Stephens v. Stephens , 297 Neb. 188 ( 2017 )


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    STEPHENS v. STEPHENS
    Cite as 
    297 Neb. 188
    Robert L. Stephens, appellee, v.
    Janet E. Stephens, appellant.
    ___ N.W.2d ___
    Filed July 14, 2017.    No. S-16-431.
    1.	 Divorce: Appeal and Error. In actions for dissolution of marriage, an
    appellate court reviews the case de novo on the record to determine
    whether there has been an abuse of discretion by the trial judge.
    2.	 Judges: Words and Phrases. A judicial abuse of discretion exists if the
    reasons or rulings of a trial judge are clearly untenable, unfairly depriv-
    ing a litigant of a substantial right and denying just results in matters
    submitted for disposition.
    3.	 Appeal and Error. Errors must be specifically assigned and argued to
    be considered by an appellate court.
    4.	 Statutes: Words and Phrases. Traditionally, the word “include” in
    a statute connotes that the provided list of components is not exhaus-
    tive and that there are other items includable though not specifically
    enumerated.
    5.	 Property Division. Equitable property division under Neb. Rev. Stat.
    § 42-365 (Reissue 2016) is a three-step process. The first step is to
    classify the parties’ property as marital or nonmarital. The second step
    is to value the marital assets and determine the marital liabilities of the
    parties. The third step is to calculate and divide the net marital estate
    between the parties in accordance with the principles contained in
    § 42-365.
    6.	 Divorce: Property Division. All property accumulated and acquired by
    either spouse during the marriage is part of the marital estate, unless it
    falls within an exception to this general rule.
    7.	 ____: ____. 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.
    8.	 Divorce: Property Division: Pensions. Investment earnings accrued
    during the marriage on the nonmarital portion of a retirement account
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    may be classified as nonmarital where the party seeking the classifica-
    tion 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 indi-
    rect effort, contribution, or fund management of either spouse.
    9.	 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.
    10.	 Property Division: Words and Phrases. Appreciation caused by mari-
    tal contributions is known as active appreciation, and it constitutes mari-
    tal property.
    11.	 ____: ____. Passive appreciation is appreciation caused by separate con-
    tributions and nonmarital forces.
    12.	 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.
    13.	 Divorce: Property Division. Appreciation or income of a nonmarital
    asset during the marriage is marital insofar as it was caused by the
    efforts of either spouse or both spouses.
    14.	 Corporations: Employer and Employee. Despite the importance of
    each employee in a company, a company’s value for purposes of active
    appreciation is attributable only to the efforts of first-tier management or
    similar persons with control over the asset’s value.
    15.	 ____: ____. Courts have uniformly rejected arguments by the owning
    spouse that the universe of persons in a company that effect its value is
    so large that no one person has any significant effect.
    16.	 Property Division: Proof. The burden of proof to show that property is
    nonmarital remains with the person making the claim.
    17.	 Divorce: Mental Competency. The amount of support awarded under
    Neb. Rev. Stat. § 42-362 (Reissue 2016) is a matter initially entrusted
    to the sound discretion of the trial judge, which award, on appeal to this
    court, is reviewed de novo on the record and affirmed in the absence of
    an abuse of the trial judge’s discretion.
    Appeal from the District Court for Lancaster County: Robert
    R. Otte, Judge. Affirmed in part, vacated in part, and in part
    reversed and remanded with directions.
    Stefanie Flodman and Steven J. Flodman, of Johnson,
    Flodman, Guenzel & Widger, for appellant.
    David P. Kyker for appellee.
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    STEPHENS v. STEPHENS
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    297 Neb. 188
    Heavican, C.J., Wright, Miller-Lerman, Cassel, K elch,
    and Funke, JJ.
    Wright, J.
    I. NATURE OF CASE
    In this dissolution action, the husband is the cofounder and
    president of a C corporation and owns 34 percent of its stock.
    He asserts that only the appreciation, during the marriage, of
    a business interest that is due to the active efforts of the non-
    owning spouse is part of the marital estate. He claims, there-
    fore, that none of the almost $5 million in appreciation of his
    stock interest during the parties’ 25-year marriage was subject
    to equitable division.
    II. BACKGROUND
    Janet E. Stephens and Robert L. Stephens were married on
    September 8, 1991. Twin boys were born of the marriage in
    1996. Robert filed for dissolution in 2014.
    For approximately 15 years of the marriage, Janet worked
    as a real estate agent. But during the last 10 years of the mar-
    riage, Janet suffered from a mental illness that required peri-
    odic hospitalization and left her unable to work. She receives
    approximately $1,500 per month in Social Security disability
    income. Robert testified that he did not expect Janet would
    recover and become employable in the future.
    A guardian ad litem (GAL) was appointed to protect Janet’s
    interests at trial. The GAL is also Janet’s guardian and conser-
    vator. Janet refused to participate in the dissolution proceed-
    ings but was represented by counsel.
    Both before and during the marriage, Robert worked full
    time as president of Stephens & Smith Construction Co., Inc.
    (Stephens & Smith), and his current annual salary is approxi-
    mately $265,000 per year. Robert received additional income
    from bonuses and from his other business interests. In 2014,
    Robert’s total taxable income was $503,414. When Janet’s
    mental health allowed, she shared equally with Robert the tasks
    relating to the care of their children.
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    The principal issue at trial was what assets should be con-
    sidered marital and subject to equitable division. The approxi-
    mate total value of the assets under the court’s consideration in
    the dissolution action was $9 million. There were 166 exhibits
    entered into evidence without objection, and Robert was the
    only witness.
    1. Stephens & Smith
    Stephens & Smith is a construction company specializing
    in concrete work. At all relevant times before and during the
    marriage, Robert owned stock totaling 34 percent of the stock
    of Stephens & Smith. Robert cofounded Stephens & Smith in
    1971 as a partnership with Michael Smith. Stephens & Smith
    was incorporated as a C corporation in 1974. According to the
    exhibits in the record, Robert’s stock in Stephens & Smith was
    worth $298,459 in 1991 before the parties married. Robert’s
    stock in Stephens & Smith at the time of dissolution was worth
    $5,044,934.16.
    Robert worked a “normal eight-hour day,” 5 days a week, in
    his capacity as president. At other times during the marriage,
    he worked more. He was also on the 12-member board of
    directors. Robert admitted that he sets his own salary and has a
    significant role in determining bonuses.
    Robert testified that the leadership personnel of Stephens
    & Smith has not changed since the marriage. He described
    Stephens & Smith as consisting of six moneymaking depart-
    ments, each with its own department head. Robert was involved
    in selecting and training the leadership within Stephens &
    Smith. At all times during the marriage, Stephens & Smith
    had approximately 200 employees. Robert considered at least
    20 of those employees “integral,” though he believed every
    employee was important.
    Robert described his role as president as “constantly chang-
    ing.” He made financial and investment decisions for Stephens
    & Smith and performed “some management real estate over-
    sight.” As part of obtaining lending to fund Stephens &
