Shafer v. Shafer

VI. CONCLUsION
The 	district 	court 	abused 	its 	discretion 	in 	denying 	the
baileys’ motion to amend the complaint. Accordingly, we
reverse, and remand for further proceedings consistent with the
above analysis.
reverseD anD remanDeD For
Further proCeeDings .
kristi a. shaFer , appellee , v . layne D. shaFer , appellant .
741 N.W.2d 173
Filed November 13, 2007. 	No. A-06-362.
1. Property Division: Alimony: Appeal and Error. The division of property is
entrusted to the discretion of the trial court and on appeal will be reviewed
de novo on the record and affirmed in the absence of an abuse of the trial
court’s discretion.
2. Alimony: Appeal and Error. In reviewing an award of alimony, an appellate
court does not determine whether it would have awarded the same alimony, but
whether the trial court’s award is untenable so as to deprive a party of a substantial
right or just relief.
3. Property Division: Proof. The burden of proof to show that property is a non-
marital asset remains with the person making the claim.
4. Property Division. how inherited property will be considered in determining the
division of property must depend upon the facts of the particular case and the
equities involved, and if an inheritance can be identified, it is to be set off to the
inheriting spouse and eliminated from the marital estate.
5. ____. Property acquired by one of the parties through gift or inheritance is ordi-
narily set off to such individual and not considered part of the estate unless the
party not receiving the inheritance or gift has substantially cared for the property
during the marriage.
6. Divorce: Equity. A divorce action sounds in equity.
Appeal from the District Court for Dawson County: J ames e.
D oyle iv, Judge. Affirmed as modified.
Claude e. berreckman, Jr., of berreckman & berreckman,
P.C., for appellant.
kent A. schroeder, of Ross, schroeder & George, L.L.C., for
appellee.
irwin , sievers, and C assel, Judges.
170 	16 NebRAskA APPeLLATe RePORTs
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:16 AM CST

sievers, Judge.
kristi A. shafer and Layne D. shafer were married on April
26, 1991, and kristi filed a complaint for dissolution of mar-
riage on August 4, 2004. Although a decree of dissolution was
entered on June 7, 2005, motions for new trial were sustained
in part with the ultimate result that Layne filed his appeal on
March 29, 2006—which was timely. The divorce trial involved
a number of somewhat complex issues, including Layne’s pre-
marital property, kristi’s inherited property, and the earning
capacity of the parties for purposes of determining child sup-
port. however, Layne assigns only three errors in his appeal.
After our review of the transcript, the testimony, the exhibits,
and the parties’ briefs, we have determined that the case is
appropriate for disposition without oral argument pursuant to
our authority under Neb. Ct. R. of Prac. 11b(1) (rev. 2006), and
we have entered the appropriate order.
PROCeDURAL AND FACTUAL bACkGROUND
Other than the brief procedural history set forth above, the
procedural background of this case is unimportant to the reso-
lution of the issues presented on appeal. The necessary factual
background from the testimony and exhibits as well as the per-
tinent portions of the trial judge’s decision will be set forth in
our discussion of each of the three assignments of error.
AssIGNMeNTs OF eRROR
Layne assigns as error and argues that (1) the trial court
erred in determining the amount excluded from the marital
estate attributable to a trust distribution received by kristi; (2)
the trial court erred in failing to exclude from the marital estate
livestock that was brought into the marriage by Layne; and (3)
the trial court erred in awarding kristi alimony.
sTANDARD OF ReVIeW
[1,2] The division of property is entrusted to the discretion
of the trial court and on appeal will be reviewed de novo on
the record and affirmed in the absence of an abuse of the trial
court’s discretion. Ritz v. Ritz, 229 Neb. 859, 429 N.W.2d 707
(1988). In reviewing an award of alimony, an appellate court
does not determine whether it would have awarded the same
shAFeR v. shAFeR 	171
Cite as 16 Neb. App. 170

