Simons v. Simons , 312 Neb. 136 ( 2022 )


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  • Nebraska Supreme Court Online Library
    www.nebraska.gov/apps-courts-epub/
    08/05/2022 09:06 AM CDT
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    Nebraska Supreme Court Advance Sheets
    312 Nebraska Reports
    SIMONS V. SIMONS
    Cite as 
    312 Neb. 136
    Jonathan B. Simons, appellant, v.
    Heather L. Simons, appellee.
    ___ N.W.2d ___
    Filed August 5, 2022.    No. S-21-599.
    1. Pleadings: Appeal and Error. Permission to amend a pleading is
    addressed to the discretion of the trial court, and an appellate court will
    not disturb the trial court’s decision absent an abuse of discretion.
    2. Constitutional Law: Due Process. The determination of whether the
    procedures afforded to an individual comport with constitutional require-
    ments for procedural due process presents a question of law.
    3. Trusts: Equity: Appeal and Error. An action to impose a constructive
    trust sounds in equity, which an appellate court reviews de novo on the
    record, giving consideration, where the evidence is in conflict, to the
    fact that the trial court observed the witnesses and their manner of testi-
    fying and accepted one version of facts rather than the opposite.
    4. Divorce: Child Custody: 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 in his or her determi-
    nations regarding custody, child support, division of property, alimony,
    and attorney fees.
    5. 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.
    6. Appeal and Error. Appellate courts do not generally consider argu-
    ments and theories raised for the first time on appeal.
    7. Antenuptial Agreements. As a contract, an antenuptial agreement is
    governed by the same principles that are applicable to other contracts,
    but is subject to the particular statutory requirement that an antenuptial
    agreement must be based on fair disclosure.
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    SIMONS V. SIMONS
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    312 Neb. 136
    8. Contracts: Intent. When the terms of a contract are clear, a court may
    not resort to rules of construction, and terms are accorded their plain and
    ordinary meaning as an ordinary or reasonable person would understand
    them. In such a case, a court shall seek to ascertain the intention of the
    parties from the plain language of the contract.
    9. Due Process: Words and Phrases. While the concept of due process
    defies precise definition, it embodies and requires fundamental fairness.
    10. Rules of the Supreme Court: Pleadings. The key inquiry for “express
    or implied consent” under Neb. Ct. R. Pldg. § 6-1115(b) is whether the
    parties recognized that an issue not presented by the pleadings entered
    the case at trial.
    11. Divorce: Property Division. In an equitable property division governed
    by 
    Neb. Rev. Stat. § 42-365
     (Reissue 2016), 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.
    12. Antenuptial Agreements: Property Division. Spouses are able to con-
    tract around the general rules of equitable division by using a premarital
    agreement.
    13. Trusts: Property: Title: Equity. Under a constructive trust, equity vests
    title to the subject property in the wronged party and the court may issue
    a decree that the title be so conveyed.
    14. Trusts: Property: Title. A constructive trust is imposed when one has
    acquired legal title to property under such circumstances that he or she
    may not in good conscience retain the beneficial interest in the property.
    15. Trusts: Property: Title: Equity. A constructive trust is a relationship,
    with respect to property, subjecting the person who holds title to the
    property to an equitable duty to convey it to another on the grounds that
    his or her acquisition or retention of the property would constitute unjust
    enrichment.
    16. Trusts: Equity. In determining whether to impose a constructive trust,
    the court will consider not only the original situation but also all events
    which have occurred since the defendant began to hold inequitably.
    17. Trusts: Proof. A party seeking the remedy of a constructive trust has the
    burden to establish the factual foundation, by evidence which is clear
    and convincing, required for a constructive trust.
    18. Trusts: Equity. The constructive trust doctrine is equitable in nature
    and should not be rigidly limited, and the absence of any one factor will
    not itself defeat the imposition of a constructive trust when otherwise
    required by equity.
    19. Equity. Where a situation exists which is contrary to the principles of
    equity and which can be redressed within the scope of judicial action, a
    court of equity will devise a remedy to meet the situation.
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    SIMONS V. SIMONS
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    312 Neb. 136
    20. ____. Equity is not a rigid concept, and its principles are not applied in
    a vacuum.
    21. ____. Equity is determined on a case-by-case basis when justice and
    fairness so require.
    22. Trusts: Property: Title: Equity: Proof. Generally, a court, sitting in
    equity, will not impose a constructive trust and constitute an individual
    as a trustee of the legal title for property unless it be shown, by clear
    and convincing evidence, that the individual, as a potential constructive
    trustee, had obtained title to property by fraud, misrepresentation, or
    an abuse of an influential or confidential relationship and that, under
    the circumstances, such individual should not, according to the rules of
    equity and good conscience, hold and enjoy the property so obtained.
    23. Trusts: Equity: Unjust Enrichment. A constructive trust is imposed to
    do equity and to prevent unjust enrichment.
    24. Unjust Enrichment. Unjust enrichment is a flexible concept, occurring
    when a claim is based on the failure of consideration, fraud, or mistake
    and in other situations where it would be morally wrong for one party to
    enrich himself or herself at the expense of another.
    25. Fraud. Fraud comprises all acts, omissions, and concealments involving
    a breach of legal or equitable duty, trust, or confidence justly reposed,
    and are injurious to another, or by which an undue and unconscientious
    advantage is taken of another.
    26. Appeal and Error. An appellate court will not consider an issue on
    appeal that was not presented to or passed upon by the trial court.
    27. ____. To be considered by an appellate court, an alleged error must be
    both specifically assigned and specifically argued in the brief of the
    party asserting the error.
    28. Limitations of Actions: Waiver. A statute of limitations is nonjurisdic-
    tional and waivable.
    29. Expert Witnessess. The determination of the weight that should be
    given expert testimony is uniquely the province of the fact finder.
    30. Valuation. A trial court is not required to accept any one method of
    valuation as more accurate than another accounting procedure.
    31. Trusts: Property: Title: Declaratory Judgments. The ownership rights
    of a constructive trust beneficiary, once recognized, are protected from
    the moment the trustee acquired legal title, the constructive trust decree
    being in the nature of a declaratory judgment about the state of title to
    the property.
    32. Alimony. The purpose of alimony is to provide for the continued main-
    tenance or support of one party by the other when the relative economic
    circumstances make it appropriate.
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    SIMONS V. SIMONS
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    33. Alimony: Appeal and Error. In reviewing an alimony award, an appel-
    late court does not determine whether it would have awarded the same
    amount of alimony as did the trial court, but whether the trial court’s
    award is untenable such as to deprive a party of a substantial right or a
    just result.
    Appeal from the District Court for Douglas County: Gregory
    M. Schatz, Judge. Affirmed in part, and in part vacated.
    John A. Kinney, Jill M. Mason, and Samantha M. Robb, of
    Kinney Mason, P.C., L.L.O., for appellant.
    Benjamin M. Belmont and Wm. Oliver Jenkins, of Brodkey,
    Cuddigan, Peebles, Belmont & Line, L.L.P., for appellee.
    Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
    Papik, and Freudenberg, JJ.
    Freudenberg, J.
    I. INTRODUCTION
    In a dissolution action governed by a premarital agreement,
    the court imposed a constructive trust over certain limited
    liability companies titled solely in the respondent’s name,
    such that they were considered additions to the marital estate
    under the agreement. The petitioner appeals the court’s judg-
    ment, arguing that the court abused its discretion in allowing
    the respondent to amend her pleadings to conform to the evi-
    dence at trial to include the issue of the constructive trust, that
    the trust was in conflict with the premarital agreement, that
    the evidence did not support a constructive trust, and that the
    amount of the trust was in error. The petitioner also challenges
    the court’s award of a $150,000 lump-sum payment under the
    terms of the premarital agreement, an order to maintain life
    insurance to fund a support order, the inclusion of a truck in
    the marital estate, and the amount of the alimony award.
    II. BACKGROUND
    Jonathan B. Simons brought a complaint for dissolution of
    his marriage to Heather L. Simons. Jonathan and Heather were
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    married in 2005. Two children, still minors at the time of fil-
    ing, were born to the marriage. The complaint alleged that a
    premarital agreement controlled the division of their assets and
    debts. In her operative answer, Heather asked, among other
    things, for an equitable division of the marital estate and for
    alimony. She denied the validity of the premarital agreement.
    However, the court ultimately found the agreement was valid,
    and that finding is not challenged on appeal.
    1. Issues in Controversy
    The court issued a pretrial order directing the parties to sub-
    mit a letter stating the issues in controversy, the issues not in
    controversy, and a concrete statement of the relief sought. As
    relevant to this appeal, the letter submitted by Heather’s coun-
    sel set forth as issues in controversy the following:
    4. Whether Jonathan holds one half of the membership
    interest in JBS Kids Play & Fitness, LLC; JBS Properties,
    LLC and Dogwatch, LLC in a constructive trust for the
    benefit of Heather.
    5. Does Jonathan have an equitable duty to convey
    one half of the membership interest in JBS Kids Play &
    Fitness, LLC; JBS Properties, LLC and Dogwatch, LLC
    to Heather on the ground that his acquisition or reten-
    tion of the membership interests would constitute unjust
    enrichment.
    6. If the Premarital Agreement is valid and enforceable,
    whether three limited liability companies [Jonathan] orga-
    nized to operate the parties’ businesses which were started
    during the marriage and in which Heather was an owner
    and held out to the public as being an owner are part of
    the marital estate;
    7. Whether the provision of the Premarital Agreement
    stating, “Anything in this section 3.2 to the contrary not-
    withstanding, in no event shall [Jonathan’s] Property or
    Heather’s Property be made a part of or be considered in
    determining any alimony award as herein contemplated”
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    is valid, or contrary to law and if contrary to law, is it able
    to be severed from the Premarital Agreement.
    8. Whether Jonathan has comingled any purported
    separate funds with marital funds to subject those funds
    to an equitable division;
    9. The determination of what assets are part of the
    marital estate and the equitable division of the marital
    estate[.]
    A copy of the letter was sent to opposing counsel, who raised
    no objections.
    Before trial commenced, Jonathan’s counsel argued to the
    court that the premarital agreement was enforceable and that,
    under the agreement, title controls—assets jointly titled are
    marital while assets not jointly titled are not marital.
    Heather’s counsel responded that even with the premarital
    agreement, the court had equitable powers, there were issues
    as to what exactly the agreement means, and “[i]t’s not just a
    matter of title.” Heather’s counsel elaborated that at issue in
    the case was a business Heather and Jonathan started together,
    which they both worked for and which Jonathan represented
    to Heather and to others that he and Heather jointly owned.
    Heather’s counsel argued that the fact the business was titled
    solely in Jonathan’s name should not be controlling of the dis-
    tribution even under the premarital agreement.
    At the conclusion of the evidence presented at trial, Heather
    moved to amend her pleadings to conform to the evidence so
    as to allege constructive trust and unjust enrichment. A discus-
    sion ensued with Jonathan’s counsel arguing that Heather’s
    position relating to a constructive trust was simply a type of
    equitable distribution that would not be applicable if the pre-
    marital agreement, which distributed assets by title, was valid.
    Heather’s counsel responded that the claimed constructive
    trust was not mooted by a possible finding that the premarital
    agreement is enforceable; rather, a constructive trust created
    under equitable principles would simply make that asset mari-
    tal under the terms of the premarital agreement. The record
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    SIMONS V. SIMONS
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    does not reflect that Jonathan’s counsel raised the waiver pro-
    vision of the agreement found in section 6.
    The court granted the motion to amend the pleadings over
    Jonathan’s objection, stating from the bench, “I don’t see how
    the amendment to the pleadings would change the evidence,
    nor would the Court’s equitable resolution of the issues pre-
    sented.” The court reasoned further in its written order that
    the issues were set forth in the pretrial letter and that Jonathan
    raised no objection to the litigation of those issues either before
    or during the trial in which those issues were actually litigated.
    The court noted that a constructive trust and unjust enrichment
    are equitable concepts and that Heather raised in her pleadings
    the issue of the equitable division of the marital estate and
    the court’s equitable jurisdiction. Finally, the court found that
    Jonathan was not prejudiced by the amendment.
    2. Premarital Agreement
    The premarital agreement was entered into evidence at trial.
    Section 1.5 of the agreement describes the “Marital Estate”:
    Anything in this Agreement to the contrary notwithstand-
    ing, to the extent that [Jonathan] or Heather have acquired
    or in the future acquire and affirmatively transfer or
    convey any assets the title to which, as evidenced by
    some written instrument, is held by them after such
    acquisition, transfer or conveyance in any form of co-
    ownership, including but not limited to tenancy in com-
    mon, joint tenancy, tenancy by the entirety or community
    property, such property shall be deemed to constitute and
    be part of the “Marital Estate.” The Marital Estate shall
    include any appreciation or depreciation on the assets
    forming a part of the Marital Estate but shall not include
    any earnings thereon, proceeds therefrom or replacements
    thereof unless such earnings, proceeds or replacements,
    as the case may be, are also titled in some form of
    co-ownership. . . . The Marital Estate shall be subject to
    division, distribution and disposition as hereinafter pro-
    vided in this Agreement.
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    Section 3.4, in turn, addresses division of the marital estate,
    providing that “[i]n the event of a future legal separation,
    divorce, annulment or other dissolution of this proposed mar-
    riage, [Jonathan] and Heather agree that the Marital Estate
    shall be divided equally between them.”
    Section 3.3 sets forth the division of separate property in the
    event of divorce, providing:
    As further provided in Section 6 hereinafter, or in any
    other part of this Agreement:
    ....
    (b) Heather hereby waives any and all claims for divi-
    sion of property or property settlement from [Jonathan]
    with respect to [his] Property in the event of a future
    legal separation, divorce, annulment or other dissolution
    of this proposed marriage. Anything in this Agreement
    to the contrary notwithstanding including the foregoing
    sentence, in the event of a future legal separation, which
    ultimately results in a divorce or dissolution; divorce,
    annulment, or other dissolution of this proposed marriage
    (for purposes of this Section, an “Action”) and at the
    time of initiation of such Action, Heather and [Jonathan]
    have children born to them or legally adopted by them
    during the marriage or Heather is pregnant with a child
    of [Jonathan] and Heather, [Jonathan] shall be required
    to pay to Heather a lump sum of money based on the
    number of Full Year(s) of Marriage subsequent to the
    marriage date . . . .
    Under the schedule, if the marriage ends after between 10
    and 15 years of marriage, then Jonathan would have to give
    Heather a lump sum of $150,000.
    Jonathan’s property is defined in section 1.1 of the
    agreement:
    [Jonathan’s] Property. A listing of the assets and liabili-
    ties of [Jonathan] has been prepared and a copy thereof
    has been given to Heather and is also attached to this
    Agreement as Exhibit “A,” and is, by this reference,
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    made a part of this Agreement. Such assets and liabilities
    of [Jonathan] as set forth on Exhibit “A,” together with
    proceeds and income therefrom, replacement(s) thereof
    and appreciation or depreciation in value thereon as more
    specifically described in Sections 1.4, 2.1, 2.2, 4.1, 4.2,
    and 4.3, shall hereinafter be referred to as “[Jonathan’s]
    Property.”
    Section 4 of the agreement governs the treatment of assets,
    liabilities, earnings, and expenses during the marriage. Section
    4.1, “Assets as Separate Property,” states:
    Each of the parties agrees that, unless and until trans-
    ferred and conveyed to the Marital Estate as contemplated
    by Sections 1.5 and 4.6, the following described property
    shall remain the separate and solely owned property of its
    owner (i.e., Heather’s Property or [Jonathan’s] Property
    as the case may be):
    (a) All property, whether real or personal, owned by
    either party as of the effective date of this Agreement;
    (b) All property and property rights acquired by a party
    out of the proceeds or income from property at the effec-
    tive date of this Agreement, or attributable to appreciation
    in value of such property, whether the enhancement is due
    to market conditions or to the services, skills, or efforts of
    its owner or anyone else; and
    (c) All property acquired by either party by gift, devise,
    bequest or inheritance.
    Section 4.3 sets forth “Earnings as Separate Property” and
    states that earnings from the work of one of them is the sepa-
    rate property of the person to whom they are attributable.
    Section 4.6 describes “Additions to the Marital Estate”:
    Nothing in Section 4 shall prohibit the parties from mak-
    ing additions to the Marital Estate from [Jonathan’s]
    Property or from Heather’s Property or from their indi-
    vidual earnings but any such addition must be evidenced
    by some written agreement or acknowledgment of the
    same or some affirmative act resulting in the titling
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    of additional property as part of the Marital Estate as
    described in Section 1.5 above.
    Section 1.6 sets forth Jonathan’s obligation to carry life
    insurance during the marriage, stating in relevant part:
    [Jonathan] agrees to acquire, own and maintain, at his sole
    cost and expense, a policy of life insurance insuring his
    life, with a face amount of not less than $1,000,000.00.
    . . . In the event of the parties’ legal separation or disso-
    lution of the proposed marriage while said life insurance
    policy is in effect, the parties agree any cash value attrib-
    utable thereto shall be equally divided between them, and
    Heather at her election, shall be entitled to retain such
    policy at her sole cost and expense.
    Section 6 sets forth a waiver as follows:
    Except as otherwise specifically provided in this
    Agreement, each party waives all rights he or she may
    have in all or any part of the property of the other under
    any law now or hereinafter in effect in any jurisdic-
    tion, whether by way of dissolution of marriage, separa-
    tion, descent, courtesy, dower, distributive share, exempt
    property, homestead property, right to elect against a
    will, augmented estate, or any other right or interest, and
    each agrees he or she will not make any claim of any
    kind to the property of the other in the event of death,
    dissolution of marriage, or separation except as specifi-
    cally contemplated by the provisions of this Agreement,
    if at all. Without limitation, this Agreement shall be con-
    strued to be a waiver similar to and with the same force
    and effect as provided by 
    Neb. Rev. Stat. § 30-2316
     and
    § 42-1001, et seq. Stated otherwise, except as otherwise
    provided therein, this Agreement is intended as a waiver
    of all rights to alimony, support, property division, elec-
    tive share, homestead allowance, exempt property, and
    family allowance by each party in the property of the
    other and a renunciation by each of all benefits which
    would otherwise pass to him or her from the other by
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    intestate succession, or by virtue of the provisions of
    any will executed before this waiver or by virtue of any
    other law.
    Section 8.3 further specifies that to the extent necessary to
    implement its terms, the agreement shall be interpreted as
    a “renunciation pursuant to 
    Neb. Rev. Stat. § 30-2352
    ,” a
    “waiver pursuant to 
    Neb. Rev. Stat. § 30-2316
    ,” a “waiver as to
    the augmented estate pursuant to 
    Neb. Rev. Stat. § 30-2314
    (c),”
    a “waiver as to homestead rights pursuant to 
    Neb. Rev. Stat. § 40-104
    ,” and a “waiver of spousal rights to qualified retire-
    ment plan benefits.”
    3. Trial
    At trial it was undisputed that Backyard Adventures was
    purchased in the summer of 2009. Heather had quit working in
    2008 after the birth of her and Jonathan’s first child. Jonathan
    was unhappy at his place of employment, and Jonathan and
    Heather looked for a business that could be a good fit for their
    family. Heather described that they were looking for “some-
    thing we could do together that I would still be able to raise
    our kids but that I would be able to be an active part in and do
    something.” They found Backyard Adventures.
    Jonathan worked with an attorney to form a limited liability
    company, JBS Kids Play & Fitness, LLC (JBS Kids Play), to pur-
    chase Backyard Adventures at a purchase price of $444,391.04.
    The name “Backyard Adventures” was retained by the seller,
    so Jonathan changed it to Backyard Adventures Playworld and,
    eventually, around 2011, to Backyard Playworld.
    Jonathan’s parents gifted $375,000 toward the purchase
    price, transferring the gift directly into a checking account of
    JBS Kids Play. Jonathan testified that the remaining $65,000 of
    the purchase price came from the marital joint account.
    At the time of the purchase, the marital joint account had
    a balance of approximately $188,000. Jonathan denied that he
    and Heather had been saving up to purchase a business, stat-
    ing that “[i]t takes more than $188,000 to buy a business and
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    operate a business.” Heather, in contrast, understood that they
    had been living frugally and saving the substantial income
    they both made before Heather had their first child in order to
    purchase a business. She testified she did not know that a gift
    from Jonathan’s parents was made and used toward the pur-
    chase price. Rather, she was led to believe the purchase money
    came from the joint account.
