Novotny v. Novotny

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
08/22/2023 02:07 AM CDT
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Nebraska Court of Appeals Advance Sheets
32 Nebraska Appellate Reports
NOVOTNY V. NOVOTNY
Cite as 32 Neb. App. 142Timothy J. Novotny, appellant and
cross-appellee, v. Nicole M. Novotny,
appellee and cross-appellant.
___ N.W.2d ___
Filed August 15, 2023. No. A-22-226.
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. 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. Divorce: Property Division. Under Neb. Rev. Stat. § 42-365 (Reissue
2016), the equitable division of property is a three-step process. The first
step is to classify the parties’ property as marital or nonmarital, setting
aside the nonmarital property to the party who brought that property to
the marriage. The second step is to value the marital assets and marital
liabilities of the parties. The third step is to calculate and divide the net
marital estate between the parties in accordance with the principles con-
tained in § 42-365.
4. Property Division. As a general rule, a spouse should be awarded one-
third to one-half of the marital estate, the polestar being fairness and
reasonableness as determined by the facts of each case.
5. Divorce: Property Division. Generally, all property accumulated and
acquired by either spouse during a marriage is part of the marital estate.
Exceptions include property that a spouse acquired before the marriage,
or by gift or inheritance.
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Cite as 32 Neb. App. 1426. ____: ____. Any given property can constitute a mixture of marital and
nonmarital interests; a portion of an asset can be marital property while
another portion can be separate property.
7. ____: ____. Setting aside nonmarital property is simple if the spouse
possesses the original asset, but can be problematic if the original asset
no longer exists.
8. Divorce: Property Division: Proof. Separate property becomes marital
property by commingling if it is inextricably mixed with marital prop-
erty or with the separate property of the other spouse. But if the separate
property remains segregated or is traceable into its product, commin-
gling does not occur. The burden of proof rests with the party claiming
that property is nonmarital.
9. Divorce: Property Division: Proof: Testimony. A nonmarital interest
in property may be established by credible testimony.
10. Trial: Witnesses: Evidence. Triers of fact have the right to test the
credibility of witnesses by their self-interest and to weigh it against the
evidence, or the lack thereof.
11. Appeal and Error. Error without prejudice is not a ground for reversal.
12. ____. A lower court cannot commit error in resolving an issue never
presented and submitted to it for disposition.
13. ____. A party cannot complain of error which the party has invited the
court to commit.
14. Agriculture: Crops: Equity. Courts are allowed flexibility in their
treatment of stored and growing agricultural crops to account for the
equities of the situation.
15. Appeal and Error. 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.
16. Attorney Fees. Customarily, attorney fees are awarded only to prevail-
ing parties or assessed against those who file frivolous suits.
Appeal from the District Court for Saunders County:
Christina M. Marroquin, Judge. Affirmed.
Shane J. Placek, of Sidner Law, for appellant.
Alex M. Lierz, of Rembolt Ludtke, L.L.P., for appellee.
Moore and Welch, Judges.
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NOVOTNY V. NOVOTNY
Cite as 32 Neb. App. 142Bishop, Judge.
INTRODUCTION
The Saunders County District Court dissolved the marriage
of Timothy J. Novotny and Nicole M. Novotny and divided
the parties’ property and debts. On appeal, Timothy challenges
the district court’s decision (1) determining that some or all of
certain assets were not premarital, (2) imputing the gross value
of the 2020 grain sold after the date of the parties’ separation,
and (3) regarding the 2021 crop yield from the parties’ marital
agricultural property. On cross-appeal, Nicole challenges the
district court’s division of the marital estate and its decision
not to order Timothy to reimburse her for health insurance
premiums, attorney fees, and expert fees. Although we find
merit to some of Timothy’s arguments related to premarital and
nonmarital property, we nevertheless affirm the court’s decree
of dissolution for the reasons discussed below.
BACKGROUND
Timothy and Nicole married in June 2016. They have one
child, a daughter, born in 2019.
On March 11, 2021, Timothy filed a complaint for dissolu-
tion of marriage and sought joint custody of the parties’ daugh-
ter, a determination of child support, and an equitable division
of the parties’ property and debts. In her answer and counter-
claim, Nicole sought the same, but she also sought an award
of attorney fees and costs. Pursuant to a stipulated temporary
order entered on May 17, the parties were awarded joint cus-
tody of their daughter with equal parenting time and Timothy
was ordered to pay $100 per month in child support. Nicole
was ordered to continue to provide health insurance coverage
for Timothy during the pendency of the divorce proceedings
so long as it remained available to her through her place of
employment at a reasonable cost.
Trial was held on December 2 and 3, 2021. Timothy, then
32 years old, and Nicole, then 28 years old, both testified.
Numerous exhibits were also received into evidence. The
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Cite as 32 Neb. App. 142parties had already entered into a “50/50” joint legal and
physical custody parenting plan regarding their daughter; there-
fore, custody and parenting time were not contested issues at
trial. The parties’ date of separation was contested, as Timothy
testified that the parties separated on March 1, 2021, whereas
Nicole testified that the parties separated on February 20.
Timothy testified that he has been a farmer since 2009. The
parties married on June 18, 2016, and in November of that
year, they purchased 54 acres of land, 47.5 of which were
“farmable,” for approximately $327,000; Timothy described it
as “a dryland farm” and said “it yields comparable to the other
dry land in the area.” Timothy valued that property at $329,000
as of March 1, 2021; he said he looked at the Saunders County
assessor’s 2020 value of $237,040, “and then their value is 72
to 73 percent.” Nicole testified that she had the land appraised
in November 2021 and that it was valued at $345,000. Timothy
wanted the marital land awarded to him because it related to
his agricultural production activities. The parties presented
testimony and exhibits about various other assets and debts
at trial. We will discuss the evidence related to the contested
issues as necessary in our analysis.