alimony, but whether the trial court’s award is untenable so as to
deprive a party of a substantial right or just relief. Kelly v. Kelly,
246 Neb. 55, 516 N.W.2d 612 (1994).
ANALysIs
Trial Court’s Treatment of Real Estate Acquired in Part by
Distribution of Trust Was Correct.
The evidence shows that in December 1979, evelyn swanson
(kristi’s mother) established an irrevocable trust known as the
evelyn R. swanson Trust and named her children as bene-
ficiaries, including kristi and her sister, brooke swanson. The
trust, by its terms, was to terminate when brooke reached her
21st birthday, which occurred on January 15, 1995. Thereafter,
all of the beneficiaries of the trust, including kristi and brooke,
entered into an agreement in April 1995, providing for the dis-
tribution of the assets of the trust. The only distribution under
the agreement with which we are concerned is provided for in
paragraph 7, and it states:
It is further agreed that kRIsTI shAFeR and bROOke
sWANsON shall receive as full payment of their distribu-
tion the following described real estate, to-wit: “southwest
Quarter (sW 1/4) of section 6, Township 10 North, Range
19 West of the 6th P.M., Dawson County, Nebraska[,]” val-
ued at $150,000.00, and that they will assume a remaining
indebtedness to eileen Lahm, contract seller of said real
estate, in the amount of $46,000. It is further understood
that the debt against the pivot irrigation system located on
said real estate shall be paid in full prior to said distribu-
tion [we presume from trust assets]. It is further agreed that
kRIsTI shAFeR and bROOke sWANsON shall further
receive the sum of $32,000.00 in cash, or the same may
be used to reduce the indebtedness to Lahm, which would
reduce the indebtedness to $14,000.00.
kristi testified that she received $68,000 from the trust which
was used to pay for the southwest quarter of section 6, but that
Layne handled the details of the land transfer. The evidence
clearly shows that kristi’s distribution from the trust did not
fully cover the acquisition costs of the quarter section at issue.
The record contains a joint tenancy deed whereby brooke
172 	16 NebRAskA APPeLLATe RePORTs

conveyed all of her undivided interest in the quarter section to
Layne and kristi as joint tenants.
Layne testified that there was an agreement that the five
siblings would receive $68,000 and that kristi’s brothers “and
us, we took it out in real estate, but in our process, we paid
her sister off, and we assumed the loan that the swanson Trust
had started with eileen Lahm . . . . so we just paid brooke
and eileen Lahm off for six or seven years.” Layne testified
that brooke was paid $10,000 down with the balance paid in
annual payments over the ensuing years, but that such debt was
fully paid, as was the debt to eileen Lahm, by the time of the
parties’ separation.
kristi’s testimony was that she should receive a set-aside in
the amount of $118,093 from the marital estate for her inherit-
ance from her mother’s trust. This amount represented the value
of her original inheritance plus the proportional share of the
increase in value of the quarter section from $150,000 in 1995
to $260,500 in 2005. The trial court reconciled and summarized
the net result of the transactions involving the quarter section in
its decree, which we summarize as follows:
Value of land received 	$150,000
Money received 	32,000
Debt assumed (Lahm) 	(46,000)
evelyn R. swanson Trust (net received) 	136,000
kristi’s one-half share 	68,000
The trial court then reasoned as follows:
Thus, kristi’s inherited share was equal to 45.33%
of the value of the land purchased by kristi and Layne
($68,000.00 divided by $150,000.00). There is no evi-
dence of any substantial improvements to the land after its
acquisition and it further appears that the appreciation in
value of the land from the 1992 value of $150,000.00 to
the present value of $260,500.00 is due to market forces
and circumstances separate from any improvements made
to the property by the parties. Upon consideration of the
evidence, the court finds that kristi has established that
45.33% of the current value of the 160 acres . . . is attrib-
uted to her inheritance and that such value should be set
shAFeR v. shAFeR 	173
Cite as 16 Neb. App. 170

