Osantowski v. Osantowski , 298 Neb. 339 ( 2017 )


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  • Nebraska Supreme Court Online Library
    www.nebraska.gov/apps-courts-epub/
    01/26/2018 01:12 AM CST
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    OSANTOWSKI v. OSANTOWSKI
    Cite as 
    298 Neb. 339
    Dori A nn Osantowski, appellee, v.
    Brian Osantowski, appellant.
    ___ N.W.2d ___
    Filed December 8, 2017.   No. S-16-807.
    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 determina-
    tions based upon the record, and the court reaches its own independent
    conclusions with respect to the matters at issue. When evidence is in
    conflict, the appellate court considers and may give weight to the fact
    that the trial court heard and observed the witnesses and accepted one
    version of the facts rather than another.
    3.	 Judges: Words and Phrases. A judicial abuse of discretion exists if the
    reasons or rulings of a trial judge are clearly untenable, unfairly depriv-
    ing a litigant of a substantial right and denying just results in matters
    submitted for disposition.
    4.	 Judgments: Appeal and Error. When reviewing questions of law, an
    appellate court has an obligation to resolve the questions independently
    of the conclusion reached by the trial court.
    5.	 Divorce: Property Division. The ultimate test in determining the appro-
    priateness of the division of property is fairness and reasonableness as
    determined by the facts of each case.
    6.	 ____: ____. Under 
    Neb. Rev. Stat. § 42-365
     (Reissue 2016), the equi-
    table division of property is a three-step process. The first step is to clas-
    sify the parties’ property as marital or nonmarital, setting aside the non-
    marital property to the party who brought that property to the marriage.
    The second step is to value the marital assets and marital liabilities
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    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.
    7.	 ____: ____. 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.
    8.	 Divorce: Appeal and Error. Appeals in domestic relations matters are
    heard de novo on the record, and thus, an appellate court is empow-
    ered to enter the order which should have been made as reflected by
    the record.
    9.	 Agriculture: Crops: Animals. Agricultural crops are categorically dif-
    ferent in nature from a herd of cattle and, therefore, are not entitled to
    the same treatment for tracing purposes.
    10.	 Agriculture: Crops: Equity. Courts are allowed flexibility in their
    treatment of stored and growing agricultural crops to account for the
    equities of the situation.
    11.	 Property Division: Appeal and Error. As a general principle, the date
    upon which a marital estate is valued should be rationally related to the
    property composing the marital estate. The date of valuation is reviewed
    for an abuse of the trial court’s discretion.
    12.	 Appeal and Error. Absent plain error, errors argued but not assigned
    will not be considered on appeal.
    13.	 Appeal and Error: Words and Phrases. Plain error exists where there
    is an error, plainly evident from the record but not complained of at
    trial, which prejudicially affects a substantial right of a litigant and is of
    such a nature that to leave it uncorrected would cause a miscarriage of
    justice or result in damage to the integrity, reputation, and fairness of the
    judicial process.
    14.	 Appeal and Error. Plain error may be asserted for the first time on
    appeal or be noted by an appellate court on its own motion.
    15.	 Property Division. A nonowning spouse is entitled to some benefit
    when marital funds have been expended to improve or reduce the debt
    on the other spouse’s nonmarital property.
    16.	 Divorce: Property Division: Alimony. In dividing property and consid-
    ering alimony upon a dissolution of marriage, a court should consider
    four factors: (1) the circumstances of the parties, (2) the duration of the
    marriage, (3) the history of contributions to the marriage, and (4) the
    ability of the supported party to engage in gainful employment.
    17.	 ____: ____: ____. In addition to the specific criteria listed in 
    Neb. Rev. Stat. § 42-365
     (Reissue 2016), in dividing property and considering
    alimony upon a dissolution of marriage, a court should consider the
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    income and earning capacity of each party and the general equities of
    the situation.
    18.	 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.
    Appeal from the District Court for Seward County: James C.
    Stecker, Judge. Affirmed as modified.
    John W. Ballew, Jr., and Adam R. Little, of Ballew, Covalt &
    Hazen, P.C., L.L.O., for appellant.
    Stan A. Emerson, of Sipple, Hansen, Emerson, Schumacher
    & Klutman, for appellee.
    Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy,
    K elch, and Funke, JJ.
    Funke, J.
    Brian Osantowski appeals from a decree of dissolution
    entered by the Seward County District Court, which dissolved
    his marriage to Dori Ann Osantowski, divided the marital
    assets and debts, and ordered Brian to make an equalization
    payment of $680,000, distributing the estate about equally.
    Brian argues that his premarital crops should have been
    treated similarly to a herd of cattle—as a single asset for trac-
    ing purposes, that the court made specific errors in the division
    of marital assets, and that its distribution of the marital estate
    was inequitable.
    We reject Brian’s argument that crops are similar to cat-
    tle herds for tracing purposes. However, we hold that the
    court erred in its division of certain marital assets and debts.
    Therefore, we affirm the district court’s order as modified by
    this opinion.
    I. BACKGROUND
    Brian and Dori were married on September 23, 2011, and
    separated on or about May 26, 2014. Dori filed a dissolution
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    complaint in June 2014. Trial was held on January 14 and
    February 12, 2016.
    1. Parties’ M arriage
    During the marriage, Brian resided primarily in Polk County,
    Nebraska, at a residence owned by his parents. Dori main-
    tained a residence in Lincoln, Nebraska, until May 2013. Dori
    testified that while she was living in Lincoln, she spent a
    minimum of three to four nights per week with Brian in Polk
    County during the academic year and full time during the sum-
    mers and other school breaks. As of May 2013, Dori resided in
    Polk County full time and commuted to Lincoln for her final
    semester of school.
    In September 2013, Dori held a master’s degree in ento-
    mology from the University of Nebraska-Lincoln (UNL) and
    was enrolled in a doctoral program for plant health at UNL.
    She testified that while she had originally intended to pur-
    sue a Ph.D. in entomology at South Dakota State University,
    she enrolled in a program at UNL instead because Brian had
    objected to the distance. Dori also stated that she changed
    her program to plant health so that she could gain a better
    understanding of agriculture in Nebraska and contribute to the
    Osantowski farming operation.
    Dori received a scholarship and a stipend for her school and
    living expenses. She also worked full time during the summers
    in Lincoln, earning between $8,000 and $20,000 in wages for
    2011, 2012, and 2013 each. Most of Dori’s income and schol-
    arship money during the marriage went to tuition, insurance
    payments, payments for her motorcycle, commuting expenses,
    rent and utilities for the Lincoln apartment, and other living
    expenses. She testified that Brian provided minimal financial
    support to her during the marriage, but what he did provide
    was used for the household expenses she paid for the Polk
    County residence. In February 2014, Dori began working full
    time for an annual salary of $75,000 and obtained medical and
    dental insurance for herself and Brian.
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    Brian began farming in 2005. He has a farming operation
    with his two brothers in and around Polk County. Under the
    operation, Brian and his brothers own equipment separately
    but jointly acquire land, which is owned in equal thirds.
    Each brother, however, farms land independently and bears
    the rental fees and input costs for his operation. Accordingly,
    crops and expenses are completely separate and distinct to
    each individual.
    Brian testified that he receives benefits from his family
    which increase the profitability of his farming operation,
    including: discounted rental rates of $150 to $200 per acre ver-
    sus the market rate of $300 to $400 per acre on the majority of
    the land that he rents; the majority of his diesel fuel at no cost
    to him; and the sharing of equipment, labor, shop space, and
    various other expenses.
    Dori testified that she made the following contributions
    to Brian’s farming operation: Brian would consult her about
    chemical and herbicide application and general soil welfare;
    she created plat maps for all of the Osantowski fields to keep
    field spray records and to help plan for the future; she scouted
    fields for weed growth; she picked up parts and ran errands;
    and she went with Brian to check fields, pivots, and lay irri-
    gation pipe. Brian agreed that Dori performed these tasks
    occasionally, except he explained that the plat maps created
    by Dori were part of her summer employment and that when
    Dori would ride with him to the fields, she did so because she
    enjoyed riding a “four-wheeler” and not because she actually
    helped with irrigation.
    Dori also testified that she performed all of the household
    duties at her Lincoln residence and that such duties in the Polk
    County residence were a team effort with Brian.
    2. Evidence Offered at Trial
    The parties offered into evidence two versions of a joint
    property statement, each listing premarital and marital debts
    and assets. One of the statements was dated May 18, 2015,
    and the other dated January 9, 2016. Each version listed the
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    same assets and debts; however, slightly different values were
    assigned to some. Additional documents were received into
    evidence to support the property statements, including per-
    sonal property appraisals from Grubaugh Auction Services,
    LLC; inventory reports from a certified public accountant;
    tax returns; settlement sheets from elevators; bank statements;
    retirement accounts; and balance sheets from several banks,
    including Great Western Bank.
    (a) Stored and Growing Crops
    In regard to the premarital and marital crop inventory, Brian
    called Michael Hershberger as his expert witness to determine
    the quantity of stored crops that Brian had on the date of mar-
    riage and on the date of separation. Hershberger is a certified
    public accountant who works with agricultural clients on a
    regular basis. In reaching his conclusions on these issues,
    Hershberger relied on Brian’s tax returns from 2011 to 2014;
    the total annual yields in Brian’s crop insurance reports, which
    were reported to him by Brian; two crop sales receipts; and
    a spreadsheet summary of Brian’s recorded crop sales. The
    spreadsheet summary was prepared by Brian’s mother, who
    does all of Brian’s bookkeeping.
    On the first day of trial, Hershberger gave testimony regard-
    ing his determination of crop inventories and a report he
    authored was received into evidence. However, that testi-
    mony and the exhibit were stricken from the record, because
    Hershberger had relied on grain elevator receipts which were
    not provided to Dori through discovery. After Brian supple-
    mented his discovery, Hershberger was again called to testify
    regarding the crop inventory.
    In regard to the premarital crop inventory, Hershberger
    opined that Brian had a total of 57,156.26 bushels of corn
