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.
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 conclusions with
respect to the matters at issue. When evidence is in
conflict, the appellate court considers and may give weight
to the fact that the trial court heard and observed the
witnesses and accepted one version of the facts rather than
Judges: Words and Phrases. A judicial abuse
of discretion exists if the reasons or rulings of a trial
judge are clearly untenable, unfairly depriving a litigant of
a substantial right and denying just results in matters
submitted for disposition.
Judgments: Appeal and Error. When reviewing
questions of law, an appellate court has an obligation to
resolve the questions independently of the conclusion reached
by the trial court.
Divorce: Property Division. The ultimate
test in determining the appropriateness of the division of
property is fairness and reasonableness as determined by the
facts of each case.
___. 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 non-marital property
to the party who brought that property to the marriage. The
second step is to value the marital assets and marital
liabilities [298 Neb. 340] of the parties. The third step is
to calculate and divide the net marital estate between the
parties in accordance with the principles contained in §
___ . Generally, all property accumulated and acquired by
either spouse during a marriage is part of the marital
estate. Exceptions include property that a spouse acquired
before the marriage, or by gift or inheritance.
Divorce: Appeal and Error. Appeals in
domestic relations matters are heard de novo on the record,
and thus, an appellate court is empowered to enter the order
which should have been made as reflected by the record.
Agriculture: Crops: Animals. Agricultural
crops are categorically different in nature from a herd of
cattle and, therefore, are not entitled to the same treatment
for tracing purposes.
Agriculture: Crops: Equity. Courts are
allowed flexibility in their treatment of stored and growing
agricultural crops to account for the equities of the
Property Division: Appeal and Error. As a
general principle, the date upon which a marital estate is
valued should be rationally related to the property composing
the marital estate. The date of valuation is reviewed for an
abuse of the trial court's discretion.
Appeal and Error. Absent plain error, errors
argued but not assigned will not be considered on appeal.
Appeal and Error: Words and Phrases. Plain
error exists where there is an error, plainly evident from
the record but not complained of at trial, which
prejudicially affects a substantial right of a litigant and
is of such a nature that to leave it uncorrected would cause
a miscarriage of justice or result in damage to the
integrity, reputation, and fairness of the judicial process.
Appeal and Error. Plain error may be
asserted for the first time on appeal or be noted by an
appellate court on its own motion.
Property Division. A nonowning spouse is
entitled to some benefit when marital funds have been
expended to improve or reduce the debt on the other
spouse's nonmarital property.
Divorce: Property Division: Alimony. In
dividing property and considering alimony upon a dissolution
of marriage, a court should consider four factors: (1) the
circumstances of the parties, (2) the duration of the
marriage, (3) the history of contributions to the marriage,
and (4) the ability of the supported party to engage in
___: ___:. In addition to the specific criteria listed in
Neb. Rev. Stat. § 42-365 (Reissue 2016), in dividing
property and considering alimony upon a dissolution of
marriage, a court should consider the [298 Neb. 341] income
and earning capacity of each party and the general equities
of the situation.
Property Division. As a general rule, a
spouse should be awarded one-third to one-half of the marital
estate, the polestar being fairness and reasonableness as
determined by the facts of each case.
from the District Court for Seward County: James C. Stecker,
Judge. Affirmed as modified.
W. Ballew, Jr., and Adam R. Little, of Ballew, Covalt &
Hazen, P.C., L.L.O., for appellant.
A. Emerson, of Sipple, Hansen, Emerson, Schumacher &
Klutman, for appellee.
Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy, Kelch,
and Funke, JJ.
Osantowski appeals from a decree of dissolution entered by
the Seward County District Court, which dissolved his
marriage to Dori Ann Osantowski, divided the marital assets
and debts, and ordered Brian to make an equalization payment
of $680, 000, distributing the estate about equally.
argues that his premarital crops should have been treated
similarly to a herd of cattle-as a single asset for tracing
purposes, that the court made specific errors in the division
of marital assets, and that its distribution of the marital
estate was inequitable.
reject Brian's argument that crops are similar to cattle
herds for tracing purposes. However, we hold that the court
erred in its division of certain marital assets and debts.
Therefore, we affirm the district court's order as
modified by this opinion.
and Dori were married on September 23, 2011, and separated on
or about May 26, 2014. Dori filed a dissolution [298 Neb.