Pursuant to the district court’s decree entered on March 3,
2022, and its order nunc pro tunc entered on March 10, the
parties’ marriage was dissolved, they were awarded joint cus-
tody of their daughter with equal parenting time, and Timothy
was ordered to pay $44 per month in child support. As rele-
vant to this appeal, the court used March 1, 2021, as the valu-
ation date for the marital estate and divided the parties’ prop-
erty and debts accordingly. As to the disputed property, the
court valued the parties’ 54 acres of jointly owned farmland
at $345,000 and the land was awarded to Timothy along with
the associated loan debt. The court found that Jones Bank sav-
ings account No. xxx9529 (#9529) should be considered mari-
tal property and not Timothy’s premarital funds. The court
also found that the 2016 crops were marital property. The
court determined that the total fair market value of the 2020
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Cite as 32 Neb. App. 142soybean crop stored with ADM was $41,107.15. It also deter-
mined that the 2021 grain associated with the jointly owned
farmland was valued at $47,045 and should be included in
the marital estate. Finally, the court determined that only
$26,456 of the funds received from trading in Timothy’s 2015
Chevrolet Silverado could be set off as a premarital asset.
The court valued the marital estate at $515,000, attributing a
net marital estate of $412,415 to Timothy and a net marital
estate of $102,591 to Nicole. The court awarded 60 percent
($309,000) of the marital estate to Timothy ($515,000 × .60)
and 40 percent ($206,000) of the marital estate to Nicole
($515,000 × .40). To achieve that 60-40 distribution, Nicole
was awarded a property equalization payment of $103,409
($103,409 + $102,590 = $206,000). The court ordered each
party to pay his or her own attorney fees.
Timothy appeals, and Nicole cross-appeals.
ASSIGNMENTS OF ERROR
Timothy assigns, consolidated, reordered, and restated, that
the district court erred in (1) failing to find that some or all of
certain assets were premarital, including his Jones Bank sav-
ings account, the 2015 Chevrolet Silverado, and the 2016 net
crop proceeds; (2) imputing the gross value of the 2020 grain
generally sold after the date of separation without considering
the tax consequences; and (3) imputing the yield from the par-
ties’ marital agricultural property and disregarding the cost of
inputs, taxes, and labor, as well as the risk in production of the
2021 crop.
Nicole assigns on cross-appeal that the district court erred
by failing to (1) equitably divide the net marital estate, (2)
order Timothy to reimburse her for the cost of his health insur-
ance premium, and (3) order Timothy to reimburse her for
attorney fees and expert fees.
STANDARD OF REVIEW
[1,2] In a marital dissolution action, an appellate court
reviews the case de novo on the record to determine whether
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Cite as 32 Neb. App. 142there has been an abuse of discretion by the trial judge. Eis v.
Eis, 310 Neb. 243, 965 N.W.2d 19 (2021). This standard of
review applies to the trial court’s determinations regarding cus-
tody, child support, division of property, alimony, and attorney
fees. Id. 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 mat-
ters submitted for disposition. Id.ANALYSIS
General Principles of Law
[3,4] In a dissolution of marriage proceeding, “‘[i]f the par-
ties fail to agree upon a property settlement . . . the court shall
order an equitable division of the marital estate.’” Dooling v.
Dooling, 303 Neb. 494, 507, 930 N.W.2d 481, 495 (2019).
Under Neb. Rev. Stat. § 42-365 (Reissue 2016), the equi-
table division of property is a three-step process. Dooling
v. Dooling, 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 mar-
riage. The second step is to value the marital assets and mari-
tal liabilities of the parties. The third step is to calculate and
divide the net marital estate between the parties in accord­ance
with the principles contained in § 42-365. Dooling v. Dooling,
supra. As a general rule, a spouse should be awarded one-
third to one-half of the marital estate, the polestar being fair-
ness and reasonableness as determined by the facts of each
case. Id.
[5] Generally, all property accumulated and acquired by
either spouse during a marriage is part of the marital estate.
Dooling v. Dooling, supra. Exceptions include property that
a spouse acquired before the marriage, or by gift or inherit­
ance. Id.
[6-8] Any given property can constitute a mixture of marital
and nonmarital interests; a portion of an asset can be mari-
tal property while another portion can be separate property.
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Cite as 32 Neb. App. 142Marshall v. Marshall, 298 Neb. 1, 902 N.W.2d 223 (2017).
Setting aside nonmarital property is simple if the spouse pos-
sesses the original asset, but can be problematic if the original
asset no longer exists. Id. Separate property becomes marital
property by commingling if it is inextricably mixed with mari-
tal property or with the separate property of the other spouse.
Id. But if the separate property remains segregated or is trace-
able into its product, commingling does not occur. Id. The
burden of proof rests with the party claiming that property is
nonmarital. Id.[9,10] A nonmarital interest in property may be estab-
lished by credible testimony. Burgardt v. Burgardt, 304 Neb.
