Burgardt v. Burgardt

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
04/16/2019 09:08 AM CDT
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BURGARDT v. BURGARDT
Cite as 27 Neb. App. 57H arlan D. Burgardt, appellee and cross-appellant,
v. Shirley L. Burgardt, appellant
and cross-appellee.
___ N.W.2d ___
Filed April 9, 2019. No. A-17-1116.
1. Divorce: Appeal and Error. In a marital dissolution action, an appellate
court reviews the case de novo on the record to determine whether there
has been an abuse of discretion by the trial judge.
2. 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.
3. Evidence: Appeal and Error. In a review de novo on the record, an
appellate court is required to make independent factual determina-
tions based upon the record, and the court reaches its own independent
conclusions with respect to the matters at issue. When evidence is in
conflict, an appellate court considers and may give weight to the fact
that the trial court heard and observed the witnesses and accepted one
version of the facts rather than another.
4. Divorce: Property Division. The ultimate test in determining the appro-
priateness of the division of property is fairness and reasonableness as
determined by the facts of each case.
5. ____: ____. As a general rule, all property accumulated and acquired
by either party during the marriage is part of the marital estate, unless it
falls within an exception to the general rule.
6. ____: ____. Setting aside nonmarital property is simple if the spouse
possesses the original asset but can be problematic if the original asset
no longer exists.
7. ____: ____. Separate property becomes marital property by commin-
gling if it is inextricably mixed with marital property or with the
separate property of the other spouse. If the separate property remains
segregated or is traceable into its product, commingling does not occur.
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Cite as 27 Neb. App. 578. Property Division: Proof. When there is a dispute regarding whether
certain property ought to be characterized as marital property, the bur-
den of proof rests with the party claiming that property is nonmarital.
9. Divorce: Property Division: Pensions. Generally, amounts added to
and interest accrued on retirement accounts which have been earned
during the marriage are part of the marital estate. Contributions to retire-
ment accounts before marriage or after dissolution are not assets of the
marital estate.
10. Property Division: Taxes. Income tax liability incurred during the mar-
riage is one of the accepted costs of producing marital income, and thus,
income tax liability should generally be treated as a marital debt.
11. Divorce: Property Division: Alimony. In dividing property and consid-
ering alimony upon a dissolution of marriage, a court should consider
four factors: (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.
12. 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
just result.
13. Alimony. The primary purpose of alimony is to assist an ex-spouse for
a period of time necessary for that individual to secure his or her own
means of support.
14. ____. The ultimate criterion in determining an alimony award is
reasonableness.
Appeal from the District Court for Adams County: Terri
S. H arder, Judge. Affirmed in part, and in part reversed and
remanded with directions.
Richard L. Alexander, of Richard Alexander Law Office, for
appellant.
Nicholas D. Valle, of Langvardt, Valle & James, P.C., L.L.O.,
for appellee.
Moore, Chief Judge, and Pirtle and A rterburn, Judges.
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Cite as 27 Neb. App. 57A rterburn, Judge.
I. INTRODUCTION
Shirley L. Burgardt appeals from the decree of dissolution
entered by the district court for Adams County, which dis-
solved her marriage to Harlan D. Burgardt. On appeal, she
argues that the district court abused its discretion in finding
portions of Harlan’s 401K and inherited farm were nonmarital
property. She also argues that the alimony award she received
is insufficient. Harlan cross-appeals, arguing that the district
court abused its discretion by not dividing certain tax liabili-
ties between the parties and by ordering him to pay excessive
alimony. We affirm the district court’s findings with regard to
the amount of alimony awarded to Shirley. However, we hold
that the court erred in finding that Harlan proved the amount
of his inheritance or the value of any premarital interest he
may have had in his 401K. We also find that the district court
should have considered the postseparation payment of 2015
tax estimates and the refunds received thereon in dividing the
marital estate. We therefore reverse as to the district court’s
division of property.
II. BACKGROUND
Harlan and Shirley were married on April 12, 1992. No
children were born from the marriage, but Shirley and Harlan
each had children from previous relationships. Harlan, age 73
at the time of trial, has various medical issues related to his
back, leg, and knee and also experiences high blood pressure
and chronic obstructive pulmonary disease. He testified that he
requires some assistance getting dressed due to those issues.
Harlan also testified that he has very poor hearing and wants to
purchase hearing aids but feels he cannot afford them. Harlan
takes a variety of prescription medications and testified that
there are some additional medications he cannot afford and
does not purchase even though they are prescribed to him.
