                           IN THE NEBRASKA COURT OF APPEALS

                MEMORANDUM OPINION AND JUDGMENT ON APPEAL
                         (Memorandum Web Opinion)

                                         CLASON V. CLASON


  NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION
 AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).


                                 RACHELLE A. CLASON, APPELLEE,
                                                  V.

                                  STEVEN E. CLASON, APPELLANT.


                              Filed October 25, 2016.     No. A-15-626.


        Appeal from the District Court for Furnas County: DAVID URBOM, Judge. Affirmed in part,
and in part reversed and remanded with directions.
       Siegfried H. Brauer, of Brauer Law Office, for appellant.
       Jaclyn N. Daake, of Duncan, Walker, Schenker & Daake, P.C., L.L.O., for appellee.



       MOORE, Chief Judge, and RIEDMANN and BISHOP, Judges.
       RIEDMANN, Judge.
                                        I. INTRODUCTION
         Steven A. Clason appeals from a decree of dissolution entered by the district court, which
dissolved his marriage to Rachelle A. Clason, divided the marital assets and debts, and ordered
Steven to pay Rachelle an equalization payment in the amount of $150,000. Subsequent to the
trial, Steven filed a motion for a new trial, which was denied by the district court. Steven now
appeals, and for the reasons that follow, we affirm in part, and in part reverse and remand with
directions.
         Upon our review of the record, we find that the district court erred in failing to classify the
2013 and partial 2014 real estate taxes as a marital debt. We also find plain error in the trial court’s
calculation of the amount of Steven’s premarital debt that was paid using marital funds. As a result




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of these errors, we remand the matter to the district court to recalculate the marital estate and
redistribute the assets and debts between the parties.
                                        II. BACKGROUND
        Steven and Rachelle were married on May 29, 2006. No children were born of the
marriage; however, Rachelle had two minor children from a prior marriage.
        On May 23, 2014, Rachelle filed a petition for dissolution of marriage. Almost immediately
thereafter, she used marital funds to purchase a single family home in Beaver City, Nebraska for
her and one of her sons. In the petition, Rachelle specifically asked that the parties’ marriage be
dissolved, that their marital assets and debts be equitably divided, that her maiden surname be
restored, and that she be awarded alimony and attorney fees.
        On July 23, 2014, Steven filed an answer. In his answer, he denied that the marriage could
not be salvaged and asked that the court refuse to dissolve the parties’ marriage.
        Trial was held on March 4, 2015. The parties’ trial testimony centered on whether their
marriage was irretrievably broken as well as the value of the marital estate. In particular, much of
the testimony focused on the classification of various assets and debts as well as the amount of
premarital debts that had been satisfied with marital funds. At the close of trial, both parties agreed
to submit written closing arguments.
        At trial, Rachelle testified that she believed her marriage to Steven was broken beyond
repair. She stated that there had been multiple incidents involving Steven’s family that had
negatively impacted the marriage, including receiving harassing phone messages and being
physically assaulted by his brother. Rachelle also testified to an altercation between her oldest son
and Steven, which led to her son moving out of state to live with his biological father. Along with
these incidents, Rachelle stated that she did not feel like Steven put their family first before his
own family, despite having spoken with him about her concerns.
        Apart from familial disputes, Rachelle testified that she and Steven would often get into
disagreements and that such disagreements were having a negative effect on her health. She stated
that approximately one month prior to filing the petition for dissolution, Steven abused her trust
when he used her bid number at an auction to purchase more than $80,000 worth of items without
her knowledge or consent.
        Rachelle testified that prior to moving out, she had tried to communicate more effectively
with Steven to resolve their problems and that they discussed counseling, although they never
attended. She finally decided to move out in May 2014 because she felt that the marital home was
an unhealthy place for her and her youngest son to live. Upon moving out, Rachelle said that she
received multiple bothersome emails and letters from Steven about her decision to leave him.
        Steven admitted that there was room for improvement in his marriage to Rachelle and that
he had sought advice from his pastor on a monthly basis several years prior to the time of
separation. He emphasized that since filing for dissolution, Rachelle had initiated contact with him
on several occasions and such contact had not been contentious. Steven testified that he had
previously asked Rachelle if she would consider counseling and her response was to the effect of,
“not at this time.” He stated that he believed their marriage was not irretrievably broken and that
Rachelle had not taken reasonable efforts to preserve their union.



