Harlan D. Burgardt, appellee and cross-appellant,
Shirley L. Burgardt, appellant and cross-appellee.
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.
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. 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
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: Proof. Unless an exception
applies, the burden of proof in civil cases requires only the
greater weight of the evidence.
___. There is no general rule of evidence that a party must
produce the best evidence which the nature of the case
Neb. 357] 7. Evidence: Witnesses:
Testimony. A witness' testimony, like a
document, is a kind of evidence.
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.
Divorce: Property Division: Pensions.
Contributions to retirement accounts before marriage are not
assets of the marital estate.
Divorce: Property Division: Presumptions.
Gifts and inheritances, even when received during the
marriage, are presumed to be nonmarital.
Divorce: Property Division: Proof. In a
marital dissolution proceeding, the burden of proof rests
with the party claiming that property is nonmarital.
Divorce: Property Division: Proof:
Testimony. A nonmarital interest in property may be
established by credible testimony.
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
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
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.
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. 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.
Evidence at Trial
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
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.
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.
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.
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).
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.
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