Harlan’s daughter, son-in-law, and two grandsons now live
with him and help with household chores and other tasks, but
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Cite as 27 Neb. App. 57they maintain mostly separate expenses. They do not pay rent
to Harlan.
Shirley, age 66 at the time of trial, also has various medical
issues. She had a “5 bypass heart surgery” and has encoun-
tered subsequent complications. Shirley testified that she will
not be able to work again in the future due to her medical
issues. She has lived with her son since her bypass surgery
in April 2015. Shirley worked during the first 14 years of the
marriage, primarily in hardware stores. She stopped working
when Harlan retired and they moved back to Nebraska from
Colorado in 2006.
Harlan began working for what is now called Kinder
Morgan in April 1978. He started out as a laborer but was
promoted to “junior engineer” after receiving additional train-
ing and education throughout his career. The focus of his work
throughout his career was corrosion control. Harlan initially
worked in Lakin, Kansas, but was transferred to Hastings,
Nebraska. He met Shirley while living in Hastings. Shortly
after the parties married in 1992, Harlan accepted a transfer to
Glenwood Springs, Colorado, where he worked until retiring
in May 2006. Kinder Morgan provided Harlan with retirement
benefits in the form of both a pension plan and a 401K.
Harlan was given three options related to his pension
benefits. The first option paid the most but only paid Harlan
while he was alive. The second option paid less than the first
and would pay him during his lifetime and then pay Shirley
half as much from the date of Harlan’s death until the date of
her death if she survived him. The third option, which Harlan
ultimately chose, paid less than either of the two previous
options. It pays Harlan during his lifetime and then will pay
Shirley an equal amount from the date of Harlan’s death until
the date of her death. Harlan noted that this pension benefit
designation cannot be changed even due to divorce or remar-
riage. He testified that he made that election because he did
not want Shirley to “end up totally broke.”
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Cite as 27 Neb. App. 57Throughout Harlan’s career, including for the period of time
before his marriage to Shirley, contributions were made to his
401K. Harlan testified that his 401K was valued at $130,000
on the date of his marriage to Shirley in 1992, stating that the
number “sticks out in my mind just plain as day.” However, he
acknowledged that there was no documentation to support this
valuation and stated that he had contacted the company but
was told it did not keep records dating back to 1992. Harlan
also testified that he did not begin contributing to the 401K
until 1985. Shirley testified that she was unaware of any 401K
belonging to Harlan that was valued at $130,000 at the time
of their marriage.
In 2006, Harlan’s father died, leaving Harlan an interest
in a quarter section of farmland including the farmstead in
Kansas referred to as the “home farm.” Although a “Transfer
on Death Deed” transferred the home farm from Harlan’s
father to Harlan and his sister only, Harlan and his two liv-
ing siblings agreed that the entirety of their father’s intestate
estate should be divided into four equal portions, one for each
of the siblings and a fourth for the two sons of their deceased
brother. Harlan testified that his inherited share translated
into a $60,000 credit, which he combined with cash to buy
the home farm in its entirety at a total cost of $157,500. On
cross-examination, Harlan acknowledged that he used marital
assets to purchase the portion of the home farm that he had
not inherited.
When Harlan retired from Kinder Morgan in 2006, he con-
verted his 401K into a traditional IRA. That account was val-
ued at $445,000 in 2010. Harlan subsequently liquidated the
IRA, using the proceeds to purchase a second farm in 2010,
improve the home farm, purchase a compact tractor and other
equipment, and purchase gold and silver coins.
Harlan and Shirley traveled back and forth between their
residence in Holdrege to the home farm from 2006 to 2010,
fixing up the property together and moving into the house.
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Cite as 27 Neb. App. 57Harlan testified that improvements included the addition of
fencing, a new irrigation well, and irrigation equipment. Near
the time of the parties’ separation, Harlan and Shirley sold the
home farm and their farm equipment for a total of $358,000
in July 2015, depositing the proceeds into their joint account.
Harlan subsequently withdrew $190,000 from the joint account
and deposited it into his separate account at a different bank.
He also withdrew $168,000 from the joint account and depos-
ited it into his separate account at a credit union. Harlan
acknowledged that he basically emptied their joint account and
placed all the funds into accounts in his name alone.