aside as her sole and separate property and the same is
excluded from the marital estate.
Accordingly, $118,085 was set off to kristi. her net marital
estate award was $197,725. The net marital estate awarded to
Layne was $248,738, and the court ordered Layne to pay kristi
the sum of $25,506 as property division equalization payable
over time without interest if such payments were current.
[3,4] Layne’s attack on the district court’s decision to exclude
$118,085 of value of the quarter section, referred to by the par-
ties as the “Lavery Quarter,” is initially premised on the ground
that the parties owned the property jointly. In rejecting this con-
tention, we rely upon Schuman v. Schuman, 265 Neb. 459, 658
N.W.2d 30 (2003), where the court reiterated the familiar rule
that the burden of proof to show that property is a nonmarital
asset remains with the person making the claim. The supreme
Court in Schuman expressly disapproved the language in our
opinion in Gerard-Ley v. Ley, 5 Neb. App. 229, 558 N.W.2d
63 (1996), where we said: “‘[W]hen a husband and wife take
title to a property as joint tenants, even though one pays all the
consideration therefor, a gift is presumed to be made by the
spouse furnishing the consideration to the other . . . .’” The
supreme Court in Schuman said that to the extent that our hold-
ing in Gerard-Ley could be interpreted to mean that nonmarital
property which during a marriage is titled in joint tenancy can-
not be considered as a nonmarital asset during a divorce, such
interpretation of our holding was disapproved. The Schuman
court then held that how inherited property will be considered
in determining the division of property must depend upon the
facts of the particular case and the equities involved and that if
an inheritance can be identified, it is to be set off to the inherit-
ing spouse and eliminated from the marital estate.
While Layne’s brief acknowledges the opinion in Schuman,
it nonetheless harkens back to the disapproved presumption
from Gerard-Ley as a basis for us to find an abuse of discretion.
We think it clear that Schuman did away with any presump-
tion that may have arisen from Gerard-Ley. Layne asserts that
the circumstances surrounding the acquisition of the property
and the fact that they owned it as joint tenants should limit the
nonmarital portion of the property to the $68,000 distribution
174 	16 NebRAskA APPeLLATe RePORTs

from the trust. Layne also argues that there is no authority to
support the trial court’s exclusion of the appreciation in value of
the Lavery Quarter from the marital estate. The trial court did
not exclude all of the appreciation in the Lavery Quarter from
the marital estate, but, rather, found that 45.33 percent of the
acquisition cost of the Lavery Quarter was traceable to kristi’s
inheritance and thus that she was entitled to have the same per-
centage of the Lavery Quarter’s present value set aside to her
and treated as nonmarital property. The trial court has merely
performed a simple “tracing,” and both its logic and math are
unassailable and not an abuse of its discretion, being fully in
accord with controlling precedent.
[5] Layne references Van Newkirk v. Van Newkirk, 212 Neb.
730, 325 N.W.2d 832 (1982), which is typically cited for the
rule that property acquired by one of the parties through gift or
inheritance is ordinarily set off to such individual and not con-
sidered part of the marital estate unless the party not receiving
the inheritance or gift has substantially cared for the property
during the marriage. Layne argues that he continuously and
exclusively cared for and farmed the property for the entire
time that it was owned during the parties’ marriage, but no
evidence was introduced that the appreciation in the value of
the property was the result of any substantial improvement or
his farming and care of the Lavery Quarter during the parties’
marriage. In the final analysis, the Van Newkirk court found
that where appreciation in value of a farm inherited by the wife
during the marriage was due principally to inflation and not to
significant efforts by the husband, the farm should have been
set aside to the wife and disregarded in computing the marital
estate. here, the trial court made a specific factual finding that
“[t]here is no evidence of substantial improvements to the land
after its acquisition” and that its appreciation was due to market
forces. Layne does not cite us to any evidence in the record
which would belie the trial court’s conclusion in this regard.
Accordingly, we find that this assignment of error is without
merit and that the trial court did not err in setting aside 45.33
percent of the value at the time of trial of the Lavery Quarter to
kristi as nonmarital property. Layne’s first assignment of error
is without merit.
shAFeR v. shAFeR 	175
Cite as 16 Neb. App. 170

