Stanosheck v. Jeanette , 294 Neb. 138 ( 2016 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
07/15/2016 09:06 AM CDT
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STANOSHECK v. JEANETTE
Cite as 294 Neb. 138Elizabeth E. Stanosheck, appellee, v.
Joseph P. Jeanette, appellant.
___ N.W.2d ___
Filed July 15, 2016. No. S-15-490.
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. 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.
4. Divorce: Property Division. In a divorce action, the purpose of a
property division is to distribute the marital assets equitably between
the parties.
5. Property Division. Equitable property division under Neb. Rev. Stat.
§ 42-365 (Reissue 2008) is a three-step process. The first step is to clas-
sify the parties’ property as marital or nonmarital. 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.
6. ____. The ultimate test in determining the appropriateness of a property
division is fairness and reasonableness as determined by the facts of
each case.
7. Divorce: Property Division. As a general rule, all property accumu-
lated and acquired by either spouse during the marriage is part of the
marital estate, unless it falls within an exception to the general rule.
8. Divorce: Property Division: Proof. Where there is nothing on the
record to show the source of premarital funds, they should be considered
part of the marital estate.
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Cite as 294 Neb. 1389. Property Division: Proof. The burden of proof rests with the party
claiming that property is nonmarital.
10. Divorce: Property Division: Pensions. Under Neb. Rev. Stat.
§ 42-366(8) (Reissue 2008), the general rule is that amounts added to
and interest accrued on pension or retirement accounts which have been
earned during the marriage are part of the marital estate, but contribu-
tions before marriage or after dissolution are not assets of the mari-
tal estate.
11. ____: ____: ____. Investment earnings accrued during the marriage
on the nonmarital portion of a retirement account may be classified as
nonmarital where the party seeking the classification proves: (1) The
growth is readily identifiable and traceable to the nonmarital portion of
the account and (2) the growth is due solely to inflation, market forces,
or guaranteed rate rather than the direct or indirect effort, contribution,
or fund management of either spouse.
Appeal from the District Court for Cass County: Jeffrey
J. Funke, Judge. Affirmed in part, and in part vacated and
remanded for further proceedings.
Steven M. Delaney and A. Bree Robbins, of Reagan, Melton
& Delaney, L.L.P., for appellant.
Amie C. Martinez, of Anderson, Creager & Wittstruck, P.C.,
L.L.O., and Megan M. Schutt, Senior Certified Law Student,
for appellee.
Wright, Connolly, Miller-Lerman, Cassel, Stacy, and
K elch, JJ.
Stacy, J.
I. NATURE OF CASE
In this appeal from a decree of dissolution, error is assigned
to the district court’s classification, valuation, and division
of certain marital property. After a de novo review, we find
no abuse of discretion and affirm the district court’s judg-
ment in all respects but one—the division of the parties’
retirement accounts. As it regards the retirement accounts,
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STANOSHECK v. JEANETTE
Cite as 294 Neb. 138we vacate the decree in part and remand the cause for fur-
ther proceedings.
II. BACKGROUND
Elizabeth E. Stanosheck (Elizabeth) and Joseph P. Jeanette
(Joseph) were married in 2008. Elizabeth filed for dissolution
in January 2014. From the time the divorce was filed until
a few months before trial, the parties lived together in the
marital home. They had no joint debts other than the mortgage
on their home, a loan against Joseph’s retirement account,
and various household expenses. Joseph paid the majority of
these expenses, and Elizabeth reimbursed him $600 to $800
per month. During the pendency of the action, a temporary
order was entered on the agreement of the parties, requiring
each to contribute payment toward the joint debts and home
expenses, with Elizabeth paying 40 percent and Joseph paying
60 percent.
Trial was held in January 2015. The parties reached a com-
prehensive property settlement agreement, so trial was limited
to just a few contested issues: (1) whether the marital estate
should be valued at the time of trial or the time of filing, (2)
how to divide the remaining proceeds from the sale of the
marital home, and (3) whether Joseph was entitled to set off
as nonmarital property a portion of the market growth to his
retirement account.
1. Valuation Date
Elizabeth asked the court to value the marital estate at the
time of trial, and Joseph asked that it be valued at the time the
dissolution was filed. The district court found the date of trial
was the more appropriate valuation date, reasoning:
Though the evidence indicates that the parties were
not actively spending time together, such as eating
meals together or engaging in social activities together,
the parties were still married, still residing in the
home together, and still sharing household expenses.
