Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
01/24/2020 09:08 AM CST




                                                         - 356 -
                                  Nebraska Supreme Court A dvance Sheets
                                          304 Nebraska R eports
                                               BURGARDT v. BURGARDT
                                                  Cite as 304 Neb. 356




                                        H arlan D. Burgardt, appellee and
                                           cross-appellant, v. Shirley L.
                                             Burgardt, appellant and
                                                  cross-appellee.
                                                     ___ N.W.2d ___

                                         Filed November 1, 2019.   No. S-17-1116.

                 1. Divorce: Appeal and Error. Appeals in domestic relations matters are
                    heard de novo on the record, and thus, an appellate court is empow-
                    ered 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 con-
                    clusions 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 depriv-
                    ing 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 pro-
                    duce the best evidence which the nature of the case permits.
                                    - 357 -
             Nebraska Supreme Court A dvance Sheets
                     304 Nebraska R eports
                          BURGARDT v. BURGARDT
                             Cite as 304 Neb. 356

 7. Evidence: Witnesses: Testimony. A witness’ testimony, like a docu-
    ment, 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, set-
    ting 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 proceed-
    ing, 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 non-
    marital 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 A rterburn, Judges, on
appeal thereto from the District Court for Adams County, Terri
S. H arder, 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, P.C., L.L.O.,
for appellee.
  Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
   Cassel, J.
                   I. INTRODUCTION
   On appeal from a district court’s dissolution of marriage,
the Nebraska Court of Appeals reversed the determinations
                                  - 358 -
              Nebraska Supreme Court A dvance Sheets
                      304 Nebraska R eports
                         BURGARDT v. BURGARDT
                            Cite as 304 Neb. 356

that a portion of the husband’s 401K and proceeds from an
inheritance constituted nonmarital property.1 We disapprove of
two imperatives articulated by the Court of Appeals: nonmari-
tal 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 prop-
erty as nonmarital in accordance with the husband’s testimony,
we reverse the decision of the Court of Appeals and remand
the cause with direction.
                     II. BACKGROUND
                     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 por-
tion of a 401K 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) 401K
   In 1978, Harlan began working for a natural gas distribu-
tion company. Fourteen years later, he married Shirley. And 14
years after that, Harlan retired. Through his employment, he
had a 401K account.
   Harlan believed that he began contributing to the 401K 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

1
    Burgardt v. Burgardt, 27 Neb. App. 57, 926 N.W.2d 452 (2019).
                              - 359 -
           Nebraska Supreme Court A dvance Sheets
                   304 Nebraska R eports
                     BURGARDT v. BURGARDT
                        Cite as 304 Neb. 356

valued the premarital portion at $0 on the parties’ joint prop-
erty statement. She had no evidence to dispute that Harlan
contributed to the 401K prior to marriage.
   In 2010, Harlan withdrew the funds from the 401K 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 con-
tained 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 par-
ties’ joint account at Great Western Bank, which had a balance
of $358,000 in July 2015.
                                  - 360 -
             Nebraska Supreme Court A dvance Sheets
                     304 Nebraska R eports
                        BURGARDT v. BURGARDT
                           Cite as 304 Neb. 356

                 2. Property Division in Decree
   As part of the division of the marital estate, the decree
awarded Harlan 71 gold coins valued at $19,330 (which placed
the responsibility for the lost coins solely upon Harlan). In
effect, the decree equally divided the proceeds from the 401K,
but it separately set off to Harlan $130,000 for the value of the
nonmarital proceeds from the 401K.
   The decree awarded each party $179,000 (one-half of the
balance) of the Great Western Bank account. But it separately
set off $60,000 to Harlan as “[l]and inheritance.”
   Including both marital and nonmarital property, the decree
awarded Harlan assets totaling $399,730 and Shirley assets
amounting to $205,300. After deducting amounts represent-
ing nonmarital property ($190,000 at issue here, plus $4,000
attributable to a truck which is not now disputed), the ultimate
division of property was an award of $205,730 to Harlan and
an award of $205,300 to Shirley.
   Shirley appealed, and Harlan filed a cross-appeal.
                  3. Court of A ppeals’ Decision
   The Court of Appeals found that Harlan did not meet his
burden of proving that his 401K had a value of $130,000 at
the time of marriage and that he did not prove the amount he
inherited from his father.
   [1] 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 But instead of affirming as modified, the Court of
Appeals reversed in part and remanded to the trial court with
directions. It directed the trial court to award Shirley half of the
awards of $130,000 and $60,000 previously set off to Harlan
as nonmarital property. It also found that the net tax liability
of $27,494 should be divided evenly between the parties and
deducted from the shares of each party’s marital property. The

