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07/17/2020 08:07 AM CDT




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                               Nebraska Supreme Court Advance Sheets
                                        306 Nebraska Reports
                                                 DOERR v. DOERR
                                                 Cite as 306 Neb. 350




                                        Tammy M. Doerr, appellee, v.
                                         Brian P. Doerr, appellant.
                                                   ___ N.W.2d ___

                                          Filed July 2, 2020.     No. S-19-418.

                 1. 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.
                 2. 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.
                 3. 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.
                 4. Divorce: Property Division. In a divorce action, the purpose of a prop-
                    erty division is to distribute the marital assets equitably between the
                    parties.
                 5. Property Division. Equitable property division is a three-step process.
                    The first step is to classify the parties’ property as marital or nonmarital.
                    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.
                 6. ____. 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.
                 7. Divorce: Property Division. The marital estate does not include prop-
                    erty that a spouse acquired before the marriage, or by gift or inheritance.
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           Nebraska Supreme Court Advance Sheets
                    306 Nebraska Reports
                            DOERR v. DOERR
                            Cite as 306 Neb. 350

 8. Divorce: Property Division: Proof. The burden of proof rests with the
    party claiming that property is nonmarital.
 9. Divorce: Property Division. Separate property becomes marital prop-
    erty 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.
10. Courts: Evidence. A court is not bound to accept a party’s word in
    lieu of documentary evidence; a court is able to assess the credibility
    of the evidence presented to it and determine to what evidence to give
    weight.

   Appeal from the District Court for Dodge County: Geoffrey
C. Hall, Judge. Affirmed.
   Michael J. Wilson, of Berry Law Firm, for appellant.
  Michael J. Tasset, of Johnson & Mock, P.C., L.L.O., for
appellee.
  Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
   Heavican, C.J.
                      INTRODUCTION
   The district court dissolved the marriage of Tammy M.
Doerr and Brian P. Doerr. Brian appeals the court’s property
division. We affirm.
                        BACKGROUND
   Tammy and Brian met in March 2008 and were engaged
later that year. The couple was married in April 2012. Both had
children from previous marriages, but no children were born to
the couple. Tammy filed for divorce in September 2016. A trial
was held, and a decree dissolving the parties’ marriage was
filed February 19, 2019.
Real Property.
  As relevant on appeal, the district court for Dodge County
found that Tammy and Brian worked together to purchase
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         Nebraska Supreme Court Advance Sheets
                  306 Nebraska Reports
                        DOERR v. DOERR
                        Cite as 306 Neb. 350

and remodel the couple’s home on Howard Street in Fremont,
Nebraska (Howard Street home), during the marriage. The
court valued the home at $350,000. The district court found
that Tammy invested $40,000 and that Brian invested $50,000
as a downpayment. The court further found that the funds used
to pay for the home were commingled in the time before and
after the purchase of the home. The district court therefore
awarded the home to Brian, but awarded half of the home’s
value, or $165,000, to Tammy, less $10,000 to account for
Brian’s larger share of the home’s downpayment.
Bank Accounts.
   The couple had various bank accounts, some of which were
jointly held and others which were individually held. At or
near the time of separation, Tammy transferred funds from the
parties’ joint money market account with Union Bank into her
individual checking account with another bank. The district
court found that $108,600 of the funds transferred were marital
and ordered an equal division—$54,300 to each party. The par-
ties’ other bank accounts were awarded to the party in whose
name each respective account was held.
Debts.
   The district court ordered that each party should pay marital
debts held in their respective names, as well as debts individu-
ally incurred since the filing of the divorce action.
Equalization Payment.
   Based on the court’s determination of the various equity
shares of each of the parties, the district court ordered Brian
to make an equalization payment to Tammy in the amount of
$110,700.
               ASSIGNMENTS OF ERROR
  Brian assigns that the district court erred in (1) awarding
Tammy $165,000 in equity in the Howard Street home, (2)
awarding Tammy $54,300 from the Union Bank account,
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            Nebraska Supreme Court Advance Sheets
                     306 Nebraska Reports
                            DOERR v. DOERR
                            Cite as 306 Neb. 350

(3) failing to award Brian $12,831.67 in funds held in a
U.S. Bank account controlled by Tammy, (4) failing to order
Tammy to pay one-half of $16,207.76 in debts, and (5) order-
ing Brian to pay an equalization payment to Tammy in the
amount of $110,700.
                    STANDARD OF REVIEW
    [1] 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 attor-
ney fees. 1
    [2] 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. 2
    [3] A judicial abuse of discretion exists if the reasons or rul-
ings 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
                            ANALYSIS
   On appeal, Brian’s argument centers around what he claims
are the proceeds from his separate property, and he alleges
that the district court erred in awarding half of those proceeds
to Tammy. In summary, Brian argues that he paid the entire
$262,000 purchase price of the Howard Street home from the
proceeds he earned selling a home he had owned in Fontanelle,
Nebraska. Brian further asserts that the remainder of the pro-
ceeds were deposited into the couple’s money market account
and that the balance of that account never dipped below the
amount of the proceeds he deposited.

