Montegut v. Mosby-Montegut , 31 Neb. Ct. App. 107 ( 2022 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
06/21/2022 08:07 AM CDT
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Nebraska Court of Appeals Advance Sheets
31 Nebraska Appellate Reports
MONTEGUT v. MOSBY-MONTEGUT
Cite as 31 Neb. App. 107Anthony J. Montegut, appellant, v. Tamara
T. Mosby-Montegut, appellee.
___ N.W.2d ___
Filed June 21, 2022. No. A-21-092.
1. Divorce: Child Custody: Child Support: Property Division:
Alimony: Attorney Fees: Appeal and Error. In a marital dissolution
action, an appellate court reviews the case de novo on the record to
determine whether there has been an abuse of discretion by the trial
judge. This standard of review applies to the trial court’s determinations
regarding custody, child support, division of property, alimony, and
attorney fees.
2. Evidence: Appeal and Error. In a review de novo on the record, an
appellate court is required to make independent factual determinations
based upon the record, and the court reaches its own independent con-
clusions with respect to the matters at issue. However, when evidence is
in conflict, the appellate court considers and may give weight to the fact
that the trial court heard and observed the witnesses and accepted one
version of the facts rather than another.
3. Divorce: Property Division. Under Neb. Rev. Stat. § 42-365 (Reissue
2016), the equitable division of property is a three-step process. The first
step is to classify the parties’ property as marital or nonmarital, setting
aside the nonmarital property to the party who brought that property to
the marriage. The second step is to value the marital assets and marital
liabilities of the parties. The third step is to calculate and divide the net
marital estate between the parties in accordance with the principles con-
tained in § 42-365.
4. ____: ____. The ultimate test in determining the appropriateness of the
division of property is fairness and reasonableness as determined by the
facts of each case.
5. Divorce: Property Division: Proof. In a marital dissolution proceed-
ing, the burden of proof rests with the party claiming that property
is nonmarital.
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MONTEGUT v. MOSBY-MONTEGUT
Cite as 31 Neb. App. 1076. Divorce: Property Division. Property which a party brings into the
marriage is generally excluded from the marital estate.
7. Divorce: Property Division: Presumptions: Proof: Words and
Phrases. The active appreciation rule sets forth the relevant test to
determine to what extent marital efforts caused any part of an asset’s
appreciation or income. Accrued investment earnings or appreciation of
nonmarital assets during the marriage are presumed marital unless the
party seeking the classification of the growth as nonmarital proves: (1)
The growth is readily identifiable and traceable to the nonmarital portion
of the account and (2) the growth is not due to the active efforts of either
spouse. Appreciation caused by marital contributions is known as active
appreciation, and it constitutes marital property.
8. Divorce: Property Division: Equity. Equity in property at the time of
marriage is a nonmarital asset which, if established, should be set aside
as the owning spouse’s separate property.
9. Divorce: Proof. While documentary evidence is not strictly neces-
sary for parties to carry their burden of proof in dissolution cases, a
party opting to rely upon his or her testimony alone does so at the risk
of nonpersuasion.
10. Trial: Expert Witnesses. Triers of fact are not required to take an
expert’s opinion as binding upon them, and a trier of fact may accept or
reject an opinion from an expert witness.
11. Alimony. In addition to the criteria listed in Neb. Rev. Stat. § 42-365(Reissue 2016), in considering alimony upon a dissolution of marriage,
a trial court is to consider the income and earning capacity of each party,
as well as the general equities of each situation. In determining whether
alimony should be awarded, in what amount, and over what period of
time, the ultimate criterion is one of reasonableness.
12. Alimony: Appeal and Error. In reviewing a trial court’s award of
alimony, 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 sub-
stantial right or just result.
Appeal from the District Court for Douglas County:
Kimberly Miller Pankonin, Judge. Affirmed as modified.
Adam E. Astley and Kathryn D. Putnam, of Astley Putnam,
P.C., L.L.O., for appellant.
Michael B. Lustgarten, of Lustgarten Dudzinski, L.L.C., for
appellee.
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MONTEGUT v. MOSBY-MONTEGUT
Cite as 31 Neb. App. 107Pirtle, Chief Judge, and Riedmann and Bishop, Judges.
Pirtle, Chief Judge.
INTRODUCTION
Anthony J. Montegut (Anthony) appeals from an order of
the Douglas County District Court dissolving his marriage to
Tamara T. Mosby-Montegut (Tamara) and distributing marital
property. Anthony challenges the court’s classification and
division of property in several respects, as well as the court’s
award of alimony to Tamara. For the reasons that follow, we
affirm as modified herein.
BACKGROUND
Anthony and Tamara were married in May 2010. Around
that time, Tamara left her job as an attorney in New York
and moved to Omaha, Nebraska, to be with Anthony, because
he had two children from a prior marriage who also resided
in Omaha. Anthony testified that the mother of his children
“unexpectedly” left the state around 5 months after Tamara
arrived in Omaha, leaving him with sole physical custody of
the two children. Consequently, the parties agreed that Tamara
would “stay home and help the kids to adjust for one year” in
lieu of seeking full-time employment.
Thereafter, the parties desired a child of their own and thus
agreed that Tamara would continue to stay home beyond 1
year. The parties’ only child was born in 2013. Tamara did not
seek full-time employment until 2018, when she obtained a
position as an attorney at the Douglas County public defend-
er’s office, making $70,500 per year. Anthony was at all times
employed as a physician, practicing emergency and family
medicine. At the time of trial, Anthony was employed as the
medical director at “Douglas County Corrections,” making
$320,000 per year.