356, 934 N.W.2d 488 (2019). A spouse’s own testimony can
establish a “tracing link,” i.e., tracking an asset to a nonmari-
tal source. Id. at 364, 934 N.W.2d at 495 (internal quotation
marks omitted). See, also, Brozek v. Brozek, 292 Neb. 681,
874 N.W.2d 17 (2016). Of course, triers of fact have the right
to test the credibility of witnesses by their self-interest and to
weigh it against the evidence, or the lack thereof. Burgardt
v. Burgardt, supra. Evidence not directly contradicted is not
necessarily binding on the triers of fact, and may be given no
weight where it is inherently improbable, unreasonable, self-
contradictory, or inconsistent with facts or circumstances in
evidence. Id.Jones Bank Savings Account
Timothy testified that he brought $106,804 into the mar-
riage that he wanted set aside as his premarital asset. At
the time of the parties’ marriage in June 2016, that amount
was already in Timothy’s savings account at Community
State Bank, as evidenced in exhibit 48. On August 1, 2016,
Timothy withdrew the balance of his Community State Bank
savings account, now $104,342, and deposited the funds into
Oak Creek Valley Bank. Timothy testified that Oak Creek
Valley Bank was later bought by Jones Bank. He stated that
Jones Bank savings account #9529 was his individual savings
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Cite as 32 Neb. App. 142account and that it contained his premarital funds. Timothy
continued to keep that account in his name alone throughout
the parties’ marriage. He used the account for “[p]aying bills,”
and it was the cashflow account for his farm.
According to bank records, Jones Bank savings account
#9529 had a balance of $181,098.78 as of March 1, 2021, the
date of the parties’ separation. Between February 20 and March
1, Timothy used funds from the savings account to pay off a
$69,714.85 operating note, including interest. He testified that
he usually pays off his operating note “after the first of the year
when I get grain checks.”
After the parties separated, Timothy transferred some of
the money from the Jones Bank savings account into Union
Bank savings and checking accounts to keep his information
private, because Nicole’s family members worked at Jones
Bank. According to Timothy, the transferred money already
appears on his proposed property settlement wherein Jones
Bank savings account #9529 was valued at $181,099 as of
March 1, 2021; he also included $106,804 from “Community
State Bank” as a premarital asset on his proposed prop-
erty statement.
On cross-examination, when asked if Jones Bank savings
account #9529 always had at least $106,000 in it during the
marriage, Timothy stated that he did not know. Bank records
received into evidence reveal that the account did not always
have $106,000 in it during the marriage, and at one point
in December 2018, it dipped below $76,000, but it does not
appear that the account ever dipped below $75,000. Timothy
agreed that during the marriage, marital funds were deposited
into the account, and that funds from that account were spent
on marital expenses.
Nicole testified that, although it was not reflected in her
proposed division of the parties’ assets and debts, she at one
point in time believed that $75,000 would have been a fair
award of premarital credit to Timothy for Jones Bank sav-
ings account #9529 because that was the lowest balance the
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Cite as 32 Neb. App. 142account ever reached. However, she no longer believed that it
was fair to give Timothy a premarital credit, because marital
funds were comingled in that account.
The district court found:
[Timothy] established the specific identified value of the
premarital asset as $106,000 and was able to trace that
amount to the Jones Bank account. However, once his
separate property was in the Jones Bank account it is
intermixed with marital property including earnings, tax
refunds, and stimulus funds generated by the efforts of
both parties. Although the account never dipped below
$75,000, it also gained well over $106,000. The gains,
given the evidence before the Court, care [sic] attributed
in part to marital funds being placed into the account.
The court found that “there appear to be four years of joint
marital efforts that increased the balance of the account” and
“[t]he evidence establishes the intermingling of marital funds
occurred.” The court found that Timothy did not meet his
burden of proving that Jones Bank savings account #9529 was
nonmarital; it was therefore considered marital property.
[11] After reviewing the record, we conclude that while the
majority of Jones Bank savings account #9529 was marital
property, $75,000 of the account can be traced to Timothy’s
premarital interest in the account. As stated previously, at
one point in December 2018, the value of the Jones Bank
account dipped below $76,000, but it does not appear that
the account ever dipped below $75,000. Additionally, at one
point in time, Nicole believed that $75,000 would have been
a fair award of premarital credit to Timothy. Because at least
$75,000 of the Jones Bank savings account could be traced
to Timothy’s premarital funds, that amount should have been
set aside as a nonmarital asset, and the district court abused
its discretion when it failed to do so. That said, the court did
ultimately take into consideration Timothy’s premarital funds
from the Jones Bank savings account in its overall division
of the parties’ marital estate, as will be discussed later in
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Cite as 32 Neb. App. 142this opinion; thus, the court’s failure to set aside the funds as
Timothy’s premarital asset was not prejudicial and does not
warrant reversal. See Connolly v. Connolly, 299 Neb. 103,
907 N.W.2d 693 (2018) (error without prejudice is not ground
for reversal).
2015 Chevrolet Silverado
Timothy asked for a $45,000 premarital credit for his 2015
Chevrolet Silverado. He testified that he bought and paid
for the brand new Chevrolet Silverado before the parties’
marriage, and they later traded it in for Nicole’s 2018 GMC
Acadia. Timothy testified that the parties purchased the GMC
Acadia for $26,240 (plus $216 in fees; total of $26,456) and
that they were given a $45,000 trade allowance. Because the
trade allowance was more than the vehicle they were buy-
ing, the dealership gave them $18,544 back in cash, which
Timothy put in his Jones Bank savings account #9529 at some
point. Timothy also testified that they had a $26,456 loan
on the GMC Acadia for a short period of time because they
“could get a better deal on it” if they financed it. On cross-
examination, Timothy testified that the parties financed the
GMC Acadia, so he deposited the trade-in amount of $44,300
($45,000 minus the cost to tint Nicole’s vehicle’s windows)
into his bank account, and then used some of that money to
pay off Nicole’s GMC Acadia. On redirect, Timothy clarified
that the dealer took the Chevrolet Silverado “as a trade-in,
cosigned it for me so it was theirs, and then I . . . got the
money for it”; he did not get the money right away but had to
wait until the Chevrolet Silverado was sold. That money was
then used to buy Nicole’s vehicle, which is why her vehicle
was financed for a while.
