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Nebraska Court of Appeals Advance Sheets
31 Nebraska Appellate Reports
PARDE V. PARDE
Cite as 31 Neb. App. 263
Cynthia A. Parde, appellant, v.
Arlan D. Parde, appellee.
___ N.W.2d ___
Filed August 16, 2022. No. A-21-497.
1. Divorce: Child Custody: Child Support: Property Division: Alimony:
Attorney Fees: Appeal and Error. In a marital dissolution action,
an appellate court reviews the case de novo on the record to determine whether there has been an abuse of discretion by the trial judge.
This standard of review applies to the trial court’s determinations
regarding custody, child support, division of property, alimony, and
attorney fees.
2. Evidence: Appeal and Error. In a review de novo on the record, an
appellate court is required to make independent factual determinations
based upon the record, and the court reaches its own independent 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 depriving a litigant of a substantial right and denying just results in matters
submitted for disposition.
4. Divorce: Property Division. In a dissolution action, the equitable division of property is a three-step process. The first step is to classify the
parties’ property as either marital or nonmarital, setting aside the nonmarital property to the party who brought the property to the marriage.
The second step is to value the marital assets and marital liabilities of
the parties. And the third step is to calculate and divide the net marital
estate equitably between the parties.
5. ____: ____. Generally, all property accumulated and acquired by either
spouse during a marriage is part of the marital estate.
6. ____: ____. The marital estate does not include property that a spouse
acquired before the marriage, or by gift or inheritance.
7. ____: ____. Separate property becomes marital property by commingling if it is inextricably mixed with marital property or with the separate property of the other spouse.
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8. ____: ____. 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.
9. ____: ____. The original capital or value of an asset may be nonmarital,
while all or some portion of the earnings or appreciation of that asset
may be marital.
10. Divorce: Property Division: Proof. The burden of proof rests with the
party claiming that property is nonmarital.
11. Divorce: Property Division. The active appreciation rule sets forth the
relevant test to determine to what extent marital efforts caused any part
of the appreciation or income.
12. Divorce: Property Division: Presumptions: Proof. Accrued investment earnings or appreciation of nonmarital assets during the marriage
are presumed marital unless the party seeking the classification of the
growth as nonmarital proves: (1) The growth is readily identifiable and
traceable to the nonmarital portion of the account and (2) the growth is
not due to the active efforts of either spouse.
13. Divorce: Property Division: Words and Phrases. Appreciation caused
by marital contributions is known as active appreciation, and it constitutes marital property.
14. ____: ____: ____. Passive appreciation is appreciation caused by separate contributions and nonmarital forces.
15. Divorce: Property Division: Proof. The burden is on the owning
spouse to prove the extent to which marital contributions did not cause
the appreciation or income.
16. Divorce: Property Division: Pensions. Investment earnings accrued
during the marriage on the nonmarital portion of a retirement account
may be classified as nonmarital where the party seeking the classification proves: (1) The growth is readily identifiable and traceable to the
nonmarital portion of the account and (2) the growth is due solely to
inflation, market forces, or guaranteed rate rather than the direct or indirect effort, contribution, or fund management of either spouse.
17. Appeal and Error. An appellate court will not consider an argument or
theory that is raised for the first time on appeal. Thus, when an issue is
raised for the first time in an appellate court, it will be disregarded inasmuch as a lower court cannot commit error in resolving an issue never
presented and submitted to it for disposition.
18. ____. 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.
19. Divorce: Taxes. A trial court does not have discretion to compel parties
seeking marital dissolution to file a joint income tax return.
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PARDE V. PARDE
Cite as 31 Neb. App. 263
20. Attorney Fees. Attorney fees and expenses may be recovered only
where provided for by statute or when a recognized and accepted uniform course of procedure has been to allow recovery of attorney fees.
21. ____. Customarily, attorney fees are awarded only to prevailing parties
or assessed against those who file frivolous suits.
22. Divorce: Attorney Fees. 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 presentation of the case,
the novelty and difficulty of the questions raised, and the customary
charges of the bar for similar services.
Appeal from the District Court for Gage County: Ricky A.
Schreiner, Judge. Affirmed in part, and in part reversed and
remanded with directions.
John W. Ballew, Jr., and, of Counsel, Steven D. Burns, of
Ballew Hazen, P.C., L.L.O., for appellant.
Terrance A. Poppe and McKynze P. Works, of Morrow,
Poppe, Watermeier & Lonowski, P.C., for appellee.
Moore, Riedmann, and Arterburn, Judges.
Riedmann, Judge.
I. INTRODUCTION
Cynthia A. Parde (Cindy) appeals the decree of dissolution
of marriage entered by the district court for Gage County that
dissolved her marriage to Arlan D. Parde and divided the marital estate. The primary issue on appeal is the court’s classification and division of several parcels of agricultural land. For the
reasons set forth below, we affirm in part, and in part reverse
and remand with directions.
II. BACKGROUND
Arlan and Cindy were married in April 1994. It was the
second marriage for both of them, and no children were born
of this marriage. The parties separated around January 2019
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and stipulated that this “date” should be the “valuation date”
for their assets and liabilities. At the time of trial, Arlan was
70 years old and Cindy was 63 years old. The couple had been
married for 26 years.