In April 2019, Anthony filed a complaint for dissolution of
marriage. In May 2019, Tamara filed an answer and counter-
claim seeking dissolution of the marriage. The central dispute
on appeal revolves around the classification and division
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MONTEGUT v. MOSBY-MONTEGUT
Cite as 31 Neb. App. 107of certain assets accumulated by the parties both prior to and
during the marriage. The following is an overview of the dis-
puted assets.
Tamara’s First National Bank
Account No. 2620.
Tamara acquired three rental properties in Texas prior to the
parties’ marriage in 2010. These properties were sold during
the marriage, and proceeds of approximately $65,000 were
deposited into Tamara’s separate First National Bank account
No. 2620. There is no dispute that approximately $21,000 of
the proceeds was used to pay taxes owed by the parties jointly
and that approximately $43,000 remained in Tamara’s separate
account at the time of trial. Tamara testified that marital funds
were never commingled with the sale proceeds deposited into
her separate account.
Prior to the properties’ sale, the parties’ tax records dem-
onstrate that the properties operated at a significant loss from
2011 to 2014. Excluding depreciation, which both parties
acknowledged was merely a “paper loss,” the parties reported
an actual loss of almost $75,000 over those 4 years. Because
Tamara was not working at the time, these losses were covered
using marital funds derived from Anthony’s income. Anthony
testified that Tamara paid expenses for these properties out of
her separate account but that each of these payments would
reflect a transfer from the parties’ joint bank account. Anthony
testified that his income was used to pay the mortgages on
the properties “when they were empty” as well as “substantial
costs in repairs to get them re-rented.” Anthony added, “It was
because of the amount of money that I was putting into it that
I told Tamara that we needed to sell these properties so that we
could stop the bleeding.”
Tamara testified that the properties almost always “had
tenants and would generate income [which] would be used
to pay the mortgage on the[m].” Yet, apparently acknowledg-
ing periodic contributions of marital funds, Tamara added,
“[I]f a tenant was late or delayed, we would have to take
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Cite as 31 Neb. App. 107money from the account to pay [the mortgage], but once the
money came back in, it replaced the money into the account.”
Moreover, aside from Anthony’s income, Tamara failed to
indicate any other source of funds available to pay for the
additional reported expenses such as insurance, repairs, and
taxes. Altogether, the record indicates that marital funds,
derived from Anthony’s income, were used to cover substan-
tial expenses or losses on the Texas properties.
Rather than disputing that Anthony’s income was used to
cover expenses associated with the properties, Tamara argued
that the roughly $60,000 tax writeoff attributable to reported
depreciation, along with the $21,000 payment of joint tax lia-
bilities, amounted to an overall tax benefit to the marital estate.
Anthony acknowledged both the $60,000 depreciation tax
writeoff and the $21,000 tax payment. However, he also testi-
fied to his understanding that 26 U.S.C. § 1250 (2018) would
have operated to “recapture” the depreciation losses when the
properties were sold. The district court ultimately found that
“[Anthony’s] argument that the alleged tax return loss on the
properties was not sufficient evidence” to result in account No.
2620’s being “considered a marital asset.” Accordingly, the
court awarded the remaining $43,000 in account No. 2620 to
Tamara as a nonmarital asset.
Anthony’s USAA Roth IRA, USAA IRA,
and Health Savings Account.
Anthony produced evidence at trial purporting to demon-
strate premarital values of three accounts: USAA Roth IRA
No. 0244, USAA IRA No. 4019, and TD Ameritrade health
savings account (HSA) No. 6934. With regard to the HSA,
Anthony offered his 2009 “Form 5498-SA” reflecting the HSA
with a fair market value of $17,445.90 as of December 31,
2009. In addition, Anthony offered the first page of his 2010
tax return showing a $6,150 contribution to the HSA at some
point in 2010. Anthony testified that he “habitually” con-
tributes to the HSA in April, such that the 2010 contribution
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MONTEGUT v. MOSBY-MONTEGUT
Cite as 31 Neb. App. 107would have been made prior to the marriage in May 2010.
Nevertheless, the court listed $50,026 from “TD Ameritrade
HSA 6934” on Anthony’s side of the balance sheet for pur-
poses of equalizing the marital estate. This amount reflects the
full value of Anthony’s HSA at the time of trial without any
adjustment for premarital value.
With regard to the USAA retirement accounts, Anthony pro-
duced annual account statements reflecting values of $8,853.81
for USAA Roth IRA No. 0244 and $10,031.93 for USAA
IRA No. 4019 as of December 31, 2009. Anthony testified
that USAA IRA No. 4019 “represents the IRA that I use to
purely do the backdoor conversions to [USAA] Roth [IRA
No. 0244].” Thus, the roughly $10,000 in USAA IRA No.
4019 simply reflected the yet-to-be-converted contributions
to USAA Roth IRA No. 0244. The statement also reflected a
roughly $5,000 contribution to USAA IRA No. 4019, which
was subsequently converted into USAA Roth IRA No. 0244 on
March 10, 2010. Accordingly, Anthony argued that he should
be credited approximately $25,000 for the premarital values of
his two USAA retirement accounts.