    The evidence was disputed concerning what representa-
    tions were made by Jonathan with respect to the ownership of
    the business. This line of questioning was not objected to by
    Jonathan’s counsel.
    Heather testified that she believed they were purchasing
    Backyard Adventures together and that she had no idea that
    Jonathan was going to be the sole owner under a limited liabil-
    ity company (LLC) established for that purpose. She did not
    learn of the LLC until after the divorce proceedings were com-
    menced. Heather testified that Jonathan indicated to her they
    were co-owners of Backyard Playworld. Heather testified that
    Jonathan introduced her to people as a co-owner.
    Jonathan testified that at some point before closing, he told
    Heather the business would be titled solely in his name. In his
    prior deposition testimony that was adduced at trial, however,
    Jonathan had stated that he did not recall ever discussing the
    ownership interest of the business. Later in his testimony at
    trial, Jonathan stated with respect to whether he told Heather
    “she was not a co-owner of the business,” that “I don’t have
    any recollection of saying one or the other.”
    Heather was present at closing but did not sign any of the
    paperwork. She described that she did not think this unusual
    given her prior work experience at a car dealership and her
    understanding that with cash transactions there can be two
    names on the title but only one person needs to sign it.
    The closing statement for the purchase described Jonathan
    as “Managing Partner, Buyer.” Heather was not present when
    Jonathan went to his attorney to establish JBS Kids Play.
    Jonathan admitted that he never had a conversation with
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    Heather explaining that he was forming an LLC in his own
    name for the purpose of being the sole owner of Backyard
    Playworld.
    In his deposition testimony adduced at trial, Jonathan had
    stated he did not know why Heather’s name was not on any of
    the paperwork for the purchase of the business. Jonathan testi-
    fied at trial he did not know if there was any reason Heather
    would have believed for the previous 14 years that she was
    not the co-owner of Backyard Playworld. Jonathan testified
    that when the purchase was made, he and Heather trusted
    each other.
    Heather was the only authorized signatory other than
    Jonathan for the bank account associated with JBS Kids Play.
    Without objection, the court accepted into evidence the picture
    of a sign displayed for the public at the entrance of Backyard
    Playworld with a message welcoming customers. It was signed
    by “Heather and Jon Simons - Owners.” Also entered into
    evidence without objection was a copy of the business cards
    provided by Jonathan to Heather, which described a “family
    company” and Heather as “[o]wner.”
    A former employee of Backyard Playworld, who had
    worked for Backyard Adventures before the purchase, testi-
    fied he was introduced to Jonathan and Heather as co-owners
    of the business. He testified that Jonathan specifically intro-
    duced Heather to him as an owner and that he had witnessed
    Jonathan introduce Heather to other people as an owner of
    the business.
    Heather described that after they purchased Backyard
    Adventures, she worked on site, bringing their 11-month-old
    child to work with her. She generally worked 7 days a week
    from opening at 10 a.m. until 3 p.m. when their child took
    a nap. She worked in the “front of the store” in sales while
    Jonathan worked in the “back.” She continued to work in
    that manner, later bringing their second child to work as well
    or asking the children’s grandparents to babysit, until the
    children’s activities required Heather to be away from work
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    more often, approximately 3 or 4 years before Jonathan filed
    for divorce. Heather continued to work on an “as-needed”
    basis.
    Heather also described contributing and implementing suc-
    cessful new ideas for the business, such as hosting birthday
    parties on a larger scale than the prior owner had and having
    “pay to play” hours. It was also Heather’s idea to host end-of-
    the-year school parties, to rent the facilities to organizations,
    to host parties for a charitable foundation, and to set up spon-
    sorship tents at various events.
    Jonathan testified that before purchasing Backyard
    Adventures, he and Heather had discussed that she was going
    to work in the business. Jonathan testified that Heather worked
    at Backyard Playworld on the sales floor and answered phone
    calls, explaining “there wasn’t a lot of money to go around as
    far as starting a new business, and . . . my spouse, was, you
    know, not only a reliable employee but obviously a way to
    have a staff without having an expense.”
    Jonathan testified that he paid Heather a yearly salary of
    around $10,000 to be able to fund her individual retirement
    account to the maximum allowable each year. Heather was
    paid at the end of the year, and Jonathan would sign the
    checks and deposit them into the marital joint account. The
    record contains copies of yearly checks made out to Heather
    from JBS Kids Play for approximately $7,000 each and signed
    by Jonathan.
    Heather described a division of marital responsibilities
    under which she was not privy to their finances. During the
    marriage, Heather did not maintain a separate bank account.
    Jonathan maintained a separate, personal checking account,
    which Heather testified at trial she was not aware of. Heather
    stated she believed all income and gifts were going into
    the joint marital account. However, Jonathan described that
    each year his parents gifted the maximum allowable tax-free
    amount to both him and to Heather and that he deposited
    the check made out to him into his personal account and
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    deposited the check made out to Heather into their marital
    joint account. Jonathan testified that he took care of all the
    “financials” in their relationship.
    The parties’ second child was born in 2010. According to
    Jonathan, he and Heather began experiencing marital difficul-
    ties in 2013 and sought legal advice concerning a possible
    divorce in 2017. But they continued to work on their mar-
    riage, and Jonathan did not move out until the spring of 2020.
    Heather confirmed the dates of these marital difficulties and
    testified that Jonathan asked her not to leave because he could
    not run Backyard Playworld without her.
    In 2017, Jonathan formed DogWatch, LLC, to separate a
    hidden fencing business from Backyard Playworld for pur-
    poses of selling it. The proceeds of the sale of DogWatch was
    held in an account under DogWatch’s name, which has a bal-
    ance of $333,497.24. Heather testified she worked in sales for
    the hidden fencing aspect of the business and handled those
    customers’ needs. According to Heather, it was a joint deci-
    sion to sell that aspect of the business. She knew a separate
    checking account had been established for DogWatch but did
    not know it had been separated into an LLC under Jonathan’s
    sole ownership.
    While Backyard Playworld originally operated out of a
    leased space, Jonathan and Heather decided to purchase a
    building in 2019 from which to operate. Jonathan formed JBS
    Properties, LLC, to make the purchase.
    Jonathan testified that Heather was not involved in the
    decision as to which building was ultimately purchased for
    Backyard Playworld in 2019—at least he did not recall that she
    was. Jonathan described that he took Heather to see the build-
    ing, but he testified she did not help him find it. Jonathan did
    not recall that Heather was involved in planning the layout of
    the new building.
    Jonathan testified that Heather had no involvement in the
    formation of JBS Properties. The money to purchase the new
    building came from cash out of JBS Kids Play with the
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    remainder from financing. Heather’s name is not on any of the
    documents associated with the purchase of the building.
    Heather testified it was always their long-term goal to pur-
    chase a different location for the business rather than lease
    space. She testified she was involved in discussions regarding
    the move and accompanied Jonathan in looking for possible
    buildings. Once the new building was purchased, according to
    Heather, she helped plan the layout for the new space. Heather
    had no knowledge of the existence of JBS Properties.
    At the time of trial, Jonathan’s personal net worth, not
    including the businesses, was approximately $5.3 million.
    Jonathan’s net worth had increased by approximately $4 mil-
    lion during the course of the marriage.
    Jonathan testified that the only asset jointly titled to both
    himself and Heather was their house. Their jointly held check-
    ing account had been dissolved. Jonathan denied making
    any representations to Heather that she jointly owned JBS
    Kids Play.
    Gregory Harr, an accredited business valuator, testified as an
    expert for Heather concerning the value of Backyard Playworld.
    Harr testified that there are three different approaches in
    assigning a value to a business: the asset approach, the income
    approach, and the market approach. Harr explained that the
    asset approach is typically used for companies that are going to
    be liquidated or that are heavy in real estate or securities. Harr
    explained that the market approach uses several different fac-
    tors to determine a probable sale price. The income approach
    attempts to value a future economic benefit.
    Harr valued JBS Kids Play as of 2019 using the “fair value”
    approach, valuing it as a “going concern” utilizing both the
    market approach and the income approach versus the asset
    approach.
    Harr testified, without objection, that it was his professional
    opinion that the “fair value” approach was the more accurate
    valuation approach for divorces. Harr explained there is a dif-
    ference between “fair value” and “fair market value”:
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    Fair market value is going to be the value that is deter-
    mined by a hypothetical buyer and a hypothetical seller,
    neither one of which is being forced to make a decision as
    to what the — what it’s going to be selling for. The value
    of fair market value, depending upon what you’re going
    to have is if it’s a controlling interest or a noncontrolling
    interest. Discounts come into play for that situation, and
    the size of the discount will depend upon whether it’s
    controlling or non-controlling. But then you also in all
    cases with fair market value you’re going to have a lack
    of marketability that comes into play. And the difference
    between fair market value and fair value is that there
    [are] no discounts in fair value versus fair market value
    because of the situation.
    In sum, Harr affirmed he was “just not including in some cases
    the discount for lack of control,” which he would not apply
    anyway in this case.
    Daniel Morris, who was accredited in business valuations,
    was the expert retained by Jonathan to assess the value of JBS
    Kids Play, doing business as Backyard Playworld. He testified
    that he chose fair market value as opposed to fair value as the
    standard to determine the valuation of Backyard Playworld
    because
    there’s a reasonable expectation that if this business were
    to be sold — not to a specific buyer but to a buyer, which
    is supposed to represent any potential buyer — that the
    price would need to be fair market value in order for that
    transaction to occur.
    Morris opined that fair value was not an appropriate method-
    ology in a divorce in Nebraska, explaining that while “both
    methods are used because they are commonly both accepted
    practices,” he did not believe Jonathan would be able to get
    a fair value in the real world if he were to actually sell the
    business. He explained that “therefore, a discount for lack of
    marketability must be applied.”
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    Morris elaborated that one of the big differences between
    fair value and fair market value is fair value does not allow
    discounting. In his valuation, Morris discounted 28 percent
    from the net book value of the going concern, for what Morris
    perceived to be its lack of marketability.
    Morris conceded in cross-examination that his valuation uti-
    lizing fair market value for JBS Kids Play as a going concern
    was significantly lower than its net book value that could be
    received if liquidated. Morris explained the discrepancy by
    stating that he did not use the asset approach.
    Morris conceded that “[p]otentially,” fair value, as opposed
    to fair market value, of a business in a divorce case means
    “we’re not going to use discount because a property isn’t up
    for sale, it isn’t going to be sold.” Morris testified that in his
    experience, he has seen both fair value and fair market value
    approaches utilized in divorce cases. Morris conceded that in
    his interviews with Jonathan there was no indication of an
    intention to sell Backyard Playworld, but he thought that the
    use of fair value favors one spouse by “using a specific buyer.”
    Both experts testified as to the unusual amount of cash
    equity being held by JBS Kids Play in comparison to its oper-
    ating expenses. Its bank account held over $700,000 in cash.
    Heather testified that she graduated from high school and
    does not have a college degree. When she and Jonathan were
    married, Heather was working in aftermarket sales in the parts
    department at a car dealership. It required her to work approxi-
    mately 50 hours a week and included working well into the
    evening and on weekends. She earned approximately $95,000
    per year her final 2 years at that job. Prior years averaged
    around $70,000 annually. She had not worked outside the home
    anywhere other than at Backyard Playworld since the birth of
    the oldest child of the marriage approximately 12 years prior
    to the hearing. Heather did not think she could go back to sales
    work at a car dealership due to her obligations caring for the
    children and because of the use of newer technology that she
    has no experience with.
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    Heather submitted a list of monthly living expenses in
    the amount of $13,630. There was evidence that Jonathan’s
    monthly net income was $31,154 and that Heather’s monthly
    net income was $1,098. Other evidence showed Jonathan had a
    net cashflow of $590,990.37, derived from Backyard Playworld
    and various personally owned investment accounts.
    4. Decree
    (a) Constructive Trust
    The court found the premarital agreement to be valid and
    enforceable. However, the court concluded that Heather had
    proved by clear and convincing evidence the existence of a
    constructive trust in Backyard Playworld such that Jonathan
    had an equitable duty to hold half of those businesses in trust
    for Heather; otherwise, Jonathan would be unjustly enriched.
    The court found that the entity the parties originally purchased,
    Backyard Adventures, was ultimately composed of JBS Kids
    Play, JBS Properties, and DogWatch.
    The court found that Jonathan and Heather jointly looked
    into business opportunities and decided on purchasing Backyard
    Adventures. Heather believed, based on the discussions with
    Jonathan, that they were purchasing the business together.
    Jonathan told Heather it was not necessary for her to sign any
    documents at closing because it would be a cash transaction.
    Of the $445,000 purchase price for the business, $375,000
    came from a gift from Jonathan’s father.
    The court found that when Jonathan and Heather decided in
    2019 to purchase a separate building for Backyard Playworld,
    Heather accompanied Jonathan to see the real estate agent,
    after which Jonathan and Heather jointly decided upon a
    building to purchase, and Heather assisted in planning the
    layout. Heather was led to believe from Jonathan that the
    building was an asset they owned together and was part of
    the business. The money to purchase the building came from
    Backyard Playworld. Heather was unaware until the com-
    mencement of the divorce proceedings that Jonathan had
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    placed the new building in a separate LLC controlled solely
    by Jonathan.
    The court found that Jonathan led Heather to believe they
    owned Backyard Playworld together and that Heather was
    unaware Jonathan had formed JBS Kids Play to hold their
    company. The court noted statements by Jonathan to Heather
    and employees working at Backyard Playworld that Heather
    was an owner. The sign at the entry of the building, as well
    as business cards, referred to Heather as an “[o]wner” of
    Backyard Playworld. The court found that Heather worked sig-
    nificant hours at the business up to approximately 3 to 4 years
    before Jonathan filed for divorce, when she reduced her hours
    in order to take their children to and from activities. The court
    found that Heather worked without getting a paycheck and was
    unaware that Jonathan was issuing paychecks in her name,
    which he would deposit into their joint account that held the
    earnings from the business. The court found that Heather con-
    tributed toward the growth of the business not only by working
    on the sales floor but also through marketing, the creation of
    paid playtime as a new vehicle for revenue, the expansion of
    the party room rental, and the use of the play areas for events.
    She was also actively involved in the most recent acquisition of
    the new location and its interior layout.
    The court observed that under section 4.6 of the premarital
    agreement, neither party was prevented from adding to the
    marital estate from their separate property and that, under sec-
    tion 3.4, the marital estate is to be divided equally. The court
    found that Jonathan contributed Backyard Playworld (which
    included JBS Kids Play, JBS Properties, and DogWatch) to the
    marital estate and that it should be divided equally between
    Jonathan and Heather.
    The court found that the value of JBS Kids Play was
    $1,444,722. It found the value of DogWatch to be $333,497.24,
    which reflected the cash balance of the DogWatch account
    that held the proceeds from its sale. The court found that JBS
    Properties had an “equity value” of $500,000. Thus, the court
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    found that the total value of Backyard Playworld and its associ-
    ated entities—to be divided equally between the parties—was
    $2,278,219.24.
    (b) Gift of $375,000
    The court specifically found that the $375,000 gifted to
    Jonathan by his father and utilized in the purchase of Backyard
    Adventures was added to the marital estate pursuant to section
    4.6 of the premarital agreement. Thus, it became a marital asset
    subject to division.
    (c) Truck
    The court found that Jonathan’s 2019 Ram pickup truck with
    a value of $57,141 should be made part of the marital estate.
    (d) $150,000
    Pursuant to section 3.3(b) of the agreement, the court found
    that Jonathan was obligated to pay Heather $150,000 from
    Jonathan’s separate estate. This was above and beyond the
    division of the marital estate.
    (e) Alimony and Life Insurance
    The court awarded Heather monthly alimony of $5,500 for
    72 months. The court also ordered child support, which is not
    at issue in this appeal.
    The court ordered Jonathan to maintain life insurance cov-
    erage in an amount sufficient to fund his child support and
    spousal support obligations in the event of his death.
    III. ASSIGNMENTS OF ERROR
    Jonathan assigns that the trial court erred (1) by allow-
    ing Heather to amend her pleadings to include claims of
    fraud, unjust enrichment, and constructive trust after the trial,
    unfairly surprising him with new claims and denying him due
    process; (2) in its finding that Heather proved by clear and
    convincing evidence that Jonathan engaged in fraud and would
    be unjustly enriched unless Backyard Playworld were added
    to the marital estate via constructive trust; (3) in dividing the
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    marital estate and ordering life insurance to fund support; (4)
    in using the opinion of Heather’s expert in valuing Backyard
    Playworld; (5) in its award of alimony; (6) in the specific find-
    ings related to documents signed at closing and the purchase of
    Backyard Adventures; and (7) in failing to impose the waiver
    in the Premarital Agreement.
    IV. STANDARD OF REVIEW
    [1] Permission to amend a pleading is addressed to the dis-
    cretion of the trial court, and an appellate court will not disturb
    the trial court’s decision absent an abuse of discretion. 1
    [2] The determination of whether the procedures afforded
    to an individual comport with constitutional requirements for
    procedural due process presents a question of law. 2
    [3] An action to impose a constructive trust sounds in equity,
    which we review de novo on the record, giving consideration,
    where the evidence is in conflict, to the fact that the trial court
    observed the witnesses and their manner of testifying and
    accepted one version of facts rather than the opposite. 3
    [4] 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 in his or her
    determinations regarding custody, child support, division of
    property, alimony, and attorney fees. 4
    [5] A judicial abuse of discretion exists if the reasons or rul-
    ings of a trial judge are clearly untenable, unfairly depriving a
    litigant of a substantial right and denying just results in matters
    submitted for disposition. 5
    1
    United Gen. Title Ins. Co. v. Malone, 
    289 Neb. 1006
    , 
    858 N.W.2d 196
    (2015).
    2
    Dycus v. Dycus, 
    307 Neb. 426
    , 
    949 N.W.2d 357
     (2020).
    3
    See, ProData Computer Servs. v. Ponec, 
    256 Neb. 228
    , 
    590 N.W.2d 176
    (1999); Ford v. Jordan, 
    220 Neb. 492
    , 
    370 N.W.2d 714
     (1985).
    4
    See Vanderveer v. Vanderveer, 
    310 Neb. 196
    , 
    964 N.W.2d 694
     (2021).
    5
    Devney v. Devney, 
    295 Neb. 15
    , 
    886 N.W.2d 61
     (2016).
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    [6] Appellate courts do not generally consider arguments
    and theories raised for the first time on appeal. 6
    [7] As a contract, an antenuptial agreement is governed by
    the same principles that are applicable to other contracts, but is
    subject to the particular statutory requirement that an antenup-
    tial agreement must be based on fair disclosure. 7
    [8] When the terms of a contract are clear, a court may not
    resort to rules of construction, and terms are accorded their
    plain and ordinary meaning as an ordinary or reasonable person
    would understand them. In such a case, a court shall seek to
    ascertain the intention of the parties from the plain language of
    the contract. 8
    V. ANALYSIS
    Several issues are presented in this appeal pertaining to the
    constructive trust, the first of which is whether the court erred
    in considering the question of a constructive trust at all, given
    that it was not specifically mentioned in Heather’s responsive
    pleading. Beyond that, Jonathan argues that the constructive
    trust was inconsistent with the premarital agreement and that
    the evidence was generally insufficient to establish a construc-
    tive trust. Lastly, Jonathan argues that the valuation of the trust,
    based on fair value, was an abuse of discretion.
    The remaining issues presented in this appeal concern (1) a
    $150,000 lump-sum payment under the terms of the premarital
    agreement, which Jonathan claims to be inconsistent with the
    constructive trust; (2) an order to maintain life insurance to
    fund the support order, which he argues is inconsistent with the
    premarital agreement; (3) the inclusion of a truck in the marital
    estate, which Jonathan argues was already part of the business
    valuation informing the constructive trust; and (4) the alimony
    award, which Jonathan argues was excessive.
    6
    Maria T. v. Jeremy S., 
    300 Neb. 563
    , 
    915 N.W.2d 441
     (2018).
    7
    In re Estate of Jakopovic, 
    261 Neb. 248
    , 
    622 N.W.2d 651
     (2001).
    8
    
