Sharon L. Rohde, appellee,
Keith E. Rohde, appellant.
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.
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.
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.
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.
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 contained in § 42-365.
Neb. 86] 7. 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
Divorce: Property Division: Equity. The
purpose of assigning a date of valuation in a decree is to
ensure that the marital estate is equitably divided.
Property Division: Equity: Time. The choice
of a date as of which assets available for equitable
distribution should be identified and valued must be dictated
largely by pragmatic considerations.
Divorce: Property Division. 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.
Property Division: Proof. The burden of
proof rests with the party claiming that property is
from the District Court for Douglas County: J Russell Derr,
Bree Robbins and Nancy R. Shannon, of Cordell Cordell, L.L.R,
Christopher A. Vacanti, of Vacanti Shattuck, for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik,
and Freudenberg, JJ.
E. Rohde appeals from a decree dissolving his marriage to
Sharon L. Rohde, challenging the division of property. Keith
proposes two novel theories: (1) All assets must be valued
using a single date and (2) a coverture formula is required
to establish the premarital value of a business. We decline
both invitations. The first would impinge upon the discretion
necessary to equitably divide a marital estate. And the
second depends upon speculation and assumptions generally
inconsistent with such valuations. Keith's remaining
arguments lack merit. We affirm the decree.
Neb. 87] BACKGROUND
Sharon filed a complaint for dissolution in November 2016,
she and Keith were married for 21 years. During the period
between filing and trial, the parties lived separate and
apart for 1 year. The assets relevant on appeal include real
estate, notes receivable, businesses, accounts, household
goods, jewelry, and vehicles.
Estate and Notes Receivable
parties owned three properties in Omaha, Nebraska. One
property was the marital home (184th Plaza home); one
property was their friend's home (140th Ave. home), which
was secured by a note receivable from the friend; and one
property was occupied by another person (Polk St. home),
which was secured by a note receivable.
parties offered appraisals of the 184th Plaza home.
Sharon's appraiser valued the home at the date of filing.
Keith's appraiser valued the home at the date of trial.
Sharon testified to the value of the 140th Ave. home note
receivable at the date of trial and presented evidence of the
stated that prior to the marriage, he put a downpayment on
the parties' first home and acknowledged that Sharon
repaid him part of the downpayment. He asked the court to
classify the downpayment as nonmarital.
1989, Keith has owned Metro Excavating Inc. (Metro). Keith
continued to operate the business throughout the marriage.
Keith testified that Metro was operational for over 70 months
before the marriage. Keith asked the district court to offset
the current value of the business by 23.13 percent as the
value of the nonmarital business.
Keith owns Storage Road Sales & Service Inc. (Storage
Road). Before Keith married Sharon, he purchased the land for
$34, 000. He then constructed a building on the property that
cost $17, 000 for the steel framework and tin exterior.
Neb. 88] Both parties obtained appraisals of the property and
businesses. Keith's appraiser valued the Storage Road
property at the date of trial. Sharon's appraiser gave
two valuations for the property at the date of filing: the
lower appraisal used the income capitalization approach, and
the higher appraisal used the direct sales comparison
approach. The higher valuation was rebutted by Keith's
appraiser. Keith testified that the nonmarital value of the
Storage Road property was $252, 000.
2016, Keith entered into three leases with Walvoord Finish
Grading Inc. (collectively Walvoord Leases). The leases were
for the equipment of both Metro and Storage Road, as well as
a property lease. The leases were valued at the date of
trial, which excluded the first payments made during the
pendency of the action. Keith asked the district court to
take into consideration the tax consequences when awarding
the leases, and specifically in reducing the value by 32
percent. Additionally, during the pendency of the action,
Keith sold several pieces of business equipment.
presented evidence that she is the sole owner of KMT Storage
Company, Inc. (KMT), which was appraised at the date of
parties had several bank and retirement/investment accounts.
There are three categories of accounts: joint accounts,
commercial accounts, and investment accounts. The parties
submitted evidence that allowed the court to value the joint
and commercial accounts on both the date of filing and trial.
Sharon submitted evidence of the value of the investment
accounts on a separate date. Keith did not offer any evidence
as to the value of the investment accounts on a separate
the pendency of the action, Sharon removed $50, 000 from one
of the joint accounts. She testified that she removed the
money at the advice of counsel to pay bills that Keith used
[303 Neb. 89] to pay for. Sharon presented evidence of her
personal bank accounts with a value at the date of filing.