342] complaint in June 2014. Trial was held on January 14 and
February 12, 2016.
the marriage, Brian resided primarily in Polk County,
Nebraska, at a residence owned by his parents. Dori
maintained a residence in Lincoln, Nebraska, until May 2013.
Dori testified that while she was living in Lincoln, she
spent a minimum of three to four nights per week with Brian
in Polk County during the academic year and full time during
the summers and other school breaks. As of May 2013, Dori
resided in Polk County full time and commuted to Lincoln for
her final semester of school.
September 2013, Dori held a master's degree in entomology
from the University of Nebraska-Lincoln (UNL) and was
enrolled in a doctoral program for plant health at UNL. She
testified that while she had originally intended to pursue a
Ph.D. in entomology at South Dakota State University, she
enrolled in a program at UNL instead because Brian had
objected to the distance. Dori also stated that she changed
her program to plant health so that she could gain a better
understanding of agriculture in Nebraska and contribute to
the Osantowski farming operation.
received a scholarship and a stipend for her school and
living expenses. She also worked full time during the summers
in Lincoln, earning between $8, 000 and $20, 000 in wages for
2011, 2012, and 2013 each. Most of Dori's income and
scholarship money during the marriage went to tuition,
insurance payments, payments for her motorcycle, commuting
expenses, rent and utilities for the Lincoln apartment, and
other living expenses. She testified that Brian provided
minimal financial support to her during the marriage, but
what he did provide was used for the household expenses she
paid for the Polk County residence. In February 2014, Dori
began working full time for an annual salary of $75, 000 and
obtained medical and dental insurance for herself and Brian.
Neb. 343] Brian began farming in 2005. He has a farming
operation with his two brothers in and around Polk County.
Under the operation, Brian and his brothers own equipment
separately but jointly acquire land, which is owned in equal
thirds. Each brother, however, farms land independently and
bears the rental fees and input costs for his operation.
Accordingly, crops and expenses are completely separate and
distinct to each individual.
testified that he receives benefits from his family which
increase the profitability of his farming operation,
including: discounted rental rates of $150 to $200 per acre
versus the market rate of $300 to $400 per acre on the
majority of the land that he rents; the majority of his
diesel fuel at no cost to him; and the sharing of equipment,
labor, shop space, and various other expenses.
testified that she made the following contributions to
Brian's farming operation: Brian would consult her about
chemical and herbicide application and general soil welfare;
she created plat maps for all of the Osantowski fields to
keep field spray records and to help plan for the future; she
scouted fields for weed growth; she picked up parts and ran
errands; and she went with Brian to check fields, pivots, and
lay irrigation pipe. Brian agreed that Dori performed these
tasks occasionally, except he explained that the plat maps
created by Dori were part of her summer employment and that
when Dori would ride with him to the fields, she did so
because she enjoyed riding a "four-wheeler" and not
because she actually helped with irrigation.
also testified that she performed all of the household duties
at her Lincoln residence and that such duties in the Polk
County residence were a team effort with Brian.
Evidence Offered at Trial
parties offered into evidence two versions of a joint
property statement, each listing premarital and marital debts
and assets. One of the statements was dated May 18, 2015, and
the other dated January 9, 2016. Each version listed the [298
Neb. 344] same assets and debts; however, slightly different
values were assigned to some. Additional documents were
received into evidence to support the property statements,
including personal property appraisals from Grubaugh Auction
Services, LLC; inventory reports from a certified public
accountant; tax returns; settlement sheets from elevators;
bank statements; retirement accounts; and balance sheets from
several banks, including Great Western Bank.
Stored and Growing Crops
regard to the premarital and marital crop inventory, Brian
called Michael Hershberger as his expert witness to determine
the quantity of stored crops that Brian had on the date of
marriage and on the date of separation. Hershberger is a
certified public accountant who works with agricultural
clients on a regular basis. In reaching his conclusions on
these issues, Hershberger relied on Brian's tax returns
from 2011 to 2014; the total annual yields in Brian's
crop insurance reports, which were reported to him by Brian;
two crop sales receipts; and a spreadsheet summary of
Brian's recorded crop sales. The spreadsheet summary was
prepared by Brian's mother, who does all of Brian's
first day of trial, Hershberger gave testimony regarding his
determination of crop inventories and a report he authored
was received into evidence. However, that testimony and the
exhibit were stricken from the record, because Hershberger
had relied on grain elevator receipts which were not provided
to Dori through discovery. After Brian supplemented his
discovery, Hershberger was again called to testify regarding
the crop inventory.
