deena final
decisionmaking authority over the children. He argues that
because he and Deena agreed to a parenting plan that awarded
them joint decisionmaking authority and presented no evidence
beyond the stipulated parenting plan, the court could not alter
the parties’ parenting plan without an evidentiary hearing. He
further argues that the court should have included in the decree
factual findings about why Joshua and Deena’s stipulated
parenting plan was not in the best interests of the children.
We agree.
(a) Evidentiary Hearing
Joshua argues that if a court alters a stipulated parenting
plan, it must hear evidence concerning the custody arrange-
ment that is in the best interests of the children. He asserts the
court erred in altering the plan to award Deena final decision-
making authority over the children, because the only evidence
regarding the parenting plan presented at trial was the testi-
mony of Joshua and Deena that the stipulated parenting plan is
in their children’s best interests.
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[4-6] A trial court has an independent responsibility to deter-
mine questions of custody and visitation of minor children
according to their best interests, which responsibility cannot be
controlled by an agreement or stipulation of the parties. Becher,
supra. But if the court disapproves of a custody stipulation, it
must give the parties an opportunity to present evidence rel-
evant to a complete reexamination of the question of custody.
Zahl v. Zahl, 273 Neb. 1043, 736 N.W.2d 365 (2007) (citing
Lautenschlager v. Lautenschlager, 201 Neb. 741, 272 N.W.2d
40 (1978)). Personal observations by the court are not suffi-
cient to support an award of custody in a dissolution proceed-
ing in the absence of evidence establishing the best interests of
the child. See Lautenschlager, supra.
In Lautenschlager, supra, a mother and father agreed by
stipulation that the mother should have custody of their
child. In the course of the divorce trial, the mother falsely
answered a question posed to her. The trial court concluded
that because she lied to the court, the mother’s character was
not conducive for custody. The mother appealed, arguing that
the record did not contain sufficient evidence to support the
trial court’s custody decision. The Nebraska Supreme Court
held that when a trial court concludes that a stipulation should
not be approved, it must give the parties an opportunity to
secure and present evidence relevant to a competent reexam­
ination of the question of custody and the best interests of
the child. Because the trial court did not offer that opportu-
nity to the mother, the Nebraska Supreme Court reversed the
decree and remanded the custody issue to the trial court for
further proceedings.
So too, in Zahl, supra, when a mother and father divorced,
they each sought sole custody of their child. The parents each
submitted evidence to support their claims for sole custody and
their different proposed parenting plans. The trial court’s dis-
solution decree did not adopt either party’s proposal. Instead,
it decreed that the parties would share joint custody, without
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discussing the best interests of the child. On appeal, the father
challenged the court’s ability to enter a joint custody order
without allowing the parties to present evidence on that issue.
The Nebraska Supreme Court held that under Lautenschlager,
supra, the trial court was required to give the parties an oppor-
tunity to present evidence relevant to a competent reexamina-
tion of the question of custody when it disapproved of the
plans they submitted.
Here, the parties presented no evidence on child custody
other than their testimony that the agreed-upon parenting plan
was in their children’s best interests. The parties agreed to
share joint legal custody of the children. “Joint legal custody”
is defined by statute as “mutual authority and responsibility of
the parents for making mutual fundamental decisions regard-
ing the child’s welfare, including choices regarding education
and health.” Neb. Rev. Stat. § 43-2922(11) (Reissue 2016).
Consistent with this definition, the parties’ stipulated parent-
ing plan provided that the parents shall have “the joint final
say in the choices regarding the children’s education, religious
upbringing and medical needs.” At no time during the trial
did the court inform the parties that it was dissatisfied with
this provision. The court offered no opportunity for the par-
ties to present evidence on why they believed the joint final
decisionmaking authority to be in the best interests of their
children. Under the rule announced in Lautenschlager and
Zahl, the court was required to give the parties due process
before altering their stipulated arrangement, and the court’s
observation of the parties during the dissolution hearing is
insufficient to support altering a stipulated parenting plan. See
Lautenschlager, supra. We find the district court abused its
discretion in failing to provide the parties an opportunity to
present evidence before altering their stipulated parenting plan
as it relates to joint decisionmaking. We, therefore, reverse
the portion of the decree granting Deena final decisionmak-
ing authority over the children and remand that issue to the
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district court for further proceedings to allow the parties to
present evidence on it.
(b) Written Findings Regarding
Why Parenting Plan Was Not
in Children’s Best Interests
Joshua also argues that when the district court chose to
reject a portion of the stipulated parenting plan, under Neb.
Rev. Stat. § 43-2923(4) (Reissue 2016), the court was required
to provide written findings as to why the stipulated parenting
plan was not in the best interests of the children.
[7-9] A court is required to review a parenting plan and
determine if it meets the requirements of the Parenting Act
and if it is in the best interests of the minor child or children.