Trial was held on February 19, 2021, and the following
evidence was adduced: At the time of the marriage, Arlan’s
premarital debt totaled $393,989. His premarital assets were
approximately $715,336, leaving a net worth of approximately $321,347. Shortly after the marriage, Cindy signed
a financing statement and security agreement obligating her
for all Arlan’s loans at the bank. Only one bank account was
used throughout the marriage, a marital checking account,
and the account included proceeds from the sale of property,
cattle, and crops and was used to pay all business and personal expenses. Farming operation expenses paid from the
checking account included fertilizers and lime, insurance,
mortgage interest, repairs, maintenance, taxes, utilities, seeds,
and plants.
Cindy owned a house from her previous marriage. Arlan and
Cindy lived in it together for about a year, and Arlan testified
that he made mortgage payments on it. That house was sold
during the marriage, and the proceeds from the sale, $104,701,
were deposited into the marital checking account.
Prior to and throughout the marriage, Arlan maintained a
farming operation. Over the course of the 26-year marriage,
both Arlan and Cindy contributed to the farming operation
and Cindy was not otherwise employed outside the home. She
helped with all aspects of the farming operation, including
planning, servicing a combine, milking cows, hauling manure,
hauling bales of hay, and bookkeeping. Running the farm was
a full-time job requiring Arlan to work more than 40 hours
a week. Arlan also operated a trucking business from 1998
through 2002; when Arlan was away, Cindy and a hired man
handled the chores on the farm.
Arlan and Cindy listed their net worth as approximately
$2 million on their January 2019 agricultural balance sheet.
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PARDE V. PARDE
Cite as 31 Neb. App. 263
Arlan agreed that the increase in wealth from $400,000 to
about $2 million came “from the land, the dairy, the farm
operation, the things that not only [he] had before the marriage
but the two of [them] worked at during the marriage,” and from
his trucking business. Arlan did not provide any additional testimony regarding the increased value or appreciation in value
of the land or farming operation.
The land at issue on appeal is all located in Gage County,
Nebraska, and includes sites herein called Fertilizer Plant,
Home Place, Lenard’s Farm, Grandma’s Farm, Rademacher
Farm, and Holmesville Farm. Facts specific to each parcel will
be discussed in detail below. At the time of the parties’ separation, Home Place and portions of Fertilizer Plant, Holmesville
Farm, Lenard’s Farm, and Grandma’s Farm were still owned
by Arlan or jointly by Arlan and Cindy.
The land called Fertilizer Plant currently consists of approximately 100 acres. Arlan purchased 113 acres of land in 1981
for approximately $90,000, and throughout the marriage, it
remained titled solely in Arlan’s name. The land was paid off
in 1991, according to the payment schedule. At the time of
the parties’ marriage, Fertilizer Plant was worth approximately
$70,000, as listed on Arlan’s January 1994 agricultural balance
sheet. At the time of their separation, it was worth approximately $403,750.
In 2002, Arlan and Cindy built a house on 5 acres of
land from Fertilizer Plant, and they called it Home Place.
Home Place was appraised at $385,000, but Arlan testified
that amount included the 5 acres of land that he owned prior
to the marriage, which had a present value of $25,000. Home
Place, including the 5 acres, was jointly titled in Arlan’s and
Cindy’s names.
The land called Lenard’s Farm initially consisted of 160
acres. Arlan purchased Lenard’s Farm in 1991, borrowing
$50,000 from his mother for the purchase price. On his 1994
agricultural balance sheet, Arlan listed the property’s value at
$64,000, and he owed approximately $40,000 plus interest,
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PARDE V. PARDE
Cite as 31 Neb. App. 263
according to the loan’s payment schedule. Within 2 weeks of
the marriage, Arlan presented Cindy with a promissory note
for $60,000 and asked her to sign it. The promissory note
included $40,000 from the initial Lenard’s Farm loan, plus an
additional $20,000. The note was paid off during the marriage.
Throughout the marriage, portions of the land were sold and
the funds were deposited into the marital checking account. At
the time of separation, Lenard’s Farm consisted of 36 acres and
was valued at $153,000.
The land called Grandma’s Farm initially consisted of 160
acres. In September 2003, Arlan’s mother conveyed the property to Arlan and Cindy as joint tenants in exchange for
$80,000. Internal notes from the parties’ bank reflect that on
September 29, the bank advanced $80,296 for the purchase,
and that the land was valued at $136,000, or $850 per acre.
The loan was to be paid over the course of 15 years. Arlan
testified that after he purchased the land for $80,000, his
mother wrote him a check for $20,000 as an inheritance. Arlan
claimed that he applied the $20,000 to the purchase price and
borrowed the rest from the bank. Arlan’s sister testified that
she also received $20,000 at that time from their mother. Arlan
did not have a copy of the check received from his mother;
nor do the bank records reflect a $20,000 payment toward
the loan. Grandma’s Farm was valued at $236,000 at the time
of separation.