Earlier, at the end of 2014, Harlan and Shirley sold the
second farm, which was reflected by a $151,492.95 deposit
into their joint account. Shirley testified that the proceeds
from selling the second farm were used to purchase a home in
Hastings. According to Harlan, Harlan and Shirley purchased
the Hastings home for $135,000. Harlan moved there in the
summer of 2015 and continues to reside there.
Harlan and Shirley filed a joint tax return in 2015. Based
on estimates from a tax preparation company, Harlan testi-
fied that they made tax prepayments of $31,400 to the federal
government, $40,200 to the State of Kansas, and $3,000 to
the State of Nebraska. A withdrawal of $31,400 was made
from Harlan’s account at the credit union on September 2. A
withdrawal of $3,000 from the same account was made on
August 31. The parties’ tax return demonstrates an estimated
tax paid of only $10,291, however. The parties’ total prepay-
ments and other withholdings overestimated their tax liability,
and Harlan and Shirley later received refunds, which they
split equally.
On August 4, 2015, Harlan filed a complaint for legal sepa-
ration from Shirley. In her answer and cross-complaint filed on
August 18, Shirley alleged that the marriage was irretrievably
broken. Shirley filed a motion for temporary orders on August
18, requesting, among other things, that Harlan be ordered to
pay her temporary alimony and to pay temporary attorney fees
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Cite as 27 Neb. App. 57for her. The court granted Shirley’s motion on September 25,
and ordered Harlan to pay her $900 per month in temporary
alimony and $5,000 in temporary attorney fees.
On September 26, 2016, Shirley filed an amended cross-
complaint seeking to have the marriage dissolved. Trial on the
complaint for dissolution of marriage occurred in June and July
2017. The court dissolved Harlan and Shirley’s marriage on
September 5. As relevant in the present appeal, in the decree
of dissolution, the district court ordered Harlan to pay Shirley
$200 of alimony each month for 60 months or until either
party’s death, whichever occurs first. In dividing their property,
the district court awarded Harlan $130,000 as the nonmarital
value of his 401K plus $60,000 as the nonmarital value of his
inherited share of the home farm. The court did not allocate
any portion of the tax liability created by the sale of the farms
to Shirley.
Shirley now appeals, and Harlan cross-appeals.
III. ASSIGNMENTS OF ERROR
On appeal, Shirley argues that the district court erred by
finding that $130,000 of Harlan’s 401K was nonmarital prop-
erty and that $60,000 of the inherited home farm was non-
marital property. She also argues that the district court erred by
awarding her insufficient alimony.
In Harlan’s cross-appeal, he argues the district court erred
by not allocating the tax liability that was created by the
sale of farms and property and by awarding Shirley exces-
sive alimony.
IV. STANDARD OF REVIEW
[1,2] 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.
Westwood v. Darnell, 299 Neb. 612, 909 N.W.2d 645 (2018).
This standard of review applies to both the trial court’s deter-
minations regarding division of property and alimony. See id.A judicial abuse of discretion exists if the reasons or rulings
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Cite as 27 Neb. App. 57of a trial judge are clearly untenable, unfairly depriving a liti-
gant of a substantial right and denying just results in matters
submitted for disposition. Brozek v. Brozek, 292 Neb. 681, 874
N.W.2d 17 (2016).
[3] In a review de novo on the record, an appellate court
is required to make independent factual determinations based
upon the record, and the court reaches its own independent
conclusions with respect to the matters at issue. Osantowski v.
Osantowski, 298 Neb. 339, 904 N.W.2d 251 (2017). However,
when evidence is in conflict, the appellate court considers
and may give weight to the fact that the trial court heard and
observed the witnesses and accepted one version of the facts
rather than another. Id.V. ANALYSIS
1. Property Distribution
[4] The ultimate test in determining the appropriateness
of the division of property is fairness and reasonableness as
determined by the facts of each case. Lorenzen v. Lorenzen,
294 Neb. 204, 883 N.W.2d 292 (2016). See Neb. Rev. Stat.
§ 42-365 (Reissue 2016). Under § 42-365, the equitable divi-
sion of property is a three-step process. Lorenzen v. Lorenzen,
supra. The first step is to classify the parties’ property as
marital or nonmarital, setting aside the nonmarital property
to the party who brought that property to the marriage. Id.The second step is to value the marital assets and marital
liabilities of the parties. Id. The third step is to calculate and
divide the net marital estate between the parties in accord­
ance with the principles contained in § 42-365. Lorenzen v.
Lorenzen, supra.[5-8] As a general rule, all property accumulated and
acquired by either party during the marriage is part of the mari-
tal estate, unless it falls within an exception to the general rule.