    in storage on September 23, 2011, and 91,296.09 bushels
    of corn and 10,405.99 bushels of soybeans ready for har-
    vest. On September 23, the price at the local elevator was
    $6.07 for a bushel of corn and $11.57 for a bushel of soy-
    beans. Accordingly, Hershberger concluded that the fair market
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    value on the date of marriage for Brian’s stored crops was
    $346,938.50 and his unharvested crops were $554,167.27 for
    corn and $120,397.30 for soybeans, totaling $1,021,503.07.
    Based on the spreadsheet summary, he also concluded that
    Brian sold these crops for a total of $1,207,465.53.
    Hershberger testified that he believed his estimation of the
    total bushels of crops produced in 2011 was very accurate,
    because Brian had claimed on his crop insurance report that a
    total of 91,863 bushels of corn and 10,151 bushels of soybeans
    were produced.
    In regard to the marital crop inventory, Hershberger con-
    cluded that the parties had 95,300.36 bushels of corn in storage
    on the date of separation and that a bushel of corn sold for
    $4.66 on that day. Accordingly, he valued the corn in storage
    on the date of separation as $444,099.68.
    However, a balance sheet Brian had submitted to Great
    Western Bank, dated March 20, 2014, stated that he had
    135,000 bushels of corn on hand which had a value of
    $573,750. Additionally, in Brian’s November 2014 response
    to Dori’s interrogatories, he stated that the March 20 balance
    sheet reflected the quantity and value of the stored crops. In
    both joint property statements, Dori relied on the March 20
    balance sheet for the quantity and value of crops that were
    marital property.
    In the May 2015 joint property statement, Brian failed to
    list the quantity of crops in storage or assign a value thereto.
    But in the January 2016 joint property statement, Brian listed
    14,862 bushels of corn in storage on the date of separation
    with a value of $69,257. At trial, Brian testified that his
    January 2016 estimation of the quantity of corn in storage
    on the date of separation was based on Hershberger’s ini-
    tial analysis.
    Hershberger admitted, however, that his opinions changed
    dramatically from the first day of trial to the second day of
    trial. His valuation of the stored crops on the date of sepa-
    ration changed from $69,259.25 to $444,099.68. While his
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    valuation of the stored and growing crops on the date of mar-
    riage changed from $898,603.04 to $1,021,503.07. Hershberger
    attributed these changes to his mistaken belief that all crops
    were sold before the next harvest began. But after he requested
    that Brian’s mother identify the year of production for each
    crop at issue in the sale transactions on the spreadsheet sum-
    mary, his analysis changed.
    (b) Personal Property and
    Farm Equipment
    Minimal testimony was elicited regarding the parties’ pre-
    marital and marital personal property and farm equipment. The
    joint property statements set forth the items, and Brian and
    Dori generally agreed to them. The values, however, were not
    agreed upon by the parties. A personal property and equipment
    appraisal was completed by Grubaugh Auction Services and
    was received into evidence. The court generally adopted the
    valuations established in that report.
    (c) Real Estate
    In regard to real estate, the record shows that Brian owned
    four parcels of real estate prior to the marriage as follows: a
    one-third interest in the “NW1⁄4 [of] Section 8, Township 15
    North, Range 1 West[,] Butler County[, Nebraska]” (Bosshart/
    Gruenwald farm); a one-third interest in the “SW1⁄4W1⁄2NW1⁄4
    [of] Section 4, Township 15 North, Range 1, Butler County”
    (Hondorfer farm); a one-third interest in the “W1⁄2NE1⁄4 [of]
    Section 8, Township 16 North[, Butler County]” (Dodendorf
    farm); and a one-third interest in the “E1⁄2SE1⁄4 [of] Section
    13, Township 16 North, Range 1, Polk County” (Jahn farm).
    During the marriage, the parties purchased a one-third inter-
    est in the “SW1⁄4 of Section 10, Township 15 North, Range 2
    West and the NW1⁄4 of Section 15, Township 15 North, Range
    2 West, Polk County” (Roberts farm). Secured debt was owed
    against each of the properties.
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    (d) Premarital Debt
    In regard to the division of debt, there was no direct evidence
    of the value of Brian’s debts on September 23, 2011. However,
    Brian annually submitted balance sheets to Great Western Bank
    that listed his debts and their value on the date of submission.
    The balance sheets nearest to the date of marriage were dated
    December 8, 2010, and March 8, 2012. The parties relied on
    the debts listed on the March 2012 balance sheet in their joint
    property statements, and the court awarded Brian the six debts
    listed therein as premarital. The court, however, did not include
    corresponding values to these debts.
    Though the parties listed different amounts for certain debts,
    the record indicates that the value of the premarital debts
    awarded to Brian are as follows: Great Western Bank 2010
    operating line of credit, $162,000; Great Western Bank loan
    for a 2008 Mercury Milan, $6,927; Bosshart/Gruenwald farm
    secured debt, $125,495; Dodendorf farm secured debt, $31,557;
    “Ag Direct” loan for a Cat Challenger tractor, $49,250; and
    Hondorfer farm secured debt (Great Western Bank account No.
    xxx6688), $247,500. The six debts totaled $622,729.
    Additionally, the record contains a 2011 “itemized catego-
    ries report.” This report shows that Brian paid $296,046.69
    in expenses after the date of the marriage. Brian testified at
    trial that each of these expenses were incurred for his 2011
    crop, which he claimed as a premarital asset, and the court
    awarded him as such. Accordingly, these expenses were pre-
    marital debts.
    Therefore, Brian’s total premarital debts, as reflected in the
    record, were approximately $918,775.69.
    Dori had a $7,000 debt to her father on the date of the mar-
    riage, and she was awarded this premarital debt by the court.
    The court did not assign a value to this debt, but on the joint
    property statements, Dori listed its value at $7,000. The record
    does not reflect any reduction of the debt.
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    3. Trial Court’s Decree
    In June 2016, the court issued its decree dissolving the par-
    ties’ marriage and ordering the division of the marital estate.
    The court determined values for most of the premarital and
    marital assets it awarded.
    The court awarded premarital assets to Dori, with a total
    value of $20,600, and to Brian, with a total value of $1,139,047.
    Two of the premarital assets awarded to Brian were the value
    of his 2010 crops, sold in 2011, and his 2011 crops, sold in
    2012, but the court did not assign a value to these assets. It also
    awarded him the funds present on the date of the marriage in
    four separate bank accounts.
    However, the court found that all of Brian’s premarital crops
    had been liquidated by the date of separation. It also found that
    Brian deposited the nonmarital proceeds from the liquidated
    crops into his premarital bank accounts, along with the pro-
    ceeds from the sale of the marital crops. Accordingly, the court
    found that these premarital crops and monetary assets were
    commingled with marital assets. Therefore, it ruled that Brian
    was not entitled to a setoff from the marital estate for these
    premarital assets.
    The court also rejected Brian’s argument that crops should
    be treated similarly to a herd of cattle—as a single asset for
    tracing purposes. It reasoned that a herd of cattle is similar
    to land in that it is a self-sustaining and income producing.
    Conversely, it stated that crops are an end product that is mar-
    keted and liquidated on a short-term basis to pay the expenses
    of producing it, purchase the seed used for the next crop’s
    production, purchase equipment, and provide the farmer his
    income for the year. Accordingly, the court did not give Brian a
    credit for any of the crops in storage on the date of separation;
    instead, the court awarded Brian all of the crops in storage on
    the date of separation at a value of $573,750.
    The court listed the marital debt it awarded to Dori with a
    corresponding value of $3,216. While the court also awarded
    several marital debts to Brian, it did not assign values to all
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    of them. Nevertheless, the court summarized its award of the
    marital estate as follows: Brian received $2,517,950 in mari-
    tal assets and $1,145,294 in marital debt for a total estate of
    $1,372,656; Dori received $21,611 in marital assets and $3,216
    in marital debt for a total estate of $18,395.
    Regarding the equity of the distribution, the court found
    that the marriage was of short duration and that neither party
    gave up employment or educational opportunities, but that Dori
    did change her educational program to benefit the marriage.
    The court rejected Brian’s argument that Dori should receive
    less than one-third of the marital assets. It reasoned that any
    financial benefit Brian brought to the relationship, above his
    income, was as the landlord of the premarital property he
    farmed and that the proper way to account for such a benefit
    would have been to charge the marriage a cash rent or a crop-
    share arrangement and segregate it as nonmarital property, of
    which Brian did not do or provide evidence.
    The court ordered Brian to make an equalization payment of
    $680,000 to Dori, awarding about half of the marital estate to
    each party.
    The court overruled Brian’s subsequent motion for new trial
    or to alter and amend the judgment. Brian appealed.
    II. ASSIGNMENTS OF ERROR
    Brian assigns, restated and reordered, that the court erred
    in (1) failing to set off premarital property awarded to him
    from the marital estate; (2) failing to set off the value of his
    premarital stored and growing crops; (3) twice awarding him
    the same $78,500 as marital property; (4) valuing the crops
    in storage 2 months prior to separation, when the vast major-
    ity of the estate was valued as of the date of separation; (5)
    making significant mathematical errors in its division of the
    marital estate; and (6) dividing the marital estate inequitably
    for a marriage of short duration where the marital estate was
    almost entirely due to the efforts and premarital contributions
    of one party.
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    III. STANDARD OF REVIEW
    [1] 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 regard-
    ing custody, child support, division of property, alimony, and
    attorney fees.1
    [2] 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.2 However,
    when evidence is in conflict, the appellate court considers
    and may give weight to the fact that the trial court heard and
    observed the witnesses and accepted one version of the facts
    rather than another.3
    [3] A judicial abuse of discretion exists if the reasons or
    rulings of a trial judge are clearly untenable, unfairly depriv-
    ing a litigant of a substantial right and denying just results in
    matters submitted for disposition.4
    [4] When reviewing questions of law, an appellate court
    has an obligation to resolve the questions independently of the
    conclusion reached by the trial court.5
    IV. ANALYSIS
    [5,6] Under Nebraska’s divorce statutes, “[t]he purpose of
    a property division is to distribute the marital assets equitably
    between the parties.”6 The ultimate test in determining the
    appropriateness of the division of property is fairness and
    1
    See Bergmeier v. Bergmeier, 
    296 Neb. 440
    , 
    894 N.W.2d 266
     (2017).
    2
    See 
    id.
    3
    