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STANOSHECK v. JEANETTE
Cite as 294 Neb. 138Therefore, the Court finds that the valuation date for
the division of assets and debts should be the date of
trial herein.
2. Division of Proceeds From
Sale of M arital Home
During the marriage, Joseph took out a $50,000 loan
against his retirement account to contribute to building the
parties’ home. Payments on the loan were made every 2
weeks by withholding sums from Joseph’s paycheck. At the
time of trial, Joseph had paid back $12,000 on the loan. The
marital home was sold prior to trial. The parties agreed to
divide a portion of the net sale proceeds immediately and
held $50,000 from the sale in trust, with the agreement that
$38,000 of that sum would be used to repay the balance of
the loan against Joseph’s retirement account. The parties dis-
agreed as to how the remaining $12,000 should be divided.
Elizabeth asked that it be split equally between the parties,
and Joseph asked to be awarded the entire $12,000 as reim-
bursement for the loan payments made during the marriage.
The district court found the loan was a marital debt and
noted that all repayment on the debt occurred during the mar-
riage using sums earned during the marriage. The court then
awarded each party an equal share of the remaining $12,000
sale proceeds.
3. Division of R etirement
Accounts
Both parties had retirement plans which predated the mar-
riage and which increased in value during the marriage. With
the exception of Joseph’s Thrift Savings Plan, the parties
agreed how the various retirement accounts should be classi-
fied, valued, and divided. The court accepted the agreement
of the parties, finding it was fair, reasonable, and not uncon­
scionable. The evidence adduced by the parties concerning
their respective retirement accounts is set out below.
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Cite as 294 Neb. 138(a) Elizabeth’s Retirement Accounts
Elizabeth had a retirement account with the Nebraska
Public Employees Retirement System (NPERS) prior to the
marriage. During the marriage, she rolled funds over from
her NPERS account into an account with a securities invest-
ment company. Elizabeth also started a 401K retirement
account with a new employer after the divorce was filed but
before trial.
With respect to each of Elizabeth’s retirement accounts,
the parties stipulated that any premarital funds would be set
off to her and that the “amounts that accrued during the term
of the marriage” would be divided by the parties. The district
court accepted the parties’ stipulation and, in the narrative
portion of the decree, made specific findings that Joseph
should be awarded 50 percent of the “‘accumulated contribu-
tions plus interest’” in both of Elizabeth’s retirement accounts
from the date of marriage to the date of trial. The judgment
portion of the decree, however, omitted any reference to
dividing Elizabeth’s retirement accounts. The record indicates
Elizabeth’s attorney prepared the decree and Joseph’s attorney
approved the decree as to form before it was submitted to
the court.
(b) Joseph’s Retirement Accounts
Joseph had several retirement accounts which predated the
marriage. He had a 401K defined contribution plan from a
prior job. He had a Federal Employees’ Retirement System
(FERS) account through his current employer. Within this
FERS account, he had a pension fund and a Thrift Savings
Plan (hereinafter TSP). The TSP is a defined contribution plan.
During the marriage, Joseph rolled over approximately $85,000
from his 401K into the TSP.
Regarding Joseph’s FERS pension, the parties agreed
Elizabeth was entitled to a portion of his pension “based upon
the date of the marriage, the length of service of [Joseph], and
the overlap between date of marriage, date of service, and the
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Cite as 294 Neb. 138valuation date.” The district court accepted the parties’ stipula-
tion in that regard and found that Joseph had approximately
19 years of premarital service that would be excluded from
Elizabeth’s share of the annuity payments. The court then
awarded each party 50 percent of Joseph’s FERS pension
benefits accrued from the date of marriage to the date of trial.
No error is assigned to the manner in which the court divided
Joseph’s FERS pension.
The parties’ primary disagreement at trial was over how to
classify, value, and divide that portion of Joseph’s TSP which
accumulated during the parties’ marriage. Simplified, the par-
ties agreed that all contributions made to Joseph’s TSP before
the marriage were properly set off as nonmarital property and
that the nonmarital funds rolled over into the TSP during the
marriage were properly set off as nonmarital property. But the
parties disagreed on whether all of the TSP investment earn-
ings that accrued during the marriage were properly included
in the marital estate.
Joseph took the position that some of the TSP growth that
accrued during the marriage was marital property and that
some was not. Specifically, he argued that the growth attribut-
able to the nonmarital property portion of his TSP should also
be classified as nonmarital and set off entirely to him. Joseph
presented the testimony of an actuary who determined the
total number of shares held in the TSP at the time of the mar-
riage, the time the divorce was filed, and the time of trial. The
expert then determined the value of the TSP account at each
point in time by multiplying the number of shares in the TSP
on that date by the price per share on that date. The expert
testified the price per share varied with market conditions and
over time had moved slowly in conjunction with movement in
the stock market.
