Ging v. Ging

G reGory A. G inG, AppellAnt, v.
nAtAlie l. G inG, Appellee .
775 N.W.2d 479
Filed November 24, 2009. 	No. A-08-1249.
1. Divorce: Property Division: Appeal and Error. 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. This stan-
dard of review applies to the trial court’s determination regarding the division
of property.
2. Judgments: Words and Phrases. An abuse of discretion occurs when a trial
court’s decision is based upon reasons that are untenable or unreasonable or if its
action is clearly against justice or conscience, reason, and evidence.
3. Divorce: Property Division. In a dissolution of marriage proceeding, if the par-
ties fail to agree on a property settlement, the court shall order an equitable divi-
sion of the marital estate.
4. Property Division: Pensions. For purposes of property division, the marital
estate includes any pension and retirement plans owned by either party.
5. Property Division. Under Neb. Rev. Stat. § 42-365 (Reissue 2008), the equitable
division of property 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 in accordance with the principles contained
in § 42-365.
6. ____. The purpose of a property division is to distribute the marital assets equita-
bly between the parties.
7. ____. Although the division of property is not subject to a precise mathematical
formula, the general rule is to award a spouse one-third to one-half of the mari-
tal estate.
8. ____. The ultimate test for determining the appropriateness of the division of
property is reasonableness as determined by the facts of each case.
9. Evidence. Statements of counsel in a brief are not evidence.
10. Divorce: Property Division: Valuation: Time: Appeal and Error. There is no
“hard and fast” rule concerning the date on which marital property subject to
division in a dissolution proceeding is valued, so long as the selected date bears
a rational relationship to the property to be divided and is reviewed for an abuse
of discretion.
11. Divorce: Property Division: Valuation. In dissolution proceedings, the trial court
has broad discretion in valuing and dividing the parties’ retirement accounts.
Appeal from the District Court for Sarpy County: WilliAm
B. ZAsterA, Judge. Affirmed.
Kelly T. Shattuck, of Cohen, Vacanti, Higgins & Shattuck,
for appellant.
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Cite as 18 Neb. App. 145
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:12 AM CST

Mark S. Bertolini, of Bertolini, Schroeder & Blount, for
appellee.
inBody, Chief Judge, and irWin and moore, Judges.
moore, Judge.
INTRODUCTION
gregory A. ging appeals from a decree of dissolution entered
by the district court for Sarpy County on November 3, 2008,
which dissolved his marriage to Natalie L. ging. gregory’s pri-
mary complaint on appeal relates to the division of his retire-
ment account. For the reasons that follow, we affirm.
BACKgROUND
gregory and Natalie were married on June 28, 1986, in
Omaha, Nebraska. On July 3, 2007, gregory filed a complaint
for dissolution of marriage in Sarpy County District Court. The
trial was held on May 28, 2008. Because the issue on appeal
relates only to the division of property, specifically gregory’s
retirement account, we limit our discussion of the facts to only
those necessary for the resolution of this issue.
Among the marital property is gregory’s Omaha Public
Power District (OPPD) 457 retirement account. On April
16, 2007, the parties took out a $50,000 loan against this
account to pay certain marital debts, and gregory testified
that after accounting for the loan, the value of his account
was $248,358.96. An account statement dated September
19, 2007, shows the withdrawal representing the $50,000
loan and reports that the account was valued at $320,475.
On March 31, 2008, an account statement reported a value
of $298,358.96.
Natalie disputed that the $50,000 loan was a marital debt.
Natalie testified that when she signed the document authoriz-
ing the loan from gregory’s 457 account, she was not aware
that the loan was for $50,000; rather, she believed it was for an
amount between $4,000 and $9,000.
Natalie owns three retirement accounts which are subject to
division. Evidence received at trial valued Natalie’s OPPD 457
retirement account at $22,974, her Wells Fargo 401K retire-
ment account at $16,050.81, and her OPPD 401K retirement
146 	18 NEBRASKA APPELLATE REPORTS