Nicole testified that Timothy should receive only a $26,456
credit for his 2015 Chevrolet Silverado trade-in, because that
was the purchase amount of her GMC Acadia. She said that the
$45,000 “all went into [Timothy’s] savings account, and then
money from his savings account paid for the [GMC Acadia]”
that had been financed.
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Cite as 32 Neb. App. 142The GMC Acadia purchase and the Chevrolet Silverado
trade-in is reflected in exhibit 50. That exhibit shows that the
“Total Cash Delivered Price” of the 2018 GMC Acadia was
$26,456 and that the “Trade Allowance” for a 2015 Chevrolet
Silverado was $45,000—a difference of $18,544. The exhibit
also stated a “Balance Owed on Trade” was $45,000 and
the “Unpaid Balance” was $26,456; “Yes” was checked for
“Credit Desired.”
The district court found that at the time of the marriage,
Timothy owned a 2015 Chevrolet Silverado that was later
traded in for the purchase of a 2018 GMC Acadia that was
awarded to Nicole in the divorce. The court stated that exhibit
71 (copies of checks) confirmed that the parties financed a
portion of the GMC Acadia and made payments on the GMC
Acadia to a bank. The court determined that “[t]he only trace-
able amount from the Chevrolet to the Acadia is the $26,456”
because “[t]he balance was deposited into the Jones Bank sav-
ings account, which has been determined to be a marital fund.”
Accordingly, the court set off only $26,456 to Timothy as a
premarital asset.
Based on our review of the record, we find that the district
court did not abuse its discretion in setting aside only $26,456
as Timothy’s premarital asset from the Chevrolet Silverado.
That was the only amount traceable to the GMC Acadia, and
it appears the remaining funds went into Jones Bank savings
account #9529, which has already been deemed marital (other
than the $75,000 that was Timothy’s premarital interest in
the account).
2016 Net Crop Proceeds
The parties were married on June 18, 2016. Prior to the date
of the parties’ marriage, Timothy paid various 2016 expenses
related to his farming operation, including $82,947.50 cash
rent, $18,857.98 for seed, and $4,931.41 for fertilizer. Timothy
had an operating note, and expenses were applied against
the operating note. He acknowledged that the 2016 crop
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Cite as 32 Neb. App. 142would have been harvested during the parties’ marriage and
that the taxes paid on the 2016 crop would have been paid
jointly by the parties because they filed joint tax returns for the
relevant years.
On his proposed property settlement statement, exhibit 79,
Timothy listed $65,473 in premarital assets for the “2016
Harvest less balance of operating note.” This amount was cal-
culated by taking the approximately $168,173 in deposits from
the settlement checks Timothy received from the grain sold
from his 2016 crop (checks received October 2016 to January
2017) and subtracting the approximately $102,700 operating
note balance that existed on the date of the parties’ marriage.
Timothy sought to have the $65,473 set off as his premari-
tal asset.
Nicole testified that Timothy should not be granted a pre-
marital credit for the 2016 crops because they were harvested
during the marriage with her help. She helped “[r]un the grain
cart,” helped pay for expenses related to the harvest and stor-
age of the crop, and had to pay taxes on the income received
in their joint tax returns. Timothy stated that Nicole “never
helped with anything with my farming operation” but she did
help for a few hours a day or two on property someone else
owned; Timothy barter exchanged labor on that property for
equipment use.
The district court noted Timothy’s reliance on Osantowski
v. Osantowski, 298 Neb. 339, 904 N.W.2d 251 (2017), and
Chmelka v. Chmelka, 29 Neb. App. 265, 953 N.W.2d 288(2020), to support his position that he should get a setoff
for the 2016 crops. See Osantowski v. Osantowski, supra(stored and growing crops on date of marriage were premari-
tal; even though income from stored and growing crops later
comingled with marital assets, fairness and reasonableness
required setoff of clearly established premarital value in light
of short-term marriage of 31 months which spanned only
two full crop cycles); Chmelka v. Chmelka, supra (husband
entitled to setoff for established value of stored grain and
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Cite as 32 Neb. App. 142farm inputs—seed, fertilizer, and chemicals—he had prior to
short-term marriage). Compare Brozek v. Brozek, 292 Neb.
681, 874 N.W.2d 17 (2016) (husband not entitled to set off
value of crops he possessed on date of marriage; he could not
show actual number of crop bushels harvested year of mar-
riage and relied on acres he farmed and average yield in area;
further, he could not identify different permutations premarital
property underwent during 20-year marriage; court reasoned
husband’s reinvestment was mixed with proceeds of marital
harvests and subject to vicissitudes of farming economy for
nearly 20 years).