Arlan and his first wife purchased Rademacher Farm in
1992 for $65,000. Arlan valued the 100 acres of farmland at
$70,000 on his 1994 agricultural balance sheet, and he testified
that at the time of his marriage to Cindy, he owed approximately $27,500 on the farm.
In 2002, Arlan and Cindy sold Rademacher Farm for
$149,000 and a portion of Lenard’s Farm for $32,000 and, in
a “1031 exchange,” purchased Holmesville Farm for $249,000
with additional bank financing. During the marriage, an irrigation pivot was damaged due to a storm and the equipment
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was replaced through insurance funds. Holmesville Farm was
valued at $734,000 at the time of separation.
In November 2020, the parties auctioned farm equipment and machinery. The net proceeds of the auction were
$381,744.06. At trial, Arlan offered an equipment appraisal
for seven machinery items he claimed were premarital. Cindy
argued that two of the items that Arlan stated were premarital
were still subject to loans at the time of marriage. She stated
that one of the items had been purchased 2 weeks prior to their
marriage and could not have been paid for, and she alleged
that the other item still had $8,000 owed on it. Arlan did not
know if the premarital items were subject to debt at the time
of marriage. Arlan agreed that some of the “intermediate debt”
listed on the 1994 agricultural balance sheet was for machinery. In a posttrial stipulation, the parties agreed that the auction
proceeds would be used to pay off three bank loans, leaving
remaining auction proceeds of $249,328.77.
At the time of trial, Arlan was retired and no longer physically able to farm. Therefore, on March 1, 2021, following
trial but before the district court issued its decree, Arlan signed
three crop-share lease agreements for land owned by the parties. He expected to receive approximately $90,000 as a result
of the crop-share agreements. The parties had stipulated that
Arlan would be awarded the income of crops grown in 2019
and 2020, but they did not have a stipulation regarding the
2021 crops.
After the trial, the district court issued its decree of dissolution of marriage. The court found that at the time of the marriage, Arlan had a net worth between $321,347 and $408,873
and, as relevant to this appeal, owned Home Place/Fertilizer
Plant, Lenard’s Farm, Rademacher Farm, and farm machinery
and equipment. It further found that in 2003, Arlan purchased
farm ground from his mother for $80,000 and she gifted
$20,000 of the price back to him. The court found that Arlan
sold all or parts of the properties listed above and, in respect
to all of those properties, placed the proceeds back into the
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PARDE V. PARDE
Cite as 31 Neb. App. 263
“farm operation.” The court did not agree with Cindy’s assertion that Arlan should not receive any credit for owning any of
the property prior to the marriage or the gift from his mother.
It determined that the following property was nonmarital: all of
Fertilizer Plant, Lenard’s Farm except for $40,000, 25 percent
of Grandma’s Farm, and 61 percent of Holmesville Farm.
The district court approved Arlan’s division of assets listed
in exhibit 83, modifying it to accommodate the parties’ posttrial stipulation regarding the machinery auction proceeds.
Arlan was awarded as marital property the remaining interest
in Holmesville Farm ($286,260), Lenard’s Farm ($40,000),
Grandma’s Farm ($177,000), and Home Place ($286,260). The
district court ordered Arlan to make an equalization payment of
$398,664.88 to Cindy. The district court did not award alimony
or attorney fees.
Cindy filed a posttrial motion to sequester the rents from
the 2021 crop-share leases, which motion was denied without
prejudice. Cindy filed a motion for new trial and an amended
motion to alter or amend judgment, both of which the district
court overruled. Cindy timely appealed.
III. ASSIGNMENTS OF ERROR
Cindy assigns, restated and combined, that the district court
erred in (1) classifying, valuing, and dividing the marital estate;
(2) failing to recognize proceeds of Cindy’s premarital real
estate and recognizing a gift of cash without any evidence; (3)
allowing Arlan to keep all 2019 crop proceeds as nonmarital
property while refusing to award Cindy a compensating judgment for the use of marital moneys toward input costs to produce the crop; (4) allocating an estimated tax liability to Arlan
that was inconsistent with the parties’ stipulation for trial; (5)
failing to award alimony to Cindy in lieu of income-producing
property that she had requested at the time of trial; (6) failing
to award Cindy a portion of the crop-share lease income attributable to the 2021 leases; and (7) denying Cindy’s request for
attorney fees and costs.
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Cite as 31 Neb. App. 263
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. Eis v.
Eis, 310 Neb. 243,
965 N.W.2d 19 (2021). This standard of
review applies to the trial court’s determinations regarding custody, child support, division of property, alimony, and attorney
fees.
Id. In a review de novo on the record, an appellate court
is required to make independent factual determinations based
upon the record, and the court reaches its own independent
conclusions with respect to the matters at issue.
Id. 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
[4] In a dissolution action, the equitable division of property is a three-step process. Kauk v. Kauk, 310 Neb. 329,
966
N.W.2d 45 (2021). The first step is to classify the parties’
property as either marital or nonmarital, setting aside the nonmarital property to the party who brought the property to the
marriage.
Id. The second step is to value the marital assets and
marital liabilities of the parties.
Id. And the third step is to calculate and divide the net marital estate equitably between the
parties.
Id.