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    Smith’s projects, Robert also personally guaranteed millions of
    dollars in loans for Stephens & Smith’s operations.
    Robert attended human resources, rental management, share-
    holder, and board meetings. He occasionally consulted with
    and advised the department heads for the company. Robert con-
    ceded that he was an integral part of the success of Stephens &
    Smith. But Robert suggested that, based on his latest bonus of
    6 percent, “maybe I provide 6 percent of the leadership.”
    2. R.I.P., Inc.
    R.I.P., Inc., is a wholly owned subsidiary of Stephens &
    Smith. It holds Stephens & Smith’s real estate investments and
    represents approximately two-thirds of Stephens & Smith’s
    value. R.I.P. was created before the marriage with capital
    from Stephens & Smith, and continued thereafter to be funded
    by the profits of Stephens & Smith. R.I.P. owns a percent-
    age of The Mystic Pines Apartments, L.L.C.; Eagles Landing
    Apartments, LLC; Aardvark Antique Mall, LLC; and Village
    Square Apartments, LLC. Although there was no testimony spe-
    cifically on this point, Robert’s estimated interest in Stephens
    & Smith of $5,044,934.16 apparently includes any interests
    held through R.I.P.
    3. Infinity S Development Co., Heritage Square
    Partners, Smith and Stephens R eal Estate,
    and A ardvark Partners
    (a) Infinity S Development
    Infinity S Development Co. (Infinity) is a partnership
    between Robert, Smith, and one other partner. Infinity is pre-
    dominantly involved in the self-storage business, and at the
    time of trial, it owned approximately 900 storage units. At one
    point, Robert testified that no capital has been added to Infinity
    since the marriage. Its expansion has been paid for with the
    partnership’s profits. Robert also indicated, however, that as
    with Stephens & Smith, he had personally guaranteed bank
    loans to Infinity.
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    The day-to-day operation of Infinity is run by a hired man-
    ager. But Robert and the two other partners make the larger
    decisions, such as what to build. Robert participates in monthly
    meetings to analyze occupancy rates and financial statements.
    Robert owns one-fourth of Infinity. According to the exhibits
    in evidence, at the time of trial, Robert’s equity interest in
    Infinity was $1,243,232. In contrast, when the parties married,
    Robert’s interest in Infinity was worth $270,553.
    (b) Heritage Square Partners
    Heritage Square Partners (Heritage) was formed as an off-
    shoot of Infinity just prior to the marriage. The partnership
    consists of Robert; Smith; and, originally, three other per-
    sons. It owns one building that was capitalized with funds
    from Infinity and with loans. No other funds have been
    funneled into Heritage since the marriage. The building pro-
    vides rental income and is managed by a person employed
    by the partnership. Robert is not involved in the day-to-day
    operation of Heritage. At the time of trial, Robert’s equity
    interest in Heritage was $403,884. It was unclear what the
    value of Robert’s interest in Heritage was at the time the par-
    ties married.
    (c) Smith and Stephens Real Estate
    Smith and Stephens Real Estate was created by Robert
    and Smith before the marriage and owns a single piece of
    property that was purchased before the marriage. The value
    of Robert’s interest in Smith and Stephens Real Estate when
    the parties married was $88,830, and it was $140,000 at the
    time of trial.
    (d) Aardvark Partners
    Aardvark Partners, LLC, was formed after the marriage. It
    was formed by the five partners of Infinity and with R.I.P. as the
    sixth partner. R.I.P. owns 50 percent of Aardvark Partners. The
    $500,000 purchase of the real estate held by Aardvark Partners
    was capitalized with $50,000 from each of five individual
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    investor partners from Infinity and $250,000 from R.I.P. Each
    individual obtained the $50,000 contribution through a distri-
    bution of $55,000 from Infinity.
    Aardvark Partners owns a property that consists of a clus-
    ter of buildings and parking lots. Robert is not involved in
    the day-to-day operation of Aardvark Partners, which is run
    by a hired manager. At the time of trial, Robert’s interest in
    Aardvark Partners was valued at $306,429.
    4. A ardvark A ntique M all, The Mystic
    Pines A partments, and Eagles
    Landing A partments
    Robert conceded at trial that his ownership interests in
    Aardvark Antique Mall, The Mystic Pines Apartments, and
    Eagles Landing Apartments were marital property. At the time
    of trial, Aardvark Antique Mall was valued at $66,474, The
    Mystic Pines Apartments were valued at $923,687, and Eagles
    Landing Apartments were valued at $381,385. Robert’s com-
    bined interest in the three properties produced approximately
    $60,000 per year in owner draws, and he proposed that it
    would be most beneficial for all parties to transfer to Janet the
    ownership interest in these properties.
    Janet’s attorney and GAL questioned the practicality of
    making Janet part-owner of the properties. Janet’s counsel also
    pointed out that transfer of ownership would require the coop-
    eration of the other partners, since at least two of the entities
    required owner approval before allowing new members. Robert
    assured the court that the partners having an interest in these
    properties would cooperate.
    5. Decree
    The court awarded to Robert the marital home, valued at
    $542,000, and the mortgage debt therein, in the amount of
    $337,078. Also awarded to Robert, subject to liens or encum-
    brances, were a “60-foot Gen[i]e Manlift” valued at $20,000, a
    jet ski valued at $1,740, a 1998 motorcycle valued at $7,625,
    a 2003 automobile valued at $16,904, and a 2005 recreation
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    vehicle valued at $60,250. The only debt associated with
    these items appears to be an automobile loan in the amount
    of $19,893.
    Robert was awarded $31,965 in household goods and art-
    work. Robert was awarded a credit union checking account
    with a balance of $553.50 and a bank checking account with a
    balance of $100. Robert was awarded Stephens & Smith retire-
    ment plans valued at $326,104.79. The retirement plans were
    formed after the marriage, and Robert had conceded they were
    marital assets.
    Robert was solely responsible for a personal loan in 2009
    from his sister in the amount of $480,589, for the purpose of
    investing in Eagles Landing Apartments and The Mystic Pines
    Apartments. Robert was awarded any and all bank or invest-
    ment accounts, life insurance policies and annuities, and any
    household goods or personal property in his possession not
    otherwise allocated.
    The court awarded to Janet, along with any indebtedness
    thereon, a 2012 automobile valued at $27,357. The court
    awarded to Janet $18,510 in household goods and artwork,
    any and all jewelry, including a $10,000 ring that Janet had
    purportedly flushed down the toilet. It was unclear to what
    extent the other jewelry could be located at the time of trial.
    The jewelry, minus the ring, was appraised at $72,760. Janet
    was awarded an account at a local bank with a balance at the
    time of trial of $10,010. She was awarded any and all bank or
    investment accounts, life insurance policies and annuities, and
    any household goods or personal property in her possession not
    otherwise allocated.
    The court found that Robert’s combined interest in Aardvark
    Antique Mall ($66,474), The Mystic Pines Apartments
    ($923,687), and Eagles Landing Apartments ($381,385) was
    part of the marital estate. In light of the tax disadvantages of
    the forced buying or selling of the business interests, and the
    court’s trust that Robert would conduct his business affairs so
    as not to disadvantage Janet, the court awarded Robert and
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    Janet each one-half of the total interest in these properties