However, the district court stated that in both Osantowski
v. Osantowski, supra, and Chmelka v. Chmelka, supra, the
husbands had already harvested the grain that they sought to
set aside at the time of marriage, a distinguishing fact from
the current case. The court stated that although Timothy had
already paid inputs for the 2016 crop year out of the farm
operating note prior to the parties’ marriage, it was after the
parties’ marriage that the crops were harvested, the income
was paid to Timothy, and the operating note was paid down
with marital funds. And while the husbands in Osantowski v.
Osantowski, supra, and Chmelka v. Chmelka, supra, came into
the marriage with an asset that could be valued with specific-
ity, the court found that “[t]he value of [Timothy’s] harvest
was unknown, speculative, and could have been a deficit or an
asset.” The court stated that “Nicole and [Timothy] both bore
the risk of what the fruits of [Timothy’s] labor, during the 2016
crop year would be” and “[b]oth parties were employed and
contributing to the marital estate at the time the operating loan
was being paid down.” Because “both parties bore the risk of
profit or loss, jointly paid tax on the income, and the prepaid
expenses were financed through a note that incurred interest
during the marriage and was paid down during the marriage
by marital funds,” the court considered the 2016 crops to be
marital property.
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Cite as 32 Neb. App. 142Initially we note that the district court misstated the facts in
Osantowski v. Osantowski, supra. In that case, the husband had
both stored and growing crops at the time of the marriage. That
said, we cannot say that the district court abused its discretion
when it did not set off the 2016 grain crop to Timothy as a pre-
marital asset. As noted by the court, both parties bore the risks
associated with the 2016 crop, and the operating note was paid
down with marital funds; there was also some evidence that
Nicole contributed her labor to the 2016 crop.
2020 Grain
At the time of the parties’ separation in March 2021,
Timothy had some 2020 grain stored at ADM and Syngenta,
and he agreed that all of that grain was marital property. The
parties have no dispute regarding the value of the corn stored
at Syngenta and later sold; a total of $73,052. There was also
no dispute that $6,648 of corn sold with Frontier was marital.
However, there was a dispute over the value of the soybeans
stored at ADM that were later sold.
Timothy testified that he had 3,000 bushels of 2020 soy-
beans stored with ADM that were sold at three different
times in 2021 for an average of $13.30 per bushel; a total
of $39,900 as reflected on his proposed property settlement.
When asked why Nicole had higher prices on her proposed
property settlement, Timothy testified that during discovery,
he gave the price of soybeans that day; however, he did not
sell the soybeans that day because he thought the price would
go up. On cross-examination, when asked when he sold the
3,000 bushels of soybeans in 2021, Timothy stated that he
“[did not] remember the dates” but “I want to say July was
a thousand bushel[s], and then August was possibly another
thousand bushel[s], and then I don’t remember the last one.”
He agreed that in July, he sold the soybeans for $14.99 per
unit less the storage assessment and inspection fees. When
asked how he arrived at the average value for the 3,000 bush-
els, Timothy said, “I remember one was 1450 [sic], one was
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Cite as 32 Neb. App. 14212 — 12 something, and one was 13 something,” then said,
“so I just averaged them three together,” and “[i]t ended up
being 1330 [sic].”
Nicole testified that 2,000 bushels of the soybeans should
be valued at $14.04 per bushel, less the storage fee expenses,
because that was what Timothy disclosed the value to be at the
time of discovery. However, Nicole later discovered that the
other 1,000 bushels were sold for $14.99 per bushel; therefore,
that 1,000 bushels should be valued at the higher amount.
The district court found that 3,000 bushels of soybeans
stored with ADM were sold in three separate transactions of
1,000 bushels each. The first 1,000 bushels were sold in July
2021 for $14.99 per unit, and after discounting for the stor-
age, assessment, and inspection fees, the net proceeds were
$14,507.15. The court recounted Timothy’s testimony in arriv-
ing at market value—he averaged all three transactions and
arrived at $13.30 per bushel—and said, “[t]he Court accepts
[Timothy’s] valuation for the remaining 2000 bushel and val-
ues it at $26,600.00.” Accordingly, the court calculated the
total market value of the 2020 soybean crop stored with ADM
at $41,107.15.
In his brief on appeal, Timothy claims that the district court
abused its discretion in utilizing a higher price per bushel
than the evidence indicated. However, based on the record,
we find no abuse of discretion as Timothy’s “average” pricing
was not indicative of the actual sale for at least some of the
grain. The district court did the best it could with the evidence
before it.
Additionally, as to the $120,627 in 2020 grain (ADM,
Sygenta, and Frontier), Timothy claims that it was “unreason-
able and patently unfair to assess the full value of the 2020
grain to him without any consideration of tax consequences;
and, that it would be more reasonable for the District Court
to divide taxable marital assets equally.” Brief for appellant
at 22-23. “Following such a rule would obligate Nicole to
claim 1/2 of the 2020 grain proceeds on her 2020 or 2021
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ing Decree of Dissolution, [Timothy] is paying income tax on
grain that ultimate [sic] goes to Nicole.” Id. at 23. He suggests
that a “[r]easonable solution[] to this issue would result in
each party claiming their respective value of the 2020 grain
sold on their individual income tax returns; or, [Timothy]
would receive a 25% discount” based on his tax bracket. Id.
at 24.
[12,13] However, as noted by Nicole in her brief, “[Timothy]
argues for the first time on appeal that the district court should
have separated taxable grain separately from other assets.”