regard to the premarital crop inventory, Hershberger opined
that Brian had a total of 57, 156.26 bushels of corn in
storage on September 23, 2011, and 91, 296.09 bushels of corn
and 10, 405.99 bushels of soybeans ready for harvest. On
September 23, the price at the local elevator was $6.07 for a
bushel of corn and $11.57 for a bushel of soybeans.
Accordingly, Hershberger concluded that the fair market [298
Neb. 345] value on the date of marriage for Brian's
stored crops was $346, 938.50 and his unharvested crops were
$554, 167.27 for corn and $120, 397.30 for soybeans, totaling
$1, 021, 503.07. Based on the spreadsheet summary, he also
concluded that Brian sold these crops for a total of $1, 207,
testified that he believed his estimation of the total
bushels of crops produced in 2011 was very accurate, because
Brian had claimed on his crop insurance report that a total
of 91, 863 bushels of corn and 10, 151 bushels of soybeans
regard to the marital crop inventory, Hershberger concluded
that the parties had 95, 300.36 bushels of corn in storage on
the date of separation and that a bushel of corn sold for
$4.66 on that day. Accordingly, he valued the corn in storage
on the date of separation as $444, 099.68.
a balance sheet Brian had submitted to Great Western Bank,
dated March 20, 2014, stated that he had 135, 000 bushels of
corn on hand which had a value of $573, 750. Additionally, in
Brian's November 2014 response to Dori's
interrogatories, he stated that the March 20 balance sheet
reflected the quantity and value of the stored crops. In both
joint property statements, Dori relied on the March 20
balance sheet for the quantity and value of crops that were
May 2015 joint property statement, Brian failed to list the
quantity of crops in storage or assign a value thereto. But
in the January 2016 joint property statement, Brian listed
14, 862 bushels of corn in storage on the date of separation
with a value of $69, 257. At trial, Brian testified that his
January 2016 estimation of the quantity of corn in storage on
the date of separation was based on Hershberger's initial
admitted, however, that his opinions changed dramatically
from the first day of trial to the second day of trial. His
valuation of the stored crops on the date of separation
changed from $69, 259.25 to $444, 099.68. While his [298 Neb.
346] valuation of the stored and growing crops on the date of
marriage changed from $898, 603.04 to $1, 021, 503.07.
Hershberger attributed these changes to his mistaken belief
that all crops were sold before the next harvest began. But
after he requested that Brian's mother identify the year
of production for each crop at issue in the sale transactions
on the spreadsheet summary, his analysis changed.
Personal Property and Farm Equipment
testimony was elicited regarding the parties' premarital
and marital personal property and farm equipment. The joint
property statements set forth the items, and Brian and Dori
generally agreed to them. The values, however, were not
agreed upon by the parties. A personal property and equipment
appraisal was completed by Grubaugh Auction Services and was
received into evidence. The court generally adopted the
valuations established in that report.
regard to real estate, the record shows that Brian owned four
parcels of real estate prior to the marriage as follows: a
one-third interest in the “NW¼ [of] Section 8,
Township 15 North, Range 1 West[, ] Butler County[,
Nebraska]” (Bosshart/Gruenwald farm); a one-third
interest in the “SW¼W½NW¼ [of]
Section 4, Township 15 North, Range 1, Butler County”
(Hondorfer farm); a one-third interest in the
“W½NE¼ [of] Section 8, Township 16
North[, Butler County]” (Dodendorf farm); and a
one-third interest in the “E½SE¼ [of]
Section 13, Township 16 North, Range 1, Polk County”
(Jahn farm). During the marriage, the parties purchased a
one-third interest in the “SW¼ of Section 10,
Township 15 North, Range 2 West and the NW¼ of Section
15, Township 15 North, Range 2 West, Polk County”
(Roberts farm). Secured debt was owed against each of the
Neb. 347] (d) Premarital Debt
regard to the division of debt, there was no direct evidence
of the value of Brian's debts on September 23, 2011.