1
    White v. White, 304 Neb. 945, 937 N.W.2d 838 (2020).
2
    Id.
3
    Id.
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             Nebraska Supreme Court Advance Sheets
                      306 Nebraska Reports
                             DOERR v. DOERR
                             Cite as 306 Neb. 350

   Tammy later transferred $108,600 from that money market
account into her individual checking account. Brian contends
that those funds are traceable to the sale of his separate prop-
erty, that the funds are themselves separate property, and
that the district court erred in awarding Tammy half of that
amount.
   [4-6] In a divorce action, the purpose of a property division
is to distribute the marital assets equitably between the parties. 4
Equitable property division is a three-step process. 5 The first
step is to classify the parties’ property as marital or nonmari-
tal. 6 The second step is to value the marital assets and marital
liabilities of the parties. 7 The third step is to calculate and
divide the net marital estate between the parties. 8 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. 9
   [7-9] The marital estate does not include property that a
spouse acquired before the marriage, or by gift or inherit­
ance. 10 The burden of proof rests with the party claiming that
property is nonmarital. 11 Setting aside nonmarital property is
simple if the spouse possesses the original asset, but can be
problematic if the original asset no longer exists. 12 Separate
property becomes marital property by commingling if it is
inextricably mixed with marital property or with the separate
property of the other spouse. 13 If the separate property remains

 4
     Neb. Rev. Stat. § 42-365 (Reissue 2016).
 5
     White, supra note 1.
 6
     Id.
 7
     Id.
 8
     Id.
 9
     Osantowski v. Osantowski, 298 Neb. 339, 904 N.W.2d 251 (2017).
10
     Id.
11
     Id.
12
     Id.
13
     Id.
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           Nebraska Supreme Court Advance Sheets
                    306 Nebraska Reports
                         DOERR v. DOERR
                         Cite as 306 Neb. 350

segregated or is traceable into its product, commingling does
not occur. 14
Equity in Howard Street Home.
   In his first assignment of error, Brian argues that the district
court erred in awarding Tammy roughly half of the equity
in the Howard Street home, contending he proved at trial
that he contributed all of the purchase price of the home. He
also assigns that the district court erred in valuing the home
at $350,000.
   We turn first to the value of the martial home as determined
by the district court. The record includes numerous values for
the home, but one of those values was $350,000, a value deter-
mined by a real estate professional. The district court did not
err in placing this value on the home.
   We turn next to Brian’s contention regarding Tammy’s
equity in the home. Brian contends that he paid the $1,000
“earnest deposit” on the residence and paid the entire $50,000
downpayment. Brian further asserts that he sold his house in
Fontanelle and that with those proceeds, he paid off the debt on
the Howard Street home. Conversely, Tammy argues that she
paid $40,000 of the downpayment for the Howard Street home
with cash she had in her safe.
   The facts surrounding the Howard Street home are some-
what complicated. The property was purchased by Brian in
April 2012 for $262,000. At the closing, there was a balance
due of $259,691.63, which credited the purchase price in vari-
ous particulars, including an earnest payment of $1,000.
   There is nothing in the record to show how the funds at the
closing of the Howard Street home were paid. Brian argues
that he came up with $50,000—a combination of $10,000 cash
and $40,000 from various other sources, including liquidating
his son’s college savings plan and taking at least two with-
drawals from his individual retirement account. Brian testified
that this money was not so much a downpayment as funds that