    Id.
    4
    
    Id.
    5
    See White v. White, 
    296 Neb. 772
    , 
    896 N.W.2d 600
     (2017).
    6
    
    Neb. Rev. Stat. § 42-365
     (Reissue 2016).
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    reasonableness as determined by the facts of each case.7 We
    have stated that under § 42-365, 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 accord­
    ance with the principles contained in § 42-365.8
    1. District Court A bused Its Discretion
    in Failing to Set Off Certain
    Nonmarital Assets
    [7] Generally, all property accumulated and acquired by
    either spouse during a marriage is part of the marital estate.9
    Exceptions include property that a spouse acquired before the
    marriage, or by gift or inheritance.10 Setting aside nonmarital
    property is simple if the spouse possesses the original asset,
    but can be problematic if the original asset no longer exists.11
    Separate property becomes marital property by commingling
    if it is inextricably mixed with marital property or with the
    separate property of the other spouse.12 If the separate property
    remains segregated or is traceable into its product, commin-
    gling does not occur.13 The burden of proof rests with the party
    claiming that property is nonmarital.14
    Brian contends that the court made several errors regard-
    ing its determination of premarital assets. The court awarded
    7
    Bergmeier, 
    supra note 1
    .
    8
    
    Id.
    9
    
    Id.
    10
    Sellers v. Sellers, 
    294 Neb. 346
    , 
    882 N.W.2d 705
     (2016).
    11
    