Westwood v. Darnell, supra. Exceptions include property that
a spouse acquired prior to the marriage or by gift or inherit­
ance. See id. Setting aside nonmarital property is simple if
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Cite as 27 Neb. App. 57the spouse possesses the original asset but can be problematic
if the original asset no longer exists. Brozek v. Brozek, supra.Separate property becomes marital property by commingling
if it is inextricably mixed with marital property or with the
separate property of the other spouse. Id. If the separate prop-
erty remains segregated or is traceable into its product, com-
mingling does not occur. Id. When there is a dispute regarding
whether certain property ought to be characterized as marital
property, the burden of proof rests with the party claiming that
property is nonmarital. See id.[9] Generally, amounts added to and interest accrued on
retirement accounts which have been earned during the mar-
riage are part of the marital estate. Coufal v. Coufal, 291
Neb. 378, 866 N.W.2d 74 (2015). Contributions to retirement
accounts before marriage or after dissolution are not assets of
the marital estate. See id.In the present case, Shirley argues the district court erred
in finding that $130,000 of Harlan’s 401K and $60,000 of the
home farm’s worth were nonmarital property. Harlan argues
in response that the district court did not abuse its discretion
in either determination. Based on our de novo review, we find
that Harlan did not meet his burden of proving that his 401K
contained $130,000 as of the date of the marriage and did not
prove the amount he inherited from his father.
(a) Premarital 401K Contributions
Harlan claims that $130,000 existed in his 401K as of the
date of his marriage to Shirley in 1992 and that this amount
should be set off to him as nonmarital property. The problem
with Harlan’s claim is that it is based solely on his own recol-
lection. Harlan failed to adduce any documentation whatsoever
regarding when the 401K came into existence, what contribu-
tions were made to it by him or his employer, and how it was
invested or grew over the years. The only documentation of
its value at retirement comes by way of a bank record evi-
dencing its rollover into an IRA on January 1, 2010. Harlan
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Cite as 27 Neb. App. 57testified that he called his former employer and was told that
they had no records that would demonstrate the balance of his
401K in 1992. However, there was no indication that he could
not retrieve pay records that would demonstrate his income
from 1985 (when he states he started his 401K contribu-
tions) to 1992. Such company pay records could demonstrate
what his income was and any deductions made therefrom, as
well as any company contributions. Failing specific informa-
tion, there is also no testimony indicating that he could not
obtain from his employer information that would generally
explain how contributions to the company 401K retirement
program were computed and withheld. In addition, no tax or
Social Security records were provided that would give us any
idea what Harlan’s salary was during the years leading up to
the parties’ marriage. As Shirley points out, it is difficult to
accept, given the nature of Harlan’s employment, that he could
amass $130,000 in his 401K by 1992, particularly when he
did not start contributing until 1985. Harlan contends that the
$130,000 figure is clear in his mind, but he struggled and even
changed his testimony with regard to a number of other top-
ics during the course of his testimony. While we do not doubt
that Harlan had a 401K plan prior to the marriage, we cannot
find that Harlan sufficiently proved the value of his 401K was
$130,000 prior to the marriage.
In Brozek v. Brozek, 292 Neb. 681, 874 N.W.2d 17 (2016),
the trial court found that crops in storage and the balance of
the husband’s bank accounts that held the proceeds of past crop
sales as of the date of marriage should be awarded to him as
nonmarital property. The Nebraska Supreme Court reversed the
trial court judgment, finding that the husband had not defini-
tively identified the values of his premarital assets. As a result,
since one cannot trace an unknown value of assets, the court
found it to be unreasonable to set off a value of assets that is
not proved. See, also, Osantowski v. Osantowski, 298 Neb.
339, 904 N.W.2d 251 (2017).
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Cite as 27 Neb. App. 57In Onstot v. Onstot, 298 Neb. 897, 906 N.W.2d 300 (2018),
the husband testified that he purchased the family home 9
years prior to the marriage. He testified to the purchase price
and what he believed to be the amount of the original mort-
gage. He then testified to what he believed to be the value of
the home on the date of marriage but provided no evidence
regarding the balance of the mortgage at that time. No docu-
mentation was provided to confirm his testimony regarding the
date of purchase, the purchase price, the amount of the mort-
gage, or the value of the house at the time of the marriage. The
Supreme Court in Onstot found that the equity in the residence
at the time of the parties’ marriage would be a nonmarital
asset, which, if established, should be set aside to the husband.