Cindy asserts that the district court erred in its classification
of certain properties as premarital or nonmarital assets. She
argues that over the course of their 26-year marriage, some, if
not all, premarital property commingled with marital property
and lost its nonmarital status. Alternatively, Cindy argues that
under the active appreciation rule, the appreciation of nonmarital assets during the marriage is marital property. Many of
Cindy’s assignments of error relate to the classification of land
owned by Arlan prior to marriage as marital or nonmarital. We
first discuss the applicable law and then apply the law to each
parcel of land.
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1. Applicable Law Regarding
Classification of Property
[5-7] Generally, all property accumulated and acquired by
either spouse during a marriage is part of the marital estate.
Brozek v. Brozek, 292 Neb. 681,
874 N.W.2d 17 (2016).
Exceptions include property that a spouse acquired before the
marriage, or by gift or inheritance.
Id. Setting aside nonmarital
property is simple if the spouse possesses 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 marital property or with the separate property of the other spouse.
Id. If the separate property
remains segregated or is traceable into its product, commingling does not occur.
Id.
[8-10] 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. Kauk
v. Kauk, supra. The original capital or value of an asset may be
nonmarital, while all or some portion of the earnings or appreciation of that asset may be marital. White v. White,
304 Neb.
945,
937 N.W.2d 838 (2020) (quoting Stephens v. Stephens,
297 Neb. 188,
899 N.W.2d 582 (2017)). The burden of proof
rests with the party claiming that property is nonmarital. Kauk
v.
Kauk, supra.
[11-15] The active appreciation rule sets forth the relevant
test to determine to what extent marital efforts caused any part
of an asset’s appreciation or income. White v. White, supra.
Accrued investment earnings or appreciation of nonmarital
assets during the marriage are presumed marital unless the
party seeking the classification of the growth as nonmarital
proves: (1) The growth is readily identifiable and traceable
to the nonmarital portion of the account and (2) the growth is
not due to the active efforts of either spouse.
Id. Appreciation
caused by marital contributions is known as active appreciation, and it constitutes marital property.
Id. Passive appreciation is appreciation caused by separate contributions and
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nonmarital forces.
Id. The burden is on the owning spouse to
prove the extent to which marital contributions did not cause
the appreciation or income.
Id. The active appreciation rule
applies equally to appreciation or income during the marriage
of any nonmarital asset. Id.
2. Parcels of Property
The case at hand involves properties purchased by Arlan,
Arlan and his ex-wife, or Arlan and Cindy. Arlan purchased
certain properties prior to the marriage, and either owned the
property outright or still owed on the land at the time of marriage. Arlan and Cindy also purchased and sold property during
the marriage. Arlan is the party claiming that various properties are nonmarital; therefore, the burden is on him to prove
that each claimed nonmarital property remained nonmarital
and that any appreciation in the property was not due to marital contributions.
There were no appraisals offered at trial regarding the value
of Arlan’s property on the date of marriage. On the January
1994 agricultural balance sheet, Arlan identifies the values
of the properties owned at that time; therefore, we rely upon
those values because of their close proximity to the date
of marriage.
(a) Fertilizer Plant
Arlan originally purchased Fertilizer Plant in 1981 for
$90,720, and it was paid off prior to the marriage. Therefore,
the value of Fertilizer Plant at the time of the marriage is
nonmarital. Fertilizer Plant contained 113 acres in 1981, and
through various sales, both before and during the marriage,
approximately 100 acres remained at the time of trial.
Based upon the values contained in the 1994 balance
sheet, the premarital value of Fertilizer Plant was $70,000.
Arlan offered no evidence establishing a different value of
Fertilizer Plant at the time of marriage. While Arlan retains
the value of his premarital equity in Fertilizer Plant, whether
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the appreciation in value of Fertilizer Plant is also nonmarital
depends upon whether the appreciation is active or passive.
Although the Nebraska Supreme Court has not directly applied
the active-or-passive appreciation rule to farmland, an analysis
of existing case law leads us to do so.
[16] In Stanosheck v. Jeanette, 294 Neb. 138,
881 N.W.2d
599 (2016), the Supreme Court held that investment earnings
accrued during a marriage on the nonmarital portion of a retirement account may be classified as nonmarital where the party
seeking the classification proves: (1) The growth is readily identifiable and traceable to the nonmarital portion of the account
and (2) the growth is due solely to inflation, market forces, or
guaranteed rate rather than the direct or indirect effort, contri
bution, or fund management of either spouse.
Id.
A year later, the Supreme Court extended the Stanosheck
rule beyond investment accounts. In Stephens v. Stephens, 297
Neb. 188,
899 N.W.2d 582 (2017), the court was faced with
the question of whether an increase in a business interest that
was held prior to marriage was nonmarital property. Following
an analysis of prior cases addressing the proper classification
of appreciated property as marital or nonmarital, the court
found there is no reason to treat appreciation of a nonmarital
asset differently from income derived from a nonmarital asset.