    Id.
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    1. Amendment of Pleadings
    Before addressing the merits of the constructive trust, we
    first consider Jonathan’s argument that the court erred in
    allowing amendment of the pleadings to include the issue
    of a constructive trust, as well as his related argument that
    his procedural due process rights were violated by a lack of
    timely notice to defend against the alleged constructive trust.
    Permission to amend a pleading is addressed to the discretion
    of the trial court, and an appellate court will not disturb the
    trial court’s decision absent an abuse of discretion. 9 The deter-
    mination of whether the procedures afforded to an individual
    comport with constitutional requirements for procedural due
    process presents a question of law. 10
    [9] While the concept of due process defies precise defini-
    tion, it embodies and requires fundamental fairness. 11 Generally,
    procedural due process requires parties whose rights are to be
    affected by a proceeding to be given timely notice, which is
    reasonably calculated to inform the person concerning the sub-
    ject and issues involved in the proceeding; a reasonable oppor-
    tunity to refute or defend against a charge or accusation; a
    reasonable opportunity to confront and cross-examine adverse
    witnesses and present evidence on the charge or accusation;
    representation by counsel, when such representation is required
    by constitution or statute; and a hearing before an impartial
    decisionmaker. 12
    Nebraska’s pleading rules provide for amendments to con-
    form to the evidence, stating:
    When issues not raised by the pleadings are tried by
    express or implied consent of the parties, they shall be
    treated in all respects as if they had been raised in the
    pleadings. Such amendment of the pleadings as may
    9
    United Gen. Title Ins. Co. v. Malone, supra note 1.
    10
    Dycus v. Dycus, 
    supra note 2
    .
    11
    Eric H. v. Ashley H., 
    302 Neb. 786
    , 
    925 N.W.2d 81
     (2019).
    12
    