    through a transfer of ownership. Robert was ordered to com-
    plete all documentation of such joint ownership within 30 days
    of the decree.
    The court found that Robert’s ownership interests in Infinity,
    Heritage, Smith and Stephens Real Estate, and Aardvark
    Partners were traceable to premarital assets and that the entirety
    of the appreciation in value of these interests during the mar-
    riage was excludable from the marital estate, because Robert
    had a “passive” role in such appreciation. It noted that no
    marital assets and no active effort by Janet contributed to these
    entities. The court awarded these interests in their entirety
    to Robert.
    The court also found that Robert’s 34 percent ownership
    interest in Stephens & Smith was, in its entirety, nonmarital.
    It did not specifically mention R.I.P. in its decree, which was
    presumably treated as part of Stephens & Smith.
    The court noted that no marital funds were contributed to
    Stephens & Smith. And, as for the substantial appreciation of
    the company’s value during the marriage, the court cited Van
    Newkirk v. Van Newkirk1 and Buche v. Buche.2 Ultimately, the
    court concluded that Robert had met his burden of proof that
    his stock, including the appreciation during the marriage, was
    premarital property. In this regard, the court reasoned that
    the appreciation was “due to a combination of factors, not
    the least of which is organic growth” and that “[t]here is no
    evidence to suggest what part of that growth can be attributed
    to [Robert].”
    Although the court concluded that the entirety of Stephens
    & Smith was nonmarital property, it nevertheless awarded
    a “Grace award”3 to Janet based on the court’s valuation of
    Robert’s stock interest in Stephens & Smith. The court found
    1
    Van Newkirk v. Van Newkirk, 
    212 Neb. 730
    , 
    325 N.W.2d 832
    (1982).
    2
    Buche v. Buche, 
    228 Neb. 624
    , 
    423 N.W.2d 488
    (1988).
    3
    See Grace v. Grace, 
    221 Neb. 695
    , 
    380 N.W.2d 280
    (1986).
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    that other considerations and equities present in the case justi-
    fied an award to Janet of $1.1 million to be paid in installments
    of $100,000 per year, with interest of 2.51 percent on the out-
    standing balance. The court explained as to the mathematical
    basis for such award that if the appreciation of Robert’s own-
    ership interest in Stephens & Smith were marital, one-third
    of that interest would be $1.55 million and one-half would be
    $2.35 million.
    Other marital property, a coin collection and various items
    held in storage units, had not yet been given an estimated
    value and were ordered divided by equal value or sold with
    the proceeds to be divided equally between Robert and Janet.
    The court found that Janet was suffering from a mental ill-
    ness as defined by Neb. Rev. Stat. § 42-362 (Reissue 2016)
    and awarded alimony under § 42-362 in the amount of $1,000
    per month for 120 months. It ordered Robert to maintain until
    August 20, 2020, a life insurance policy in the amount of
    $1 million, with Janet as the beneficiary.
    Janet appeals from the decree. Robert did not cross-appeal.
    III. ASSIGNMENTS OF ERROR
    Janet assigns that the district court erred in (1) finding that
    the appreciation in the value of Stephens & Smith during the
    parties’ marriage should be considered nonmarital, (2) failing
    to find that the spousal support ordered under § 42-362 should
    continue until Janet’s mental disability is corrected, and (3)
    ordering the division of marital property held in a small busi-
    ness or partnership when the articles of organization do not
    allow for the same.
    IV. STANDARD OF REVIEW
    [1,2] In actions for dissolution of marriage, 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.4 A judicial abuse of discretion exists if the reasons or
    4
    Stanosheck v. Jeanette, 
    294 Neb. 138
    , 
    881 N.W.2d 599
    (2016).
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    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.5
    V. ANALYSIS
    1. Property Division
    [3] Janet first assigns as error the district court’s finding
    that the appreciation during the parties’ marriage of Robert’s
    interest in Stephens & Smith should be considered nonmari-
    tal. She does not assign as error the court’s determination that
    other assets at issue at trial were nonmarital. Errors must be
    specifically assigned and argued to be considered by an appel-
    late court.6
    Thus, we consider only whether the district court erred
    in its classification of Stephens & Smith, together with its
    wholly owned subsidiary, R.I.P.—which we hereafter refer
    to collectively as “Stephens & Smith.” We do not consider
    whether the court erred with respect to its classification
    of Infinity, Heritage, Smith and Stephens Real Estate, or
    Aardvark Partners as nonmarital assets. And because Robert
    did not cross-appeal, neither do we consider whether the
    court erred in designating Aardvark Antique Mall, The Mystic
    Pines Apartments, and Eagles Landing Apartments as marital.
    We do consider the propriety of the “Grace award,” as it is
    inseparable from the court’s determination that Stephens &
    Smith was nonmarital.
    Neb. Rev. Stat. § 42-365 (Reissue 2016) provides that when
    a dissolution of marriage is decreed, the court may order the
    division of property as may be reasonable, having regard
    for the circumstances of the parties, duration of the mar-
    riage, a history of the contributions to the marriage by
    each party, including contributions to the care and educa-
    tion of the children, and interruption of personal careers
    5
    Id.
    6
    Shipler v. General Motors Corp., 
    271 Neb. 194
    , 
    710 N.W.2d 807
    (2006).
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    or educational opportunities, and the ability of the sup-
    ported party to engage in gainful employment without
    interfering with the interests of any minor children in the
    custody of such party.
    Section 42-365 provides that “[t]he purpose of a property divi-
    sion is to distribute the marital assets equitably between the
    parties.” (Emphasis supplied.)
    No statute defines “marital assets.” Neb. Rev. Stat.
    § 42-366(8) (Reissue 2016) states that in the event the parties
    fail to agree upon a property settlement that is conscionable,
    the court shall order the equitable division of the marital
    estate, which “shall include . . . any pension plans, retirement
    plans, annuities, and other deferred compensation benefits
    owned by either party, whether vested or not vested.” But no
    statutory provision relating to the equitable division of prop-
    erty specifically addresses business entities or the concept
    of appreciation.
    [4] We find no merit to Robert’s argument that § 42-366
    is a legislative mandate to exclude from the marital estate
    items not specifically listed in § 42-366. Traditionally, the
    word “include” in a statute connotes that the provided list of
    components is not exhaustive and that there are other items
    includable though not specifically enumerated.7 And § 42-366
    seems particularly concerned with clarifying the status of
    nonvested assets. Business interests like Stephens & Smith,
    and indeed many other assets such as the marital home, do
    not fall into that category. Thus, it is no surprise that they
    are not enumerated. Moreover, while the Legislature speci-
    fied the condition in § 42-366(8) “owned by either party” as
    7
    See Samantar v. Yousuf, 
    560 U.S. 305
    , 
    130 S. Ct. 2278
    , 
    176 L. Ed. 2d
    1047 (2010). See, also, Stansell v. Revolutionary Armed Forces of
    Colombia, 
    704 F.3d 910
    (11th Cir. 2013); Federal Election Com’n v. Mass.
    Citizens for Life, 
    769 F.2d 13
    (1st Cir. 1985); Highway & City Freight
    Drivers, Etc. v. Gordon, 
    576 F.2d 1285
    (8th Cir. 1978); Matter of Adoption
    by W.P. and M.P., 
    308 N.J. Super. 376
    , 
    706 A.2d 198
    (1998); Auer v. Com.,
    