Id. It stated that the two-prong test from Stanosheck must be
proved by the party claiming the growth to be nonmarital and
that otherwise, “accrued investment earnings or appreciation
of nonmarital assets during the marriage are presumed marital.” Stephens v. Stephens,
297 Neb. at 205-06,
899 N.W.2d
at 595. It then expounded, “We hold, therefore, that the principles set forth in Stanosheck apply equally to appreciation or
income during the marriage of any nonmarital asset.” Stephens
v. Stephens,
297 Neb. at 205,
899 N.W.2d at 595 (emphasis supplied).
In determining that the principles set forth in Stanosheck
apply to any nonmarital asset, the Stephens court abrogated
the principle set forth in Van Newkirk v. Van Newkirk, 212
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Stephens, supra, which provided that nonmarital property
retained its nonmarital status unless the party not owning
the property prior to marriage contributed to its improvement. Notably, the majority of the property in question in Van
Newkirk was a 320-acre farm. Stephens likewise found inapplicable future application of the principles set forth in Grace
v. Grace,
221 Neb. 695,
380 N.W.2d 280 (1986), abrogated,
Stephens v.
Stephens, supra, which allowed consideration of
the value of nonmarital assets in determining the equitable
amount of the property division. The primary asset in Grace
was the husband’s interest in a family farming and ranching corporation.
In the case at hand, using the two-prong requirement of
Stanosheck, Arlan failed to produce or provide any evidence
that explained the appreciation in value of Fertilizer Plant or
any other premarital property. Using the purchase price and
Arlan’s valuation in the 1994 agricultural balance sheet, from
1981 to 1994, the value of Fertilizer Plant fell from $90,720
(purchase price) to $70,000. Even when accounting for a
reduction of 7 acres that were sold prior to 1994, the per-acre
value of the farmland decreased. In light of the 1994 value
compared to what Arlan paid for the land in 1981, it is not
readily apparent that the land would increase in value due
solely to market conditions.
To overcome the presumption that appreciation of nonmarital assets during marriage is marital, Arlan was required to
prove that (1) the growth is readily identifiable and traceable to
the nonmarital asset and (2) the growth is not due to the active
efforts of either spouse. See Stephens v.
Stephens, supra. Arlan
satisfied the first prong because the growth is readily identifiable to the land purchased and paid for prior to the marriage.
But Arlan failed to satisfy the second prong. The record contains no evidence explaining why the value of Fertilizer Plant
increased from $70,000 in 1994 to over $400,000 in 2019.
Because it was Arlan’s burden to overcome the presumption
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and he failed to provide any evidence, the appreciation in value
from the time of marriage to the time of separation is marital property. Therefore, regarding Fertilizer Plant, $70,000 is
Arlan’s nonmarital property and the $333,750 of appreciation
is marital.
Cindy argues that Arlan’s premarital property was commingled with marital property and lost its separate identity. It
is true that marital funds were used to pay mortgage interest,
insurance, taxes, conservation expense, and repair and maintenance on Fertilizer Plant. Arlan and Cindy both testified that
all income was deposited in the marital checking account,
which account was used to pay all expenses. It is evident
that marital funds were used to maintain premarital property.
However, because we can establish the value of Arlan’s interest
in Fertilizer Plant as of the date of marriage, we find no abuse
of discretion in awarding Arlan that amount as his premarital
interest. See Ramsey v. Ramsey,
29 Neb. App. 688,
958 N.W.2d
447 (2021) (awarding as premarital that portion of equity
which party proves existed at time of marriage).
Cindy also testified that she performed considerable work
on the farm, but there is no indication on which tract or tracts
of land her services were provided. While we find no abuse of
discretion in classifying Arlan’s equity in the property at the
time of the marriage as premarital property, we determine the
court abused its discretion in classifying the appreciated value
as nonmarital in light of Arlan’s failure of proof.
(b) Home Place
Home Place is the marital home, sitting on 5 acres of land
that previously were part of Fertilizer Plant. Home Place was
appraised at $385,000, and Arlan testified that Home Place
was appraised at $386,000. Arlan argued at trial that because
he owned the land prior to marriage, its present value of
$25,000 should not be included in the marital estate. The
district court awarded Home Place to Arlan, but valued it at
$361,000, presumably subtracting the $25,000 value of the
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land as premarital and using Arlan’s $386,000 valuation. Cindy
counters on appeal that the use of marital income to build
Home Place and improve the premarital land caused the 5
acres of land to lose its premarital character. We agree.
As real property upon which the marital house was built,
the value of the land cannot be separated from the structure.
Separate property becomes marital property by commingling if
it is inextricably mixed with marital property or with the separate property of the other spouse. Osantowski v. Osantowski,
298 Neb. 339,
904 N.W.2d 251 (2017). Approximately
$267,000 of marital funds were used to construct the marital
home which now sits upon the 5 acres of land. Therefore, the
$25,000 value of the 5 acres of land should have been classified as marital property in addition to the value of the home
and the court abused its discretion in failing to do so. See,
also, Eis v. Eis,
310 Neb. 243,
965 N.W.2d 19 (2021) (affirming classification of entire tract of land brought into marriage
as marital property where marital home upon it was renovated
with marital funds).