While Tamara did not testify as to the HSA, she seemed
to concede that Anthony should be credited for the premarital
values of his USAA retirement accounts. In response to ques-
tioning from her counsel, Tamara agreed, “We can’t fault the
$25,000 that [Anthony] could prove in premarital,” adding that
“if the Court makes that adjustment that would be appropriate
we think.” Nevertheless, the court found that USAA Roth IRA
No. 0244 “shall be divided equally with a valuation date of the
filing of the Complaint for Dissolution of Marriage (April 2,
2019)” without any mention of the premarital amounts dem-
onstrated in exhibit 31. At the time of trial, USAA Roth IRA
No. 0244 had a total value of $156,908.71.
111th Street Property Valuation.
On October 13, 2010, nearly 5 months after the marriage,
the parties purchased a rental property located on South 111th
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Cite as 31 Neb. App. 107Street in Omaha. The parties agreed that Tamara would be
awarded the 111th Street property; however, there was a dis-
pute as to the proper value of the property for purposes of
equalizing the marital estate. Anthony obtained a professional
appraisal of the property, which was admitted into evidence
without objection. Using the “sales comparison approach,”
the property had an appraised value of $180,000 as of March
12, 2020.
In contrast, Tamara testified to her opinion that the 2019
tax-assessed value was “more representative of the value”
of the property. Accordingly, Tamara offered a printout of
the Douglas County assessor’s property record for the rental
property, which listed a total value of $140,500 in 2019. On
cross-examination, Tamara conceded that Anthony’s appraisal
report contained “a lot more individualized work” than the
county assessor’s property record. Tamara further admitted
that she was not familiar with the methods used to arrive at
the tax-assessed value and that she could not identify any par-
ticular reason for her belief that the tax assessment was more
reliable than the appraisal. The court ultimately found “the
value of the rental property to be $140,500,” opting for the
tax-assessed value.
111th Street Property Premarital Contribution.
In addition to the proper value of the property, there was
also a dispute as to the extent to which the 111th Street
property should be classified as marital property. Tamara
emphasized that the property was purchased in October 2010,
nearly 5 months after the parties were married, using marital
funds arising out of Anthony’s income. Accordingly, Tamara
argued that the property should be wholly classified as marital
property. In support of her position, Tamara offered a bank
­statement from the parties’ joint account No. 9484 show-
ing a withdrawal of roughly $82,000, which reflected the
bulk of the $97,000 purchase price of the property. Anthony,
on the other hand, testified that the $82,000 reflected
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MONTEGUT v. MOSBY-MONTEGUT
Cite as 31 Neb. App. 107premarital funds in that he earned them prior to the marriage,
but he admitted that the remaining $15,000 came from marital
funds, earned after the marriage. Thus, the primary dispute
revolved around the source of the $82,000 that was with-
drawn from the parties’ joint account and used to purchase the
rental property.
Tamara noted that the account had an opening balance of
roughly $41,000 on September 14, 2010, and that the state-
ment showed a number of large deposits into the account prior
to the purchase of the home on October 13. While there is no
documentation as to the source of the $41,000 opening bal-
ance, Tamara testified that it would have been funded solely
by Anthony’s paychecks from May to September. Tamara also
testified that each of the large deposits reflected Anthony’s
income during that statement period. For example, there is a
$31,748 deposit on September 20, which Tamara testified was
“a paycheck from EPA.” Tamara could not recall what “EPA”
stood for, but she testified that it was a company for whom
Anthony worked during that time. Tamara acknowledged that
$31,000 “sounds like a lot.” However, she also testified that
Anthony earned $125 per hour “on the low end” for a 48-hour
shift, such that $31,000 is roughly equivalent to five 48-hour
shifts. Moreover, Tamara testified that Anthony intentionally
worked more hours leading up to the purchase of the property
to accumulate the necessary funds.
In contrast, Anthony testified that he earned about $265,000
in 2010 and extrapolated from that number that he earned
$20,000 per month before taxes. Despite the fact that the
property was purchased over 4 months after the marriage,
Anthony suggested that his gross marital earnings during that
time ought to be calculated using only 2 months’ income, or
$40,000. Anthony testified that he would have been paid in
arrears on the 15th day of each month. Thus, he indicated
that his June paycheck should be excluded because it would
have been associated with work done prior to the marriage
and that his October paycheck would not have been deposited
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MONTEGUT v. MOSBY-MONTEGUT
Cite as 31 Neb. App. 107prior to the October 13 purchase. It is unclear why Anthony
believed his July paycheck should also be excluded. Moreover,
exhibit 44 clearly indicates at least $33,966.25 in payroll
­deposits on September 20, 24, and 27, and October 1 and 8
respectively, casting doubt on Anthony’s suggestion that his
income came in the form of a single paycheck on the 15th day
of the month.
Nevertheless, Anthony testified that it would have been
impossible, in light of other expenses, for his marital income to
account for the full $97,000 purchase price. Rather, Anthony’s
position was that $82,000, or 841⁄2 percent of the purchase price,
reflected premarital funds. Accordingly, Anthony believed that
841⁄2 percent of the property’s current value should be classi-
fied as his separate property. The court disagreed, finding that
Anthony “failed to sustain his burden of proof regarding this
issue and therefore all equity in the rental home is considered
to be marital.”
Anthony’s Navy Federal
Credit Union Accounts.