However, given the lack of documentation that any equity
existed at the time of the parties’ marriage, the Supreme Court
found that the husband failed to meet his burden of proving
that the property was a nonmarital asset. Id.The present case is similar to Brozek and Onstot. Harlan’s
testimony, standing alone, is insufficient to definitively iden-
tify the value of his premarital asset. As such, we find that
the district court erred in setting off $130,000 in assets as
nonmarital property to Harlan based solely on his testimony.
Therefore, the entirety of the 401K and the assets to which
those funds have been transferred must be considered marital
in nature.
(b) Inherited Portion of Home Farm
The district court also found that Harlan inherited $60,000
from his father which could be set off to him as nonmarital
property. Ordinarily, inherited property is classified as non-
marital property. See Westwood v. Darnell, 299 Neb. 612, 909
N.W.2d 645 (2018). If the inheritance can be identified, it is to
be set off to the inheriting spouse and eliminated from the mar-
ital estate. Schuman v. Schuman, 265 Neb. 459, 658 N.W.2d
30 (2003). Our courts have noted that the law does not require
a complete segregation or dollar-by-dollar tracing of inherited
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Cite as 27 Neb. App. 57funds. See, generally, Marshall v. Marshall, 298 Neb. 1, 902
N.W.2d 223 (2017).
Harlan testified that the value of his inherited share of the
home farm was $60,000. A “Transfer on Death Deed” was
received into evidence demonstrating that Harlan and his sister
inherited the home farm upon his father’s death. Harlan and
Shirley then purchased the entirety of the home farm utiliz-
ing his inheritance coupled with marital funds derived from
the sale of the parties’ house in Colorado. The total value of
the home farm at purchase was $157,500. Therefore, unlike
the 401K, Harlan has presented documentation which supports
his claim that he did receive an inheritance. However, he pre-
sented no documentation which in any way establishes or cor-
roborates the amount of that inheritance. Consequently, he has
again failed to meet his burden of proof to definitively identify
the value of his claimed premarital asset as required by Brozek
and Onstot. As a result, we must find that he has failed to
meet his burden of proof and must reverse the district court’s
finding that $60,000 should be set off to him as nonmarital
inherited property.
2. Tax Liability
[10] On cross-appeal, Harlan argues that the district court
erred in not allocating between the parties the tax liability that
was created by selling the farms and equipment. Income tax
liability incurred during the marriage is one of the accepted
costs of producing marital income, and thus, income tax liabil-
ity should generally be treated as a marital debt. Meints v.
Meints, 258 Neb. 1017, 608 N.W.2d 564 (2000).
Evidence adduced at trial showed that Harlan and Shirley
prepaid estimated taxes of $31,400 to the federal government,
$10,291 to the State of Kansas, and $3,000 to the State of
Nebraska based on the sale of the home farm. Additional with-
holdings are reported on their 2015 federal tax return. Because
they overpaid, Harlan and Shirley received refunds of $12,351
from the federal government, $1,856 from Kansas, and $2,990
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Cite as 27 Neb. App. 57from Nebraska which they split evenly. Evidence adduced at
trial also shows that the tax estimates were made from mari-
tal funds. However, the evidence also demonstrates that the
estimates were paid from an account that was valued by the
parties and the court as of July 22, 2015. The court divided the
amount of the account evenly between the parties but did not
account for the fact that the amount of funds in the account
had been subsequently reduced by the payment of a marital
obligation. The effect of not allocating the tax liability is that
Harlan’s share is reduced by the amount of the tax estimates
paid less the portion of the refund he received. Conversely,
Shirley does not share in the liability but has received half of
the refund. We find that the court erred in failing to allocate
the tax liability paid.
The evidence demonstrates that a total of $44,691 was paid
in estimates. The total refund received was $17,197. This
refund was split evenly by the parties. The net tax liability
is $27,494. Divided by two, each party’s share of the net
liability is $13,747. This amount should have been shown as a
deduction from each party’s portion of the marital estate. On
remand, we order the district court to include this deduction in
the division of property.
3. A limony Award
[11] “The purpose of alimony is to provide for the contin-
ued maintenance or support of one party by the other when
the relative economic circumstances and the other criteria
enumerated in this section make it appropriate.” § 42-365. In
dividing property and considering alimony upon a dissolu-
tion of marriage, a court should consider four factors: (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 employ-
ment without interfering with the interests of any minor chil-
dren in the custody of each party. Wiedel v. Wiedel, 300 Neb.