Becher v. Becher, 299 Neb. 206, 908 N.W.2d 12 (2018). If the
parenting plan lacks any of the elements required by the act
or is not in the child’s best interests, the court shall modify
and approve the parenting plan as modified, reject the par-
enting plan and order the parties to develop a new parenting
plan, or reject the parenting plan and create a parenting plan
that meets all the required elements and is in the best inter-
ests of the child. Id. See, also, Neb. Rev. Stat. § 43-2935(1)
(Reissue 2016). But if the court rejects a parenting plan, it
must provide written findings as to why the parenting plan is
not in the best interests of the child. Becher, supra. See, also,
§ 43-2923(4).
In Becher, supra, the dissolution trial was conducted by a
referee whose report included recommended findings of fact
related to child custody and a proposed parenting plan. The
district court modified the referee’s proposed parenting plan.
On appeal, the Nebraska Supreme Court found that the district
court did not abuse its discretion in modifying the proposed
parenting plan, because of its independent responsibility to
determine custody and parenting time according to the chil-
dren’s best interests. In reaching this conclusion, the court
noted that the district court provided written findings of why
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the modification to reduce potential conflicts was in the chil-
dren’s best interests.
In the instant case, beyond the district court’s statement
that it did not approve of the parties sharing joint decision-
making authority over their children, the dissolution decree
provided no written findings explaining why it rejected and
modified this provision in the stipulated parenting plan. Under
§ 43-2923(4), the district court is required to provide such
written findings. Because we are reversing the portion of the
decree that rejected the decisionmaking provision in the parent-
ing plan and remanding the issue for further proceedings, we
need not address this argument further, other than to point out
the statutory obligation of the court.
2. Determination of
M arital Estate
Joshua assigns that the district court erred in including items
G1, G2, G3, G4, and I1 in the marital estate, contrary to the
provisions of the premarital agreement. The court enforced the
provisions of the premarital agreement with respect to some of
the parties’ separate property as outlined above. But the court
disregarded the premarital agreement with respect to a $900
cow, item G1; $35,000 in corn, item G2; $4,225 in cash rents,
item G3; and $45,000 in yearling steers, item G4. Based on
this division, it appears the court determined that the premarital
agreement applied only to items with a specific title or account
name. We disagree with the court’s interpretation.
[10] Under Nebraska’s divorce statutes, “The purpose of
a property division is to distribute the marital assets equita-
bly between the parties.” Neb. Rev. Stat. § 42-365 (Reissue
2016). Equitable division of property is a three-step process:
(1) classify the parties’ property as marital or nonmarital, set-
ting aside the nonmarital property to the party who brought
that property to the marriage; (2) value the marital assets
and marital liabilities of the parties; and (3) calculate and
divide the net marital estate between the parties in accordance
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with the principles contained in § 42-365. See Osantowski v.
Osantowski, 298 Neb. 339, 904 N.W.2d 251 (2017).
[11,12] 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. Stephens v.
Stephens, 297 Neb. 188, 899 N.W.2d 582 (2017). Thus, income
from either party that accumulates during the marriage is a
marital asset. Id. (citing Harris v. Harris, 261 Neb. 75, 621
N.W.2d 491 (2001)). But spouses are able to contract around
this general rule using a premarital agreement. See Strickland
v. Omaha Nat. Bank, 181 Neb. 478, 491, 149 N.W.2d 344, 354
(1967) (“it is the very purpose of an antenuptial contract to
exclude the operation of statutory law with respect to the prop-
erty rights of the parties”), overruled on other grounds, In re
Estate of Stephenson, 243 Neb. 890, 503 N.W.2d 540 (1993).
[13] Under Nebraska’s Uniform Premarital Agreement Act
(UPAA), a “[p]remarital agreement” is an agreement between
prospective spouses made in contemplation of marriage that
is effective upon marriage. Neb. Rev. Stat. § 42-1002(1)
(Reissue 2016). The party opposing enforcement of a premari-
tal agreement has the burden of proving that the agreement is
not enforceable. Edwards v. Edwards, 16 Neb. Ct. App. 297,
744 N.W.2d 243 (2008) (citing Neb. Rev. Stat. § 42-1006(1)
(Reissue 2016)). Joshua and Deena stipulated that the premari-
tal agreement is valid and enforceable.