    Id.
    12
    
    Id.
    13
    
    Id.
    14
    Bergmeier, 
    supra note 1
    .
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    Brian the aggregate balance of his four bank accounts on the
    date of the marriage, which was $182,471. However, it failed
    to include any credits for that amount. The court awarded
    Brian the 2010 and 2011 crops, but it did not determine a
    value for those crops. Brian claims that he used $80,000 from
    the premarital crops for a downpayment on real estate pur-
    chased during the marriage, but that the court did not give him
    credit for the $80,000.
    Brian further contends that based on his testimony and
    that of Hershberger, he had met his burden to trace the value
    of his crops on the date of marriage. In the alternative, he
    asserts that we should treat crops as a single unit for tracing
    purposes, as the Nebraska Court of Appeals did with live-
    stock in Shafer v. Shafer.15 He asserts that both livestock and
    crops are biological commodities that are sustained through
    the reinvestment of the proceeds from their sales and that
    crops are not self-sustaining merely as a result of the propri-
    etary nature of seeds which producers are contractually obli-
    gated to not replant. Accordingly, he asserts that we should
    deduct the crops he had on the date of marriage from the
    crops in storage on the date of separation and set it off from
    the marital estate. Additionally, he argues that the $80,000
    downpayment he made on the Roberts farm was traceable to
    premarital funds.
    Dori contends that under our decision in Brozek v. Brozek,16
    the court correctly found that Brian was not entitled to a setoff
    of his premarital crops or the proceeds from those crops and
    the premarital funds in his accounts because they no longer
    existed or had been commingled with marital assets at the
    time of separation. She also argues that Brian is not cred-
    ible and that therefore, Hershberger’s analysis should not be
    relied on.
    15
    Shafer v. Shafer, 
    16 Neb. App. 170
    , 
    741 N.W.2d 173
     (2007), modified on
    denial of rehearing 
    16 Neb. App. 327
    , 
    743 N.W.2d 781
     (2008).
    16
    Brozek v. Brozek, 
    292 Neb. 681
    , 
    874 N.W.2d 17
     (2016).
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    (a) Valuing Brian’s Premarital
    Stored and Growing Crops
    We begin by noting that the court awarded Brian the 2011
    stored and growing crops as premarital assets, but did not
    assign a value to those crops.
    In exhibit 37, Hershberger’s detailed analysis showed the
    number of bushels of crops Brian possessed on the date of
    marriage. While Dori vigorously contested Brian’s credibil-
    ity and Hershberger’s reliability, she presented no alterna-
    tive estimations. Further, Hershberger’s estimation of Brian’s
    stored crops and growing crops in 2011 was supported by
    the crop insurance reports, tax returns, balance sheets, and
    sales receipts in the record. Exhibit 37 stated the value of
    Brian’s stored and growing crops on the date of marriage was
    $1,021,503.07.
    [8] Appeals in domestic relations matters are heard de novo
    on the record, and thus, an appellate court is empowered to
    enter the order which should have been made as reflected by
    the record.17 Because the record shows the appropriate non-
    marital value of these assets, we assign $1,021,503.07 as the
    value of Brian’s premarital stored and growing crops.
    (b) Crops Are Not Similar to
    Livestock for Tracing
    In Sellers v. Sellers,18 we adopted the Court of Appeals’
    reasoning it posited in Shafer that a cattle herd owned at the
    time of the marriage could, based on the totality of the circum-
    stances, be treated as a single asset for tracing purposes and set
    off from the marital estate as separate property if such a result
    was equitable.
    There, the husband had been engaged in the cattle business
    throughout the marriage and continually reinvested the pro-
    ceeds from the sale of cattle into the acquisition of new cattle.
    We recognized that
    17
    Schuman v. Schuman, 
    265 Neb. 459
    , 
    658 N.W.2d 30
     (2003).
    18
    Sellers, 
    supra note 10
    .
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    “one cannot draw a straight line from a cow owned [at
    the time of the marriage] to a cow owned [at the time of
    divorce,] which is the prototypical ‘tracing’ of a premari-
    tal asset so as to set it aside to the party who owned it at
    the time of the marriage.”19
    However, we reasoned that treating a cattle herd as a sin-
    gle asset “‘acknowledged the realities of what happens over
    time in a cattle operation’” rather than “‘exalt[ing] form over
    substance and ignor[ing] the equitable nature of a dissolu-
    tion action.’”20
    In Brozek, however, we declined to extend this exception
    to the tracing requirement to premarital machinery because
    unlike a herd of cattle, which is self-sustaining through repro-
    duction, equipment depreciates in value as it deteriorates and
    becomes outdated.21
    We agree with the trial court’s reasoning in this case: A
    herd of cattle is more similar to real property than to personal
    property. As we stated in Brozek, a herd of cattle is generally
    self-sustaining, through reproduction and reinvestment, and is
    not subject to depreciation, because it consistently maintains
    its number- and income-producing capabilities. Crops, on the
    other hand, are more similar to milk products produced by
    a herd of dairy cattle. Both are short-term assets that are the
    product of investing input, maintenance, and equipment costs.
    They are liquidated on a short-term basis and continuously
    rolled into production. While a crop cycle is longer and crops
    may be stored for several years, crops, like milk products, are
    still end products that account for the income of the individuals
    raising them.
    [9] Brian’s argument that crops would be self-sustaining
    absent contractual requirements to not replant is unavailing.
    Even if a crop could be used as a source of seed for replanting,
    19
    
    Id. at 354
    , 882 N.W.2d at 711, quoting Shafer, supra note 15.
    20
    Id. at 355, 882 N.W.2d at 712, quoting Shafer, supra note 15.
    21
    Brozek, 
    supra note 16
    .
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    it would result only in a decrease in the input cost of the pro-
    duction of the short-term asset that is produced through the
    continued cycle of cultivation and liquidation. Accordingly, we
    hold that agricultural crops are categorically different in nature
    from a herd of cattle and, therefore, are not entitled to the same
    treatment for tracing purposes.
    (c) Brian Is Entitled to Setoff of
    Certain Nonmarital Assets
    In Brozek, we also considered whether the husband was
    entitled to a setoff for the balance of his bank accounts and
    the value of crops he possessed on the date of the marriage.
    In that case, the parties had been married nearly 20 years
    and the stored crops at the time of their separation, valued at
    $1.2 million, were the most substantial asset of the $2.5 mil-
    lion net marital estate. At trial, the husband estimated, through
    “an armful of exhibits,” that the premarital balance of his
    accounts was $79,000.22 Additionally, he was not able to show
    the actual number of crop bushels he harvested the year of the
    marriage, but, relying on the acres he farmed and the average
    yield of the area, he estimated the crop’s value at $190,000.
    He claimed that proceeds of the premarital crop were reflected
    in the current crop, because he continually rolled his proceeds
    into the subsequent year’s expenses.
    We held that the husband was not entitled to a setoff from
    either source of premarital assets, because after 20 years, he
    could “not identify the different permutations that his premari-
    tal property underwent during the marriage.”23 We reasoned
    that his reinvestment was “mixed with the proceeds of marital
    harvests and subject to the vicissitudes of the farming economy
    for nearly 20 years” and that he presented no evidence of
    the unknown number of deposits and withdrawals from his
    accounts during the marriage.24
    22
    Id. at 698, 874 N.W.2d at 31.
    23
    Id. at 699, 874 N.W.2d at 31.
    24
    Id. at 699, 874 N.W.2d at 32.
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    In Kalkowski v. Kalkowski,25 “we decline[d] to adopt any
    bright-line rule as to whether or not crops which will eventu-
    ally generate income may be treated as divisible marital prop-
    erty in a dissolution proceeding.” Our analysis considered at
    the forefront our long-standing principle that the ultimate test
    in determining the appropriateness of the division of property
    is fairness and reasonableness as determined by the facts of
    each case.26
    There, the parties were married for over 10 years and
    the wife was the primary caregiver to the four marital chil-
    dren while the husband farmed. The husband argued that his
    stored and growing crops were inventory, not a traditional
    asset, because they represented income he had already earned
    but not realized and income that he had not yet earned.
    Nevertheless, he included the crops with an assigned value as
    an asset in the joint property statement and at trial, requested
    that they be awarded to him. Therefore, we held that the court
    did not abuse its discretion in including the crops in the mari-
    tal estate.
    [10] Income earned from one or both spouses’ employment
    during a marriage is a marital asset.27 However, as we recog-
    nized in Kalkowski, crops are a product of a farming operation
    that are not income but generate income upon their liquidation.
    Under this reasoning, crops produced before the marriage and
    sold during the marriage would generally be considered marital
    income, but crops produced during the marriage but sold after
    would not. Accordingly, we allow courts flexibility in their
    treatment of stored and growing agricultural crops to account
    for the equities of the situation.
    In this case, Brian entered the marriage with a large amount
    of income from his liquidated crops and unrealized income in
    the form of growing and stored crops. The court determined
    25
    Kalkowski v. Kalkowski, 
    258 Neb. 1035
    , 1042, 
    607 N.W.2d 517
    , 524
    (2000).
    26
    