    46 Va. App. 637
    , 
    621 S.E.2d 140
    (2005).
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    to the assets listed, we have held as to these listed assets that
    only the portion of such deferred compensation benefits that
    was earned or contributed to during the marriage is part of the
    marital estate.8 In sum, § 42-366 does not indicate whether
    appreciation during the marriage of a nonmarital business or
    property interest is a marital asset. That question has instead
    long been determined by case law.
    [5] Since 2000, we classify as a threshold matter the parties’
    property as either marital or nonmarital. In Meints v. Meints,9
    we said:
    Equitable property division under § 42-365 is a three-step
    process. The first step is to classify the parties’ property
    as marital or nonmarital. The second step is to value the
    marital assets and determine the marital liabilities of the
    parties. The third step is to calculate and divide the net
    marital estate between the parties in accordance with the
    principles contained in § 42-365.
    Such division between the marital and nonmarital estate is
    known as dual classification. Prior to Meints, our case law
    was not entirely clear as to whether we operated under a dual
    classification system. Most jurisdictions adopt the dual clas-
    sification model and preclude under this model the equitable
    distribution of separate property.10 “Equitable considerations
    are generally no excuse for failing to follow the statutory clas-
    sification process.”11
    [6,7] We have said that all property accumulated and
    acquired by either spouse during the marriage is part of
    the marital estate, unless it falls within an exception to this
    8
    See, e.g., Coufal v. Coufal, 
    291 Neb. 378
    , 
    866 N.W.2d 74
    (2015).
    9
    Meints v. Meints, 
    258 Neb. 1017
    , 1023, 
    608 N.W.2d 564
    , 569 (2000). See,
    also, 3 Brett R. Turner, Equitable Distribution of Property, appendix A at
    274 (3d ed. 2005).
    10
    See 1 Brett R. Turner, Equitable Distribution of Property § 2:10 (3d ed.
    2005).
    11
    See 
    id., § 5:7
    at 266.
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    general rule.12 Thus, for example, income from either party
    that accumulates during the marriage is a marital asset.13 Any
    given property can constitute a mixture of marital and non-
    marital interests; a portion of an asset can be marital property
    while another portion can be separate property.14 Therefore,
    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.15
    [8] In the recent case of Stanosheck v. Jeanette,16 we said
    that 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 non-
    marital 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. In Coufal v. Coufal,17 we similarly examined
    whether the increase in the value of the premarital capital in a
    retirement account was a marital asset. After examining cases
    from other jurisdictions discussing the active appreciation rule,
    we held that the appreciation was nonmarital, because it was
    not caused by the direct or indirect efforts of “either spouse.”18
    [9-11] Other jurisdictions have reached a “remarkable
    degree of consensus” that appreciation or income of separate
    property is marital property to the extent that it was caused
    by marital funds or marital efforts.19 The active appreciation
    12
    See Heald v. Heald, 
    259 Neb. 604
    , 
    611 N.W.2d 598
    (2000).
    13
    See Harris v. Harris, 
    261 Neb. 75
    , 
    621 N.W.2d 491
    (2001).
    14
    See 1 Turner, supra note 10, § 5:20.
    15
    See 
    id. 16 Stanosheck
    v. Jeanette, supra note 4.
    17
    Coufal v. Coufal, supra note 8.
    18
    