(c) Lenard’s Farm
Arlan and his first wife purchased Lenard’s Farm in 1991,
and thay financed the purchase with a loan from Arlan’s mother
for $50,000. In 1994, Arlan valued Lenard’s Farm at $64,000
on the 1994 agricultural balance sheet, and approximately
$40,000 was still owed on the note. Therefore, at the time of
the marriage, Arlan had approximately $24,000 of equity in
Lenard’s Farm. Less than 2 weeks after the marriage, Arlan
presented a promissory note to Cindy for $60,000 for her to
sign; the note included $40,000 of the initial debt for Lenard’s
Farm and an additional $20,000 for the farming operation.
The $60,000 loan was paid off with marital income during the
course of the marriage.
Arlan is entitled to a setoff for the equity he had in Lenard’s
Farm at the time of the marriage, $24,000, but absent evidence that the appreciation was the result of market forces, the
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remaining value and appreciation of Lenard’s Farm are presumed marital property under Stephens v. Stephens,
297 Neb.
188,
899 N.W.2d 582 (2017). The district court abused its discretion in determining that only $40,000 of Lenard’s Farm was
marital. Arlan’s equity at the time of marriage is the only nonmarital portion of the property. Therefore, $24,000 is Arlan’s
nonmarital property, and the remaining value of $129,000 is
marital property.
(d) Grandma’s Farm
Cindy assigns that the district court erred in determining
that Grandma’s Farm was 25 percent nonmarital due to a gift
to Arlan. Arlan and Cindy purchased the property in 2003 for
$80,000. Grandma’s Place is presumed to be marital property.
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.
Westwood v. Darnell, 299 Neb. 612,
909 N.W.2d 645 (2018).
Such exceptions include property accumulated and acquired
through gift or inheritance.
Id. The burden of proof to show
that property is nonmarital remains with the person making the
claim.
Id.
Here, Arlan testified that the purchase price was $80,000,
but that he received a $20,000 check as inheritance which
he applied to the purchase price and then borrowed the rest
from the bank. However, in his written analysis offered as
an exhibit, Arlan stated “Arlan’s Mother writes a check to
Arlan and his three siblings for $20,000.00 each after Arlan
purchases the property.” The bank notes support this sequence
of events, documenting that Arlan and Cindy financed the full
$80,296 for the purchase of this property. While we recognize
that in Burgardt v. Burgardt,
304 Neb. 356,
934 N.W.2d 488
(2019), the Supreme Court determined that a party’s testimony
may be sufficient to establish property is premarital; here, the
documentary evidence refutes Arlan’s testimony. Even assuming that Arlan received $20,000 from his mother as a gift or
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inheritance, the bank records do not support Arlan’s contention
that the money was applied to the purchase of the property,
either prior to its purchase or as a payment on the loan. Arlan
failed to meet his burden of proof, and Grandma’s Farm, currently valued at $236,000, is marital property. We find the
district court abused its discretion in classifying 25 percent of
Grandma’s Farm as nonmarital property.
(e) Rademacher Farm
Although not owned at the time of separation, it is necessary to determine Rademacher Farm’s marital or nonmarital
status for tracing purposes. Rademacher Farm was purchased
by Arlan and his ex-wife in 1990 for $65,000. At the time
of marriage, Rademacher Farm was valued at approximately
$70,000, and $27,500 remained on the loan. At the time of
marriage, Arlan’s equity in Rademacher Farm was $42,500,
and therefore, $42,500 was Arlan’s nonmarital portion of
Rademacher Farm. Rademacher Farm was sold in 2002 for
$148,500.
(f) Holmesville Farm
Arlan and Cindy purchased Holmesville Farm in 2002
for $249,000. A portion of the purchase price was a “1031
exchange” involving Rademacher Farm and a portion of
Lenard’s Farm. The remaining $73,000 was financed through
a bank.
Arlan’s premarital equity in Lenard’s Farm is accounted for
under the portion of Lenard’s Farm he still owns; therefore,
he is not entitled to an additional allocation of equity for the
portion of Lenard’s Farm he sold to finance the purchase of
Holmesville Farm. Arlan is entitled to a setoff of the $42,500
in premarital equity he held in Rademacher Farm that in turn is
traceable to the purchase of Holmesville Farm.
As discussed above, Holmesville Farm was purchased during the course of the marriage and marital funds were used to
pay the loan, insurance, interest, repairs, and maintenance on
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the property. The district court determined that Holmesville
Farm was 61 percent premarital based upon Arlan’s assertion
that he used proceeds from the sale of Rademacher Farm and
Lenard’s Farm, both of which he claimed were premarital property. However, based upon our analysis set forth above regarding these properties, we determine that Holmesville Farm is
marital property, except that Arlan is entitled to a $42,500 setoff of nonmarital property value from the sale of Rademacher
Farm. Holmesville Farm was valued at $734,000 at the time of
separation; therefore, the remaining marital value is $691,500.
The district court abused its discretion in classifying its marital
value as $286,260 when awarding it to Arlan.