Anthony testified that he maintained a checking account
No. 0702 and a savings account No. 0009 with Navy Federal
Credit Union. Anthony offered a single statement showing
the balances in these accounts during a 1-month period end-
ing on March 24, 2019. The statement showed one deposit
of $977.36 into checking account No. 0702, which was sub-
sequently transferred to savings account No. 0009. Anthony
testified that this deposit reflected a monthly disability benefit
he received from the Department of Veterans Affairs (VA) due
to injuries arising out of his active-duty military service. The
statement also showed a deposit of $24,328.42 into savings
account No. 0009, and Anthony testified that this was a “one-
time deposit” derived from closing out a Roth IRA account
that had been opened in the name of Anthony’s daughter from
his prior marriage. As of March 24, 2019, checking account
No. 0702 had a balance of $448.12 and savings account
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Cite as 31 Neb. App. 107No. 0009 had a balance of $64,865.32. There was no mention
of either account in the court’s final order; however, the court
included $64,865 from “Navy Federal 8009” on Anthony’s
side of the balance sheet.
Division of Personal Property.
Tamara prepared a proposed division of personal property
that was admitted into evidence without objection as exhibit
45. At trial, Anthony testified that he disagreed with Tamara’s
valuation of certain items, but he also offered a simplified
distribution plan under which Anthony would receive certain
specific items and Tamara would receive the remainder of per-
sonal property included on exhibit 45. Specifically, Anthony
requested that he receive “the paintings, [their child’s] furni-
ture, the basement TV/Entertainment wall unit, the piano, the
green bike, and [his] poker table.” Anthony testified that if he is
given those items, then Tamara “can have the rest of the marital
property and no need to make a deduction for it.” Tamara testi-
fied that she would accept Anthony’s proposal if she is awarded
one of the six paintings Anthony requested.
In its final order, the court noted that Anthony “testified the
only personal property items he would like to be awarded are
the green bike, poker table, basement t.v., [their child’s] fur-
niture [and] the six paintings in the home.” Notably, the court
omitted the piano that Anthony also requested at trial. The
court awarded Anthony his requested items, with the exception
of the piano—which was not mentioned—and the one painting
requested by Tamara.
ASSIGNMENTS OF ERROR
Anthony assigns that the district court erred in (1) char-
acterizing the proceeds of Tamara’s Texas properties as her
nonmarital property; (2) failing to credit Anthony with the
premarital values of USAA Roth IRA No. 0244, USAA IRA
No. 4019, and the HSA; (3) valuing the parties’ 111th Street
property using its tax-assessed value rather than Anthony’s
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Cite as 31 Neb. App. 107appraisal; (4) failing to credit Anthony with any premarital
contribution toward the purchase of the 111th Street prop-
erty; (5) characterizing Anthony’s Navy Federal Credit Union
accounts as marital property; (6) awarding alimony to Tamara;
and (7) dividing personal property.
STANDARD OF REVIEW
[1] In a marital dissolution action, an appellate court reviews
the case de novo on the record to determine whether there
has been an abuse of discretion by the trial judge. White v.
White, 304 Neb. 945, 937 N.W.2d 838 (2020). This standard
of review applies to the trial court’s determinations regarding
custody, child support, division of property, alimony, and attor-
ney fees. Id.[2] In a review de novo on the record, an appellate court
is required to make independent factual determinations based
upon the record, and the court reaches its own independent
conclusions with respect to the matters at issue. Burgardt v.
Burgardt, 304 Neb. 356, 934 N.W.2d 488 (2019). However,
when evidence is in conflict, the appellate court considers
and may give weight to the fact that the trial court heard and
observed the witnesses and accepted one version of the facts
rather than another. Id.ANALYSIS
[3,4] Under Neb. Rev. Stat. § 42-365 (Reissue 2016), the
equitable division of property is a three-step process. White v.
White, supra. The first step is to classify the parties’ property
as marital or nonmarital, setting aside the nonmarital prop-
erty to the party who brought that property to the marriage.
Id. The second step is to value the marital assets and marital
liabilities of the parties. Id. The third step is to calculate and
divide the net marital estate between the parties in accordance
with the principles contained in § 42-365. White v. White,
supra. The ultimate test in determining the appropriateness
of the division of property is fairness and reasonableness as
determined by the facts of each case. Id.- 118 -
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Cite as 31 Neb. App. 107Tamara’s First National Bank
Account No. 2620.
[5] Anthony’s first assignment of error pertains to the court’s
classification of roughly $43,000 in Tamara’s separate bank
account No. 2620 as nonmarital property. In a marital dissolu-
tion proceeding, the burden of proof rests with the party claim-
ing that property is nonmarital. Burgardt v. Burgardt, supra.In this case, Tamara bore the burden to prove that account No.
2620 consisted of nonmarital funds.
[6] The record reflects that at the time of dissolution, the
account consisted of the remaining proceeds from the sale
of three properties which Tamara acquired prior to the mar-
riage. There is no dispute that Tamara owned the three rental
properties in Texas at the time of marriage. Property which a
party brings into the marriage is generally excluded from the
marital estate. Heald v. Heald, 259 Neb. 604, 611 N.W.2d 598(2000). However, the record also reflects that nearly $75,000
of marital income was used to pay expenses associated with
the properties, including mortgage payments and repairs. Thus,
the question is what is the proper classification of the Texas
properties in light of this significant contribution of mari-
tal income.