According to the expert, on the date of marriage, the TSP
had 21,485.8536 shares valued at $15.3822 per share, for a
total value of $330,499.70. The subsequent rollover of his
premarital 401K into the TSP resulted in the purchase of an
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STANOSHECK v. JEANETTE
Cite as 294 Neb. 138additional 4,839.3736 TSP shares valued at $17.6207 per share
for a total value of $85,273.15. On the date of trial, the TSP
contained 32,523.5724 shares valued at $22.8987 per share
for a total value of $744,747.52. As such, it was the expert’s
opinion that at the time of trial, Joseph’s TSP had a total value
of $744,747.52, of which $141,934.05 was marital (6,198.3452
shares at $22.8987 per share) and $602,813.47 was nonmarital
(26,325.2272 shares at $22.8987 per share).
Elizabeth took the position that, just as the parties agreed
to do with both of her retirement accounts, the court should
classify all the passive market growth which occurred during
the marriage as marital property and should divide it equally
between the parties.
The district court made a factual finding that the increases
in value to Joseph’s TSP during the marriage were “attribut-
able to the rollover of [his 401K] retirement plan, additional
contributions made to the plan by [Joseph] during the mar-
riage, and growth attributable to market gains.” The court
cited our holdings in Priest v. Priest1 and Reichert v. Reichert2
for the general proposition that “the marital estate includes
that portion of pensions or retirement accounts earned dur-
ing the marriage.” The court then rejected Joseph’s sugges-
tion that investment income derived from the nonmarital
property portion of his TSP account should be set off as
nonmarital property, reasoning: “[N]either Nebraska case law
nor Nebraska statutory authority authorize the classification
of passive accumulations earned during the marriage as a
non-marital asset. Therefore, this Court finds that the passive
accumulations of the TSP account earned during the parties’
marriage are part of the marital estate.” The court set off as
nonmarital the value of the TSP on the date of the marriage
($330,499.70) and the value of Joseph’s 401K on the date it
1
Priest v. Priest, 251 Neb. 76, 554 N.W.2d 792 (1996).
2
Reichert v. Reichert, 246 Neb. 31, 516 N.W.2d 600 (1994).
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STANOSHECK v. JEANETTE
Cite as 294 Neb. 138was rolled over into the TSP ($85,273.15). As to the remain-
ing TSP sums, the court awarded Elizabeth 50 percent of the
“‘accumulated contributions plus interest’” from the date of
marriage to the date of trial.
Joseph timely appealed, and we granted his petition to
bypass the Nebraska Court of Appeals.
III. ASSIGNMENTS OF ERROR
Joseph assigns, rephrased and consolidated, that the district
court erred in four respects: (1) valuing the marital estate at
the time of trial rather than the date the divorce was filed; (2)
dividing the remaining $12,000 from the sale of the marital
home equally, rather than awarding the entire sum to Joseph;
(3) classifying all of the growth in Joseph’s TSP account dur-
ing the marriage as marital property; and (4) omitting refer-
ence to Joseph’s share of Elizabeth’s retirement accounts in the
judgment portion of the decree.
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.3 A judicial abuse of discretion exists if the reasons or
rulings of a trial judge are clearly untenable, unfairly depriving
a litigant of a substantial right and denying just results in mat-
ters submitted for disposition.4
V. ANALYSIS
1. Valuation Date
[3] As a general principle, the date upon which a mar-
ital estate is valued should be rationally related to the
3
Molczyk v. Molczyk, 285 Neb. 96, 825 N.W.2d 435 (2013).
4
Brozek v. Brozek, 292 Neb. 681, 874 N.W.2d 17 (2016).
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Cite as 294 Neb. 138property composing the marital estate.5 The date of valuation
is reviewed for an abuse of the trial court’s discretion.6
Here, the court valued all the marital property at the time
of trial rather than the date the divorce action was filed. The
court found it significant that, even after filing for divorce, the
parties continued to live together in the marital home and share
in household expenses. The valuation date applied by the dis-
trict court was rationally related to the property composing the
marital estate, and we find no abuse of discretion in valuing the
marital estate at the time of trial. Joseph’s assignment of error
to the contrary is without merit.
