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Burgardt v. Burgardt

Supreme Court of Nebraska

November 1, 2019

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

         1. 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.

         2. 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.

         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. 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.

         4. 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.

         5. Evidence: Proof. Unless an exception applies, the burden of proof in civil cases requires only the greater weight of the evidence.

         6. ___: ___. There is no general rule of evidence that a party must produce the best evidence which the nature of the case permits.

          [304 Neb. 357] 7. Evidence: Witnesses: Testimony. A witness' testimony, like a document, is a kind of evidence.

         8. Divorce: Property Division. The first step in the equitable division of property 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.

         9. Divorce: Property Division: Pensions. Contributions to retirement accounts before marriage are not assets of the marital estate.

         10. Divorce: Property Division: Presumptions. Gifts and inheritances, even when received during the marriage, are presumed to be nonmarital.

         11. Divorce: Property Division: Proof. In a marital dissolution proceeding, the burden of proof rests with the party claiming that property is nonmarital.

         12. Divorce: Property Division: Proof: Testimony. A nonmarital interest in property may be established by credible testimony.

         13. Trial: Witnesses: Evidence. Triers of fact have the right to test the credibility of witnesses by their self-interest and to weigh it against the evidence, or the lack thereof.

         14. Divorce: Property Division: Evidence: Proof. The value of the nonmarital portion of an asset must be established by the greater weight of the evidence.

          Petition for further review from the Court of Appeals. Moore, Chief Judge, and Pirtle and Arterburn, Judges, on appeal thereto from the District Court for Adams County, Terri S. Harder, Judge. Judgment of Court of Appeals reversed, and cause remanded with direction.

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

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

          Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ.

          Cassel, J.


         On appeal from a district court's dissolution of marriage, the Nebraska Court of Appeals reversed the determinations [304 Neb. 358] that a portion of the husband's 40 IK and proceeds from an inheritance constituted nonmarital property.[1] We disapprove of two imperatives articulated by the Court of Appeals: nonmarital property must be proved by documentary evidence and its value must be "definitively" established. Because we cannot say the district court abused its discretion in setting off property as nonmarital in accordance with the husband's testimony, we reverse the decision of the Court of Appeals and remand the cause with direction.


         1. Evidence at Trial

         Harlan D. Burgardt and Shirley L. Burgardt married in 1992. The district court dissolved their marriage in 2017. On further review, we focus on two items of property: the portion of a 40 IK accumulated before marriage and the proceeds from an inheritance. At this stage, neither party otherwise contests the division of property. We limit our recitation of evidence accordingly.

         (a) 40 IK

         In 1978, Harlan began working for a natural gas distribution company. Fourteen years later, he married Shirley. And 14 years after that, Harlan retired. Through his employment, he had a 40 IK account.

         Harlan believed that he began contributing to the 40IK in "about '85." He testified that on the date of his marriage in 1992, his 401K was valued at $130, 000. Upon questioning, he stated that the number "sticks out in my mind just plain as day." Although Harlan tried to obtain documentation from his former employer to support the value, the company did not keep records dating back to 1992.

         Shirley testified that she was not aware of any 401K that Harlan had prior to marriage worth $130, 000. Thus, she [304 Neb. 359] valued the premarital portion at $0 on the parties' joint property statement. She had no evidence to dispute that Harlan contributed to the 40IK prior to marriage.

         In 2010, Harlan withdrew the funds from the 40 IK and "moved it into an IRA into a cash fund" solely in his name. A bank statement shows a beginning balance for the IRA on January 1 to be $445, 486.12. The money was later spent on four major purchases or projects. It was used to purchase the "other farm," which was titled in both parties' names. Money was used for improvements to the "home farm," which contained a house where the parties once lived. Harlan also used money from the IRA to buy equipment. The equipment was "all auctioned off and the proceeds put in the bank. Finally, the money was used to buy gold and silver coins. In 2013, Harlan purchased 1, 000 silver coins for $53, 120, followed shortly thereafter by a purchase of 1, 859 coins for $99, 735.35. In 2014, Harlan exchanged silver coins to acquire 71 gold coins for $29, 962. He testified that he currently had 51 gold coins in his possession, but that there should be 71 (i.e., one sheet containing 20 coins was missing).

         (b) Inheritance

         Harlan testified that after his father died in 2006 (during the marriage), he received an inheritance from the estate. Harlan received a 25-percent share, which amounted to $60, 000. Instead of receiving money, Harlan used his share as a credit toward the purchase of the home farm from his siblings. The additional money needed to purchase the farm-approximately $100, 000-came from a bank account.

         Shirley testified that the funds to purchase the farm came from their joint bank account, which was funded by the sale of the parties' house in Colorado. The parties later sold the home farm for $348, 800. The sale proceeds were placed in the parties' ...

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