Should Trial Court Have Excluded Some of
Parties’ Cattle as Premarital Property?
Layne asserts that his financial statement given to his banker
in May 1991 demonstrates that from that time to the time of
trial, the number of animals has increased to 166, a 43 percent
increase over the number of cattle Layne brought into the mar-
riage. We have already articulated the basic standards about
premarital property and tracing. As Layne concedes, livestock
are “perishable” with limited useful life, and thus, Layne argues
that the court should have applied an equitable standard with
respect to his burden to prove that the livestock owned at the
time of the marriage are traceable to the livestock owned at the
time of trial. Layne’s testimony on the issue of the livestock is
quite brief, and we quote:
Q What have you done throughout your marriage with
your livestock? have you replaced livestock as you’ve
sold it?
A I would have had to. If I only had 48 cows then [at
the time of the marriage] and I didn’t replace them, I
wouldn’t have 73 today.
Q has there ever been a period of time during your
marriage when you stopped farming or you stopped your
livestock operation?
A No.
Q has it been continuous throughout the course of
your marriage?
A sure.
Q And has the number of livestock remained static or
gradually increased?
A Gradually increased until the year 2000, 2001. We
had 120, 125 cows, and the drought and everything, we
sold back because we didn’t have the grass and things to
take care of [them].
kristi’s testimony sheds additional light on the subject, and
again we quote:
Q None of those [referencing cattle], unless they became
sick and died, would have been junked or —
A No.
176 	16 NebRAskA APPeLLATe RePORTs

Q And they generally wouldn’t have been traded either,
would they?
A sold.
Q And when they were sold, was it normally your
husband’s practice, do you know, to replace them —
A yes.
Q — with proceeds from the sale?
A yes.
Q And at the time of your separation as the property
statement would indicate, the number of livestock and the
value of livestock in the farm operation actually exceed
what exists at the time of the marriage, don’t they?
A Correct. by a lot, I’m pretty sure.
exhibit 7, Layne’s financial statement of May 20, 1991, a
month after the marriage, shows the following with respect
to livestock, and he testified that he owned such immediately
before the marriage:
48 cows 	average weight 1,000 pounds
at $700 per head 	$33,600
10 heifers 	1 year old, average weight
850 pounds at $700 per head 	7,000
45 calves 	at $200 per head 	9,000
3 bulls 	average weight 1,500 pounds
at $1,000 per head 	3,000
10 steers 	1 year old, average weight
800 pounds at $700 per head 	7,000
$59,600
In contrast, exhibit 1, the joint property statement of the par-
ties, shows that as of March 2005, the parties possessed the
following cattle:
73 cows 	bred and open 	$ 58,400
90 calves 	56,250
3 bulls 	3,000
$117,650
Thus, by comparison of these two exhibits, we see that the
value of the parties’ cattle herd has increased by the sum of
$58,050 during the term of the marriage.
[6] The only Nebraska divorce case involving a set-aside
for premarital cattle we have found is an unpublished opinion
shAFeR v. shAFeR 	177
Cite as 16 Neb. App. 170

of this court in which the setoff was allowed. And while such
case is not binding precedent, it reminds us that a divorce
action sounds in equity. see Kouth v. Kouth, 238 Neb. 230, 469
N.W.2d 791 (1991). Obviously, one cannot draw a straight line
from a cow owned by Layne to a cow owned 13 years later by
Layne and kristi, which is the prototypical “tracing” of a pre-
marital asset so as to set it aside to the party who owned it at the
time of the marriage. but in our view, the “disposable” nature
of a cow does not, by itself, mean that a set-aside for preowned
cattle is not allowable. Instead, it seems to us that the issue is
resolved according to the particular facts of the case.
In the case before us, the testimony is undisputed that Layne
has been involved in the cattle business continuously through-
out the marriage, starting with his preowned herd, and that the
proceeds from the sale of cattle have been reinvested in replace-
ment cattle—producing the herd that existed at the time of the
divorce. Obviously, the herd has grown in number and value
during the marriage. And we note that kristi does not dispute
the premarital valuation of Layne’s cattle or the value of the cat-
tle at the time of the dissolution. Given the undisputed evidence
concerning the cattle herd which we have recounted above, the
controlling precedent on set-aside of premarital assets, and the
fact that this is an equitable matter, we can discern no reason
not to set aside to Layne that portion of the value of the present
cattle herd which is attributable to Layne’s premarital cattle. In
doing so, we view the cattle herd as in effect a single asset—
rather than taking a “cow by cow” approach to the tracing issue.
Thus, we believe we have simply acknowledged the realities of
what happens over time in a cattle operation. In short, while
an individual cow which Layne owned in 1991 was long ago
turned into hamburger, hot dogs, and shoe leather and thus is
not traceable, the cattle herd itself, which has always been part
of Layne’s farming operation, is in fact traceable. To do other-
wise seems to us to exalt form over substance and ignore the
equitable nature of a dissolution action. Therefore, the trial court
should have set aside to Layne the sum of $59,600 to account
for the cattle herd he brought into the marriage.
The change in the property division attributable to this
modification is as follows: The trial court found that the
178 	16 NebRAskA APPeLLATe RePORTs