2. Sale Proceeds
[4-6] In a divorce action, the purpose of a property divi-
sion is to distribute the marital assets equitably between the
parties.7 Equitable property division under Neb. Rev. Stat.
§ 42-365 (Reissue 2008) is a three-step process.8 The first
step is to classify the parties’ property as marital or nonmari-
tal.9 The second step is to value the marital assets and marital
liabilities of the parties.10 The third step is to calculate and
divide the net marital estate between the parties.11 The ulti-
mate test in determining the appropriateness of a property
division is fairness and reasonableness as determined by the
facts of each case.12
5
Blaine v. Blaine, 275 Neb. 87, 744 N.W.2d 444 (2008); Tyma v. Tyma, 263
Neb. 873, 644 N.W.2d 139 (2002); Brunges v. Brunges, 260 Neb. 660, 619
N.W.2d 456 (2000).
6
See, Blaine, supra note 5; Tyma, supra note 5.
7
Tyma, supra note 5.
8
Id.9
Id.10
Id.11
Id.12
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Cite as 294 Neb. 138[7] After selling their home during the pendency of this
case, the parties reached agreement regarding an equitable
division of all but $12,000 of the net sale proceeds. Elizabeth
asked that the remaining $12,000 be divided equally between
the parties, and Joseph asked that the $12,000 be awarded
solely to him as reimbursement for payments made on the TSP
loan. It is undisputed that Joseph made these loan payments
through automatic paycheck withholding of money earned dur-
ing the marriage. As a general rule, all property accumulated
and acquired by either spouse during the marriage is part of
the marital estate, unless it falls within an exception to the
general rule.13
The court divided the $12,000 equally between the parties,
reasoning that the TSP loan was a marital debt and all repay-
ment on the debt occurred during the marriage using sums
earned during the marriage.14 The court did not abuse its dis-
cretion in awarding the parties an equal share of the remain-
ing $12,000 sale proceeds.
3. R etirement Accounts
Joseph assigns that the district court erred in several respects
when classifying, valuing, dividing, and decreeing division of
the parties’ retirement accounts. As it regards Joseph’s TSP,
he does not dispute that a portion of his TSP is properly clas-
sified as marital property, but he argues the trial court abused
its discretion in classifying all of the appreciation which
occurred during the marriage as marital property. Joseph
also argues the court’s decision to determine the value of the
TSP shares, rather than divide the marital shares outright,
was improper. Finally, as it regards Elizabeth’s retirement
13
Sitz v. Sitz, 275 Neb. 832, 749 N.W.2d 470 (2008).
14
Id. at 837-38, 749 N.W.2d at 475 (husband’s “contributions to the savings
plan were made with deductions from his . . . paycheck which was marital
property. Accordingly, the contributions to the savings plan made during
the marriage . . . were subject to division”).
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Cite as 294 Neb. 138accounts, Joseph argues the court erred by failing to reference
his share of Elizabeth’s retirement accounts in the judgment
portion of the decree.
[8,9] The rules regarding classification of property in dis-
solution actions are well established. Generally, all property
accumulated and acquired by either spouse during a marriage
is part of the marital estate.15 Where there is nothing on the
record to show the source of premarital funds, they should be
considered part of the marital estate.16 The burden of proof
rests with the party claiming that property is nonmarital.17
[10] Neb. Rev. Stat. § 42-366(8) (Reissue 2008) provides:
“The court shall include as part of the marital estate, for pur-
poses of the division of property at the time of dissolution,
any pension plans, retirement plans, annuities, and deferred
compensation benefits owned by either party, whether vested
or not vested.” When applying this statute, we have held
generally that amounts added to and interest accrued on pen-
sion or retirement accounts which have been earned during
the marriage are part of the marital estate, but contributions
before marriage or after dissolution are not assets of the mari-
tal estate.18
In Coufal v. Coufal,19 decided after the decree was entered
in the present case, we recognized a narrow and fact-­specific
exception to the general rule that the marital estate includes
amounts added to and interest accrued on pensions and
retirement accounts. The husband in Coufal participated in
NPERS. Before the marriage, his NPERS account had a
balance of $76,271.45. At trial, he presented evidence the
15
Coufal v. Coufal, 291 Neb. 378, 866 N.W.2d 74 (2015).
16
Shockley v. Shockley, 251 Neb. 896, 560 N.W.2d 777 (1997).
17
See, Brozek, supra note 4; Gangwish v. Gangwish, 267 Neb. 901, 678
N.W.2d 503 (2004).
18
Coufal, supra note 15.