    Id.
    27
    Davidson v. Davidson, 
    254 Neb. 656
    , 
    578 N.W.2d 848
     (1998).
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    that this income and unrealized income should not be consid-
    ered a marital asset because it was fully earned prior to the
    marriage. On the other hand, the court chose to include the
    stored crops and proceeds from the sale of crops produced dur-
    ing the marriage in the marital estate but not the crops growing
    at the time of separation, because the cultivation and risk for
    these crops remained predominantly with Brian. This decision
    by the court fairly accounted for the realities of this situation;
    Brian should not have been punished for holding crops pro-
    duced and fully grown before the marriage.
    The court, however, set off no value from its award of these
    premarital assets to Brian because it found that the income
    had been commingled with marital assets. We recognize the
    law concerning tracing, but we also recognize the overarching
    principle in the division of marital property is equity, ulti-
    mately guided by fairness and reasonableness.
    We reject Brian’s proposition that providing evidence of
    the value of growing and stored crops on the date of marriage
    is sufficient for purposes of tracing; instead, it would simply
    be a necessary prerequisite for the analysis. Nevertheless, we
    hold that applying the rigid requirements of tracing in this
    case would unfairly deprive Brian of his premarital efforts
    and result in his being double charged in the division of the
    marital estate by depriving him of his premarital assets and
    then awarding him the real or personal property in which they
    were invested.
    Hershberger testified that had grain prices not been rising to
    historic levels, the standard practice would have been for Brian
    to liquidate his stored crops before the next harvest, which
    began around the time of the marriage. Further, Brian would
    likely not have held his 2011 crops through the 2012 harvest
    when they were no longer traceable.
    In Brozek, the court included in the marital estate the crops
    in storage and the balance of the husband’s bank accounts,
    which held the income from crop sales, on the date of the
    separation. It also included in the marital estate the hus-
    band’s premarital crops and proceeds therefrom in his bank
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    accounts. However, this case is distinguishable for a number
    of reasons.
    First, in Brozek, the husband could not definitively identify
    the values of his premarital assets. Just as one could not trace
    an unknown value of assets, it would be unreasonable to set off
    a value of assets that is not proved. As mentioned above, Brian
    clearly established that the value of his stored and growing
    crops was $1,021,503.07. Further, while Brian did not produce
    bank statements proving the premarital balance of his accounts,
    Dori did not contest the values he provided on the second joint
    property statement. Accordingly, the balance of the accounts,
    as assigned by the court, was $182,471.
    Second, the equities in Brozek were vastly different than
    in this case. In Brozek, the estimated value of the premarital
    assets was less than 10 percent of the net marital estate. Here,
    the value of Brian’s premarital assets was nearly 87 percent of
    what the court stated was the net marital estate.
    Third, the parties in Brozek had been married nearly 20
    years. Brian and Dori’s marriage, on the other hand, lasted
    only 31 months, spanning only 2 full crop cycles. Through
    the course of a long-term marriage, proceeds reinvested in
    crops are subject to the vicissitudes of the market, equipment
    purchased with such proceeds deteriorates and is replaced
    with equipment purchased through solely marital funds, and
    the equity of commingling funds becomes less severe. In light
    of the short-term marriage here, it would be inequitable to
    allow Dori to benefit from an increase to the marital estate
    of over $1.2 million in assets because of Brian’s inability to
    trace them.
    Accordingly, based on the equities of the situation in this
    case, the court’s failure to set off the value of Brian’s premari-
    tal bank accounts and crops placed Brian at a vast disadvantage
    in the division of marital property. Therefore, fairness and
    reasonableness require a determination that the court abused
    its discretion in not setting off $1,203,974.07 from the mari-
    tal estate.
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    2. Valuation and Distribution
    of M arital Assets
    (a) Trial Court Abused Its Discretion
    by Double Counting Assets
    Brian argues that the court double counted assets by award-
    ing him check No. 1718, for $78,500, and the 2011 John Deere
    tractor model 9630T without deducting the downpayment on
    the tractor as evidenced by check No. 1718.
    In exhibit 20, Dori listed the checks and their values that
    she argued were prepayments for farming expenses associ-
    ated with the 2014 crop that Brian paid with marital funds
    before the separation. She did not claim any interest in the
    2014 crops but argued that the prepayments with marital assets
    should be considered marital property. Included in the exhibit
    20 list was check No. 1718 for $78,500, which was dated
    February 3, 2014. At trial, however, both parties testified that
    check No. 1718 was used as a downpayment for the 2011 John
    Deere tractor.
    In its decree, the court awarded Brian all of the prepaid farm
    expenses listed in exhibit 20 as marital assets, including check
    No. 1718 with the value of $78,500. The court also awarded
    Brian the 2011 John Deere tractor model 9630T, at a value of
    $140,000, which represented its fair market value of $205,000
    minus the premarital value of a Cat Challenger tractor that was
    sold for $65,000 and used toward its purchase.
    The court’s failure to deduct the $78,500 prepayment on
    the 2011 John Deere tractor model 9630T from the tractor’s
    value resulted in an increase to Brian’s net marital estate of
    $78,500. Accordingly, the court abused its discretion in sub-
    stantially increasing the value of the marital estate it awarded
    to Brian.
    (b) Court Abused Its Discretion
    by Valuing Crops in Storage
    as of March 20, 2014
    Brian contends that the court erred in accepting Dori’s value
    of the stored crops that relied on his March 20, 2014, balance
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    sheet. He argues this valuation is inequitable, because it repre-
    sents the quantity of stored crops and the price per bushel on
    March 20, 2014, rather than the actual date of separation over 2
    months later. Accordingly, he argues that the quantity and value
    of crops in storage should be valued at $444,099.68, because
    the evidence shows that he had only 95,300.36 bushels of corn
    on May 31, 2014, and the price per bushel of corn on that day
    was $4.66.
    Dori contends that the quantity and valuation of the parties’
    stored crops is a disputed factual matter and that we should
    defer to the trial court’s decision, because it had the opportu-
    nity to evaluate the credibility of the witnesses. She contends
    that unlike Brian and his expert, Hershberger, she has consist­
    ently maintained her opinion that the stored crop’s marital
    value was $573,750, which the court accepted.
    [11] As a general principle, the date upon which a mari-
    tal estate is valued should be rationally related to the prop-
    erty composing the marital estate. The date of valuation is
    reviewed for an abuse of the trial court’s discretion.28
    As discussed in the background section, the parties spent a
    considerable period of time at trial contesting the quantity and
    value of corn that the parties owned at the time of separation.
    Hershberger testified that his determination in exhibit 37 of
    the quantity of corn in storage was based on Brian’s or Brian’s
    mother’s determination as to what year of crops were reflected
    in the sales receipts in the fall of 2014. He also testified that
    if the information he was provided was inaccurate, then so
    was exhibit 37. Exhibit 37 is the final valuation that Brian
    relied upon and what he argues we should find the value as
    on appeal.
    Exhibit 37 shows that the bushels of corn the parties owned
    on March 20, 2014, was 142,040.44. Hershberger’s report
    showed the bushels of corn the parties owned on May 31,
    2014, was 95,300.36. The record also contains five sales
    28
    Stanosheck v. Jeanette, 
    294 Neb. 138
    , 
    881 N.W.2d 599
     (2016).
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    receipts which show the quantity of stored crops decreased
    between March 20 and May 31, 2014, by 46,740.08 bushels as
    a result of Brian’s selling the grain. In addition, the record con-
    tains deposit slips showing that the proceeds from each of the
    five sales were deposited into Brian’s farm checking account
    between April 8 and May 12, 2014. The value of Brian’s farm
    checking account was determined as of May 31, 2014.
    The court’s reliance on the corn values as of March 20,
    2014, and its reliance on the bank account balance as of
    May 31, 2014, creates a double counting of the corn’s value.
    Accordingly, the court abused its discretion in disregarding this
    evidence and relying on the March 20, 2014, balance sheet
    alone, because it resulted in a valuation that was not rationally
    related to the property composing the marital estate. Therefore,
    the value of crops in storage on the date of separation awarded
    to Brian is $444,099.68.
    (c) Errors Argued But Not Assigned
    Dori contends that on the date of separation, Brian had
    45,024.032 bushels of corn stored at Husker Coop, with a
    value of $209,811.93, which was not included in the court’s
    award. Her argument is based on an August 23, 2013, settle-
    ment sheet from Husker Coop, which shows that Brian had
    70,024.02 bushels of corn stored there and that he sold 25,000
    bushels of the stored corn. She argues that there is no record of
    this remaining corn being sold and that it is not accounted for
    on Brian’s March 20, 2014, balance sheet.
    Brian argues that the court incorrectly added the value of
    the bank accounts it awarded to Dori as marital property.
    If Brian were correct, the court’s mistake would constitute
    plain error.29 His argument, however, is more properly char-
    acterized as asserting that the court incorrectly valued the
    marital assets in Dori’s First National Bank savings account
    29
    See Clason v. Clason, No. A-15-626, 
    2016 WL 6210946
     (Neb. App. Oct.
    25, 2016) (selected for posting to court website).
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    No. xxx632 by relying on the value listed in the first joint
    property statement, $500, rather than the second joint prop-
    erty statement, $4,627.
    [12] Absent plain error, errors argued but not assigned will
    not be considered on appeal.30 The court’s findings and its
    award concerning both the crops in storage on the date of sepa-
    ration and account No. xxx632 were supported by evidence
    presented to the court. Therefore, we do not consider either
    parties’ argument.
    3. Plain Error Committed by Court
    [13,14] Plain error exists where there is an error, plainly
    evident from the record but not complained of at trial, which
    prejudicially affects a substantial right of a litigant and is of
    such a nature that to leave it uncorrected would cause a mis-
    carriage of justice or result in damage to the integrity, reputa-
    tion, and fairness of the judicial process.31 Plain error may be
    asserted for the first time on appeal or be noted by an appellate
    court on its own motion.32
    (a) Trial Court Erred in Valuing
    Marital Debt on Roberts Farm
    In its decree, the court explained that Brian had listed
    secured debt on the real estate, including the Bosshart/
    Gruenwald farm, the Dodendorf farm, and the Roberts farm,
    in the amount of $1,063,797. As a result, the court calculated
    the value of the secured marital debt on the Roberts farm by
    deducting the value of Brian’s premarital debt on the Bosshart/
    Gruenwald farm and the Dodendorf farm on the date of the
    marriage from the total stated amount. After making the deduc-
    tion, it determined that the marital debt secured by real estate
    was $894,081.
    30
    Hike v. State, 
    297 Neb. 212
    , 
    899 N.W.2d 614
     (2017).
    31
    State v. Robbins, 
    297 Neb. 503
    , 
    900 N.W.2d 745
     (2017).
    32
    