    Id. at 384,
    866 N.W.2d at 79.
    19
    1 Turner, supra note 10, § 5:54 at 546. See, also, Annot., 
    39 A.L.R. 6th 205
          (2008).
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    rule sets forth the relevant test to determine to what extent
    marital efforts caused any part of the appreciation or income.20
    “Appreciation caused by marital contributions is known as
    active appreciation, and it constitutes marital property in the
    first instance.”21 In contrast, passive appreciation is apprecia-
    tion caused by separate contributions and nonmarital forces.22
    And most states, by statute or case law, define marital contribu-
    tion broadly to include the efforts of either the owning or the
    nonowning spouse.23
    Robert, however, argues that Stanosheck and Coufal, inas-
    much as they recognize as marital property growth due to
    the efforts of the owning spouse, are limited to retirement
    accounts. He argues that appreciation of business interests
    outside of retirement accounts should be considered a marital
    asset only if the appreciation during the marriage was caused
    by the efforts of the nonowning spouse.
    In support of this position, Robert relies on statements by
    this court in cases decided before we clearly adopted a dual
    classification system24 and under facts demonstrating that the
    appreciation of the nonmarital asset was due principally to
    inflation and market forces.25 Under these circumstances, in
    Van Newkirk v. Van Newkirk, we said that property acquired
    by gift or inheritance is not considered part of the marital
    estate unless
    20
    See 1 Turner, supra note 10, § 5:55.
    21
    