(g) Summary of Property
When applying the principles of Stanosheck v. Jeanette, 294
Neb. 138,
881 N.W.2d 599 (2016), and Stephens v. Stephens,
297 Neb. 188,
899 N.W.2d 582 (2017), we determine that the
proper marital and nonmarital values of the properties are
as follows:
Arlan’s
Property Marital Value Nonmarital Value
Fertilizer Plant $333,750 $70,000
Home Place 385,000 0
Lenard’s Farm 129,000 24,000
Grandma’s Farm 236,000 0
Holmesville Farm 691,500 42,500
We reverse the district court’s decision and remand the
cause with direction to equitably divide the marital estate in
accordance with the classifications above.
3. Machinery Sale Proceeds
Cindy assigns that the district court erred in failing to assign
to Arlan the value of machinery he retained and that the court
further erred by awarding Arlan auction proceeds attributable
to encumbered premarital machinery at present-day auction
price while ignoring the debt owed.
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As to the property retained by Arlan, Cindy argues that he
retained several pieces of equipment totaling $15,250, rather
than having them sold at auction. However, she does not identify anywhere in the trial proceedings where this issue was
raised and points to a comparison between preauction appraisals and the auction settlement sheet offered as exhibits as the
basis for her assertion. Because Cindy did not direct the district
court to this issue, the court could not have abused its discretion in failing to ascertain that there were items allegedly withheld by Arlan. This argument is without merit.
Cindy’s argument in support of her assigned error regarding
the award of auction proceeds for premarital machinery without regard to the debt owed is unclear. She appears to argue
that the court erred in setting aside the sale proceeds of certain
equipment to Arlan as premarital; however, this argument has
no basis in the district court’s math. Following the adjustment
for the auction’s commission and expenses, the machinery
sale’s net proceeds were $381,744.06. After trial, the parties
stipulated that the sale proceeds would be applied to three bank
loans and that the net proceeds from the auction would then
be $249,328.77. The district court allocated that same stipulated amount as the proceeds from the machinery sale when
allocating it to Arlan in its division of the marital estate. It did
not deduct anything from that amount, neither Arlan’s claimed
premarital property value nor the costs of repairs to marital or
premarital property. The district court treated the entirety of
the machinery auction as marital property. Therefore, this argument fails.
4. Cindy’s Premarital Home Proceeds
Cindy assigns that the district court erred in finding only
Arlan brought premarital property to the marriage and that the
district court failed to recognize $104,700 of proceeds from
the sale of her premarital real estate. In Cindy’s proposed
division of assets, she did not request credit for the sale proceeds; nor did she ask for it to be set off during her testimony.
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Additionally, Arlan testified that after they were married, they
lived in Cindy’s house and he paid the mortgage payments for
about a year. As such, there was insufficient evidence to prove
how much of the $104,700 equity was premarital. We find
no abuse of discretion in the district court’s not recognizing
Cindy’s premarital house proceeds because she neither asked
the court to recognize the sale proceeds nor met her burden to
prove how much of them were premarital.
5. Reimbursement of Marital Estate
[17] As an alternative assignment, Cindy argues the district
court erred in not requiring Arlan to reimburse the marital
estate for all marital funds used to service loans, insure, and
pay taxes on nonmarital real estate. Cindy acknowledges in her
brief that the case was not tried with reimbursement in mind
and not all the evidence of marital spending was presented
to the district court. An appellate court will not consider an
argument or theory that is raised for the first time on appeal.
Eletech, Inc. v. Conveyance Consulting Group, 308 Neb. 733,
956 N.W.2d 692 (2021). Thus, when an issue is raised for the
first time in an appellate court, it will be disregarded inasmuch
as a lower court cannot commit error in resolving an issue
never presented and submitted to it for disposition.
Id. Cindy’s
assignment of error regarding reimbursement of the marital
estate is disregarded as it was not first presented to the district court.
6. Alimony
Cindy assigned that the district court erred in failing to
award alimony to her in lieu of income-producing property
which she had requested at the time of trial. She argues that her
acquiescence regarding the waiver of alimony was conditional
based on the district court’s awarding her income-producing
farmland. However, during the trial, Cindy testified that she
understood that alimony was not “much of a consideration”
for the district court, and she stated that she was not requesting alimony. Given Cindy’s own testimony that she was not
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requesting alimony, we find no abuse of discretion in the district court’s decision not to award it.
7. 2019 Crop Proceeds
[18] Cindy assigns that the district court erred in allowing
Arlan to keep all of the 2019 crop proceeds as nonmarital property while refusing to award Cindy a compensating judgment
for the use of marital moneys toward input costs to produce
the 2019 crop. However, Cindy does not argue this assignment
of error. In order 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. Tilson
v. Tilson, 307 Neb. 275,
948 N.W.2d 768 (2020). Therefore, we
do not address this assigned error.
8. Tax Liability
Cindy assigns that the district court erred in allocating an
estimated tax liability to Arlan that was inconsistent with the
parties’ stipulation for trial. In its division of the marital estate,
the district court allocated a 2020 tax liability to Arlan in the
amount of $53,170.
The parties’ pretrial stipulation stated:
The parties agree that they will file joint federal and
state tax returns for the tax year 2020 . . . . Any tax consequences resulting from the liquidation of the parties’
machinery shall be considered a marital obligation to be
allocated by the court as part of its division of the marital
estate. Any other tax consequences from farming activities in the tax year 2020 will be the sole responsibility of
[Arlan] who shall hold [Cindy] harmless therefrom.