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         The parties also testified regarding various assets that Steven owned prior the marriage.
Both parties agreed that all of the farm land, including the land upon which the marital home was
located, was premarital land belonging to Steven. Steven testified about various premarital assets,
including household items and farm machinery, which he claimed were disposed of during the
marriage and never replaced.
         Both parties testified that, approximately 10 months into the marriage, Steven filed for
bankruptcy. Rachelle stated that they did not jointly file for bankruptcy because all of the debts
were related to running the farm and she did not think it would be fair to file jointly since those
debts had accrued prior to their marriage. Steven’s premarital debts included in the bankruptcy
filing consisted of land debt, a lien on cows, liens on farm machinery, prior real estate taxes, and
a lien on Steven’s 2004 pickup. The bankruptcy filing also included approximately $20,000 of
credit card debt, although Steven and Rachelle presented conflicting testimony regarding whether
this debt was premarital. Rachelle testified that all of these debts except the land debt and the
machinery debt were eventually paid off using marital funds. According to the evidence, the land
debt was reduced by $49,000 and the farm machinery debt was reduced by $69,875.
         The trial court heard testimony regarding various debts that Steven claimed should be
classified as marital. He testified that the second half of the 2013 real estate taxes and the prorated
2014 real estate taxes for the parties’ property should be considered marital debts since the
expenses arose during the time that Rachelle was still living with Steven and benefiting from the
income produced on the land.
         Steven next claimed that a $35,000 debt for “unpaid bills” should be classified as a marital
liability on the basis that it was for expenses that arose during the marriage. However, when asked
specifically what those unpaid bills were, Steven was unable to elaborate beyond the description
previously provided in the joint property statement that the debt was for feed, utilities, and
attorney’s fees. Steven reported that the farm was involved in two lawsuits--a suit initiated by the
Department of Environmental Quality (DEQ) and another regarding the Clason Living Trust. He
testified that Rachelle was not a party to either suit nor had she been involved in the litigation.
Rachelle stated that she was not aware of the DEQ lawsuit and believed that the matter had already
been resolved. Steven further claimed that the attorney’s fees for those two lawsuits were separate
and apart from the attorney’s fees included in the $35,000 figure.
         The parties also testified regarding whether Steven had already purchased and planted any
crops at the time that Rachelle moved out. Rachelle stated that she left around planting season and
she believed that Steven had either been in the process of planting crops or that he had already
finished. Steven testified that he had not planted any row crops at that time nor did he believe that
he had any alfalfa in the ground yet. However, he later admitted that while he may not have had
anything planted in the ground before Rachelle left, he had already purchased seed and paid for
some of the crop chemical application.
         In its decree, the trial court determined that a 2003 Kia Sedona was Rachelle’s premarital
property, and thus, belonged solely to her. It determined that the farm real estate, including the
marital home, the majority of the cattle, and much of the farm equipment was Steven’s premarital
property and belong solely to him. Regarding marital property, the court awarded Rachelle the
home she had purchased in Beaver City, Nebraska, her 2010 Dodge Journey, and various items of



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personal and household property. The court awarded Steven the farm equipment and machinery,
and the majority of household items.
        The trial court determined that the credit card debt paid off under Steven’s bankruptcy
filing should be considered Steven’s premarital debt. The crop seed expense at the time that
Rachelle moved out was classified as a marital asset and assigned to Steven. The 2013 and 2014
real estate taxes were classified as nonmarital debt as a lien on premarital property. The trial court
disregarded the claimed $35,000 debt for “unpaid bills.”
        After assigning the assets and debts, the trial court ordered Steven to make an equalization
payment to Rachelle in the amount of $150,000. The court determined this amount by subtracting
each party’s assigned debts from his or her assets and then finding the difference between the two
net totals. The court found that Rachelle had a net total of $87,850 and Steven had a net total of
$397,497. The trial court then took roughly half the difference between the net totals and ordered
an equalization payment in that amount. The decree did not award any alimony or attorney’s fees.
        Steven now appeals from the decree of dissolution.
                                 III. ASSIGNMENTS OF ERROR
        On appeal, Steven asserts, restated, that the trial court erred in (1) finding evidence
sufficient to determine that the marriage was irretrievably broken; (2) its calculations regarding
marital property and in imposing an equalization judgment on Steven in the amount of $150,000
in favor of Rachelle; and (3) failing to order a new trial on Steven’s motion.
                                  IV. STANDARD OF REVIEW
        An appellate court’s review in an action for dissolution of marriage is de novo on the record
to determine whether there has been an abuse of discretion by the trial judge. Longo v. Longo, 266
Neb. 171 (2003). This standard of review applies to the trial court’s determinations regarding the
division of property, alimony, and attorney fees. Id. An abuse of discretion occurs when the trial
court’s reasoning or ruling is based upon reasons that are untenable or unreasonable, and as a result
a litigant is deprived of a substantial right and denied just results in the matter. Coufal v. Coufal,
291 Neb. 348 (2015).
                                           V. ANALYSIS
                              1. MARRIAGE IRRETRIEVABLY BROKEN
         Steven asserts that the trial court erred in finding sufficient evidence to determine that his
marriage to Rachelle was irretrievably broken. Specifically, he claims that Rachelle has not
demonstrated sufficient effort to preserve their marriage and that she should be required to do so
before the court finds the marriage to be beyond repair.
         Pursuant to Neb. Rev. Stat. § 42-361(2) (Cum. Supp. 2012), if one of the parties has denied
under oath or affirmation that the marriage is irretrievably broken, the court shall consider all
relevant factors, including the circumstances that gave rise to the filing of the complaint and the
prospect of reconciliation, and shall make a finding whether the marriage is irretrievably broken.
The Nebraska Supreme Court has held that when the relationship of two married parties has
deteriorated to the point that they can no longer reside with one another, the marriage is
irretrievably broken. Witcig v. Witcig, 206 Neb. 307, 292 N.W.2d 788 (1980). In reviewing the