On appeal, Anthony concedes that the properties “origi-
nated as nonmarital property,” reply brief for appellant at 4,
but he argues that the properties were converted to marital
property “because the marriage spent more money maintain-
ing the Texas properties than Tamara realized on their sale,”
brief for appellant at 25. Alternatively, Anthony argues that
“this Court could require Tamara to reimburse the marital
estate for the $74,774 of funds it expended on her properties,
less the $21,000 she already contributed to joint tax returns.”
Brief for appellant at 25. Tamara, on the other hand, empha-
sizes the overall tax benefit to the marriage, derived from
the roughly $60,000 tax writeoff for reported depreciation
and an approximately $21,000 payment of joint tax liabili-
ties. However, the question remains what is the impact of the
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Cite as 31 Neb. App. 107roughly $75,000 contribution of marital income used to cover
expenses associated with the properties.
[7] The active appreciation rule sets forth the relevant test
to determine to what extent marital efforts caused any part of
an asset’s appreciation or income. White v. White, 304 Neb.
945, 937 N.W.2d 838 (2020). Accrued investment earnings
or appreciation of nonmarital assets during the marriage are
presumed marital unless the party seeking the classification
of the growth as nonmarital proves: (1) The growth is read-
ily identifiable and traceable to the nonmarital portion of the
account and (2) the growth is not due to the active efforts of
either spouse. Id. Appreciation caused by marital contribu-
tions is known as active appreciation, and it constitutes marital
property. Id.[8] The Nebraska Supreme Court has held that equity in
property at the time of marriage is a nonmarital asset which, if
established, should be set aside as the owning spouse’s sepa-
rate property. See, Onstot v. Onstot, 298 Neb. 897, 906 N.W.2d
300 (2018); Harris v. Harris, 261 Neb. 75, 621 N.W.2d 491(2001). However, the court emphasized that the burden to
establish the amount of equity to be set off as nonmarital
remains with the spouse making the claim. Id. In Onstot, the
court concluded that the owning spouse failed to meet the
burden to establish the equity at the time of marriage because
the record failed to establish “whether the residence was either
encumbered or unencumbered at that time and, if encum-
bered, to what extent.” 298 Neb. at 904, 906 N.W.2d at 306.
Accord Harris v. Harris, supra. In Harris, the court noted that
“[d]uring the parties’ marriage, equity in the house grew, in
part due to mortgage payments made from marital income . . .
which growth in equity should be divided equitably between
the parties.” 298 Neb. at 85, 621 N.W.2d at 499-500. In both
cases, the court concluded it was proper, in light of the failure
to establish the alleged portion of nonmarital equity, to include
the entirety of the equity at the time of dissolution in the mari-
tal estate.
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Cite as 31 Neb. App. 107In this case, there was no evidence presented as to the
value of Tamara’s Texas properties at the time of marriage.
Moreover, while the record indicates that the properties were
encumbered at the time of marriage, there was no evidence as
to the extent of such encumbrances. To whatever extent the
properties were encumbered at the time of marriage, the equity
in the properties grew during the marriage, at least in part due
to mortgage payments from marital income. Moreover, marital
income was used to pay for repairs and other expenses asso-
ciated with the properties. To be consistent with Onstot and
Harris, Tamara was entitled to have the equity in the proper-
ties at the time of marriage, to the extent such was established,
set aside as her separate property. However, Tamara failed to
present any evidence of the value of the properties or extent
of the encumbrances at that time. Thus, Tamara failed to meet
her burden to establish the equity in the properties at the time
of marriage.
With regard to the growth in equity during the marriage, we
conclude such constituted active appreciation through mari-
tal contributions. In light of Tamara’s failure to establish
the alleged portion of nonmarital equity, the entirety of the
equity at the time of dissolution should have been included
in the marital estate. Thus, we conclude the district court
abused its discretion by classifying the remaining sale pro-
ceeds in account No. 2620 as Tamara’s separate property.
Accordingly, we modify the court’s balance sheet as illustrated
in the attached modified balance sheet, appendix A, and affirm
as modified.
Anthony’s USAA Roth IRA,
USAA IRA, and HSA.
Anthony’s second assignment of error pertains to the court’s
failure to account for premarital values of his USAA Roth
IRA No. 0244, USAA IRA No. 4019, and TD Ameritrade
HSA No. 6934. On appeal, Anthony seeks credit for the
premarital values of these accounts, amounting to a total of
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Cite as 31 Neb. App. 107$49,290.05. Tamara does not dispute that the district court
should have credited Anthony with the premarital values of
these accounts, but she disputes the amount of premarital
value supported by the evidence. Tamara argues that Anthony
should receive credit for only $36,331.64. This discrepancy
arises from the parties’ differing interpretations of exhibits 30
and 31.
With regard to USAA IRA No. 4019, there is no dispute
that exhibit 31 demonstrates a premarital value of $10,031.93.
Accordingly, we conclude the district court abused its discre-
tion in failing to credit Anthony with the premarital value of
$10,031.93 in USAA IRA No. 4019.