Brief for appellee at 14. On his proposed property settle-
ment statement, Timothy included all 2020 grain stored and
sold postseparation in the marital estate and allocated it to
himself. “[Timothy] cannot now claim the district court erred
in adopting the proposed distribution of assets and allocation
of debts he presented.” Id. See Seid v. Seid, 310 Neb. 626,
967 N.W.2d 253 (2021) (lower court cannot commit error in
resolving issue never presented and submitted to it for dispo-
sition; moreover, party cannot complain of error which party
has invited court to commit). We find no abuse of discretion
regarding the district court’s valuation and treatment of the
2020 grain.
2021 Crop
Timothy claimed that the 2021 corn crop from the marital
land should not be considered a marital asset and that Nicole
should not be entitled to any of it because she did not pay
any of the inputs and she did not do any of the labor; all of
the inputs were paid, and his labor expended, after the parties
separated, and he took all of the risk if there was not a crop.
He explained, “I am not asking for half of Nicole’s wages
from her work. She was not there helping me do any of the
work or paying for any of the bills.” Nicole also did not have
to pay any of the federal or state taxes for the 2021 crop.
Timothy said dry land in the area would cash rent for $220
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income from the land, Timothy would prefer that the court
give her one-half of what the cash rent would be for the 47.5
farmable acres.
Nicole testified that she was asking for the 2021 crop to be
divided in the marital estate because she was “still owner of the
land.” While she believed the yield was higher, she was will-
ing to accept Timothy’s testimony that there were 188 bushels
of corn harvested per acre on the marital land. Nicole valued
the corn crop at $5.44 per bushel because “[t]hat was the aver-
age price” in October 2021. Nicole clarified that she was not
asking the court to include any 2021 crops that were harvested
from land rented by Timothy, but only to include crops from
the marital land.
Timothy testified that his yield on the parties’ marital land
was “47 and a half times 188” in 2021. The corn was planted
in April, which was after the parties’ separation, and he deliv-
ered the presold corn in October. Timothy could not remember
the contract price for the presold corn but said it would be “the
same or less” than the current price of corn. When asked how
much less it could be, Timothy replied, “I would say it could
be around $5, it could be 40 to 50 cents less.”
The district court recognized that the parties separated on
March 1, 2021, which was prior to when Timothy planted,
sprayed, harvested, and cultivated the 2021 crop. The court
also found that the separation occurred prior to when Timothy
“pa[id] inputs for the 2021 crop.” Further, relying on Eis v.
Eis, 310 Neb. 243, 965 N.W.2d 19 (2021), the court found
that the 2021 crop harvested from the parties’ marital farmland
was marital property. Relying on Timothy’s testimony that he
yielded 188 bushels of corn per acre, and Nicole’s testimony
using 46 acres with a market price of $5.44 per bushel of corn,
the court valued the 2021 grain associated with the marital
farmland at $47,045.
Although the district court found that the parties were
separated prior to when Timothy paid inputs for the 2021
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did not reduce that value by any expenses or inputs associ-
ated with growing and harvesting the crop. We find no fault
with the court’s decision to decline to reduce the crop value
by such costs, because a clear record was not made regarding
such expenses. Timothy testified that when the parties sepa-
rated on March 1, 2021, he had not yet prepaid any expenses
(e.g., inputs, fertilizer, seed, cash rent) for that crop year, but
he did acknowledge paying off his operating note between
February 20 and March 1, 2021, which note had a balance of
$69,714.85. The obligation was paid off with funds from the
Jones Bank account before the parties separated. It is not clear
from the record what farming expenses were included in that
operating note; however, exhibit 38 reflects various expendi-
tures for fertilizer, chemicals, and seed, invoiced in January
and February 2021, and for which payments of more than
$47,000 were made during those same 2 months before the
parties separated. It is also unclear from the record whether
any of the fertilizer, chemicals, and seed invoiced and paid
before the parties separated was attributable to the crops
grown on the marital land or the rented land or both. And
while exhibit 38 includes copies of checks dated in March
after the parties separated for “seed + treatment” and “chemi-
cals,” there is again no evidence identifying what portions of
those expenses were for only the crops being grown on marital
land versus the crops being grown on rented land. Therefore,
while it is possible some inputs for the 47.5 marital acres were
paid after the parties separated, it is also possible some were
paid before the parties separated.
Because the record is unclear on the value of inputs for
the 2021 crop grown on the marital land, we conclude the
district court did not abuse its discretion by failing to reduce
the value of the 2021 crop by any inputs associated with it.
We also find no abuse of discretion in the court’s decision to
accept Nicole’s dollar per bushel value for the corn crop. And
to the extent that Timothy argues that the district court did
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find no abuse of discretion given that Timothy did not offer
any evidence for the possible tax consequences of selling the
stored grain. We turn now to Timothy’s primary argument
related to the 2021 corn crop grown on the marital land.
Timothy contends that Nicole should have received no ben-
efit from the 2021 crop whatsoever. In determining that the
2021 corn crop grown on the marital land was marital prop-
erty, the district court relied on Eis v. Eis, 310 Neb. 243, 965
N.W.2d 19 (2021). In Eis, the trial court found that the grain
held in storage in 2019 did not yet exist as of the date of the
parties’ separation in March 2018, but that it was generated in
part by the ownership of the marital land and in part by the
husband’s efforts after the date of separation. The district court
valued the grain as of the date of the trial and allocated the
value 60 percent to the husband for his efforts postseparation
and 40 percent to the marital estate due to the joint ownership
of the land that generated the grain. On appeal, the husband
argued that the wife should not be entitled to grain proceeds
after she filed for divorce and that the district court should
have used the date of separation rather than the date of trial
as the valuation for the grain awarded; the Nebraska Supreme
Court disagreed on both counts.