total net marital estate was $456,312, which when reduced
by $59,600 becomes $396,712. Thus, half of the net marital
estate is $198,356. The trial court awarded kristi $197,725
as her “net marital estate award” and an equalizing payment
of $30,431, which we reduce to $631, which gives kristi a
total of $198,356—one-half of the net marital estate. Layne
shall pay such $631 to kristi within 30 days of the entry of
our mandate. In all other respects, we affirm the trial court’s
property division.
Alimony.
The trial court awarded kristi alimony at the rate of $40 per
month for 78 months, beginning July 1, 2005, for an aggregate
of $3,120. In the decree of dissolution, the trial court initially
said that “the duration of the marriage supports an award of
alimony. . . . Further, the relative economic circumstances of the
parties support a finding that while alimony for kristi is war-
ranted, due to the interruptions in her employment made during
the marriage, it should be low in amount.”
In discussing alimony, the trial court found that the parties
made essentially equal contributions to the marriage, including
care of children, and our review of the record certainly justifies
that conclusion. Layne argues that when the statutory factors
for an award of alimony set forth in Neb. Rev. stat. § 42-365
(Reissue 2004) are examined, there is no justification for even
this rather insignificant sum of alimony, and we agree. Despite
the trial court’s finding to the contrary, there is absolutely no
evidence of any interruption of employment or educational pur-
suits by kristi. she is well educated, with a bachelor’s degree,
as opposed to Layne, who has just a high school diploma and
has farmed all of his adult life. Without reciting kristi’s work
experience, it is apparent that she has worked in a number of
capacities and has extensive job experience. kristi testified that
she did not interrupt a career or any education in order to marry
Layne. In addition to the lack of evidence to support an award
of alimony, the economic circumstances of the parties do not
justify an alimony award, even of $40 per month.
The trial court determined kristi’s net monthly income to be
$2,516 and Layne’s to be some $600 less per month at $1,900.
shAFeR v. shAFeR 	179
Cite as 16 Neb. App. 170

With respect to the duration of the marriage as justification
of an alimony award, we frankly do not see how “duration
of the marriage” operates to justify an alimony award in this
case—and particularly to kristi. kristi and Layne were both in
the same marriage for the same period of time, and the statute
does not tell us in whose favor this factor cuts. Of considerably
more import are the relative economic circumstances of the par-
ties and the interruption of careers and education. The latter is
not a factor, given the absence of evidence, and the economic
circumstances would favor an award of alimony to Layne before
an award of alimony to kristi. While the $40 is arguably an
inconsequential sum, the fact is that the record does not justify
an award of any alimony to kristi. The district court’s award of
alimony is unsupported by the record, is untenable, and is an
abuse of discretion, and we hereby vacate the alimony award.
CONCLUsION
We modify the decree to provide that Layne shall pay kristi
the sum of $631 within 30 days of our mandate so as to equal-
ize the division of the marital estate. We further modify the
decree to eliminate the award of alimony to kristi. In all other
respects, we affirm the decree.
aFFirmeD as moDiFieD.
state oF neBraska , appellee , v .
J onathan C. rush , appellant .
741 N.W.2d 180
Filed November 13, 2007. 	No. A-06-1318.
1. Criminal Law: Convictions: Evidence: Appeal and Error. When reviewing a
criminal conviction for sufficiency of the evidence to sustain the conviction, the
relevant question for an appellate court is whether, after viewing the evidence in
the light most favorable to the prosecution, any rational trier of fact could have
found the essential elements of the crime beyond a reasonable doubt.
2. Sentences: Appeal and Error. A sentence imposed within statutory limits will
not be disturbed on appeal absent an abuse of discretion by the trial court.
3. Criminal Law: Indictments and Informations. In a multicount information
involving factual variations, such as different times, dates, places, property, or
180 	16 NebRAskA APPeLLATe RePORTs