2
    Osantowski v. Osantowski, 298 Neb. 339, 904 N.W.2d 251 (2017).
                                  - 361 -
             Nebraska Supreme Court A dvance Sheets
                     304 Nebraska R eports
                        BURGARDT v. BURGARDT
                           Cite as 304 Neb. 356

Court of Appeals’ effective modification of the decree regard-
ing the tax liability is not contested on further review and,
thus, shall be carried out in a modified decree.
   Harlan filed a petition for further review, which we granted.
                III. ASSIGNMENTS OF ERROR
   In his petition for further review, Harlan assigns two errors
which we consolidate. He claims that the Court of Appeals
erred in determining that because he offered no documentary
evidence at trial to support his undisputed testimony, he failed
to meet his burden of proof that he had $130,000 in a 401K
at the time of marriage and that he received a $60,000 inher­
itance during the marriage.
                 IV. STANDARD OF REVIEW
   [2-4] 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 In a review de novo on the record, an
appellate court is required to make independent factual deter-
minations based upon the record, and the court reaches its own
independent conclusions with respect to the matters at issue.4
However, when evidence is in conflict, the appellate court con-
siders 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.5 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.6

3
    Dooling v. Dooling, 303 Neb. 494, 930 N.W.2d 481 (2019).
4
    Id.
5
    Id.
6
    Id.
                                    - 362 -
               Nebraska Supreme Court A dvance Sheets
                       304 Nebraska R eports
                          BURGARDT v. BURGARDT
                             Cite as 304 Neb. 356

                          V. ANALYSIS
                   1. Foundational Principles
   We begin by recalling three foundational principles that,
along with the standard of review, guide our decision.
   [5] The first principle is the burden of proof imposed in this
case. In the realm of factfinding, the function of a standard
of proof is to instruct the fact finder concerning the degree
of confidence our society thinks he or she should have in the
correctness of factual conclusions for a particular type of adju-
dication.7 Unless an exception applies, the burden of proof in
civil cases requires only the greater weight of the evidence.8
The greater weight of the evidence means evidence sufficient
to make a claim more likely true than not true.9 That burden of
proof applies here.
   [6,7] Second, we are mindful that there is no hierarchy of
evidence. “‘[T]here is no general rule of evidence that a party
must produce the best evidence which the nature of the case
permits.’”10 A witness’ testimony, like a document, is a kind of
evidence.11 A trial court weighs the credibility of the witnesses
and the evidence and determines what evidence should be
given the greater weight in arriving at a factual determination
on the merits.12 In doing so, a trial court may choose to accord
greater weight to a document. Given the frailties of memo-
ries, documentary evidence relating to a long past event and

 7
     See In re Interest of Christopher T., 281 Neb. 1008, 801 N.W.2d 243
     (2011).
 8
     See, In re Application No. OP-0003, 303 Neb. 872, 932 N.W.2d 653
     (2019); Flores v. Flores-Guerrero, 290 Neb. 248, 859 N.W.2d 578 (2015).
 9
     Flores v. Flores-Guerrero, supra note 8.
10
     Equitable Life v. Starr, 241 Neb. 609, 615, 489 N.W.2d 857, 862 (1992),
     quoting Michael H. Graham, Handbook of Federal Evidence § 1001.0 (3d
     ed. 1991).
11
     See Columbia Nat. Bank v. German Nat. Bank, 56 Neb. 803, 77 N.W. 346
     (1898).
12
     Lockwood v. Lockwood, 205 Neb. 818, 290 N.W.2d 636 (1980).
                                   - 363 -
              Nebraska Supreme Court A dvance Sheets
                      304 Nebraska R eports
                         BURGARDT v. BURGARDT
                            Cite as 304 Neb. 356

prepared by one not affected by it may be entitled to greater
consideration than oral testimony.13 Ordinarily, a contempora-
neous memorandum of an event is entitled to greater eviden-
tiary weight than another recollection of it.14 But it does not
follow that where there is no documentary evidence, a party’s
testimony alone cannot satisfy a burden of proof.
   [8-11] Third, it is well settled that the first step in the
equitable division of property is to classify the parties’ prop-
erty as marital or nonmarital, setting aside the nonmarital
property to the party who brought that property to the mar-
riage.15 Contributions to retirement accounts before marriage
are not assets of the marital estate.16 Gifts and inheritances,
even when received during the marriage, are presumed to
be nonmarital.17 In a marital dissolution proceeding, the bur-
den of proof rests with the party claiming that property is
nonmarital.18
   With these principles in mind, we turn to the two impera-
tives upon which the Court of Appeals relied.
            2. Necessity of Documentary Evidence
   Although the district court accepted Harlan’s testimony as
sufficient to establish portions of the property as nonmarital,
the Court of Appeals rejected Harlan’s claims solely on the
basis that he lacked documentation. Regarding the 401K, the
Court of Appeals stated:
      The problem with Harlan’s claim is that it is based
      solely on his own recol­lection. Harlan failed to adduce
      any documentation whatsoever regarding when the 401K
      came into existence, what contribu­tions were made to it