[14] The Nebraska Supreme Court stated that courts are
allowed flexibility in their treatment of stored and growing
agricultural crops to account for the equities of the situa-
tion and that the district court, in accounting for the equities
between the parties, assigned a 60-40 split to the grain: 60
percent solely to the husband as nonmarital property based on
evidence that he alone contributed to the farming operations
postseparation and 40 percent to the marital estate based on
evidence that the crops were grown and harvested as a result
of joint marital ownership of the land. The Supreme Court
stated, “The fact that [the wife] was not contributing finan-
cially to farming operations after [the March 2018 separation
date] does not preclude her from receiving a portion of the
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ownership in the real property.” Id. at 252-53, 965 N.W.2d
at 26.
The Nebraska Supreme Court distinguished its decision
from prior cases where it considered when crops would be
considered marital income. See, Osantowski v. Osantowski, 298
Neb. 339, 904 N.W.2d 251 (2017) (analyzed effects of crop
harvesting and storage postseparation as it related to marital
income where husband owned farmland jointly with brothers
but not with wife); Kalkowski v. Kalkowski, 258 Neb. 1035,
607 N.W.2d 517 (2000). The Supreme Court said:
In contrast to Osantowski, the grain held in storage by
[the husband] was harvested from land that was jointly
owned by [the wife] herself and was already part of
the marital estate. The issue considered by the district
court was not one of marital income, or whether income
transformed the crop into a marital asset, but, rather, the
determination and possession of marital property upon
which the grain was initially grown and harvested. [The
wife’s] entitlement to the grain does not revolve around
the fact that crops depend upon sale for realization as
income, because the tangible grain itself is already mari-
tal property.
Our holdings in Kalkowski v. Kalkowski are distin-
guished here for the same reason. Kalkowski revolved
around a determination of crops as income in order to
constitute marital property when one spouse otherwise
had no claim to the crops, whereas this case was based
on a determination that the real property generating the
crop was already a marital asset. Other cases address-
ing crop storage and marital property determinations are
distinguishable on this issue where they relate only to
premarital property or crops already in storage at the time
of marriage. These cases thus do not preclude [the wife]
from a share of the grain even when it was produced
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future sale, postseparation.
Eis v. Eis, 310 Neb. 243, 253-54, 965 N.W.2d 19, 27 (2021)
(emphasis in original). The Supreme Court further found that
using the trial date for valuation was not an abuse of discretion
because that was the only date for which evidence of value
was given.
In his brief, Timothy relies on Osantowski v. Osantowski,
supra, for his argument as to why the 2021 crop should not
be included in the marital estate. However, as noted above,
in Osantowski, the postseparation crop harvesting and storage
occurred on land in which the wife had no ownership inter-
est. The current case is more in line with Eis v. Eis, supra,because the crops were harvested on marital farmland. Like in
Eis, Nicole’s interest in the 2021 crop derived from her share
of ownership in the real property on which it was produced.
However, unlike in Eis, the district court did not allocate any
portion of the 2021 crop solely to Timothy as nonmarital prop-
erty based on evidence that he alone contributed to the farm-
ing operations postseparation, after which the remaining por-
tion of the 2021 crop could be allocated to the marital estate
based on evidence that the crops were grown and harvested as
a result of joint marital ownership of the land. Accordingly, we
conclude the district court abused its discretion in treating the
2021 crop solely as a marital asset.
Ordinarily, we would remand this issue to the district court
to determine a nonmarital portion and a marital portion for
the 2021 corn crop grown on marital land by taking into con-
sideration Timothy’s contributions to the farming operations
postseparation and setting off a nonmarital portion, by using
the cash rent value as proposed by Timothy, or by some other
solution to account for the equities of the situation. However,
we find that a calculation error in the court’s asset and debt
table makes it unnecessary to remand the issue. When total-
ing the assets attributed to Timothy, the court calculated
total assets of $712,051. However, our calculations of those
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assets not being attributed to Timothy when the court did
its final calculations. If that amount is added back in, as it
should be, and the $47,045 value for the 2021 corn crop is
reduced to reflect some setoff for nonmarital contributions
by Timothy, the revised calculations could possibly result in
a higher equalization amount owed to Nicole. For example, if
on remand the district court followed the Eis example and set
off 60 percent of the 2021 crop to Timothy as nonmarital and
40 percent as marital, then only $18,818 would be reflected
as a marital asset attributed to Timothy instead of the $47,045
currently reflected; this results in $720,724 in total assets
apportioned to Timothy. After subtracting his total debts
($273,180) and the premarital setoff ($26,456), Timothy’s net
marital estate is $421,088 instead of the current $412,415.
This results in a slightly higher equalization owed to Nicole.
And if Timothy’s suggested alternative of a cash rent value
is used, then $10,450 (47.5 acres × $220/acre) would be
reflected as a marital asset attributed to Timothy instead of
the $47,045 currently reflected; this results in $712,356 in
total assets apportioned to Timothy. After subtracting his
total debts ($273,180) and the premarital setoff ($26,456),
Timothy’s net marital estate is $412,720, which barely differs
from the current $412,415.
Accordingly, we conclude the benefit Timothy received by
the district court’s mathematical error provides an equitable
equivalent to reducing the marital value of the 2021 corn crop.
Notably, Timothy’s preferred cash rent option for calculating
the marital interest results in an almost identical net marital
estate for Timothy as the original decree. As a result, any error
by the district court related to the 2021 crop was not prejudicial
to Timothy and avoids the necessity of a remand.