With regard to the USAA Roth IRA No. 0244, Tamara
concedes that exhibit 31 demonstrates a premarital value of
$8,853.81 as of December 31, 2009. However, Tamara disagrees
that Anthony should also be given credit for a contribution of
$5,008.62 made in 2010, because she believes that exhibit 31
fails to demonstrate that contribution was made prior to the
marriage in May 2010. Anthony, on the other hand, argues that
exhibit 31 demonstrates that the $5,008.62 contribution was
made on March 10, 2010. Indeed, the account statement shows
a number of contributions, adding up to $5,008.62, which were
apparently made on March 10. Accordingly, Anthony seeks
to have $15,662.22, the full portfolio value as of December
31, 2010, deducted from the marital estate. Indeed, the full
portfolio value as of that date consists of Anthony’s premarital
contributions plus interest which accrued solely due to market
forces, without any further efforts or contributions during the
marriage. See Coufal v. Coufal, 291 Neb. 378, 866 N.W.2d
74 (2015) (finding it was abuse of discretion to include, as
part of marital estate, increase in value of premarital portion
of retirement account when increase was not due to efforts of
parties or contribution of marital funds). Accordingly, we con-
clude the district court abused its discretion in failing to credit
Anthony with the premarital value of $15,662.22 in his USAA
Roth IRA No. 0244.
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Cite as 31 Neb. App. 107[9] With regard to the TD Ameritrade HSA No. 6934,
Tamara concedes that exhibit 30 demonstrates a premarital
value of $17,445.90 as of December 31, 2009. Anthony argues
he should also be given credit for a $6,150 contribution made
sometime in 2010. Anthony testified that he made this contri-
bution in April 2010; however, unlike the 2010 contribution
to his Roth IRA, there is no documentary evidence to support
Anthony’s claim. While the Supreme Court has made clear that
documentary evidence is not strictly necessary for parties to
carry their burden of proof, the court went on to say that “[o]f
course, a party opting to rely upon his or her testimony alone
does so at the risk of nonpersuasion.” Burgardt v. Burgardt,
304 Neb. 356, 365, 934 N.W.2d 488, 495 (2019). We conclude
the district court abused its discretion in failing to account for
$17,445.90 of premarital value in Anthony’s HSA No. 6934.
However, based on the record before us, we cannot say it was
an abuse of discretion for the court to reject Anthony’s testi-
mony that his 2010 contribution was made prior to the par-
ties’ marriage.
We conclude that altogether, the evidence demonstrates a
total premarital value of $43,140.05 in the three accounts
described above. The district court abused its discretion in
failing to account for the proven premarital values in these
accounts. Accordingly, we modify the court’s balance sheet as
illustrated in the attached modified balance sheet, appendix A,
and affirm as modified.
111th Street Property Valuation.
[10] Anthony’s third assignment of error pertains to the
court’s decision to reject Anthony’s appraisal of the 111th
Street property and adopt the tax-assessed value. Triers of
fact are not required to take an expert’s opinion as binding
upon them, and a trier of fact may accept or reject an opinion
from an expert witness. Bernhardt v. County of Scotts Bluff,
240 Neb. 423, 482 N.W.2d 262 (1992). In this case, the dis-
trict court rejected the expert appraisal obtained by Anthony
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Cite as 31 Neb. App. 107and adopted the tax-assessed value of the property instead.
This was a matter left to the sound discretion of the district
court. Based on the record before us, we cannot say it was an
abuse of discretion to reject Anthony’s appraisal in favor of the
tax-assessed value of the property. Accordingly, we affirm the
court’s valuation of the 111th Street property.
111th Street Property Premarital Contribution.
Anthony’s fourth assignment of error pertains to the court’s
failure to credit him with an alleged premarital contribution to
the parties’ purchase of the 111th Street property. The record
demonstrates that the parties purchased the property during
the marriage using approximately $82,000 from the parties’
joint account No. 9484 and an additional $15,000, the latter of
which Anthony conceded to be marital funds. With regard to
the former $82,000, Tamara testified that it consisted entirely
of Anthony’s income during the marriage. In contrast, Anthony
testified it would have been impossible, in light of other
expenses, to have accumulated that amount in the time between
the marriage and the purchase of the property.
Exhibit 44 shows an opening balance of $41,676.90 and a
number of large deposits into joint account No. 9484 in the
month leading up to the purchase of the property. Tamara
argues that the opening balance, as well as each of the large
deposits, reflected Anthony’s income earned during the mar-
riage. Anthony concedes that exhibit 44 “undisputedly” demon-
strates $33,966 of income during that month. Brief for appel-
lant at 34. However, Anthony asserts that exhibit 44 “doesn’t
answer the question of the $41,676.90 opening balance, and the
$31,748.60 deposit.” Id. When cross-examining Tamara regard-
ing exhibit 44 at trial, Anthony’s counsel noted the “vague
reference to $31,000 coming in,” and he pointed out, “[I]t’s
impossible for us to tell where [the $41,000 opening balance]
came from.” Despite effectively conceding that the source of
those funds was an open question, Anthony goes on to assert
that he “adequately proved” that those funds were derived from
a nonmarital source. Brief for appellant at 36.
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Cite as 31 Neb. App. 107Having heard and observed the conflicting evidence on this
point, the district court found that Anthony failed to sustain his
burden to prove the alleged premarital contribution. Based on
the record before us, we cannot say that was an abuse of dis-
cretion. Accordingly, we affirm the court’s classification of the
111th Street property as wholly marital property.
Anthony’s Navy Federal
Credit Union Accounts.
Anthony’s fifth assignment of error pertains to the court’s
classification of his Navy Federal Credit Union accounts as
marital property. In support of his position that these accounts
ought to be considered nonmarital property, Anthony offered a
single bank statement showing the balance of these accounts as
of March 24, 2019. At that time, there was $448.12 in check-
ing account No. 0702. The court apparently classified this
account as nonmarital property, as there was no mention of it
in the court’s order or on the balance sheet. However, the court
classified the $64,865 in savings account No. 0009 as marital
property and listed this amount on Anthony’s side of the bal-
ance sheet.