[14] The UPAA broadly allows prospective spouses to pro-
tect their interests during a marriage and in contemplation of a
divorce through a premarital agreement. It provides, in relevant
part, as follows:
(1) Parties to a premarital agreement may contract with
respect to:
(a) The rights and obligations of each of the parties in
any of the property of either or both of them whenever
and wherever acquired or located;
(b) The right to buy, sell, use, transfer, exchange, aban-
don, lease, consume, expend, assign, create a security
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interest in, mortgage, encumber, dispose of, or otherwise
manage and control property;
(c) The disposition of property upon separation, marital
dissolution, death, or the occurrence or nonoccurrence of
any other event;
(d) The modification or elimination of spousal support;
(e) The making of a will, trust, or other arrangement, to
carry out the provisions of the agreement;
(f) The ownership rights in and disposition of the death
benefit from a life insurance policy;
(g) The choice of law governing the construction of the
agreement; and
(h) Any other matter, including their personal rights
and obligations, not in violation of public policy or a stat-
ute imposing a criminal penalty.
(Emphasis supplied.) Neb. Rev. Stat. § 42-1004 (Reissue 2016).
The act defines property as “an interest, present or future, legal
or equitable, vested or contingent, in real or personal property,
including income and earnings.” § 42-1002(2).
[15] Joshua and Deena’s premarital agreement in section
3 specifically provided “each party will retain full and com-
plete ownership of all real and personal property that they
now own, and shall retain full and complete ownership of
all property which shall come into their possession as the
result of each party’s work and labor, investments, inherit­
ance or otherwise.” Despite the concerns the court voiced
at the conclusion of the trial, Nebraska’s UPAA specifi-
cally allows prospective spouses to create premarital agree-
ments providing that property acquired by each of the parties
during the marriage, which by definition includes income
separately earned, is to be his or her separate property. See
§§ 42-1002(2) and 42-1004(1). Therefore, we find section 3
of Joshua and Deena’s premarital agreement to be enforceable
under Nebraska’s UPAA.
The evidence shows that Joshua acquired items G1, G2,
G3, and G4 as the result of his separate farming and ranching
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activities and through his individual labor. Joshua placed earn-
ings from the sale of his corn and yearling steers and from
subletting land in his separate account. And Joshua and Deena
followed the terms of their premarital agreement by keeping
their finances separate during marriage. As a result, the cow,
corn, yearling steers, and rental income were Joshua’s separate
property under the premarital agreement.
[16] Both parties labeled item I1, which is a $27,000 debt
secured by Joshua’s corn, as a marital debt on their joint prop-
erty statement, and Joshua and Deena owe the debt jointly. A
marital debt is one incurred during the marriage and before
the date of separation by either spouse or both spouses for the
joint benefit of the parties. McGuire v. McGuire, 11 Neb. Ct. App.
433, 652 N.W.2d 293 (2002). But the record shows that this
joint debt was for the benefit of Joshua’s separate operations.
Joshua and Deena’s stipulation at trial connected this debt to
Joshua’s corn, item G2. Deena presumably executed the loan
in compliance with the provision in the premarital agreement
to execute any documents necessary to allow Joshua to conduct
his business affairs. Thus, also consistent with the agreement,
she should not be adversely impacted by signing the loan. And
there was no evidence that the parties used Deena’s income or
money from her separate bank account to make payments on
the debt. Because we have determined that the corn is Joshua’s
separate property pursuant to the premarital agreement, the
associated debt likewise should be considered Joshua’s sepa-
rate debt and not included in the marital estate, because the
debt is not for the joint benefit of the parties.
We find the district court abused its discretion in includ-
ing items G1, G2, G3, and G4 in the marital estate. Thus, we
modify the decree to exclude those items from the division of
the marital estate and to award them to Joshua as his separate
property under the premarital agreement. Similarly, we modify
the decree to exclude the debt in item I1 from the marital
estate and to assign the debt to Joshua as his separate debt
under the premarital agreement.
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Because we modified the determination of the marital
estate, we must recalculate the equalization judgment due
to Deena. Neither party has challenged the court’s valuation
of the marital property, so we use the court’s values in cal-
culating the division of the marital estate. The court found
Deena’s net marital estate to equal $12,622. After removing
the disputed assets and debt from the marital estate, Joshua’s
net marital estate equals $52,608. The difference between the
awards is $39,986. To equalize the division, Deena is entitled
to a judgment of $19,993. Therefore, we modify the decree to
award Deena a judgment in the sum of $19,993, as opposed
to $49,056.
VI. CONCLUSION
We find the district court abused its discretion in altering
the parties’ stipulated parenting plan without affording the par-
ties an opportunity to present evidence on their ability to make
joint decisions concerning the children. We reverse the portion
of the decree that altered the parenting plan and remand the
cause for further proceedings on this issue. We also find the
court abused its discretion in including items G1, G2, G3, G4,
and I1 in the marital estate. We modify the classification of the
marital estate to provide that these items are Joshua’s separate,
nonmarital property in accordance with the premarital agree-
ment. As a result, we modify the court’s equalization judgment
against Joshua to $19,993.
A ffirmed in part as modified, and in part reversed
and remanded for further proceedings.