    Id.
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    However, in the January 2016 joint property statement, both
    parties listed the amount of the debt on the Roberts farm to be
    $871,297, which is the amount stated in the March 20, 2014,
    balance sheet. Accordingly, the court mistakenly valued the
    Roberts farm debt to be $22,784 more than it actually was.
    The court’s valuation of the Roberts farm was not based on
    the evidence and resulted in Brian’s being awarded an addi-
    tional $22,784 in marital debt. In doing so, the court committed
    plain error in this valuation.
    Since we give Brian credit for his premarital crop inventory,
    his argument that he used $80,000 from the premarital crops
    for a downpayment on the Roberts farm is without merit.
    (b) Court Failed to Set Off Brian’s
    Premarital Dodendorf Farm
    Debt From Marital Estate
    The court awarded Brian the debt owed on the Dodendorf
    farm as a marital debt but did not assign a value. The par-
    ties agreed in both joint property statements that the value of
    this debt at the time of separation was $17,451. Under Dori’s
    valuation of the debt, however, she stated on both joint prop-
    erty statements that the debt was premarital, and Brian did
    the same on the second joint property statement. This debt
    is listed in Brian’s February 18, 2010, balance sheet, and the
    court awarded the Dodendorf farm to Brian as a premari-
    tal asset.
    In awarding Brian the debt on the Dodendorf farm as a
    marital debt, it committed plain error in failing to set off the
    debt as premarital in the amount of $17,451.
    (c) Trial Court Failed to Value and Award
    Certain Marital Assets and Debts
    As mentioned above, under § 42-365, a court has a duty to
    value and divide all of the assets and debts constituting the
    marital estate. In this case, the court’s failure to do so in the
    following instances significantly affected the valuation and
    equitable distribution of the marital estate.
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    As mentioned above, because appeals in domestic relations
    matters are heard de novo on the record, an appellate court is
    empowered to enter the order which should have been made
    as reflected by the record.33 In each of the following instances,
    the court’s findings and the record provide a sufficient basis to
    value and award the assets and debts.
    (i) Marital Property That Should Have
    Been Awarded to Brian as Assets
    Both joint property statements and both of the personal
    property and equipment appraisals from Grubaugh Auction
    Services contain the following items of property: “2012 Brandt
    Grain Deck,” “2010 Polaris 550 ATV,” a one-third inter-
    est in two pivots (Roberts farm), a one-third interest in the
    Hondorfer farm well pump, a 48-foot grain bin, and a 24-foot
    enclosed car trailer. Brian valued these items at a combined
    total of $25,900, and Dori valued them at a combined total
    of $78,010. At trial, Brian testified that his valuations were
    based on the appraisals from Grubaugh Auction Services, and
    Dori testified that her valuations were based on the deprecia-
    tion schedules from Brian’s tax returns or the May 20, 2014,
    balance sheet.
    The court awarded Brian “[a]ny property not specifically
    listed, but in [his] possession.” Further, the court relied on the
    Grubaugh Auction Services appraisals over Brian’s deprecia-
    tion schedule for valuing all of the items it valued. Dori did not
    assign error to the court’s reliance on those appraisals, so we
    will defer to the court’s judgment on that issue.
    Accordingly, we award these remaining assets to Brian
    and find their value as follows: “2012 Brandt Grain Deck,”
    $10,500; “2010 Polaris 550 ATV,” $3,500; a one-third inter-
    est in two pivots (Roberts farm), $2,000; a one-third interest
    in the Hondorfer farm well pump, $4,000; a 48-foot grain bin,
    $1,500; and a 24-foot enclosed car trailer, $4,400.
    33
    Schuman, 
    supra note 17
    .
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    (ii) Value of Marital Debts
    Awarded to Brian
    When listing the unsecured marital debts that were awarded
    to Brian, the court provided no corresponding values. It sum-
    marized the total marital debts awarded to Brian as $1,145,294.
    We can find no combination of debts in the record that total
    this amount.
    The value of the following debts awarded to Brian were
    undisputed: Roberts Farm, $871,297; “Ag Direct” loan for
    the Cat Challenger tractor, $30,548; “John Deere Financial,”
    $183,000; and “Chase Auto Finance,” $30,785. As a result,
    we determine the amount of debt awarded to Brian to be
    $1,115,630.
    However, other debts were inconsistently listed on the joint
    property statements or the evidence varied as to the amounts
    owed, including the Great Western Bank operating line of
    credit, a Sears credit card debt, and a Cabela’s credit card debt.
    At trial, the president of Great Western Bank and Brian’s
    primary lender testified that the March 20, 2014, balance
    sheet accurately stated that Brian owed $1,486 on the operat-
    ing line of credit on that date but that it had no balance owed
    on the date of separation. Dori did not challenge this wit-
    ness’ credibility, and the court made no finding that he was
    not credible.
    In regard to the Sears and Cabela’s credit cards, Dori intro-
    duced evidence to show that both debts were paid in full on
    the date of separation.
    Brian also claimed for the first time on the second joint
    property statement that he had a marital debt from unpaid
    property taxes. Under the title of the debt, Brian listed the four
    properties, presumably, from which the taxes were owed. One
    of these was the Roberts farm, but the others were premarital
    properties. Real estate taxes on nonmarital property are non-
    marital debts.34 Brian did not submit any supporting evidence
    34
    2 Brett R. Turner, Equitable Distribution of Property § 6:97 (3d ed. 2005
    & Supp. 2016-17).
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    of this claim or of the value attributable to the Roberts farm.
    The court did not award or value this debt.
    Based on the record, we conclude that there was no debt
    owed on the Sears and Cabela’s credit cards or the Great
    Western Bank operating line of credit on the date of separa-
    tion. We also conclude that Brian failed to submit sufficient
    evidence to show how much, if any, unpaid taxes he owed on
    the Roberts farm; accordingly, the court did not err in failing
    to assign it.
    (iii) Brian Should Have Been Awarded
    Value of Reduction in His
    Premarital Debts as Asset
    [15] “[A] non-owning spouse is entitled to some ben-
    efit when marital funds have been expended to improve or
    reduce the debt on the other spouse’s nonmarital property.”35
    As discussed above, Brian had $918,775.69 in premarital
    debts between loans on his nonmarital property and expenses
    incurred in the production of his 2011 crop. According to
    Brian’s premarital debts listed on the March 20, 2014, bal-
    ance sheet, only $209,951 of these debts existed on the date of
    separation. As a result, Brian’s premarital debts were reduced,
    during the marriage, by approximately $708,824.69. In light
    of the fact that we set off the premarital value of Brian’s bank
    accounts and stored and growing crop inventory, it would be
    inequitable to not also include in the marital estate this benefit
    conferred to Brian. Accordingly, we award Brian the value of
    his premarital debts reduced with marital funds.
    4. Division and Valuation of
    M arital Property
    Brian argues that the court committed mathematical errors
    in totaling the parties’ assets and debts, which created errors
    in the equalization payment it ordered. After reviewing the
    35
    Jones v. Jones, 
    2014 Ark. 96
    , at 5, 
    432 S.W.3d 36
    , 40 (Feb. 27, 2014).
    Accord 24 Am. Jur. 2d Divorce and Separation § 486 (2008). See, also,
    Gangwish v. Gangwish, 
    267 Neb. 901
    , 
    678 N.W.2d 503
     (2004).
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    order, we agree that the court committed an abuse of discre-
    tion by incorrectly totaling the values of its award and relying
    on those values to calculate the marital estate and equaliza-
    tion payment.
    Having resolved Brian’s assignments of error and noticing
    plain error on the division of the marital estate, we provide the
    following division of debts and assets of the parties:
    Item	                                   Brian	Dori
    Bank Accounts	                     $  218,120.00	 $ 5,272.00
    Real Estate	                           981,333.00	          0.00
    Vehicles	                               59,500.00	17,500.00
    Farm Equipment	                        280,701.00	          0.00
    Crop Inventory	                        444,099.68	          0.00
    Prepaid Farm Expenses	                 164,643.00	          0.00
    401K	                                        0.00	1,739.00
    Household Goods & Furnishings	           5,200.00	          0.00
    Reduction in Premarital Debt	          708,824.69	          0.00
    Debt	                              (1,115,630.00)	(3,216.00)
    Premarital Crop Inventory	         (1,021,503.07)	         (0.00)
    Premarital Bank Accounts	             (182,471.00)	        (0.00)
    TOTAL	                            $   542,817.30	 $21,295.00
    Based on the balance sheet above, the total value of the
    marital estate is $564,112.30. The value of the marital estate
    awarded to Brian is $542,817.30, and the value awarded to
    Dori is $21,295. An equal distribution would require a payment
    from Brian to Dori in the amount of $260,761.15.
    5. Division of M arital Estate
    Brian contends that the court’s equal distribution of the
    marital estate is inequitable based on our principles for dis-
    tributing the marital estate. Additionally, Brian argues that we
    should award Dori less than the standard 33 to 50 percent of
    the marital estate, under Davidson v. Davidson.36 He argues
    this case is factually analogous to Davidson, except the wife
    in Davidson abandoned a promising career for the marriage,
    36
    Davidson, 
    supra note 27
    .
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    while Dori did not forgo any opportunities. Further, he asserts
    that the division does not provide him a means to pay the
    award, because it will likely put him out of business.
    Dori contends that the court’s distribution was warranted
    because both parties worked hard during the marriage and she
    changed her field of study and college for her doctoral program
    to benefit the marriage. She argues that the unique circum-
    stances in Davidson are not applicable here, because Brian had
    been farming only a short time before the marriage and held no
    stock options or retention shares. Further, she asserts that there
    is no evidence to support Brian’s claim that he cannot make
    the equalization payment, because at the time of separation, he
    had little short-term debt and significant liquid assets and had
    prepaid many of his 2014 farm expenses.
    [16-18] In dividing property and considering alimony upon
    a dissolution of marriage, a court should consider four fac-
    tors: (1) the circumstances of the parties, (2) the duration of
    the marriage, (3) the history of contributions to the marriage,
    and (4) the ability of the supported party to engage in gain-
    ful employment.37 In addition to the specific criteria listed in
    § 42-365, in dividing property and considering alimony upon
    a dissolution of marriage, a court should consider the income
    and earning capacity of each party and the general equities of
    the situation.38 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.39
    In Davidson, the marital estate was valued at $7,886,119, of
    which the husband’s employee stock options and stock reten-
    tion shares alone accounted for $5,655,974.40 At the time of the
    37
    Anderson v. Anderson, 
    290 Neb. 530
    , 
    861 N.W.2d 113
     (2015).
    38
    