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sufficiency of the evidence, an appellate court may give weight to the trial court’s observations of
the witnesses and their manner of testifying as well as the trial court’s acceptance of one version
of facts over another. Id.
         In this case, Steven and Rachelle presented conflicting evidence regarding whether their
marriage was irretrievably broken. Steven claimed that Rachelle had demonstrated little to no
effort to resolve their marital problems and that there was not sufficient evidence to find that their
marriage could not be salvaged. Conversely, Rachelle testified to ongoing problems in their
marriage, such as conflicts between Steven and her oldest son as well as conflicts with Steven’s
family, including physical altercations. She also testified to Steven’s abuse of her trust and his
refusal to address her concerns that he did not put their family first. Rachelle stated that she had
made efforts to preserve their marriage, including communicating more with Steven and discussing
counseling. Despite this, Rachelle continued to feel that the marriage was unhealthy and moved
out of the marital home in May 2014. Almost immediately, she purchased a home of her own and
filed for divorce.
         Regardless of how Steven viewed the marriage, Rachelle’s actions and testimony made it
clear that she did not believe their marriage could be salvaged and she had no intention of
reconciling with him. When reviewing conflicting evidence, this court will give weight to the
factual determinations made by the trial court. Based upon the record before us, we find no abuse
of discretion in the trial court’s determination that the marriage was irretrievably broken.
Therefore, there is no merit in this assignment of error.
                               2. CALCULATIONS OF MARITAL ESTATE
         Steven next asserts that the trial court abused its discretion in its calculations regarding the
marital estate. Specifically, he argues that the court erred in disregarding a marital debt of $35,000,
assigning $20,000 of premarital credit card debt against him, not classifying the 2013 and partial
2014 real estate taxes as a marital debt, failing to credit him for substantial premarital assets, and
in classifying his 2014 crop seed expense as a marital asset. Upon our de novo review of the record,
we find that the trial court erred in classifying the real estate taxes as a nonmarital debt. We also
find plain error in the trial court’s calculations regarding the amount of Steven’s premarital debt
paid with marital funds. Accordingly, we affirm in part, and in part reverse and remand with
directions.
         Before we address Steven’s specific assertions in regard to the calculation of the marital
estate, we briefly review the controlling legal principles. Pursuant to Neb. Rev. Stat. § 42-365
(Reissue 2008), the “purpose of a property division is to distribute the marital assets equitably
between the parties.” Sellers v. Sellers, 294 Neb. 346, 882 N.W.2d 705, (2016). However, the
marital estate is not divided by a rigid mathematical formula. McCollister v. McCollister, 219 Neb.
711, 365 N.W.2d 825 (1985). “The ultimate test in determining the appropriateness of the division
of property is fairness and reasonableness as determined by the facts of each case.” Sellers v.
Sellers, supra. It is well established that the equitable division of property is a three-step process.
First, the court classifies the parties’ property as marital or nonmarital, setting aside any nonmarital
property to the party who brought that property to the marriage. Next, the court values the marital
assets and marital liabilities of the parties. Lastly, the court calculates and divides the net marital
estate between the parties in accordance with the principles contained in § 42-365. Id. In general,