13, 911 N.W.2d 582 (2018). See, also, § 42-365. In addition,
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Cite as 27 Neb. App. 57a court should consider the income and earning capacity of
each party and the general equities of the situation. Wiedel v.
Wiedel, supra.[12-14] 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 sub-
stantial right or just result. Bergmeier v. Bergmeier, 296 Neb.
440, 894 N.W.2d 266 (2017). The primary purpose of alimony
is to assist an ex-spouse for a period of time necessary for that
individual to secure his or her own means of support. Id. Thus,
the ultimate criterion is one of reasonableness. Id.Shirley argues that the district court abused its discretion by
awarding insufficient alimony that did not account for the cou-
ple’s length of marriage, the disparity in their incomes, or her
inability to seek employment due to health ailments. Harlan
argued in response and on cross-appeal that Shirley overstated
her expenses, received a sizable property equalization payment,
and will benefit from Harlan’s pension if she survives him. We
find, particularly in light of our findings above—which result
in Shirley’s receiving a greater value of marital assets—that
there was no error in the district court’s award.
The evidence demonstrates that at the time of trial, Harlan
had a larger monthly income than Shirley. The combination of
Social Security income, his portion of his pension, a $100 per
month insurance payment, and a historical average of $300 per
month in oil royalties put Harlan’s average monthly income at
approximately $2,700. Deducting the $200 per month alimony
award places Harlan’s monthly net income at $2,500. In con-
trast, Shirley’s income, taking into account the order of the
court, is much lower. Combining her Social Security income
with her portion of Harlan’s pension and the $200 alimony
award places her at approximately $1,035 in monthly income.
However, several other factors must figure into our assessment
of the district court’s award.
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Cite as 27 Neb. App. 57First, we must consider other income available to Shirley.
In the decree of dissolution, the district court awarded Shirley
significant cash assets. That amount will be supplemented by
over $81,000 by virtue of our decision herein. In addition,
Shirley was awarded a portion of the coins the parties invested
in. Therefore, she has a significant amount of assets from
which additional income can be produced. While Harlan also
has cash and precious metals from which additional income
may be drawn, his income-producing assets are not as sig-
nificant given his ownership of a house and the decision of
this court.
The evidence further established that Shirley has twice been
a part of decisions that deferred present income to the future.
The evidence established that the parties opted to take the low-
est possible pension amount when Harlan retired in exchange
for Shirley’s receiving the same amount if she survives Harlan.
The parties also agreed that the oil royalty payments held in
their joint names should all go to Harlan in return for his being
awarded those royalties as an asset in the division of property.
Shirley will be entitled to those royalties for the remainder of
her life if Harlan predeceases her.
The evidence also demonstrated that Harlan has signifi-
cant costs related to his health. While some of the expenses
enumerated on his expense list may be inflated, it is apparent
that at the time of trial, Harlan’s monthly expenses were much
higher than Shirley’s. It is difficult to ascertain what Shirley’s
expenses are. While reference was made in the testimony to a
listing of expenses, this exhibit was never offered and does not
appear in our record. The evidence does establish that Shirley
lives in the home of her son. While she has experienced seri-
ous health issues in the past, her only medication at the time of
trial was a daily “baby aspirin.”
Finally, we note that we must also consider that Shirley
received $900 per month in temporary alimony for nearly 2
years prior to trial. Given the totality of the foregoing factors,
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Nebraska Court of A ppeals A dvance Sheets
27 Nebraska A ppellate R eports
BURGARDT v. BURGARDT
Cite as 27 Neb. App. 57we find no error in the district court’s award of alimony, par-
ticularly given our findings regarding property division.
VI. CONCLUSION
Based on our de novo review of the record, we find that
the district court erred in finding that a portion of Harlan’s
401K constituted nonmarital property and thus reverse that
determination. We direct the district court to award half of the
$130,000 previously set off to Harlan as nonmarital property
to Shirley. We further find that the district court erred in find-
ing that Harlan’s inheritance constituted nonmarital property.
We direct the district court to award to Shirley half of the
$60,000 previously set off to Harlan as nonmarital property.
We also find that the net tax liability of $27,494 should be
divided evenly between the parties and deducted from the
parties’ shares of the marital property. We affirm the district
court’s award of alimony.
A ffirmed in part, and in part reversed
and remanded with directions.