    Id.
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    be necessary to cause them to conform to the evidence
    and to raise these issues may be made upon motion of
    any party at any time, even after judgment; but failure
    so to amend does not affect the result of the trial of
    these issues. If evidence is objected to at the trial on the
    ground that it is not within the issues made by the plead-
    ings, the court may allow the pleadings to be amended
    and shall do so freely when the presentation of the merits
    of the action will be subserved thereby and the objecting
    party fails to satisfy the court that the admission of such
    evidence would prejudice the party in maintaining the
    party’s action or defense upon the merits. The court may
    grant a continuance to enable the objecting party to meet
    such evidence. 13
    Even when a party does not move to amend pleadings, a court
    may constructively amend pleadings on unpleaded issues in
    order to render a decision consistent with the trial. 14
    [10] A court’s determination of questions raised by the facts,
    but not presented in the pleadings, should not come at the
    expense of due process, 15 and thus, our standards governing
    whether a court has abused its discretion in ordering construc-
    tive amendment of the pleadings are generally consistent with
    the fundamental fairness standards of procedural due process.
    We have said that the key inquiry for “express or implied
    consent” under § 6-1115(b) is whether the parties recognized
    that an issue not presented by the pleadings entered the case
    at trial. 16
    We have held that express consent may thus be found when
    a party has stipulated to an issue or the issue is set forth in
    13
    Neb. Ct. R. Pldg. § 6-1115(b).
    14
    Denali Real Estate v. Denali Custom Builders, 
    302 Neb. 984
    , 
    926 N.W.2d 610
     (2019).
    15
    Eric H. v. Ashley H., 
    supra note 11
    .
    16
    R & B Farms v. Cedar Valley Acres, 
    281 Neb. 706
    , 
    798 N.W.2d 121
    (2011).
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    a pretrial order. 17 As the court below rightly emphasized,
    Jonathan had actual notice before trial that the issue of a con-
    structive trust was to be tried, and he did not object or move
    for a continuance. The letter by Heather’s counsel, which was
    ordered by the court to set forth the issues in controversy,
    explicitly set forth the question of a constructive trust, unjust
    enrichment, and whether, even if the premarital agreement
    were valid, Heather was entitled to an ownership interest due
    to Jonathan’s representations. Jonathan’s counsel was given a
    copy of this letter and did not raise any objections to the issues
    in controversy stated therein.
    Jonathan’s arguments that the letter was not a “pleading”
    and that it did not explicitly use the words “fraud” or “misrep-
    resentation” miss the point. Fraud and misrepresentation are
    concepts inherent to any constructive trust claim, and a filing
    need not be a pleading in order to give the other party a timely
    and clear indication of the issues to be tried. Under the facts
    presented, we hold that the court did not abuse its discretion in
    ordering amendment of the pleadings pursuant to § 6-1115(b).
    We relatedly hold that because Jonathan had timely notice of
    the issues to be tried, the litigation of the constructive trust
    claim did not violate Jonathan’s constitutional right to pro-
    cedural due process. We turn to the merits of the construc-
    tive trust.
    2. Imposing Constructive Trust
    [11] In an equitable property division governed by 
    Neb. Rev. Stat. § 42-365
     (Reissue 2016), 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. 18 Under equitable property division, even if
    an asset was acquired before the marriage, accrued invest-
    ment earnings or appreciation of nonmarital assets during
    17
    Blinn v. Beatrice Community Hosp. & Health Ctr., 
    270 Neb. 809
    , 
    708 N.W.2d 235
     (2006).
    18
    See Stephens v. Stephens, 
    297 Neb. 188
    , 
    899 N.W.2d 582
     (2017).
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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. 19
    [12] Spouses are able to contract around the general rules of
    equitable division by using a premarital agreement. 20 
    Neb. Rev. Stat. § 42-1004
     (Reissue 2016) permits parties to a premarital
    agreement to contract with respect to, among other things, “The
    rights and obligations of each of the parties in any of the prop-
    erty of either or both of them whenever and wherever acquired
    or located” and “[t]he disposition of property upon separation,
    marital dissolution, death, or the occurrence or nonoccurrence
    of any other event.” In this appeal, there is no dispute that the
    premarital agreement between Heather and Jonathan was valid
    and enforceable.
    (a) Coexistence With Premarital Agreements
    The district court implemented the terms of the premarital
    agreement after imposing upon Jonathan a constructive trust
    with respect to one-half of the interest in the limited liabil-
    ity companies (LLCs) of Backyard Playworld, deeming them
    part of the marital estate under the agreement. It is true that
    this result happens to be similar to what would have occurred
    under equitable division under § 42-365, unless Jonathan had
    sustained his burden to prove the assets to be nonmarital. It is
    also true that “[t]he remedy of constructive trust may not be
    applied randomly to adjust general equities between spouses or
    as a punitive measure . . . .” 21 It does not follow, however, that
    the court conflated the remedy of constructive trust with simple
    equitable division.
    19
    See id.
    20
    See Cook v. Cook, 
    26 Neb. App. 137
    , 
    918 N.W.2d 1
     (2018).
    21
    Saff v. Saff, 
    61 A.D.2d 452
    , 456, 
    402 N.Y.S.2d 690
    , 693 (1978). See,
    also, 9 Alan D. Scheinkman, West’s McKinney’s Forms Matrimonial and
    Family Law § 3:11 (Feb. 2022).
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    [13-15] A constructive trust can coexist with valid premari-
    tal agreements setting forth separate and marital property simi-
    larly to the one here presented, 22 and the principles governing
    a constructive trust are meaningfully different from those
    governing the general equitable division of marital property.
    Under a constructive trust, equity vests title to the subject
    property in the wronged party and the court may issue a decree
    that the title be so conveyed. 23 A constructive trust is imposed
    when one has acquired legal title to property under such cir-
    cumstances that he or she may not in good conscience retain
    the beneficial interest in the property. 24 In such a situation,
    equity converts the legal titleholder into a trustee holding the
    title for the benefit of those entitled to the ownership thereof. 25
    A constructive trust is a relationship, with respect to property,
    subjecting the person who holds title to the property to an
    equitable duty to convey it to another on the grounds that his
    or her acquisition or retention of the property would constitute
    unjust enrichment. 26
    We disagree with Jonathan’s general assertion that a con-
    structive trust cannot be utilized to establish ownership for
    purposes of implementing a valid premarital agreement. And
    we find nothing in the ownership provisions of the premarital
    agreement set forth above that precludes the remedy of a con-
    structive trust as the means of recognizing that certain assets,
    regardless of their original legal titling, are co-owned and
    therefore part of the marital estate to be divided equally under
    the premarital agreement.
    22
    See Martin v. Farber, 
    68 Md. App. 137
    , 
    510 A.2d 608
     (1986). See, also,
    Peden v. Peden, 
    972 So. 2d 106
     (Ala. Civ. App. 2007); Leathers and
    Leathers, 
    98 Or. App. 152
    , 
    779 P.2d 619
     (1989).
    23
    See Caryl A. Yzenbaard et al., Bogert’s The Law of Trusts and Trustees
    § 471 (3d ed. 2009).
    24
    Dreesen Enters. v. Dreesen, 
    308 Neb. 433
    , 
    954 N.W.2d 874
     (2021); Wait
    v. Cornette, 
    259 Neb. 850
    , 
    612 N.W.2d 905
     (2000).
    25
    Wait v. Cornette, 
    supra note 24
    .
    26
    Dreesen Enters. v. Dreesen, 
    supra note 24
    .
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    (b) Evidence Supporting Constructive Trust
    Jonathan alternatively asserts that the court erred in finding
    the evidence presented at trial supported a constructive trust
    and that thus, it misused the vehicle of a constructive trust to
    adjust the general equities between the parties. We review a
    court’s determination of a constructive trust de novo on the
    record, giving consideration to the fact that the trial court
    observed the witnesses and accepted one version of facts rather
    than another. 27
    [16-21] In determining whether to impose a constructive
    trust, the court will consider not only the original situation but
    also all events which have occurred since the defendant began
    to hold inequitably. 28 A party seeking the remedy of a construc-
    tive trust has the burden to establish the factual foundation, by
    evidence which is clear and convincing, required for a con-
    structive trust. 29 However, it has been said that the constructive
    trust doctrine is equitable in nature and should not be rigidly
    limited and that the absence of any one factor will not itself
    defeat the imposition of a constructive trust when otherwise
    required by equity. 30 We have explained that where a situation
    exists which is contrary to the principles of equity and which
    can be redressed within the scope of judicial action, a court
    of equity will devise a remedy to meet the situation. 31 Equity
    is not a rigid concept, and its principles are not applied in a
    vacuum. 32 Equity is determined on a case-by-case basis when
    justice and fairness so require. 33
    [22,23] Generally, a court, sitting in equity, will not impose
    a constructive trust and constitute an individual as a trustee
    27
    See ProData Computer Servs. v. Ponec, 
    supra note 3
    .
    28
    See Yzenbaard, supra note 23.
    29
    Dreesen Enters. v. Dreesen, 
    supra note 24
    .
    30
    In re Koreag, Controle et Revision S.A., 
    961 F.2d 341
     (2d Cir. 1992).
    31
    Anderson v. Bellino, 
    265 Neb. 577
    , 
    658 N.W.2d 645
     (2003).
    32
    Manker v. Manker, 
    263 Neb. 944
    , 
    644 N.W.2d 522
     (2002).
    33
    