    Id.
    39
    See Lorenzen v. Lorenzen, 
    294 Neb. 204
    , 
    883 N.W.2d 292
     (2016), citing
    Millatmal v. Millatmal, 
    272 Neb. 452
    , 
    723 N.W.2d 79
     (2006).
    40
    Davidson, 
    supra note 27
    .
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    marriage, the husband was Union Pacific Railroad’s president
    and chairman. About 1 year into the marriage, he was named
    president of the Union Pacific Corporation, and about 2 years
    into the marriage, he was promoted to chief operating officer
    of that same corporation. We acknowledged that the bulk of the
    marital estate consisted of stock options and retention shares
    that were earned as a result of those promotions.
    In considering the equitable division of the estate, we noted
    that the husband’s “33-year career in the railroad industry had
    reached its zenith at the time the parties were married” and
    that he had been receiving stock options and retention annu-
    ally for the 10 years preceding the marriage.41 We also noted
    that the wife provided social support, tutored the husband’s
    college-age son, and interrupted a successful career for the
    marriage. On the other hand, the husband’s nonmarital chil-
    dren did not reside permanently with the parties and the wife
    was able to finish her Ph.D. during the marriage. Further,
    we reasoned:
    Considering that no children were born to the parties,
    that the parties separated after 2 years, that the marriage
    lasted 38 months, that [the husband’s] career was well
    established, and that [the wife] is highly educated and
    capable of finding employment, we conclude that the trial
    court’s adherence to the general guidelines was an abuse
    of discretion.42
    Accordingly, based on the circumstances of the case, which
    we stated were “unique,” we reversed the court’s order grant-
    ing the wife 33 percent of the marital estate and held that the
    wife was entitled to only $950,000, or about 12 percent of the
    marital estate.43
    In the instant case, we reject Brian’s argument that the
    circumstances warrant deviating from our general rule for
    41
    Id. at 670, 
    578 N.W.2d at 859
    .
    42
    