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all property accumulated and acquired by either spouse during marriage is considered part of the
marital estate. Brozek v. Brozek, 292 Neb. 681, 874 N.W.2d 17 (2016). The exceptions to this rule
are when a spouse acquires property by gift or inheritance. Id. Where one party to a dissolution
claims a particular piece of property to be nonmarital, the burden of proof lies with that party. Id.
                                          (a) $35,000 Debt
        Steven claims that the trial court should have included a debt for unpaid bills in the amount
of $35,000 as a marital debt. In the joint property statement, he cites the cost of feed, utilities, and
attorney’s fees as the sources of this debt. Steven argues that these expenses arose as part of normal
living and operating expenses and as such, should be classified as marital.
        Yet, on cross-examination, Steven was unable to give any further explanation for exactly
which bills have not been paid and how much was still owing on each. He admitted that any bills
for legal work done on behalf of Rachelle had been paid long before and that she was not a party
to either the DEQ or Clason Living Trust lawsuits. Furthermore, Steven includes attorney’s fees
for each lawsuit as separate items listed in the property statement. He testified at trial that those
are just projected amounts in order to settle those lawsuits, but we are not convinced that those
attorney’s fees are distinct from what Steven claims to be part of the $35,000. Rachelle testified
that as of the time of separation, she was not aware of any unpaid bills nor was she aware of the
DEQ lawsuit. Beyond Steven’s assertions that this $35,000 marital debt exists, we find nothing in
the record to support the existence of these unpaid bills nor the amount of debt claimed. As a result,
we find the trial court did not abuse its discretion in disregarding this as a marital debt.
                                   (b) Premarital Credit Card Debt
         Steven argues that since neither party included his premarital credit card debt on their joint
property statement, the trial court erred in assigning such debt to him. He claims that the court
should not have included that debt against either party.
         However, testimony elicited at trial by both Steven and Rachelle indicates that Steven did
in fact have premarital credit card debt. By his own admission, he was operating off of credit cards
in 2006 out of necessity in order to keep his farming and cattle operations running. Steven admitted
that after filing for bankruptcy, approximately $20,000 of credit card debt was paid off using
marital funds. The trial court found this testimony to be credible and issued its order assigning this
debt against Steven. We will give weight to the trial court’s finding of fact in this regard. We
therefore find there was no abuse of discretion in its determination that Steven did have $20,000
of premarital credit card debt that was paid off using marital funds.
                                        (c) Real Estate Taxes
       Steven assigns that the trial court erred in classifying the 2013 and prorated 2014 real estate
taxes as a nonmarital debt. He argues that such expenses followed naturally from his farming
operation, which produced income benefiting both him and Rachelle. As such, he claims the debt
should be classified as marital and equitably divided between the parties. We agree.
       In Meints v. Meints, 258 Neb. 1017, 608 N.W.2d 564 (2000), the Nebraska Supreme Court
held that “[i]ncome tax liability incurred during the marriage is one of the accepted costs of
producing marital income, and thus, we hold that income tax liability should generally be treated



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as a marital debt.” The Court ruled that income taxes incurred during marriage are an accepted,
and in fact necessary, expense in the production of income. Id. Any income generated from
employment during marriage is generally considered a marital asset. Brozek v. Brozek, supra. We
likewise find that real estate taxes assessed on farmland used for income production during the
marriage are analogous to income taxes. Such taxes are a necessary expense for the ownership and
use of that land in order to produce marital income, and that income benefits both spouses.
        Here, the trial court classified the real estate taxes for 2013 and the first five months of
2014 as Steven’s nonmarital debt on the basis that the real estate itself was a premarital asset,
which was subsequently awarded to him as such. However, Steven and Rachelle were married and
living together for the entirety of that time period. Both parties testified to working on the farm
and they both benefited from the income generated from the ownership and use of the land. While
we recognize that the taxes arose from premarital land, the taxes themselves arose during the
course of the marriage as a result of Steven and Rachelle’s ownership and use of the land to
produce income. To assign such liability to Steven alone, when Rachelle enjoyed the benefits of
the income produced on that land, would be patently unjust. We find that the trial court abused its
discretion in failing to equitably divide the 2013 and the prorated 2014 real estate taxes between
the parties. Accordingly, we reverse, and remand to the trial court to equitably divide and assign
the real estate tax liabilities.
                                  (d) Appellant’s Premarital Assets
         Steven alleges that the trial court erred in not crediting him for substantial premarital assets
that were subsequently sold, consumed, or disposed of during the marriage. Specifically, he points
to a number of household items such as living room furniture, computer and printer, washer and
dryer, refrigerator, TV and stereo, and a bedroom set. He also includes various pieces of
equipment, the livestock and feed he owned at the time of the marriage, and the crops that were
growing at that time.
         Steven testified that many of the household items were outdated and no longer usable;
therefore, they were disposed of. In order to receive credit for premarital property, the spouse
claiming the credit must be able to trace its value. See Brozek v. Brozek, supra. By Steven’s own
admission, the household items no longer had value at the time at which they were disposed. As a
result, he was not entitled to any credit for them.
         As to the equipment, Steven testified that he sold most of it for a nominal value, but he did
not trace where those proceeds went. As stated in Brozek v. Brozek, supra, to trace the value of an
item of premarital machinery that has been traded in during marriage, we would need evidence of
the ratio of marital-to-nonmarital funds the spouse used to acquire the new asset. We do not have
any such evidence in this case. The cattle have also been sold, but again, Steven did not trace where
those proceeds went. He testified that the growing crops would have gone into additional cattle or
been sold, but again, there was no testimony tracing those proceeds.
         As the spouse claiming credit for nonmarital property that was disposed of during the
marriage, Steven had the burden of tracing the proceeds and he failed to meet his burden. The trial
court did not abuse its discretion in failing to credit him for this premarital property.