However, Brian annually submitted balance sheets to Great
Western Bank that listed his debts and their value on the
date of submission. The balance sheets nearest to the date of
marriage were dated December 8, 2010, and March 8, 2012. The
parties relied on the debts listed on the March 2012 balance
sheet in their joint property statements, and the court
awarded Brian the six debts listed therein as premarital. The
court, however, did not include corresponding values to these
the parties listed different amounts for certain debts, the
record indicates that the value of the premarital debts
awarded to Brian are as follows: Great Western Bank 2010
operating line of credit, $162, 000; Great Western Bank loan
for a 2008 Mercury Milan, $6, 927; Bosshart/Gruenwald farm
secured debt, $125, 495; Dodendorf farm secured debt, $31,
557; "Ag Direct" loan for a Cat Challenger tractor,
$49, 250; and Hondorfer farm secured debt (Great Western Bank
account No. xxx6688), $247, 500. The six debts totaled $622,
the record contains a 2011 "itemized categories
report." This report shows that Brian paid $296, 046.69
in expenses after the date of the marriage. Brian testified
at trial that each of these expenses were incurred for his
2011 crop, which he claimed as a premarital asset, and the
court awarded him as such. Accordingly, these expenses were
Brian's total premarital debts, as reflected in the
record, were approximately $918, 775.69.
had a $7, 000 debt to her father on the date of the marriage,
and she was awarded this premarital debt by the court. The
court did not assign a value to this debt, but on the joint
property statements, Dori listed its value at $7, 000. The
record does not reflect any reduction of the debt.
Neb. 348] 3. Trial Court's Decree
2016, the court issued its decree dissolving the parties'
marriage and ordering the division of the marital estate. The
court determined values for most of the premarital and
marital assets it awarded.
court awarded premarital assets to Dori, with a total value
of $20, 600, and to Brian, with a total value of $1, 139,
047. Two of the premarital assets awarded to Brian were the
value of his 2010 crops, sold in 2011, and his 2011 crops,
sold in 2012, but the court did not assign a value to these
assets. It also awarded him the funds present on the date of
the marriage in four separate bank accounts.
the court found that all of Brian's premarital crops had
been liquidated by the date of separation. It also found that
Brian deposited the nonmarital proceeds from the liquidated
crops into his premarital bank accounts, along with the
proceeds from the sale of the marital crops. Accordingly, the
court found that these premarital crops and monetary assets
were commingled with marital assets. Therefore, it ruled that
Brian was not entitled to a setoff from the marital estate
for these premarital assets.
court also rejected Brian's argument that crops should be
treated similarly to a herd of cattle-as a single asset for
tracing purposes. It reasoned that a herd of cattle is
similar to land in that it is a self-sustaining and income
producing. Conversely, it stated that crops are an end
product that is marketed and liquidated on a short-term basis
to pay the expenses of producing it, purchase the seed used
for the next crop's production, purchase equipment, and
provide the farmer his income for the year. Accordingly, the
court did not give Brian a credit for any of the crops in
storage on the date of separation; instead, the court awarded
Brian all of the crops in storage on the date of separation
at a value of $573, 750.
court listed the marital debt it awarded to Dori with a
corresponding value of $3, 216. While the court also awarded
several marital debts to Brian, it did not assign values to
all [298 Neb. 349] of them. Nevertheless, the court
summarized its award of the marital estate as follows: Brian
received $2, 517, 950 in marital assets and $1, 145, 294 in
marital debt for a total estate of $1, 372, 656; Dori
received $21, 611 in marital assets and $3, 216 in marital
debt for a total estate of $18, 395.
the equity of the distribution, the court found that the
marriage was of short duration and that neither party gave up
employment or educational opportunities, but that Dori did
change her educational program to benefit the marriage. The
court rejected Brian's argument that Dori should receive
less than one-third of the marital assets. It reasoned that
any financial benefit Brian brought to the relationship,
above his income, was as the landlord of the premarital
property he farmed and that the proper way to account for
such a benefit would have been to charge the marriage a cash
rent or a crop-share arrangement and segregate it as
nonmarital property, of which Brian did not do or provide
court ordered Brian to make an equalization payment of $680,
000 to Dori, awarding about half of the marital estate to
court overruled Brian's subsequent motion for new trial
or to alter and ...