    Id. at 549.
    22
    
    Id. 23 Id.,
    § 5:56. See, also, e.g., Hanson v. Hanson, 
    125 P.3d 299
    (Alaska
    2005); Horton v. Horton, 
    299 Ga. 46
    , 
    785 S.E.2d 891
    (2016); Nardini
    v. Nardini, 
    414 N.W.2d 184
    (Minn. 1987). See, generally, 39 A.L.R.6th,
    supra note 19.
    24
    See Matlock v. Matlock, 
    205 Neb. 357
    , 
    287 N.W.2d 690
    (1980)
    (consideration of inherited property depends on equities involved).
    25
    See, Preston v. Preston, 
    241 Neb. 181
    , 
    486 N.W.2d 902
    (1992); Ross v.
    Ross, 
    219 Neb. 528
    , 
    364 N.W.2d 508
    (1985); Van Newkirk v. Van Newkirk,
    supra note 1.
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    both of the spouses have contributed to the improvement
    or operation of the property which one of the parties
    owned prior to the marriage or received by way of gift
    or inheritance, or the spouse not owning the property
    prior to the marriage or not receiving the inheritance or
    gift has significantly cared for the property during the
    marriage.26
    But in Rezac v. Rezac,27 decided only 3 years after Van
    Newkirk, we recognized as a marital asset the appreciation
    of nonmarital property due solely to the contributions of the
    owning spouse during the marriage. We held in Rezac that
    the lower court did not err in dividing as marital property the
    entirety of the appreciated value of the husband’s premarital
    stock in a corporation. We explained that if the husband’s own-
    ership of the corporation had been merely “nominal” or the
    increase in the value of the stock during the marriage had been
    “strictly an inflationary increase,”28 there would have been a
    better argument that the stock should be viewed as continuing
    to be separate property. But such was not the case.
    We observed in Rezac that the lower court was correct in
    treating the appreciation of stock as marital property, because
    the corporation had paid for substantial improvements that
    increased the corporate value, in lieu of distributing profits to
    its owners as income. We explained that “had the corporation
    not made substantial investments in improving its facility, the
    value of the stock may have remained about the same but this
    respondent would have received additional income resulting in
    marital assets which would be subject to division at the time
    of the dissolution.”29
    26
    Van Newkirk v. Van Newkirk, supra note 
    1, 212 Neb. at 733
    , 325 N.W.2d
    at 834.
    27
    Rezac v. Rezac, 
    221 Neb. 516
    , 
    378 N.W.2d 196
    (1985).
    28
    
    Id. at 518,
    378 N.W.2d at 198.
    29
    
    Id. See, also,
    Sughroue v. Sughroue, 
    19 Neb. Ct. App. 912
    , 
    815 N.W.2d 210
          (2012).
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    Though we observed in Rezac that the appreciation was
    through reinvestment of income, other courts and legal
    authorities find no meaningful distinction between apprecia-
    tion through reinvestment of income and appreciation through
    active efforts other than reinvestment.30 Income from and
    appreciation of an asset are fundamentally similar insofar as
    they are both ways that the property generates value.31 The
    only difference is that income takes the form of a new asset,
    while appreciation takes the form of added value.32 This dif-
    ference in form bears “no relation to the policies behind equi-
    table distribution.”33
    Nevertheless, in Grace v. Grace,34 a case decided a few
    years after Van Newkirk and Rezac, we implicitly accepted
    without analysis an appreciation/income distinction. There,
    because of the inequities created by the application of such
    a distinction, we were compelled to consider the value of
    nonmarital assets in determining the equitable amount of the
    property division.
    In Grace, we applied our statement in Van Newkirk to hold
    that the husband’s interest in a premarital family business was
    nonmarital. Then we said that whether an asset is marital is
    but one consideration in the equitable division of property.35
    Especially in light of the minimal accumulation of marital
    assets due to the provision by the business of the marital home
    and other expenses, we held that the wife should be awarded
    a lump sum representing her portion of the husband’s corpo-
    rate interest—even though the wife did not contribute to the
    improvement or operation of the business.
    30
    See 1 Turner, supra note 10, § 5:50 (and cases cited therein).
    31
    See 
    id., § 5:50.
    32
    See 
    id. 33 Id.
    at 524.
    34
    Grace v. Grace, supra note 3.
    35
    
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    A series of cases from the Nebraska Court of Appeals have
    since recognized so-called Grace awards in order to achieve an
    equitable result when the application of our statement in Van
    Newkirk renders appreciation during the marriage nonmarital.36
    It has not been clear under this line of case law what excep-
    tional circumstances warrant a Grace award. The mathematics
    behind the amount of such Grace awards have likewise never
    been clear. But Grace awards generally represent a smaller
    division of the asset in question than the expected division if
    the asset were considered marital.37
    We find inapplicable to the modern dual classification
    system any statements in Van Newkirk and its progeny which
    fail to recognize as a marital asset appreciation through the
    active efforts of the owning spouse. For purposes of the active
    appreciation rule, there is no reason to treat appreciation of
    a nonmarital asset differently from income derived from a
    nonmarital asset during the marriage. We conclude, likewise,
    that the principles set forth in Grace are no longer applicable
    to the dual classification system set forth by this court in
    Meints v. Meints.38 This is not to say that a court would, in
    every conceivable circumstance, be forbidden from taking
    into account nonmarital assets in its equitable division of the
    marital estate, but our adoption of the active appreciation
    rule as set forth herein limits the need for such an extraordi-
    nary recourse.
    [12] We hold, therefore, that the principles set forth in
    Stanosheck apply equally to appreciation or income during
    the marriage of any nonmarital asset. Thus, accrued invest-
    ment earnings or appreciation of nonmarital assets during
    36
    See, Keig v. Keig, 
    20 Neb. Ct. App. 362
    , 
    826 N.W.2d 879
    (2012); Shuck v.
    Shuck, 
    18 Neb. Ct. App. 867
    , 
    806 N.W.2d 580
    (2011); Charron v. Charron,
    