    Id. at 671
    , 
    578 N.W.2d at 859
    .
    43
    
    Id. at 672
    , 
    578 N.W.2d at 860
    .
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    dividing the marital estate. While some of the factors for
    dividing the marital estate in this case are similar to those in
    Davidson, the unique circumstances in Davidson that war-
    ranted the deviation is not.
    The facts in Davidson were unique because the husband’s
    career reached its zenith at the same time that the parties mar-
    ried. As a result of the husband’s career-long efforts, he was
    twice promoted during the short-term marriage, which resulted
    in his receiving employee stock options and stock retention
    shares far in excess of his regular salary. While we accounted
    for the portion of the option and shares that were nonmari-
    tal, the remaining value had still resulted substantially from
    his premarital efforts and the husband had no ability to pre-
    vent these assets from becoming marital as they were income
    from employment.
    Because we decided that Brian was entitled to a setoff of
    his premarital assets above, there is nothing in this case that
    approaches the inequity we found in Davidson.
    Admittedly, the following factors in this case are similar
    to those in Davidson: the marriage was short term, no chil-
    dren were born of the marriage, Brian contributed a dispro-
    portionate amount of finances to the estate, Dori received a
    professional doctoral degree during the marriage, and both
    parties are well situated to engage in gainful employment.
    Also, unlike in Davidson, Dori did not forgo any employment
    opportunities, and, while she changed her educational plans,
    Dori received a comparable education to what she would have
    in South Dakota.
    While these factors may support awarding Dori only 33 per-
    cent of the marital estate, as the lower court in Davidson had,
    the circumstances of the parties and their contributions to the
    marriage support a more equal distribution.
    In Davidson, the wife made little contribution to the mar-
    riage, financially or through other efforts, which we described
    as occasional tutoring of the husband’s son and volunteer work.
    Here, Dori worked full time during her breaks from school
    and after graduation, and she received financial support from
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    her scholarship for living expenses. While she earned less than
    Brian, she bore most of the costs of the apartment in Lincoln,
    her living expenses in Lincoln, and her travel expenses. Brian,
    on the other hand, lived in a house provided by his parents
    and provided no evidence of expenses outside of his farming
    operation. Brian provided little financial support to Dori dur-
    ing the marriage, which prevented her from accruing savings
    or other assets.
    Further, while her education was comparable to what she
    would have received, she changed her field of study to enable
    her to contribute to the farming operation. While her contribu-
    tions to the farming operation during the marriage were mini-
    mal, what she did contribute was based primarily on knowl-
    edge she obtained from her studies, which showed the utility of
    the educational decisions she made.
    Additionally, Dori bore the majority of the burden of travel
    during the marriage to allow the parties to see each other.
    During the portion of the marriage when Dori resided in
    Lincoln, she still traveled to the Polk County residence 3 or
    4 days a week. During the other portion of the marriage when
    Dori resided in Polk County, she commuted to Lincoln for
    school and her full-time summer employment. Brian traveled
    to Lincoln frequently during the first winter of the marriage
    but carried little of the burden thereafter. Further, Dori was
    solely responsible for maintaining her Lincoln residence and
    also put in considerable efforts at the Polk County residence.
    Brian testified that she would provide extra assistance at the
    Polk County residence during his busy season, which allowed
    him to focus on his farming operation.
    While reasonable minds could differ as to what the appropri-
    ate distribution of the marital estate within the general range
    should have been in this case, an abuse of discretion is a highly
    deferential standard of review. Our opinion, based on an inde-
    pendent review of the record, supplants the court’s decision
    only in the instance where its decision was untenable. Brian
    contributed more financially to the marital estate, but Dori also
    earned income throughout the marriage and was responsible
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    for much of the expenses. She also bore a disproportionate
    amount of homemaking duties and the burden to ensure she
    and Brian could spend time together regularly during the mar-
    riage. Finally, as the trial court reasoned, Brian had the oppor-
    tunity to keep his family gifts and nonmarital property con-
    tributions, which contributed heavily to his earnings, separate
    from the estate, but did not. Accordingly, we cannot say that
    the decision by the district court was unreasonable or unfair.
    Brian presented no evidence to support his claim that the
    equalization payment would threaten the continuation of his
    business. He was awarded substantial cash assets, prepaid
    farming expenses for 2014, and the crops produced that year,
    the expenses of which would likely have been paid in the prior
    year when they were produced. Accordingly, we find no merit
    to his claim that requiring him to make an equalization pay-
    ment was unfair.
    V. CONCLUSION
    We affirm the court’s decision that stored and growing
    crops should not be treated the same as cattle herds for trac-
    ing purposes, but we hold that the court committed an abuse
    of discretion and plain error in its distribution of nonmarital
    and marital assets and debts. Notably, based on the circum-
    stances of this case, we find that the court erred in not setting
    off the value of Brian’s stored and growing crops on the date
    of marriage and not assigning a credit to the marital estate for
    the substantial amount of Brian’s premarital debts that were
    reduced during the marriage.
    Further, we hold that the court did not abuse its discretion
    in awarding Dori one-half of the marital estate. In light of our
    holdings above, we modify the court’s order consistent with
    this opinion and order Brian to make an equalization payment
    of $260,761.15.
    A ffirmed as modified.
    Wright, J., not participating in the decision.