    Id.
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    of the legal title for property unless it be shown, by clear
    and convincing evidence, that the individual, as a potential
    constructive trustee, had obtained title to property by fraud,
    misrepresentation, or an abuse of an influential or confidential
    relationship and that, under the circumstances, such individual
    should not, according to the rules of equity and good con-
    science, hold and enjoy the property so obtained. 34 A con-
    structive trust is imposed to do equity and to prevent unjust
    enrichment. 35
    [24,25] We have explained that unjust enrichment is a flex-
    ible concept, 36 occurring when a claim is based on the failure
    of consideration, fraud, or mistake and in other situations
    where it would be morally wrong for one party to enrich him-
    self or herself at the expense of another. 37 We have explained
    in the context of a constructive trust that “fraud” comprises all
    acts, omissions, and concealments involving a breach of legal
    or equitable duty, trust, or confidence justly reposed, and are
    injurious to another, or by which an undue and unconscien-
    tious advantage is taken of another. 38 Similarly, with respect
    to “confidential relationship,” it has been said that “[e]quity
    has never bound itself by any hard and fast definition of the
    phrase ‘confidential relation’ and has not listed the neces-
    sary elements for such a relationship to exist but rather has
    reserved discretion to apply the doctrine whenever it believes
    that a suitable occasion has arisen,” 39 but “[o]ften the par-
    ties are related by blood or marriage and that relationship
    when coupled with the status of the parties as to health, age,
    34
    Dreesen Enters. v. Dreesen, 
    supra note 24
    .
    35
    Vogt v. Town & Country Realty of Lincoln, Inc., 
    194 Neb. 308
    , 
    231 N.W.2d 496
     (1975).
    36
    City of Scottsbluff v. Waste Connections of Neb., 
    282 Neb. 848
    , 
    809 N.W.2d 725
     (2011).
    37
    In re Graphics Technology, Inc., 
    306 B.R. 630
     (8th Cir. 2004).
    38
    See Fisher v. Keeler, 
    142 Neb. 728
    , 
    7 N.W.2d 659
     (1943).
    39
    Yzenbaard, supra note 23, § 482 at 281.
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    education, and dominance may lead a court to find that a con-
    fidential relationship exists.” 40
    Only a few cases in Nebraska have addressed construc-
    tive trusts in property accumulated during a marital or similar
    relationship.
    In Manker v. Manker, 41 we affirmed the imposition of a
    constructive trust upon one half of the personal property titled
    solely in the name of the ex-husband whom the plaintiff mis-
    takenly believed she was still married to. 42 The parties cohabi-
    tated for 19 years and held themselves out to be married. Less
    than a year after the parties were married, the defendant filed
    a petition for dissolution and then falsely told the plaintiff he
    had dismissed the action when, in reality, he received a default
    judgment. Believing them to be married, the plaintiff allowed
    the defendant to handle all the couple’s finances and control all
    the assets. While occupying a “superior position in the relation-
    ship,” the ex-husband placed nearly all of the property accumu-
    lated during their cohabitation in his sole name. 43 These facts,
    we said, supported the district court’s finding of a constructive
    trust. Moreover, while the plaintiff had learned more than 4
    years before bringing the action that she was not married to
    the defendant, we affirmed the lower court’s conclusion that
    the defendant, who had acted inequitably and dishonestly and
    cajoled the plaintiff into delaying any action, could not rely on
    the statute of limitations as a defense.
    In contrast, in Dreesen Enters. v. Dreesen, 44 also involv-
    ing a cohabitating relationship that continued after the parties’
    divorce, albeit only sporadically, we affirmed the court’s denial
    of a constructive trust against the ex-husband’s corporation for
    40
    Id. at 292-93.
    41
    Manker v. Manker, 
    supra note 32
    .
    42
    See, also, Blome v. Blome, 
    201 Neb. 687
    , 
    271 N.W.2d 466
     (1978);
    Workman v. Workman, 
    174 Neb. 471
    , 
    118 N.W.2d 764
     (1962).
    43
    Manker v. Manker, 
    supra note 32
    , 
    263 Neb. at 962
    , 
    644 N.W.2d at 537
    .
    44
    Dreesen Enters. v. Dreesen, 
    supra note 24
    .
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    one-half of the value of a house the ex-wife was living in and
    where, for awhile, the ex-husband also lived. 45 The lower court
    ultimately found more credible the ex-husband’s testimony that
    he had fully disclosed to the ex-wife that the subject property
    would be titled solely in his company’s name, that the parties
    had explicitly agreed the ex-wife would pay rent to live there,
    and that $50,000 for the downpayment provided by the ex-wife
    was, under the parties’ express oral agreement, merely a bridge
    loan. We affirmed the lower court’s monetary judgment in
    favor of the ex-wife for the unpaid $50,000 loan.
    Similarly, in Peterson v. Massey, 46 we affirmed the court’s
    denial of a constructive trust, given the dearth of evidence
    presented by the decedent wife’s heirs from a prior marriage to
    support their claim to one half of the widower husband’s farm
    under the theory that the couple had orally agreed to enter into
    a partnership. There were no allegations of wrongdoing or of
    dominance or disparities in health, age, or education. The evi-
    dence consisted only of statements by the husband referring to
    the farm as “‘our’” property and saying “‘[i]t’s your’s as well
    as mine,’” 47 a one-time contribution by the wife of $750 in
    capital and goods, and the fact that the wife had occasionally
    worked in the field.
    Cases from other jurisdictions provide further illustration
    of when and how constructive trusts are imposed in favor of a
    spouse upon closely held business enterprises.
    In Janke v. Janke, 48 the appellate court affirmed the lower
    court’s imposition of a constructive trust in half of a tavern
    business titled solely in the husband’s name. 49 Both parties
    45
    See, also, Wells v. Wells, 
    3 Neb. App. 117
    , 
    523 N.W.2d 711
     (1994).
    46
    Peterson v. Massey, 
    155 Neb. 829
    , 
    53 N.W.2d 912
     (1952).
    47
    