Cindy’s argument heading addressing this assigned error
asserts that the court “erred in assigning a specific tax liability
to Arlan when, at the time of trial, this had not been determined with certainty and was not in conformity with the parties’ Stipulation for Trial.” Brief for appellant at 38. It is not
clear whether Cindy is arguing that the district court erred
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in the number it used or in its interpretation of the stipulation’s language.
To the extent that Cindy is arguing that the district court
abused its discretion in relying upon the evidence presented by
the parties as to the estimated tax liability, we reject this argument. The estimated tax liability of $47,500 for capital gains
on the sale of the parties’ machinery was prepared by Cindy’s
own accountants and offered into evidence. Arlan offered an
estimated tax liability of $53,170, taking into account the taxes
owed to the State of Missouri, the State of Nebraska, and
the Internal Revenue Service. We therefore find no abuse of
discretion by the district court in accepting the estimated tax
liability of $53,170.
[19] To the extent that Cindy is arguing that the court
failed to abide by the parties’ stipulation by allocating the
tax liability as a marital debt, that argument is refuted by the
language of the stipulation. The Supreme Court has held that a
trial court does not have discretion to compel parties seeking
marital dissolution to file a joint income tax return; rather, that
decision is best left to the parties to negotiate. Bock v. Dalbey,
283 Neb. 994,
815 N.W.2d 530 (2012). That is what the parties did here. They stipulated to filing a joint tax return, and
they agreed that tax consequences from the machinery auction
would be a marital debt allocated by the court and that Arlan
would be solely responsible for any other farming tax liability. Accordingly, the court allocated the capital gains from the
auction to Arlan, along with all other estimated tax liability.
By agreeing that any other tax consequences from the farming
activities would be the sole responsibility of Arlan with the
requirement that he hold Cindy harmless therefrom, the parties did not agree that the liability would not be allocated as
a marital debt; rather, the parties agreed that Cindy would not
be liable for its collection. See
id. (outlining risks involved in
filing joint returns).
We therefore conclude that the district court did not abuse
its discretion or violate the parties’ stipulation by making
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Arlan solely responsible for the 2020 tax liability and allocating it to him as a marital debt.
9. Crop-Share Lease Income
Following trial, but prior to the court’s issuing its decree,
Arlan entered into crop-share agreements on three parcels of
the land at issue. On April 23, 2021, Cindy filed a motion
requesting the court to sequester the rents received. On May
21, the court issued its decree. An initial hearing on the motion
to sequester was held on May 24, at which time Cindy’s counsel offered into evidence the three lease agreements. However,
counsel requested that the hearing be continued to June 14,
when the other posttrial motions were scheduled to be heard.
Arlan argues that Cindy failed to provide a bill of exceptions containing the June 14, 2021, hearing and that therefore,
we are without a sufficient record to address this argument.
Although a supplemental bill of exceptions containing the
June 14 hearing was filed with the Clerk of the Supreme Court
and Court of Appeals on December 15 at Cindy’s request, she
failed to seek leave to do so. At the time the supplemental bill
of exceptions was filed, Neb. Ct. R. App. P. § 2-105(B)(2)(a)
(rev. 2021) stated that after the initial time period to file a
request for a bill of exceptions has passed, “no request for a
bill of exceptions may be filed without leave of the appellate
court for good cause shown, which cause shall not be within a
party’s reasonable control.”
Because Cindy did not seek leave to file a supplemental bill
of exceptions, the supplemental bill is stricken and we do not
consider its contents. Therefore, we are left with a copy of the
motion to sequester rents, which requested simply that. Cindy
argues on appeal that the district court abused its discretion in
failing to award her an equitable share of the crop-share lease
income, but our record includes no such request; rather, we
have only a request that the rents be sequestered. Because the
lease terminated on March 1, 2022, we find Cindy’s motion to
sequester moot.
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10. Attorney Fees and Costs
[20-22] Cindy asserts that the district court erred in failing to
award her attorney fees and costs. Attorney fees and expenses
may be recovered only where provided for by statute or when
a recognized and accepted uniform course of procedure has
been to allow recovery of attorney fees. Garza v. Garza, 288
Neb. 213,
846 N.W.2d 626 (2014). Customarily, attorney fees
are awarded only to prevailing parties or assessed against those
who file frivolous suits.
Id. 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 presentation of the case, the novelty and difficulty of the questions raised, and the customary charges of the
bar for similar services.
Id.
Cindy was not the prevailing party at trial, and Arlan did not
file frivolous motions or delay trial. Arlan and Cindy agreed on
the valuations of property. The issues presented to the district
court were not particularly novel or difficult. Therefore, we
find no abuse of discretion in the district court’s decision to
deny Cindy’s request for attorney fees and costs.
VI. CONCLUSION
For the foregoing reasons, we affirm the district court’s
decree regarding alimony, attorney fees, tax liability, and the
crop-share lease income. We reverse its classification and
division of the marital assets and remand the cause with directions to equitably divide the marital estate in accordance with
this opinion.
Affirmed in part, and in part reversed
and remanded with directions.