19
Id.
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Cite as 294 Neb. 138account had a balance of $219,830.07. Pursuant to Neb. Rev.
Stat. § 84-1301(17) (Reissue 2014), members of NPERS
were guaranteed a statutory rate of return on their retirement
plans. The husband claimed the premarital portion of his
NPERS account should be valued to include the statutorily
guaranteed interest on his premarital principal. He offered
expert testimony establishing that, given the statutory rate
of return, the adjusted value of his premarital principal was
$120,010.82.
The district court in Coufal concluded the interest accruing
on the premarital portion of the husband’s NPERS account was
part of the marital estate, reasoning that the interest accruing
during the marriage did not fit into any recognized exception
to the general rule that property acquired by either party dur-
ing the marriage is included in the marital estate.
On appeal, we framed the issue as “whether the increase
in value of the premarital portion of the retirement account
should be considered as part of the marital estate.”20 To deter-
mine which portion of the NPERS retirement account was
nonmarital, we examined to what extent the appreciation in
the separate premarital portion of the account was caused
by the efforts of either spouse. We analogized the NPERS
account to a certificate of deposit with a fixed rate of interest
owned by one spouse before the marriage. And we observed
that the increase in value of the premarital portion of the
NPERS account was not contingent on the husband’s contin-
ued employment, but, rather, was guaranteed by statute prior
to the marriage and was not derived from the contributions of
either party during the marriage. We concluded the increase
in value of the premarital portion of the husband’s retire-
ment account was readily identifiable and traceable to the
premarital principal, and we rejected the suggestion that the
growth was inextricably commingled with marital property.
20
Id. at 382, 866 N.W.2d at 78.
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Cite as 294 Neb. 138Ultimately, we concluded on the unique facts in Coufal that
the increase in value of the premarital portion of the NPERS
account was not a marital asset.21
We stated in Coufal that “[o]ur reasoning and conclusion
are specific to the facts presented in this case,”22 but Joseph
argues on appeal that our reasoning has application beyond
the NPERS retirement account at issue in Coufal to poten-
tially include retirement accounts like the TSP at issue here.
Elizabeth argues it would be inequitable to apply the Coufal
exception to Joseph’s retirement account while not applying it
to hers, particularly when she had an NPERS account which
predated the marriage—the precise type of account we consid-
ered in Coufal.
[11] We agree the reasoning of Coufal is not necessarily
restricted to any particular kind of retirement account; rather,
the applicability of Coufal depends upon the facts of each
case and the evidence adduced. After Coufal, investment
earnings accrued during the marriage on the nonmarital por-
tion of a retirement account may be classified as nonmarital
where the party seeking the classification proves: (1) The
growth is readily identifiable and traceable to the nonmarital
portion of the account and (2) the growth is due solely to
inflation, market forces, or guaranteed rate rather than the
direct or indirect effort, contribution, or fund management of
either spouse.
Here, we are mindful that neither the parties nor the dis-
trict court had the benefit of our analysis in Coufal when this
case was tried or decided. It makes little sense to conduct
a de novo review of the evidence adduced and the findings
made against a standard neither known to nor contemplated
by the parties or the court at the time the case was tried.
Because Coufal recognized a fact-specific exception to the
21
Coufal, supra note 15.
22
Id. at 381, 866 N.W.2d at 77.
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Cite as 294 Neb. 138general rules governing classification and division of retire-
ment accounts and because here, both parties have retirement
accounts which may arguably fall within the exception, we
conclude it is appropriate to vacate that portion of the decree
which divided the parties’ retirement accounts and remand
the cause for further consideration and/or proceedings. In so
doing, we express no opinion regarding the applicability of
the Coufal exception to the specific facts of this case.
Accordingly, we vacate that portion of the decree which
classifies, values, and divides the parties’ retirement accounts,
and we remand the cause for further consideration and/or pro-
ceedings regarding the equitable division of the parties’ retire-
ment accounts.
Because we are vacating the decree as it regards division of
the parties’ retirement accounts and remanding the cause for
further proceedings, it is unnecessary to reach Joseph’s final
assignment of error.
VI. CONCLUSION
The judgment of the district court is affirmed in all respects
but one. That portion of the decree concerning the retirement
accounts of the parties is vacated, and the cause is remanded
to the district court for further consideration and/or proceed-
ings to determine the appropriate classification, valuation, and
division of the parties’ retirement accounts.
A ffirmed in part, and in part vacated and
remanded for further proceedings.
Heavican, C.J., not participating.