    Id. at 833
    , 
    53 N.W.2d at 915
    .
    48
    Janke v. Janke, 
    47 A.D.2d 445
    , 
    366 N.Y.S.2d 910
     (1975).
    49
    See, also, e.g., West v. Christensen, 
    576 B.R. 223
     (D. Utah 2017); Brown v.
    Odom, 
    425 S.C. 420
    , 
    823 S.E.2d 183
     (S.C. App. 2019); Keeney v. Keeney,
    
    223 S.W.3d 843
     (Ky. App. 2007); Levin v. Levin, 
    43 Md. App. 380
    , 
    405 A.2d 770
     (1979); Genter v. Genter, 
    270 So. 2d 388
     (Fla. App. 1972).
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    were signatories to the bank loan used for its purchase, it was
    the parties’ intention to operate the tavern as a husband and
    wife operation, the wife worked extensive hours at the tavern,
    the husband’s salary and a small inheritance by the wife were
    contributed to the business, and all family needs were paid for
    by business proceeds. The court explained that though a prom-
    ise in words might have been lacking, the promise underlying
    the constructive trust may be implied. “The understanding of
    the parties should be interpreted not literally and irrespective
    of its setting but sensibly and broadly with all its reasonable
    implications.” 50 Under the facts of the case, noted the court,
    “the entire relationship and the actions and contributions made
    by both parties were instinct with a mutual promise of a joint
    endeavor for the benefit of both.” 51 In other words, “[t]he
    absence of any express promise formalizing the venture grows
    out of the very confidence and trust implicit in the marriage
    relationship.” 52 The court concluded that it would constitute
    unjust enrichment to permit the husband to retain for himself
    all of the business assets to which each contributed and which
    each rightfully expected to share.
    In Leathers and Leathers, 53 the court likewise affirmed
    an award to the wife of an undivided one-half interest in
    properties purchased by the business titled solely in the hus-
    band’s name. 54 It did so despite a valid antenuptial agreement
    assigning to the husband all property owned by the husband
    or thereafter acquired “‘by any means whatsoever.’” 55 The
    court found that the evidence supported a partnership in the
    business and that the property purchased when the business
    was titled solely in the husband’s name was therefore held
    50
    Janke v. Janke, 
    supra note 48
    , 
    47 A.D.2d at 448
    , 366 N.Y.S.2d at 914.
    51
    Id.
    52
    Id., 
    47 A.D.2d at 448-49
    , 366 N.Y.S.2d at 914.
    53
    Leathers and Leathers, 
    supra note 22
    .
    54
    See, also, Scull v. Scull, 
    94 A.D.2d 29
    , 
    462 N.Y.S.2d 890
     (1983).
    55
    Leathers and Leathers, 
    supra note 22
    , 
    98 Or. App. at 155
    , 
    779 P.2d at 620
    .
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    in partnership by the parties. The evidence of the partner-
    ship was that the business was later changed to a jointly
    owned proprietorship that held 80 percent of the company
    assets, the wife worked for the business without compensation
    for 22 years, the wife was consulted before purchasing any
    property, the wife was registered with the commissioner as a
    “co-proprietor,” and the wife was held out to employees as a
    co-owner of the business. 56
    In a somewhat similar case, Scull v. Scull, 57 the court
    imposed a constructive trust based on an implied agreement
    of a joint venture, noting that “an agreement for joint venture
    between spouses is rarely spelled out in writing” and can be
    implicit. Such promises within the confines of a marital asso-
    ciation combined with independent evidence “of a pattern or a
    lifestyle indicating that the parties were engaged in a joint ven-
    ture,” when combined with unjust enrichment, were sufficient
    to establish a constructive trust in that case. 58
    In contrast, under the facts presented in Turner v. Turner, 59
    the court found the evidence insufficient to impose a con-
    structive trust in 50 percent of a closely held corporation and
    affirmed the lower court’s determination also so finding. The
    business in question was a lighting business that had evolved
    from the husband’s childhood hobby. The husband was the
    president, owning 65 shares of its stock. His technical knowl-
    edge and skill, noted the court, were crucial to the business’
    success. The wife held 10 shares of the stock. The wife per-
    formed many tasks for the business but was compensated at
    a significantly higher salary than the salary drawn by the hus-
    band. 60 During the marriage, the parties discussed the wife’s
    desire to hold more stock and, despite her explicit requests,
    56
    
    Id. at 158
    , 
    779 P.2d at 622
    .
    57
    Scull v. Scull, 
    supra note 54
    , 
    94 A.D.2d at 34
    , 462 N.Y.S.2d at 893.
    58
    Id.
    59
    Turner v. Turner, 
    147 Md. App. 350
    , 
    809 A.2d 18
     (2002).
    60
    