Anthony testified that the $64,865 consisted of his monthly
VA disability benefit, along with a “one-time deposit” of
$24,328.42 derived from cashing out a Roth IRA in the name
of his daughter from a prior marriage. On appeal, Anthony
emphasizes that “VA disability benefits are beyond the juris-
diction of the District Court in a dissolution proceeding” such
that it is “an abuse of discretion to divide service-connected
disability benefits in a dissolution proceeding.” Brief for appel-
lant at 37 (citing Ryan v. Ryan, 257 Neb. 682, 600 N.W.2d
739 (1999), and Donald v. Donald, 296 Neb. 123, 892 N.W.2d
100 (2017)).
In Ryan v. Ryan, supra, the dissolution decree mandated the
spouse receiving VA benefits to pay one-half of such bene­
fits directly to the other spouse. The Supreme Court voided
that portion of the decree on the grounds that “federal law
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Cite as 31 Neb. App. 107precludes a state court, in a dissolution proceeding, from exer-
cising subject matter jurisdiction over VA disability benefits.”
Id. at 691, 600 N.W.2d at 745. The present case is distinguish-
able from Ryan in that the district court did not order Anthony
to pay any of his VA benefits directly to Tamara. Rather, this
case is more analogous to the circumstances in Donald v.
Donald, supra, where proceeds from VA disability benefits
were erroneously included in the marital estate and used to
calculate the equalization payment.
In Donald, one spouse received a lump-sum disability ben-
efit payment, which the trial court classified as the receiving
spouse’s marital property for purposes of equalizing the marital
estate. The Supreme Court reversed, finding that the evidence
“clearly established” the lump-sum payment was for retroactive
service-connected disability benefits, which cannot be included
as part of the marital estate in a dissolution proceeding. Id. at
132, 892 N.W.2d at 107. Thus, in Donald, the evidence was
clear that the funds divided in the dissolution were exclusively
VA benefits. That is not the case here.
On the contrary, Anthony admitted that at least $24,328.42
in savings account No. 0009 was derived from his daugh-
ter’s Roth IRA, and he failed to present any evidence as
to the source and timing of contributions to that account.
While Anthony testified that the remainder of funds in sav-
ings account No. 0009 consisted exclusively of VA benefits,
he offered only a single bank statement from March 2019,
documenting at most $977.36 in VA benefits. It was Anthony’s
burden to prove the extent to which $64,865 in savings
account No. 0009 was derived from a nonmarital source. See
Burgardt v. Burgardt, 304 Neb. 356, 934 N.W.2d 488 (2019)
(while nonmarital interest in property may be established by
credible testimony, ­triers of fact have right to test credibil-
ity of witnesses by their self-interest and to weigh it against
evidence, or lack thereof; evidence not directly contradicted
is not necessarily binding on triers of fact and may be given
no weight where it is inherently improbable, unreasonable,
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Cite as 31 Neb. App. 107self-contradictory, or inconsistent with facts or circumstances
in evidence). Certainly, the district court could have believed
Anthony’s testimony regarding the source of these funds.
Therefore, given the limited evidence on that point, we cannot
say it was an abuse of discretion for the district court to clas-
sify the $64,865 as marital property. Accordingly, we affirm
the court’s classification of Navy Federal Credit Union savings
account No. 0009 as marital property for purposes of equal-
izing the marital estate.
Alimony.
Anthony’s sixth assignment of error pertains to the court’s
order that Anthony shall pay Tamara alimony in the sum of
$1,000 per month for a period of 12 months. Section 42-365
provides as follows:
[T]he 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 mar-
riage, a history of the contributions to the marriage by
each party, including contributions to the care and educa-
tion of the children, and interruption of personal careers
or educational opportunities, and the ability of the sup-
ported party to engage in gainful employment without
interfering with the interests of any minor children in the
custody of such party.
[11,12] In addition to the criteria listed in § 42-365, in con-
sidering alimony upon a dissolution of marriage, a trial court
is to consider the income and earning capacity of each party,
as well as the general equities of each situation. Becker v.
Becker, 20 Neb. App. 922, 834 N.W.2d 620 (2013). In deter-
mining whether alimony should be awarded, in what amount,
and over what period of time, the ultimate criterion is one of
reasonableness. Id. In reviewing a trial court’s award of ali-
mony, an appellate court does not determine whether it would
have awarded the same amount of alimony as did the trial
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Cite as 31 Neb. App. 107court, but whether the trial court’s award is untenable such as
to deprive a party of a substantial right or just result. Id.In this case, the parties were married for approximately 10
years. Shortly after the parties were married, Tamara left her
career as an attorney in New York to be a full-time parent to
Anthony’s two children from a prior marriage. Thereafter, the
parties had a child of their own, and Tamara continued as a
full-time parent until 2018, resulting in a roughly 7-year inter-
ruption in her legal career. When Tamara returned to full-time
employment, she took a job with the Douglas County public
defender’s office, making $70,500 per year, which remained
Tamara’s salary at the time of trial. Anthony, on the other hand,
was making $320,000 per year at the time of trial.