14
     Id.
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             Nebraska Supreme Court Advance Sheets
                      306 Nebraska Reports
                             DOERR v. DOERR
                             Cite as 306 Neb. 350

were owed because the house did not appraise out and the bank
would not fund the entire purchase price.
   Brian offered into evidence statements showing the college
savings plan and the individual retirement account transac-
tions, as well as deposit slips he testified were for a combi-
nation of cash and check deposits. Tammy relies on many
of the same deposit slips to show that she had given Brian
$40,000 to deposit in the bank. Tammy testified that she had
this money prior to the marriage and even when she declared
bankruptcy, but that she had not declared the money in the
bankruptcy proceedings.
   The burden to show that the Howard Street home was
paid for with proceeds from the Fontanelle home, and thus
was Brian’s separate property, was on Brian. Brian offered
documentation that certain deposits had been made in the time
prior to the closing on the house. He also testified that the full
amount of the money he deposited was his and that the money
actually went to paying the downpayment on the Howard
Street home.
   [10] Of course, a party’s testimony alone may sustain that
party’s burden of proof. But a court is not bound to accept a
party’s word in lieu of documentary evidence; a court is able
to assess the credibility of the evidence presented to it and
determine to what evidence to give weight. 15 In this case, the
district court found Brian’s testimony and his accompany-
ing documentary evidence not credible and therefore found that
the Howard Street home was marital property. Accordingly,
the district court awarded roughly half of the home’s
equity to Tammy. We cannot find that this decision was an
abuse of discretion. There is no merit to Brian’s first assign-
ment of error.
Bank Accounts.
   In his second and third assignments of error, Brian argues
that the district court erred in its division of the parties’ bank

15
     See Burgardt v. Burgardt, 304 Neb. 356, 934 N.W.2d 488 (2019).
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         Nebraska Supreme Court Advance Sheets
                  306 Nebraska Reports
                        DOERR v. DOERR
                        Cite as 306 Neb. 350

accounts. Most notably, Brian argues the district court erred
in awarding Tammy $54,300, which he claims were proceeds
from the sale of the Fontanelle house, and thus his separate
property, that were deposited into the couple’s money mar-
ket account.
   It is not disputed that Brian had proceeds of $187,399.82
after the sale of the Fontanelle property. Brian maintains these
proceeds were deposited into his checking account, less the
payment of some taxes, and deposited into the couple’s money
market account to be used only as a cushion for the couple’s
checking account. Therefore, the proceeds are traceable and
remain his separate property up to at least $117,000.
   There is nothing in the record to support Brian’s assertion
that the money was transferred as he contends. According to
the bank statement for January 4 to February 4, 2014, there
was a beginning balance of $150,000.41 in the money market
account. But those same records show that during the same
statement period, $35,588.37 was deposited into that account.
There is no indication that the account had not previously
existed or that the proceeds of the sale of the Fontanelle house
were $150,000.41. It is Brian’s burden to show that the funds
were separate property. The district court concluded that he
failed to do so, and we find no error in that conclusion.
   By extension, then, when Tammy emptied the money mar-
ket account a few years later, she had a right to those funds.
The district court did not err in awarding Tammy half of the
$108,600 in her possession and in awarding the other half
to Brian.
   In addition to the Union Bank account, Tammy had a
separate checking account with U.S. Bank with a balance of
approximately $12,831.67. Brian argues that he is entitled to
one-half of that amount because Tammy did not prove it was
her separate property.
   But Tammy did not argue it was her separate property. The
district court awarded Tammy the accounts in her name and
awarded Brian the accounts in his name. It was not error for
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         Nebraska Supreme Court Advance Sheets
                  306 Nebraska Reports
                        DOERR v. DOERR
                        Cite as 306 Neb. 350

the court to award the accounts in this manner, and there is
no merit to Brian’s second and third assignments of error.
Debts.
   In his fourth assignment of error, Brian assigns that the
district court erred by not equally dividing marital debt com-
prising a U.S. Bank credit card balance of $6,439.76 and a
bill for preseparation renovations for $9,768. There was docu-
mentary evidence of these debts in the record; however, the
district court simply ordered each party to pay all debts in that
party’s name, as well as debts individually incurred by each
since the filing of the divorce action. The court reasoned that
it “cannot and will not account for which party paid for the
butter or which party paid for the eggs during the course of
the marriage.”
   The amount of debt at issue here is approximately $8,000.
Even assuming that the court should have ordered Tammy to
pay that portion of the debt, such would not make the district
court’s division of property erroneous. The court’s reasoning
that it was not going to parse out every purchase supports its
conclusion. There is no merit to this assignment of error.
Equalization Payment.
   Having concluded that the district court did not err in its
division of the marital estate, we likewise find no merit to
Brian’s contention that the amount of the equalization payment
was in error. As such, there is no merit to Brian’s final assign-
ment of error.
                       CONCLUSION
  The decision of the district court is affirmed.
                                                    Affirmed.