    Id.
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    there was no evidence her husband ever promised to give her
    an equal number of shares. 61
    The district court observed Heather’s and Jonathan’s testi-
    monies and accepted one version of facts rather than another.
    Viewing the evidence in that light, we find the evidence more
    similar to those cases finding support for a constructive trust
    than to those that do not. Heather testified as to an implied
    promise or understanding between her and Jonathan that they
    were acquiring a business with their joint savings and that
    they were going to run the business together. She noted that
    they had worked together since the day they had met and have
    the same work ethic, so it was always their long-term goal to
    find their own business that both of them could have an active
    role in. The parties had in fact accumulated from their joint
    earning $188,000 in their joint bank account at the time of the
    initial purchase of Backyard Adventures, and Heather had no
    idea that there was a substantial gift utilized for the purchase
    such that only $65,000 from their joint account ultimately
    was used.
    Jonathan represented to Heather, employees, and the public
    at large that they were co-owners of the business. Heather was
    designated as “[o]wner” on business cards and signage, and
    she was a cosignatory on JBS Kids Play’s account. Heather
    contributed a substantial amount of labor over the years with
    minimal pay, which Jonathan described as a way of having
    staff without having expense. Additionally, Heather contributed
    toward the growth of the business by being the public face of
    the venture, working the “front of the store,” and through mar-
    keting events and her ideas that expanded the business’ offer-
    ings to the public and maximized the layout of their showroom
    and party rooms. She claimed that Jonathan had told her he
    could not run the business without her.
    Both parties testified that Jonathan handled the parties’
    finances and sorted through their mail. All family needs were
    61
    See 
    id.
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    paid by business proceeds. Heather described a “traditional”
    spousal relationship where Jonathan handled their accounting.
    Heather stated, “[H]e was very dominant and ‘I’m the man’
    type person, and I allowed it, I guess.” Despite not signing the
    relevant paperwork, Heather testified she did not suspect at any
    point during the marriage that she was not in fact a co-owner of
    Backyard Playworld. Jonathan, with the help of attorneys and
    without Heather’s knowledge, crafted several LLCs in his own
    name. The family needs were paid for almost exclusively by
    business proceeds, although a significant amount of proceeds
    were left as cash assets in the business accounts titled solely in
    Jonathan’s name. The family was also supported in small part
    by cash gifts to Heather, which were deposited into the par-
    ties’ joint account. Only after the divorce action was filed did
    Heather learn that “this whole time he’d been lying to me, he’d
    been using me, he had been completely taking advantage of my
    trust in him, and it was all a lie.”
    Jonathan focuses on Heather’s prior experience at a car
    dealership as evidence that she should have known she was not
    a co-owner because she did not sign any paperwork. In cases
    where a constructive trust is imposed on a business venture
    titled in only one spouse’s name, some paperwork is usually
    involved that the plaintiff spouse is aware of. This is but one
    circumstance for a court to consider in determining whether
    equity requires the imposition of a consructive trust. There is
    little support for the premise that the plaintiff spouse should
    be foreclosed from a constructive trust claim simply because
    that spouse has some knowledge of paperwork involved in the
    formation of the subject business venture, which the plaintiff
    spouse did not sign. We defer to the trial court’s determina-
    tion that, despite knowing she did not sign certain paperwork,
    Heather did not have actual knowledge she was not a co-owner.
    The court did not err in determining that, under all the relevant
    circumstances, the equities lay with Heather.
    The evidence was sufficient to show a confidential rela-
    tionship under which Heather contributed to and rightfully
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    expected to share in the business as a partner or co-owner.
    There was an implied promise of a joint venture that Jonathan
    did not act in accordance with when he surreptitiously orches-
    trated several LLCs in his sole name. The evidence was suf-
    ficient to prove Jonathan would be unjustly enriched if he were
    allowed to keep for himself the benefit of Heather’s substantial
    contributions to the business made under that understanding
    between them. Viewing the evidence de novo, but with con-
    sideration for the fact that the district court observed the wit-
    nesses and accepted one version of facts rather than another,
    we conclude that Heather established the factual foundation,
    by evidence which is clear and convincing, required for a
    constructive trust. The district court did not err in finding the
    evidence sufficient to support the imposition of a constructive
    trust in one-half of Backyard Playworld.
    Jonathan asserts the court erroneously made a finding that
    he told Heather there was no need to sign paperwork because
    the purchase of Backyard Adventures was going to be a cash
    transaction. This finding appears to be derived from Heather’s
    cross-examination, wherein she was questioned as to why she
    did not suspect she was not a co-owner by virtue of the fact
    that she was not asked to sign anything during the closing of
    the purchase of Backyard Adventures. She explained that “we
    were paying cash, so [Jonathan] signed, and [I] trusted my
    husband’s word.” The court also refers in its order to closing
    arguments and “proposed findings,” which are not in the appel-
    late record. As we have already explained, the failure to sign
    the paperwork was at best marginally material to the overall
    question of whether Heather proved a constructive trust. The
    technical misstatement in the court’s order does not call into
    question its ultimate finding of a constructive trust.
    Jonathan similarly takes issue with the court’s statement in
    its order that “Backyard Playworld was originally purchased
    by [Jonathan] and [Heather] as Backyard Adventures, Inc.” He
    argues there is no support for this finding in any witness state-
    ment or document from the trial record. It appears from the
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    context that the court was well aware that Backyard Playworld
    was not legally purchased by both parties. We understand this
    statement as referring to the understandings and representa-
    tions that led to the imposition of the constructive trust. This
    also is not sufficient grounds to call into question the court’s
    judgment.
    (c) Consistency With Waiver Provision
    of Premarital Agreement
    [26] Jonathan raises for the first time in this appeal the argu-
    ment that establishing title under a constructive trust was pro-
    hibited by section 6 of the Premarital Agreement, wherein each
    party agreed “he or she will not make any claim of any kind
    to the property of the other in the event of death, dissolution
    of marriage, or separation except as specifically contemplated
    by the provisions of this Agreement.” The section also states,
    “[E]ach party waives all rights he or she may have in all or any
    part of the property of the other under any law . . . whether by
    way of dissolution of marriage . . . or any other right or inter-
    est.” This section was not specifically addressed by the court.
    An appellate court will not consider an issue on appeal that
    was not presented to or passed upon by the trial court. 62
    In any case, we do not read this provision as prohibiting
    Heather from claiming title through a constructive trust. Unlike
    other rights to someone else’s property, which are established
    under laws such as the homestead allowance, 63 a constructive
    trust does not give rights to the property of another; it estab-
    lishes who actually owns the property. The constructive trust
    established that the Backyard Playworld LLCs were never the
    sole property of Jonathan; rather, title to the LLCs were equally
    Jonathan’s and Heather’s. Heather’s waiver of any rights to
    Jonathan’s property under section 6 and other provisions of the
    premarital agreement is therefore consistent with the district
    court’s order.
    62
    de Vries v. L & L Custom Builders, 
    310 Neb. 543
    , 
    968 N.W.2d 64
     (2021).
    63
    See 
    Neb. Rev. Stat. § 30-2322
     (Reissue 2016).
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    (d) Mention of Statute of Limitations
    [27,28] Jonathan also raises for the first time on appeal the
    statute of limitations in relation to the constructive trust. He
    does so not in his assignments of error but only in passing
    in the argument section of his appellate brief concerning the
    alleged unfair surprise of the possibility of a constructive trust.
    To be considered by an appellate court, an alleged error must
    be both specifically assigned and specifically argued in the
    brief of the party asserting the error. 64 A statute of limitations
    is nonjurisdictional and waivable. 65 As the statute of limita-
    tions was not presented to or passed upon below and was not
    specifically assigned, or clearly argued, on appeal, we will not
    address in this appeal any question of the statute of limitations
    as pertains to the constructive trust.
    (e) Fair Value Versus Fair Market Value
    We turn to Jonathan’s challenge to the monetary value of
    the LLCs upon which the constructive trust was imposed.
    Jonathan argues the court erred in accepting the valuation
    by Heather’s expert, who utilized fair value rather than fair
    market value in making that valuation. Jonathan did not seek
    to exclude Harr’s testimony, and he did not object to Harr’s
    opinion that fair value was a more accurate valuation approach
    for divorces. Jonathan states on appeal that the “problem”
    with using fair value is its failure to contemplate minority
    discounts and discounts for lack of marketability, but he con-
    cedes that “[t]rial courts should have the discretion to reject
    or apply such discounts in the divorce context, to be sure.” 66
    While Jonathan’s arguments respecting fair value versus fair
    market value are somewhat unclear, we view the issue pre-
    served below and presented to us on appeal as an attack on the
    weight the court accorded Harr’s opinions as opposed to their
    admissibility.
    64
    Diamond v. State, 
    302 Neb. 892
    , 
    926 N.W.2d 71
     (2019).
    65
    State v. Wiemer, 
    3 Neb. App. 821
    , 
    533 N.W.2d 122
     (1995).
    66
    Brief for appellant at 46.
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    [29,30] Even in equity actions, which are generally subject
    to de novo review, we have said that the determination of the
    weight that should be given expert testimony is uniquely the
    province of the fact finder. 67 And we have also said in this con-
    text that a trial court is not required to accept any one method
    of valuation as more accurate than another accounting proce-
    dure. 68 We have held that a trial court’s valuation of a closely
    held corporation is reasonable if it has an acceptable basis in
    fact and principle, 69 and there is no reason to hold the valuation
    of an LLC to a different standard.
    We hold that the district court did not abuse its discretion
    in the weight it accorded Harr’s expert opinion. Heather’s and
    Jonathan’s experts’ opinions as to the proper method of valua-
    tion under the circumstances of this case were in conflict, and
    the district court gave more weight to Harr’s testimony, which
    had an acceptable basis in fact and principle. The court’s valu-
    ation of Backyard Playworld was reasonable. It did not err in
    valuing Backyard Playworld in accordance with Harr’s fair
    value methodology.
    Jonathan argues somewhat abstractly that “experts should be
    required to articulate their opinions” about discounts and that
    “falsely claiming” fair value has been used in Nebraska divorce
    cases as “at best, a clever way to avoid cross-examination
    on your failure to intellectually address important valuation
    issues” and “[a]t worst,” the presentation of an “artificially
    inflated business value in the hopes that a court might ‘bite’ if
    not conversant with business valuations.” 70 But we observe that
    Jonathan’s own expert, Morris, testified that both fair value and
    fair market value were commonly accepted practices and that
    he had seen both types of valuation utilized in divorce cases.
    67
    See Anderson v. A & R Ag Spraying & Trucking, 
    306 Neb. 484
    , 
    946 N.W.2d 435
     (2020).
    68
    See, id.; Bryan v. Bryan, 
    222 Neb. 180
    , 
    382 N.W.2d 603
     (1986).
    69
    
