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Burgardt v. Burgardt

Court of Appeals of Nebraska

April 9, 2019

Harlan D. Burgardt, appellee and cross-appellant.
Shirley L. Burgardt, appellant and Cross-Appellee.

         1. 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.

         2. 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.

         3. 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 another.

         4. 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.

         5. ___: ___. 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 rule.

         6. ___: ___. 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.

         [27 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.

         9. 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.

         10. 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.

         11. 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.

         12. 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.

         13. 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.

         14. ___. The ultimate criterion in determining an alimony award is reasonableness.

          Appeal from the District Court for Adams County: Terri S. Harder, Judge. Affirmed in part, and in part reversed and remanded with directions.

          Richard L. Alexander, of Richard Alexander Law Office, for appellant.

          Nicholas D. Valle, of Langvardt, Valle & James, P.C., L.L.O., for appellee.

          Moore, Chief Judge, and Pirtle and Arterburn, Judges.

         [27 Neb.App. 59] Arterburn, Judge.


         Shirley 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 ...

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