Harlan D. Burgardt, appellee and cross-appellant.
Shirley L. Burgardt, appellant and Cross-Appellee.
Divorce: 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.
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.
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, an 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
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.
___. As a general rule, all property accumulated and acquired
by either party during the marriage is part of the marital
estate, unless it falls within an exception to the general
___. Setting aside nonmarital property is simple if the
spouse possesses the original asset but can be problematic if
the original asset no longer exists. 7.: _ . Separate
property becomes marital property by commingling if it is
inextricably mixed with marital property or with the separate
property of the other spouse. If the separate property
remains segregated or is traceable into its product,
commingling does not occur.
Neb.App. 58] 8. Property Division:
Proof. When there is a dispute regarding whether
certain property ought to be characterized as marital
property, the burden of proof rests with the party claiming
that property is nonmarital.
Divorce: Property Division: Pensions.
Generally, amounts added to and interest accrued on
retirement accounts which have been earned during the
marriage are part of the marital estate. Contributions to
retirement accounts before marriage or after dissolution are
not assets of the marital estate.
Property Division: Taxes. Income tax
liability incurred during the marriage is one of the accepted
costs of producing marital income, and thus, income tax
liability should generally be treated as a marital debt.
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
gainful employment without interfering with the interests of
any minor children in the custody of each party.
Alimony: Appeal and Error. 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 just result.
Alimony. The primary purpose of alimony is
to assist an ex-spouse for a period of time necessary for
that individual to secure his or her own means of support.
___. The ultimate criterion in determining an alimony award
from the District Court for Adams County: Terri S. Harder,
Judge. Affirmed in part, and in part reversed and remanded
Richard L. Alexander, of Richard Alexander Law Office, for
Nicholas D. Valle, of Langvardt, Valle & James, P.C.,
L.L.O., for appellee.
Chief Judge, and Pirtle and Arterburn, Judges.
Neb.App. 59] Arterburn, Judge.
L. Burgardt appeals from the decree of dissolution entered by
the district court for Adams County, which dissolved her
marriage to Harlan D. Burgardt. On appeal, she argues that
the district court abused its discretion in finding portions
of Harlan's 40 IK and inherited farm were nonmarital
property. She also argues that the alimony award she received
is insufficient. Harlan cross-appeals, arguing that the
district court abused its discretion by not dividing certain
tax liabilities between the parties and by ordering him to
pay excessive alimony. We affirm the district court's
findings with regard to the amount of alimony awarded to
Shirley. However, we hold that the court erred in finding
that Harlan proved the amount of his inheritance or the value
of any premarital interest he may have had in his 40 IK. We
also find that ...