    Id.
    70
    Brief for appellant at 46.
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    Further, Harr did in fact articulate his opinions about the use of
    discounts in a dissolution case, such as this one, where the sale
    of the business is not being contemplated. We find no support
    for Jonathan’s apparent argument that Harr’s testimony was
    impermissibly misleading.
    (f) $375,000 Gift
    Next, Jonathan argues the court should have, at a minimum,
    set off the $375,000 gift that his parents contributed toward
    the purchase of Backyard Playworld and considered it part of
    Jonathan’s personal property for purposes of the division of
    assets. Jonathan’s only support for this assertion is the general
    proposition that under equitable division, a marital estate does
    not include property that a spouse has acquired before the
    marriage or by gift or inheritance. 71 However, the $375,000
    became part of Backyard Playworld, the division of which was
    governed by the premarital agreement and the constructive
    trust, not equitable division governed by § 42-365.
    [31] Jonathan fails to make any argument under the law of
    constructive trusts that the gift utilized toward the purchase
    price of Backyard Adventures should be set off as Jonathan’s
    personal property. The money was deposited directly into the
    account held by JBS Kids Play. Jonathan’s parents did not
    intervene in the action to claim any interest therein; rather, it
    was undisputed that it was a gift. The ownership rights of a
    constructive trust beneficiary, once recognized, are protected
    from the moment the trustee acquired legal title, the construc-
    tive trust decree being in the nature of a declaratory judgment
    about the state of title to the property. 72 Thus, the gift was to
    the jointly owned business. We have already held in our de
    novo review that the constructive trust was not in error, and we
    do not find reason to set off from that trust the amount of the
    $375,000 gift to the LLC.
    71
    See Doerr v. Doerr, 
    306 Neb. 350
    , 
    945 N.W.2d 137
     (2020).
    72
    See Restatement (Third) of Restitution and Unjust Enrichment § 55,
    comment e. (2011).
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    (g) Truck
    Jonathan argues that the truck owned at the time of filing for
    divorce, and valued at $57,141, should not have been calcu-
    lated as part of the marital estate because it was owned by the
    corporation and therefore was already included in the construc-
    tive trust that was given a separate value. It was undisputed at
    trial that the truck was titled in the name of the business. The
    court found the truck became part of the marital estate pursu-
    ant to section 4.6 of the premarital agreement. And from the
    court’s calculations dividing the marital estate, it is clear the
    court awarded the value of the truck to be divided twice, once
    as part of the constructive trust and again as separately listed
    marital property. We agree with Jonathan that this was in error.
    That part of the order itemizing the truck as part of the marital
    estate is vacated.
    3. Lump-Sum Payment Under Agreement
    The court explained that the sum of $981,180 to equal-
    ize the division of the marital estate did not include the
    $150,000 owed under section 3.3(b) of the premarital agree-
    ment. Jonathan takes issue with the court’s order awarding the
    agreed-upon property equalization lump-sum payment in addi-
    tion to the constructive trust. He presents no law to support this
    argument. Nor does he appeal to the terms of the premarital
    agreement in relation to the lump sum. Rather, in a brief argu-
    ment, Jonathan characterizes the court’s order of a lump sum
    in addition to the constructive trust on Backyard Playworld as
    turning “the divorce decree into a kind of Frankenstein of con-
    tract and equity.” 73
    The premarital agreement in section 3.3 sets forth that
    Heather waived “any and all claims for division of prop-
    erty or property settlement from [Jonathan] with respect to
    [Jonathan’s] Property in the event of a future legal separa-
    tion, divorce, annulment or other dissolution of this pro­
    posed marriage” in exchange for a lump sum of money
    73
    Brief for appellant at 45.
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    based on the number of “Full Years of Marriage Subsequent
    to Marriage Date,” which, in this case of the marriage end-
    ing after between 10 and 15 years of marriage, is $150,000.
    (Emphasis supplied.) As already discussed, the constructive
    trust means that title to the Backyard Playworld LLCs is
    held in co-ownership. The premarital agreement contemplated
    the lump-sum settlement to be made in addition to the equal
    division of the marital estate, which included assets held in
    co-ownership. What was waived was Heather’s right to an
    equitable share in property solely owned by Jonathan which,
    due to the constructive trust, the LLCs were not. We disagree
    with Jonathan’s assertion that the court’s enforcement of the
    lump-sum settlement was improper.
    4. Alimony Award
    Jonathan argues on appeal that the award of alimony was
    an abuse of discretion because it was excessive. He makes no
    argument that Heather’s right to alimony was waived in the
    prenuptial agreement. In a marital dissolution action, an appel-
    late court reviews the case de novo on the record to determine
    whether there has been an abuse of discretion by the trial judge
    in his or her determinations regarding custody, child support,
    division of property, alimony, and attorney fees. 74
    Under § 42-365, “The purpose of alimony is to provide for
    the continued maintenance or support of one party by the other
    when the relative economic circumstances and the other crite-
    ria enumerated in this section make it appropriate.” The court
    may order payment of such alimony by one party to the other
    as may be
    reasonable, having regard for the circumstances of the
    parties, duration of the marriage, a history of the contri-
    butions to the marriage by each party, including contribu-
    tions to the care and education of the children, and inter-
    ruption of personal careers or educational opportunities,
    and the ability of the supported party to engage in gainful
    74
    See Vanderveer v. Vanderveer, 
    supra note 4
    .
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    employment without interfering with the interests of any
    minor children in the custody of such party. 75
    [32] Accordingly, we have articulated four factors that are
    relevant to alimony: (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 without interfering with the
    interests of any minor children in the custody of each party. 76
    In addition, a court should consider the income and earning
    capacity of each party and the general equities of the situ-
    ation. 77 Alimony is not a tool to equalize the parties’ income,
    but a disparity of income or potential income might partially
    justify an alimony award. 78 The purpose of alimony is to pro-
    vide for the continued maintenance or support of one party by
    the other when the relative economic circumstances make it
    appropriate. 79
    [33] In reviewing an alimony award, an appellate court does
    not determine whether it would have awarded the same amount
    of alimony as did the trial court, but whether the trial court’s
    award is untenable such as to deprive a party of a substantial
    right or a just result. 80 The ultimate criterion is one of reason-
    ableness. 81 An appellate court is not inclined to disturb the
    trial court’s award of alimony unless it is patently unfair on
    the record. 82
    Heather does not have a college degree. She has not
    worked outside the home anywhere other than at Backyard
    Playworld since the birth of the oldest child of the marriage
    75
    § 42-365.
    76
    See Seivert v. Alli, 
    309 Neb. 246
    , 
    959 N.W.2d 777
     (2021).
    77
    
    Id.
    78
    
    Id.
    79
    
    Id.
    80
    
    Id.
    81
    
    Id.
    82
    
    Id.
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    approximately 12 years prior to the hearing. The child support
    calculator entered into evidence without objection showed
    Jonathan’s monthly net income as $31,154 and Heather’s
    monthly net income as $1,098. Other evidence showed that
    Jonathan had a net cashflow for 2019 of $590,990.37, derived
    from the Backyard Playworld LLCs, as well as various invest-
    ment accounts. Before having children, Heather worked at
    a car dealership where she earned approximately $95,000
    per year her final 2 years at that job. In previous years, she
    had earned around $70,000 annually. Heather did not think
    she could go back to sales work at a car dealership due to
    her obligations caring for the children and because of the
    use of newer technology that she has no experience with.
    Heather submitted a list of her monthly living expenses total-
    ing $13,630.
    The district court found that based on this evidence and con-
    sidering the factors in § 42-365, Jonathan should pay alimony
    in the sum of $5,500 per month for 72 months. Jonathan’s
    argument challenging this alimony award is that the construc-
    tive trust based on Heather’s being a former “dynamic and
    energetic leader and owner” of Backyard Playworld is irrec-
    oncilable with an alimony award based on Heather’s being
    a “homemaker” and “housewife.” 83 According to Jonathan,
    Heather “cannot be both.” 84 If Heather is a business leader
    then, according to Jonathan, “she has the talent and acumen
    to earn a substantial income and the alimony claim cannot
    stand.” 85 We find no merit to this argument. Under the evi-
    dence presented and arguments made, we cannot conclude that
    the court’s award of alimony was patently unfair.
    5. Life Insurance to Fund Support
    Lastly, Jonathan argues that the court’s order that he maintain
    life insurance covering his support obligations is inconsistent
    83
    Brief for appellant at 47.
    84
    Id.
    85
    Id.
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    with the premarital agreement. He asserts that because of
    the court’s order, he is being required to maintain an addi-
    tional life insurance policy beyond that required by the agree-
    ment. Heather responds that the premarital agreement does not
    require Jonathan to maintain this life insurance after the dis-
    solution of the marriage.
    Section 1.6 of the premarital agreement sets forth Jonathan’s
    obligation to carry life insurance during the marriage in the
    amount of at least $1 million; however, Heather is correct that
    it provides:
    In the event of the parties’ legal separation or dissolution
    of the proposed marriage while said life insurance policy
    is in effect, the parties agree any case value attribut-
    able thereto shall be equally divided between them, and
    Heather at her election, shall be entitled to retain such
    policy at her sole cost and expense.
    While Jonathan points out that he testified at trial that he was
    maintaining life insurance in accordance with the premarital
    agreement, this provision is plain that the agreement no longer
    obligates him to do so upon the dissolution of the marriage.
    Thus, the court’s decree does not impose upon Jonathan a
    life insurance obligation that is duplicative of an obligation
    imposed under the agreement. We find no merit to this assign-
    ment of error.
    VI. CONCLUSION
    We affirm the decree in all respects with the exception of
    the court’s itemization of the truck as part of the marital estate,
    which we vacate. The truck is part of the constructive trust.
    Affirmed in part, and in part vacated.
    Cassel, J., concurring.
    Lest the bar and trial bench misunderstand the court’s deci-
    sion—believing that it sanctions the remedy of a constructive
    trust in run‑of‑the‑mill marital dissolution actions—I write
    separately. I address two aspects.
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    First, the application here was driven by the enforcement of
    a premarital agreement. The parties utilized a premarital agree-
    ment to circumvent (at least partially) the principles of equi-
    table division of property dictated by the dissolution statutes. 1
    Had they not done so, I suggest that a constructive trust would
    have had no application. In other words, where parties bring
    individual property to a marriage and do not attempt to use a
    premarital agreement regarding division of property, the divi-
    sion of property would be controlled solely by §§ 42‑365 and
    42‑366 and our decisions construing those statutes.
    Second, I have considerable doubt that the remedy of a
    constructive trust would apply to parties’ actions prior to mar-
    riage. In the absence of a premarital agreement, the status of
    property brought to a marriage is governed by the first step
    of a three‑step process. 2 The first step is to classify the par-
    ties’ property as either marital or nonmarital, setting aside the
    nonmarital property to the party who brought the property to
    the marriage. 3 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 prop-
    erty. 4 The burden of proof rests with the party claiming that
    property is nonmarital. 5 Here, the disputed property was not
    “property brought to a marriage.” 6 Today’s decision should not
    be misunderstood as precedent for applying a constructive trust
    in the first step of the three‑step process. It is not necessary
    to consider the issue here, and I do not understand the court’s
    opinion as doing so.
    With this understanding, I join the court’s opinion.
    1
    See 
    Neb. Rev. Stat. §§ 42
    ‑347 to 42‑381 (Reissue 2016 & Cum. Supp.
    2020).
    2
    See Kauk v. Kauk, 
    310 Neb. 329
    , 
    966 N.W.2d 45
     (2021).
    3
    
    Id.
    4
    
    Id.
    5
    
    Id.
    6
    See 
    id.