The district court concluded as follows:
Based on the factors set forth in . . . § 42-365, specifi-
cally, the circumstances of the parties; the duration of the
marriage; the history of the contributions to the mar-
riage, including contributions to the care and education of
the minor child; the interruption of a personal career on
the part of [Tamara]; and the parties’ income disparity, the
Court finds that [Anthony] shall pay [Tamara] alimony.
Based on our review of the record, we cannot say the dis-
trict court’s alimony award amounted to an abuse of discretion.
Accordingly, we affirm the court’s award of alimony.
Division of Personal Property.
Anthony’s seventh and final assignment of error pertains to
the district court’s division of personal property. On appeal,
Anthony points out that “[t]his case presented the unique cir-
cumstances of the parties continuing to live together with the
case pending and being unable to resolve their differences,
necessitating a trial.” Brief for appellant at 18 (emphasis in
original). It was not until the day of trial that the parties agreed
Tamara would move out of the home, such that the parties had
not yet divided their personal property.
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Cite as 31 Neb. App. 107In its final order, the court relied on exhibit 45 and Anthony’s
testimony to dispose of a number of specific household goods
and miscellaneous personal property. However, Anthony argues
that the court’s final order “is largely silent on who is awarded
the majority of household goods,” such as each party’s cloth-
ing and personal effects. Brief for appellant at 40. We agree.
Accordingly, we modify the court’s decree to award each party
his or her personal clothing, memorabilia, and personal effects,
including any premarital personal property and other items
agreed upon by the parties.
We otherwise find that the court’s order clearly identifies the
specific items which were awarded to Anthony. In accordance
with Anthony’s testimony at trial, we presume the remainder of
the personal property listed on exhibit 45 and not addressed in
the court’s order was awarded to Tamara. Of the items Anthony
requested at trial, the court awarded him all but two: one of
the six paintings and the piano. Tamara testified that Anthony’s
proposed division of property was agreeable so long as she
received one of the six paintings, and it was not an abuse
of discretion for the court to abide by this request. We note,
however, that there is no mention of the piano in the court’s
order. Anthony specifically requested the piano as part of his
proposed division of property, and Tamara did not take issue
with that request. Accordingly, the court’s failure to address the
piano was an abuse of discretion. Accordingly, we modify the
division of personal property to award the piano to Anthony,
and we affirm the district court’s division of personal property
as modified herein.
CONCLUSION
With regard to Anthony’s third through sixth assignments
of error, we conclude the record fails to demonstrate an abuse
of discretion, and thus, we affirm the order of the district
court on those issues. With regard to Anthony’s first assign-
ment of error, we conclude the district court abused its discre-
tion in classifying the remaining proceeds of Tamara’s Texas
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Cite as 31 Neb. App. 107properties as her separate property. Accordingly, we modify
the court’s balance sheet as illustrated in the attached modified
balance sheet, appendix A, and affirm as modified. With regard
to Anthony’s second assignment of error, we conclude the dis-
trict court abused its discretion in failing to account for proven
premarital values in Anthony’s USAA Roth IRA No. 0244,
USAA IRA No. 4019, and TD Ameritrade HSA No. 6934.
Accordingly, we modify the court’s balance sheet as illustrated
in the attached modified balance sheet, appendix A, and affirm
as modified. In accordance with the modified balance sheet,
we also modify paragraph “r.” of the decree of dissolution and
order that Tamara pay Anthony an equalization judgment in the
sum of $26,224, which judgment shall be paid from Tamara’s
share of the proceeds from the sale of the marital home. With
regard to Anthony’s seventh assignment of error, we modify
the court’s division of personal property as set forth above, and
we affirm as modified.
Affirmed as modified.
(See page 130 for appendix A.)
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Cite as 31 Neb. App. 107APPENDIX A
Modified Balance Sheet
Plaintiff (Anthony) Defendant (Tamara)
Rental real estate located at 5641 $140,500
S. 111th Street
15221 Sprague Street Increase
in value during the marriage
Household goods and Requested items, Household goods and Requested
miscellaneous personal property less one of six miscellaneous personal property painting, plus
(exhibit 45) paintings (exhibit 45) remainder
Wedding band $1,500
2011 Honda Pilot Equal value 2011 Honda Pilot Equal value
First National Bank 4617 $33,998 First National Bank 4026 $500
Navy Federal 8009 $64,865 First National Bank 2620 $42,363
(proceeds from Texas properties)
TD Ameritrade HSA 6934 $32,580
USAA 7744 $4,678
50% Defendant’s Fidelity Roth 50% Defendant’s Fidelity Roth
IRA IRA
Plaintiff’s Fidelity 401(k) 8805 Plaintiff’s Fidelity 401(k) 8805
divided as set forth in paragraph divided as set forth in paragraph
p. of the decree of dissolution p. of the decree of dissolution of
of marriage marriage
50% - Plaintiff’s Charles Drew 50% - Plaintiff’s Charles Drew
401(k) 401(k)
50% - Plaintiff’s USAA Roth 50% - Plaintiff’s USAA Roth
IRA 0244 (less $25,694.15 in IRA 0244 (less $25,694.15 in
proven premarital value) proven premarital value)
50% - Plaintiff’s USAA IRA 50% - Plaintiff’s USAA IRA
6645 6645
Douglas County pension $3,705
Total nonretirement assets $136,121 Total nonretirement assets $188,568
+ Property settlement to $26,224 - Property settlement to equalize -$26,224
equalize marital estate marital estate
NET MARITAL ESTATE $162,345 NET MARITAL ESTATE $162,344