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                                       (e) Crop Seed Expense
        The trial court classified the $25,000 crop seed expense as a marital asset and assigned it
to Steven. He now claims that the crop seed should have been classified as a nonmarital asset on
the basis that it was purchased after the time of separation. Steven testified that as of the date that
Rachelle left, he had not yet planted anything that year. However, he admitted that he had already
purchased seed and had paid for some of the crop chemical application. The trial court included
this expense as a marital asset because even though Steven may not have planted any crops before
he and Rachelle separated, he had already purchased the seed, which would have used marital
funds. Steven has the burden to show that these expenses were not paid for with marital funds, and
we do not find sufficient evidence in the record to meet this burden. We therefore find no abuse of
discretion in the determination that the crop seed expense was a marital asset and could properly
be assigned to Steven.
                                            (f) Plain Error
         Additionally, we find that there is another error concerning the trial court’s calculation and
division of the marital estate. The trial court calculated Steven’s premarital debts that were paid
using marital funds and included that amount in its calculation of total marital property assigned
to him. It then subtracted the amount of marital debt assigned to Steven from his total marital
property to determine his net total share of the marital estate. The trial court then used the
difference between Steven’s net total share and Rachelle’s net total share to determine the amount
of the equalization payment awarded to Rachelle.
         However, in calculating the decrease in premarital debt assigned to Steven, the trial court
appears to have incorrectly added the values. The trial court lists each of Steven’s premarital debts
that had been paid with marital funds: $229,000 real property mortgage debt, of which $49,000
had been paid during the marriage; $100,000 lien on cows which according to Rachelle had been
completely paid during the marriage; $120,000 liens on farm machinery, of which $69,875 had
been paid during the marriage; $13,047 real estate taxes; $20,500 debt on 2004 pickup; and
$20,000 credit card debt. Adding these amounts together, the trial court found that $182,422 of
Steven’s premarital debts had been paid using marital funds. That number appears to be in error.
We find the sum of these debts to be $272,422. We cannot find evidence in the record to support
the trial court’s figure.
         This error affects Steven’s net total share of the marital estate, which in turn affects the
amount of the equalization payment awarded to Rachelle. Steven makes no specific assignment of
error regarding the trial court’s calculations of the decrease in his premarital debt and Rachelle
does not challenge the calculations by cross-appeal. Nonetheless, the calculations are clearly
wrong and we find that such is plain error. Thus, upon remand, the trial court should recalculate
the marital estate and the equalization payment, if any.
                               3. DENIAL OF MOTION FOR NEW TRIAL
       Steven assigns that the trial court erred in denying his motion for a new trial. However, he
does not state the grounds upon which he claims this was in error. His brief contains no argument
whatsoever pertaining to this assignment of error. An alleged error must be both specifically
assigned and specifically argued in the brief of the party asserting the error in order to be


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considered by an appellate court. Olson v. Olson, 13 Neb. App. 365, 693 N.W.2d 572 (2005). We
therefore do not address this assigned error.
                                        VI. CONCLUSION
         Upon our de novo review of the record, we find that the trial court erred in calculating the
marital estate, specifically in classifying the real estate taxes as a nonmarital debt. We also find
the trial court committed plain error in miscalculating the amount of Steven’s premarital debts that
were paid using marital funds. As a result of these errors, we remand the matter to the trial court
to recalculate the marital assets and debts, redistribute them between the parties, and recalculate
the equalization payment, if any. We affirm the remainder of the trial court’s decision.
                                                        AFFIRMED IN PART, AND IN PART REVERSED
                                                        AND REMANDED WITH DIRECTIONS.




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