Equitable Division of Marital Estate
In her proposed distribution of the parties’ assets and debts,
Nicole was seeking an equalization payment to ensure that
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the district court “recognize[d] that Timothy had a significant
amount of funds in his savings account when the parties were
married” and “[t]hat money, while co-mingled with marital
property, contributed to the growth of the marital estate.”
The court therefore ultimately found that Timothy should be
awarded 60 percent of the marital estate and that Nicole should
be awarded 40 percent of the estate. As a general rule, a spouse
should be awarded one-third to one-half of the marital estate,
the polestar being fairness and reasonableness as determined
by the facts of each case. Dooling v. Dooling, 303 Neb. 494,
930 N.W.2d 481 (2019). Nicole’s award was within the gener-
ally acceptable range. The district court properly exercised its
discretion to consider the equities of the case and to account
for Timothy’s premarital funds in this manner. Although it
does not amount to a perfect setoff of the $75,000 we found
traceable to Timothy’s premarital funds, the 60-40 allocation
resulted in the receipt by Timothy of considerably more in
his net marital estate than Nicole. We therefore cannot say the
court abused its discretion in the overall division of the mari-
tal estate.
[15] To the extent that Nicole argues that the district court
erred in including her premarital Jones Bank certificate of
deposit in the marital estate, she did not specifically assign
such as error. To be considered by an appellate court, an
alleged error must be both specifically assigned and specifi-
cally argued in the brief of the party asserting the error. Simons
v. Simons, 312 Neb. 136, 978 N.W.2d 121 (2022).
Health Insurance Premium
At trial, Nicole asked that Timothy be ordered to reim-
burse her for the $3,400 in health insurance premiums that
she paid for him since the date of the filing for dissolution;
she provided an insurance premium cost breakdown. Timothy
stated that he never agreed to reimburse Nicole for his health
insurance premiums she paid after the date of separation and
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temporary order. Nicole acknowledged that the parties never
reached an agreement on reimbursement prior to the tem-
porary order. And the temporary order does not state that
Timothy must reimburse Nicole for his portion of the health
insurance premiums.
Pursuant to a stipulated temporary order entered on May
17, 2021, Nicole was to continue to provide health insurance
coverage for Timothy during the pendency of the divorce pro-
ceedings so long as it remained available to her through her
place of employment at a reasonable cost; each party was to
be solely and individually responsible for their own respec-
tive unreimbursed medical costs. We note that in the relevant
temporary child support calculation, Nicole received all of the
health insurance deductions.
We find that the district court did not abuse its discretion
when it did not order Timothy to reimburse Nicole for the cost
of his health insurance premium.
Attorney Fees and Expert Fees
Nicole argues that the district court abused its discretion in
failing to order Timothy to reimburse her for attorney fees.
[16] Customarily, attorney fees are awarded only to prevail-
ing parties or assessed against those who file frivolous suits.
Parde v. Parde, 31 Neb. App. 263, 979 N.W.2d 788 (2022).
In awarding attorney fees in a dissolution action, a court
shall consider the nature of the case, the amount involved in
the controversy, the services actually performed, the results
obtained, the length of time required for preparation and pres­
entation of the case, the novelty and difficulty of the ques-
tions raised, and the customary charges of the bar for similar
services. Id.At trial, Nicole asked that Timothy be ordered to pay a
portion of her attorney fees because “[w]e spent a lot of time
doing a lot of research and . . . fighting over every little penny
of the thing when we could have just moved on and made
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attorney fees that was received into evidence at trial showed
that Nicole had already incurred $20,916.36 in fees and
expenses, not including her attorney’s anticipated preparation
and attend­ance at trial. Nicole believed that Timothy should
have to reimburse her for her attorney fees after October 6,
2021, because that “was our mediation date and it could have
been settled at [sic] that date.” She had incurred approxi-
mately $9,000 in attorney fees and expenses after October
6, and the trial was estimated to cost her about $5,000; she
believed Timothy should have been responsible for $10,000 of
her attorney fees. On cross-examination, Nicole acknowledged
that she was changing the classification of assets in the week
leading up to trial.
In her brief on appeal, Nicole argues that she was the pre-
vailing party on all of the contested issues with the exception
of the percentage of the division of the marital estate, and
that it was an abuse of discretion for the district court not
to award any attorney fees to her. However, Timothy argues
that “[o]bjectively, [his] position at trial was far closer to the
District Court’s equitable division of the marital estate” and
that “Nicole’s argument is undermined by the outcome of
trial.” Reply brief for appellant at 7. We find that the district
court did not abuse its discretion when it ordered each party to
pay his or her own attorney fees. And with regard to Nicole’s
request to “award her attorney’s fees in connection with this
appeal,” brief for appellee at 14, we direct her to Neb. Ct. R.
App. P. § 2-106(G) (rev. 2022).
Although Nicole assigned on cross-appeal that the district
court abused its discretion when it failed to order Timothy
to reimburse her for expert fees (i.e., the land appraisal
report), she did not specifically argue the expert fees in her
brief on cross-appeal. See Simons v. Simons, 312 Neb. 136,
978 N.W.2d 121 (2022) (to be considered by appellate court,
alleged error must be both specifically assigned and specifi-
cally argued in brief of party asserting error). Nevertheless,
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it did not order Timothy to reimburse her for her expert fees.
CONCLUSION
For the reasons stated above, we affirm the decision of the
district court.
Affirmed.
Bishop, Judge, participating on briefs.