    16 Neb. Ct. App. 724
    , 
    751 N.W.2d 645
    (2008); Walker v. Walker, 
    9 Neb. Ct. App. 834
    , 
    622 N.W.2d 410
    (2001).
    37
    See 
    id. 38 Meints
    v. Meints, supra note 9.
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    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.39 We agree with many other
    jurisdictions that the burden is on the owning spouse to prove
    the extent to which marital contributions did not cause the
    appreciation or income.40 This is the better policy, because it
    places the burden on the party who has the best access to the
    relevant evidence.41
    [13] We expressly adopt the active appreciation rule that
    does not distinguish between the efforts of the owning spouse
    and the efforts of the nonowning spouse. We agree that the
    majority rule recognizing as a marital contribution the efforts
    of either the owning or the nonowning spouse is “clearly cor-
    rect, as the marital estate should include the fruits of either
    spouse’s efforts during the marriage.”42 We hold that the appre-
    ciation or income of a nonmarital asset during the marriage is
    marital insofar as it was caused by the efforts of either spouse
    or both spouses.
    Under the district court’s interpretation of our admittedly
    confusing line of case law, it concluded that appreciation
    39
    Stanosheck v. Jeanette, supra note 4.
    40
    1 Turner, supra note 10, § 5:56.
    41
    See 
    id., citing Harrower
    v. Harrower, 
    71 P.3d 854
    (Alaska 2003); Chapman
    v. Chapman, 
    866 So. 2d 118
    (Fla. App. 2004); Macdonald v. Macdonald,
    
    532 A.2d 1046
    (Me. 1987); Berenberg v. Berenberg, 
    474 N.W.2d 843
          (Minn. App. 1991); Waring v. Waring, 
    747 So. 2d 252
    (Miss. 1999);
    Klaus v. Klaus, 
    918 S.W.2d 407
    (Mo. App. 1996); Jurado v. Jurado, 
    119 N.M. 522
    , 
    892 P.2d 969
    (N.M. App. 1995); Pulice v. Pulice, 
    242 A.D.2d 527
    , 
    661 N.Y.S.2d 675
    (1997); Ciobanu v. Ciobanu, 
    104 N.C. App. 461
    ,
    
    409 S.E.2d 749
    (1991); Thielenhaus v. Thielenhaus, 
    890 P.2d 925
    (Okla.
    1995); Garfinkel v. Garfinkel, 
    945 S.W.2d 744
    (Tenn. App. 1996); Mayhew
    v. Mayhew, 
    205 W. Va. 490
    , 
    519 S.E.2d 188
    (1999); In re Marriage of
    Popp v. Popp, 
    146 Wis. 2d 778
    , 
    432 N.W.2d 600
    (Wis. App. 1988).
    42
    1 Turner, supra note 10, § 5:56 at 564.
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    of Stephens & Smith due to Robert’s active efforts was not
    includable in the marital estate. The court accordingly made no
    findings concerning what portion of Stephens & Smith’s appre-
    ciation was attributable to Robert’s active efforts. Because
    Janet did not directly contribute to Stephens & Smith, the court
    concluded that the entirety of Stephens & Smith’s appreciation
    during the marriage was nonmarital. In its attempt to make an
    equitable distribution after having thus excluded approximately
    $5 million from the marital estate, the court awarded as a
    Grace award approximately one-fourth of Robert’s 34-percent
    interest in Stephens & Smith.
    Based upon the active appreciation rule, the court should
    not have excluded Stephens & Smith from the marital estate
    and substituted a Grace award. We reverse the court’s deter-
    mination of the marital property to the extent that it did not
    include the increase in value of Robert’s interest in Stephens
    & Smith, and we vacate the court’s Grace award.
    The classification of the growth in value of Robert’s stock,
    including that due to retained earnings by Stephens & Smith,43
    depends on the extent that the overall growth of the company
    was caused by Robert’s active efforts. In this case, there was
    no dispute that Stephens & Smith appreciated significantly
    during the marriage and that Robert’s active efforts played a
    significant role in that appreciation. Indeed, the underlying
    facts were not contested. Robert, cofounder and president of
    Stephens & Smith, worked full time in that capacity during the
    entirety of the 25-year marriage.
    [14,15] Despite the importance of each employee in a com-
    pany, a company’s value for purposes of active appreciation
    is attributable only to the efforts of first-tier management or
    similar persons with control over the asset’s value.44 First-tier
    management is responsible for ensuring the policy, direction,
    and good will that contributes most directly to the value of a
    43
    See 
    id., § 5:53.
    44
    See 
    id., § 5:57.
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    company’s stock.45 Courts have uniformly rejected arguments
    by the owning spouse that the universe of persons in a com-
    pany that effect its value is so large that no one person has any
    significant effect.46
    Even favorable market conditions are not passive inasmuch
    as they create merely the opportunity that the skilled, own-
    ing spouse detects and seizes.47 Nor does an argument that
    the “‘ground work’” for growth was laid before the marriage
    preclude as a marital asset substantial appreciation of a com-
    pany’s value during the marriage.48 No person wears all hats
    in a complex business operation, but it is nevertheless possible
    for one person to be critical to such operation’s growth and
    development.49 The appreciation of a company’s stock may be
    due not just to a first-tier manager’s direct efforts, but to his or
    her mere presence, when the individual is identified with the
    business entity and tied to its good will.50
    [16] It was Robert’s burden to demonstrate that any portion
    of Stephens & Smith’s appreciation was due to passive forces
    or the active efforts of third parties who would qualify as first-
    tier management or similar. In presenting the evidence at trial,
    Robert was on notice of the possibility that the court would
    apply the active appreciation rule. And it has been the long-
    standing position of this court that the burden of proof to show
    that property is nonmarital remains with the person making
    the claim.51 In light of this burden of proof, it is clear on the
    record presented that Robert’s active efforts were responsible
    45
    See, Hanson v. Hanson, supra note 23; Berrie v. Berrie, 
    252 N.J. Super. 635
    , 
    600 A.2d 512
    (1991); 1 Turner, supra note 10, § 5:57.
    46
    1 Turner, supra note 10, § 5:57.
    47
    See 
    id. 48 See
    Innerbichler v. Innerbichler, 
    132 Md. App. 207
    , 231, 
    752 A.2d 291
    ,
    304 (2000).
    49
    