13
     See 32A C.J.S. Evidence § 1286 (2008).
14
     Id.
15
     See Rohde v. Rohde, 303 Neb. 85, 927 N.W.2d 37 (2019).
16
     See Lorenzen v. Lorenzen, 294 Neb. 204, 883 N.W.2d 292 (2016).
17
     Westwood v. Darnell, 299 Neb. 612, 909 N.W.2d 645 (2018).
18
     Rohde v. Rohde, supra note 15.
                                   - 364 -
              Nebraska Supreme Court A dvance Sheets
                      304 Nebraska R eports
                         BURGARDT v. BURGARDT
                            Cite as 304 Neb. 356

       by him or his employer, and how it was invested or grew
       over the years.19
The Court of Appeals recognized that Harlan tried to obtain
records to demonstrate the value of his 401K in 1992, but
could not do so because his former employer did not maintain
those records. The Court of Appeals then suggested a number
of other records that perhaps Harlan could have obtained. It
found that the trial court erred in setting off $130,000 to Harlan
“based solely on his testimony.”20 And with regard to the inher-
itance, the Court of Appeals noted that Harlan presented docu-
mentation to support his claim that he received an inheritance,
but that he “presented no documentation which in any way
establishes or corroborates the amount of that inheritance.”21
In effect, the Court of Appeals held that Harlan’s testimony
could not be accepted without documentary support. That goes
too far.
   [12,13] A nonmarital interest in property may be established
by credible testimony.22 In Brozek v. Brozek,23 we recognized
that a spouse’s own testimony can establish a “‘tracing link,’”
i.e., tracking an asset to a nonmarital source. Of course, 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.24 Evidence not directly contradicted is not necessarily
binding on the triers of fact, and may be given no weight where
it is inherently improbable, unreasonable, self-contradictory,
or inconsistent with facts or circumstances in evidence.25 We

19
     Burgardt v. Burgardt, supra note 1, 27 Neb. App. at 65, 926 N.W.2d at
     460.
20
     Id. at 67, 926 N.W.2d at 461.
21
     Id. at 68, 926 N.W.2d at 462.
22
     See Kerr v. Kerr, 770 N.W.2d 567 (Minn. App. 2009).
23
     Brozek v. Brozek, 292 Neb. 681, 701, 874 N.W.2d 17, 32 (2016).
24
     State on behalf of Mariah B. & Renee B. v. Kyle B., 298 Neb. 759, 906
     N.W.2d 17 (2018).
25
     Fredericks Peebles v. Assam, 300 Neb. 670, 915 N.W.2d 770 (2018).
                                   - 365 -
               Nebraska Supreme Court A dvance Sheets
                       304 Nebraska R eports
                          BURGARDT v. BURGARDT
                             Cite as 304 Neb. 356

acknowledged in Brozek that the trial court was “entitled to
discount [the husband’s] testimony about [an alleged premarital
asset] because of his admitted uncertainty.”26
   While documentary evidence may be more persuasive, it is
not absolutely required. In a case where the husband did not
produce bank statements proving the premarital balance of his
bank accounts but the wife did not contest the values he listed
on a joint property statement, we found an abuse of discretion
by the trial court in failing to set off the value of premarital
bank accounts.27 In Onstot v. Onstot,28 we affirmed the trial
court’s decision to not grant the husband credit for the value of
a premarital house at the time of marriage, stating that “assum-
ing [the husband’s] testimony established the value of the resi-
dence at $100,000 at the time of the marriage, he did not testify
or supply any documentation as to whether the residence was
either encumbered or unencumbered at that time and, if encum-
bered, to what extent.” This statement implies that premarital
equity could have been established by testimony alone. In a
case where undisputed testimony established items as premari-
tal, the Court of Appeals determined that the trial court erred in
classifying the items as marital property.29
   Of course, a party opting to rely upon his or her testimony
alone does so at the risk of nonpersuasion. In a case where the
trial court set aside the total amount of premarital funds that the
husband claimed he used to purchase property, we reduced the
amount of the set aside—even though the husband’s testimony
was uncontradicted—because there was nothing in the record
to show the source of certain funds.30 In Brozek, we affirmed
the trial court’s decision declining to set off any amount to the