    Id. 50 See
    Berrie v. Berrie, supra note 45.
    51
    Heald v. Heald, supra note 12.
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    for at least 34 percent of Stephens & Smith’s growth during
    the 25 years that Robert and Janet were married.
    We accordingly direct the court to consider as marital
    the entirety of the increase during the marriage of Robert’s
    34-­percent stock interest in Stephens & Smith. Because the
    district court is in the better position to make an equitable
    division, we remand the cause with directions to determine the
    equitable distribution of that marital asset.
    2. Spousal Support
    We turn next to Janet’s allegation that the district court erred
    in failing to award spousal support under § 42-362 for so long
    as she remains mentally ill. Janet does not take issue with the
    monthly amount that was awarded, only its duration.
    Section 42-362 states in relevant part:
    When a marriage is dissolved and the evidence indicates
    that either spouse is mentally ill, the court may, at the
    time of dissolving the marriage or at any time thereafter,
    make such order for the support and maintenance of such
    mentally ill person as it may deem necessary and proper,
    having due regard to the property and income of the par-
    ties, and the court may require the party ordered to pro-
    vide support and maintenance to file a bond or otherwise
    give security for such support. Such an order for support
    may be entered upon the application of the guardian or
    guardian ad litem or of any person, county, municipality,
    or institution charged with the support of such mentally
    ill person. The order for support may, if necessary, be
    revised from time to time on like application.
    [17] The amount of support awarded under § 42-362 is a
    matter initially entrusted to the sound discretion of the trial
    judge, which award, on appeal to this court, is reviewed de
    novo on the record and affirmed in the absence of an abuse of
    the trial judge’s discretion.52
    
    52 Black v
    . Black, 
    223 Neb. 203
    , 
    388 N.W.2d 815
    (1986).
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    Section 42-362 empowers the court to order the payment of
    such support and maintenance “‘as it may deem necessary and
    proper, having due regard to the property and income of the
    parties’” and, to that extent, parallels the alimony contemplated
    by § 42-365, but provides an additional specific ground to be
    considered—the mental illness of a spouse.53
    However, support and maintenance of a mentally ill spouse
    and alimony are not the same in all respects.54 In Black v.
    Black,55 we said that although allowances of alimony in the
    form of requiring one to pay a fixed sum for an indefinite
    period of time are not favored, payment of support and main-
    tenance of a mentally ill spouse “should continue so long as,
    and only so long as, the mental illness continues” or the spouse
    remarries. We accordingly modified the dissolution court’s
    award of spousal support under § 42-362 until death or remar-
    riage to provide that it shall continue only so long as the men-
    tal illness continued and the spouse did not remarry.
    We have never held that a court must always award sup-
    port under § 42-362 for so long as the mental illness con-
    tinues. Nothing in the language of the statute indicates this
    is required. Rather, § 42-362 contemplates that the order of
    support under this section “may, if necessary, be revised from
    time to time on like application.” We find that the district
    court did not abuse its discretion in making the award for 120
    months. Because of our determination that Stephens & Smith
    is a marital asset, the court in its discretion may reconsider the
    amount of alimony.56
    53
    
    Id. at 208,
    388 N.W.2d at 819.
    54
    
    Id. 55 Id.
    at 
    209, 388 N.W.2d at 820
    .
    56
    See, Pendleton v. Pendleton, 
    242 Neb. 675
    , 
    496 N.W.2d 499
    (1993);
    Olson v. Olson, 
    195 Neb. 8
    , 
    236 N.W.2d 618
    (1975); Corn v. Corn, 
    190 Neb. 383
    , 
    208 N.W.2d 678
    (1973) (although alimony and distribution of
    property are technically distinct and have different purposes in marriage
    dissolution proceedings, they are closely related and circumstances may
    require that they be considered together).
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    3. A rticles of Incorporation
    Janet last assigns as error the fact that the court ordered
    the transfer to her of ownership interests in Aardvark Antique
    Mall, The Mystic Pines Apartments, and Eagles Landing
    Apartments, instead of a cash award. Janet’s sole objection
    is her concern that the other partners will not consent to her
    co-ownership. Robert was ordered to complete all documen-
    tation of such joint ownership within 30 days of the decree.
    In the event that did not occur, and it appears that a transfer
    of ownership will not take place in spite of Robert’s best
    efforts, then the parties are free to seek modification of the
    decree.57 The court did not abuse its discretion in not ordering
    a cash award.
    VI. CONCLUSION
    We affirm the distribution of ownership interests in
    Aardvark Antique Mall, The Mystic Pines Apartments, and
    Eagles Landing Apartments, instead of a cash award. We
    reverse the division of the property described as Stephens &
    Smith and direct the court to include the increase in value
    from the date of the marriage to the dissolution as a marital
    asset. The Grace award is reversed and vacated, because the
    court is directed to include the increase in value of Robert’s
    interest in Stephens & Smith as a marital asset. We affirm the
    award of alimony subject to the court’s discretion as set forth
    in this opinion.
    A ffirmed in part, vacated in part, and in part
    reversed and remanded with directions.
    Stacy, J., not participating.
    57
    See Whitesides v. Whitesides, 
    290 Neb. 116
    , 
    858 N.W.2d 858
    (2015).