26
     Brozek v. Brozek, supra note 23, 292 Neb. at 701, 874 N.W.2d at 32.
27
     See Osantowski v. Osantowski, supra note 2.
28
     Onstot v. Onstot, 298 Neb. 897, 904, 906 N.W.2d 300, 306 (2018)
     (emphasis supplied).
29
     See Schmeidler v. Schmeidler, 25 Neb. App. 802, 912 N.W.2d 278 (2018).
30
     See Frost v. Frost, 227 Neb. 414, 418 N.W.2d 220 (1988).
                                    - 366 -
               Nebraska Supreme Court A dvance Sheets
                       304 Nebraska R eports
                           BURGARDT v. BURGARDT
                              Cite as 304 Neb. 356

husband for the premarital portion of two checking accounts
(he testified one account had about $79,000 at the time of mar-
riage), crops from a 1993 harvest, and machinery owned at the
time of marriage (but later sold or traded).31 A party seeking
recognition of nonmarital property may find it easier to meet
his or her burden of persuasion with documentary support. But
its absence does not automatically defeat the claim.

                      3. Definitively Proved
   The Court of Appeals also determined that Harlan “failed to
meet his burden of proof to definitively identify the value of
his claimed premarital asset.”32 “Definitively” means “[s]o as
to decide or settle the matter; decisively, conclusively, finally,
definitely.”33
   In doing so, the Court of Appeals misread our decision in
Brozek. The Court of Appeals stated that we “reversed the trial
court judgment, finding that the husband had not definitively
identified the values of his premarital assets.”34 We did neither.
Rather, we affirmed the trial court’s judgment, concluding, as
did the trial court, that the husband failed to trace the value of
property alleged to be premarital. We stated that he did “not
identify the different permutations that his premarital property
underwent during the marriage” and that “we cannot follow the
threads in the hodgepodge of figures.”35
   [14] It is axiomatic that an item must be identified in
order to be set off as nonmarital. But its value need not be
definitively or conclusively proved; the greater weight of the

31
     Brozek v. Brozek, supra note 23.
32
     Burgardt v. Burgardt, supra note 1, 27 Neb. App. at 68, 926 N.W.2d at 462
     (emphasis supplied).
33
     “Definitively,” Oxford English Dictionary Online, http://www.oed.com/
     view/Entry/4889 (last visited Sept. 24, 2019).
34
     Burgardt v. Burgardt, supra note 1, 27 Neb. App. at 66, 926 N.W.2d at
     461.
35
     Brozek v. Brozek, supra note 23, 292 Neb. at 699, 874 N.W.2d at 31.
                                    - 367 -
               Nebraska Supreme Court A dvance Sheets
                       304 Nebraska R eports
                          BURGARDT v. BURGARDT
                             Cite as 304 Neb. 356

evidence is sufficient. In other words, the value of the non-
marital portion of an asset must be established by the greater
weight of the evidence.
                           4. R esolution
   In summary, we reject the Court of Appeals’ articulations
that documentary evidence is necessary to establish a claim
to nonmarital property and that a nonmarital value must be
proved “definitively.” While Harlan had the burden of persuad-
ing the district court of the nonmarital character of the property
and its value, he succeeded in doing so. On appeal, our stan-
dard of review governs. And here, it is important to recognize
that the district court heard and observed the witnesses and
accepted one version of the facts rather than another. As we
have said, this court is not inclined to disturb the division of
property made by the trial court unless it is patently unfair on
the record.36
   The district court set off to Harlan $130,000 as the non-
marital value of his 401K and $60,000 as the nonmarital value
of his inherited share of the home farm. Evidence supports
the court’s award. Harlan testified that his 401K was val-
ued at $130,000 at the time of marriage. When asked, “Are
you aware of any kind of 401-K Harlan had before marriage
worth $130,000,” Shirley responded, “No.” But on cross-­
examination, she admitted she had no evidence to dispute
that Harlan contributed to the 401K prior to marriage. Harlan
testified that his inherited share of his father’s farm was worth
$60,000, and Shirley did not dispute this. This was not a situ-
ation where the trial court rejected a party’s unsupported tes-
timony and, in affirming, an appellate court noted the lack of
documentary evidence. Here, the district court evidently found
Harlan’s testimony to be credible and set off the amounts
claimed as nonmarital. Upon our de novo review, we cannot
say it abused its discretion in doing so.

36
     Tavlin v. Tavlin, 194 Neb. 98, 230 N.W.2d 108 (1975).
                              - 368 -
           Nebraska Supreme Court A dvance Sheets
                   304 Nebraska R eports
                     BURGARDT v. BURGARDT
                        Cite as 304 Neb. 356

                       VI. CONCLUSION
   Upon our de novo review, we find no abuse of discretion by
the district court in setting off to Harlan amounts representing
nonmarital portions of his 401K and inheritance. We reverse
the decision of the Court of Appeals as to those items and
remand the cause to that court with direction to affirm the dis-
trict court’s decree as modified to divide the net tax liability of
$27,494 evenly between the parties.
                       R eversed and remanded with direction.