account at approximately $39,760.11. Natalie took out two
loans against her OPPD 401K retirement account to pay mari-
tal debt, and the combined outstanding balance of those loans
is $10,519.40.
In addition to their retirement accounts, the parties also
owned three parcels of real property, two tractors, three vehi-
cles, an Ameritrade investment account, and various items of
personal property. gregory is the insured and beneficiary of a
life insurance policy which has a cash value of $10,762.60; he
also has an OPPD pension plan. Marital debts in addition to
the loans from the parties’ retirement accounts include debts to
American Express, AT&T, Wells Fargo, and a mortgage on the
marital home.
Following the trial, the district court took the matter under
advisement.
On June 26, 2008, the district court apparently issued writ-
ten findings to counsel in a letter and directed gregory’s attor-
ney to prepare a decree in accordance with the findings. That
letter does not appear in the record. On September 24, prior to
entry of a decree, gregory filed a motion to reconsider, clarify,
and compel. The motion states:
On June 26, 2008, the court sent Tentative Findings to
counsel setting a specific dollar amount [that Natalie]
would be awarded from [gregory’s] 457 Plan instead of
a percentage of the Plan. As the Court is aware, the Plan
is subject to market fluctuations and dropped in value
[between May 2008 and September 2008]. This Finding
would result in [gregory’s] absorbing all the market loss
which is unfair and unconscionable. [gregory] requests
the language be changed to award one-half of the value
after subtracting the existing loan against the fund.
On October 1, gregory filed an amended motion to reconsider,
clarify, and compel; the changes in the amended motion are not
relevant to this appeal.
On October 23, 2008, Natalie filed a motion for an order
requesting that the court enter the decree. The same day,
Natalie also filed an objection to greg’s amended motion. The
objection asked the court to deny gregory’s amended motion
and grant Natalie’s motion to compel entry of the decree. The
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district court heard gregory’s amended motion and Natalie’s
objection on October 24. Natalie’s motion to compel was heard
on October 31. No testimony or exhibits were offered as evi-
dence at either of these hearings.
On November 3, 2008, the court denied gregory’s amended
motion to reconsider, clarify, and compel and entered the
decree of dissolution. With respect to the parties’ retirement
accounts, the decree provides:
[Natalie] is awarded the sum of $95,845.50 of [gregory’s]
457 Plan and her 401K and 457 Plans. Each party [is]
to execute all necessary documents to effect the trans-
fer. In valuing the plan the Court did not add back the
$50,000.00 loan for the reason [that] there was sufficient
evidence [that Natalie] had knowledge of the loan dis-
tribution. Each party is awarded one-half of the vested
pension of the other as determined by the coverture
method, the same to be set over by a Qualified Domestic
[Relations] Order.
The decree ordered the parties to sell the three parcels of real
property as well as the two tractors and equally divide the
proceeds. The court also divided the marital debts, the parties’
three vehicles, and their household and personal items. The
court ordered that the parties equally divide the Ameritrade
account and that gregory keep his life insurance policy.
gregory timely filed this appeal.
ASSIgNMENT OF ERROR
gregory assigns as error, restated, that the district court
erred when it divided the parties’ property, specifically as the
property award relates to his 457 retirement plan.
STANDARD OF REVIEW
[1,2] An appellate court’s review in an action for dissolu-
tion of marriage is de novo on the record to determine whether
there has been an abuse of discretion by the trial judge. Gress
v. Gress, 271 Neb. 122, 710 N.W.2d 318 (2006). This standard
of review applies to the trial court’s determination regarding
the division of property. See id. An abuse of discretion occurs
when a trial court’s decision is based upon reasons that are
148 	18 NEBRASKA APPELLATE REPORTS

untenable or unreasonable or if its action is clearly against jus-
tice or conscience, reason, and evidence. Schwartz v. Schwartz,
275 Neb. 492, 747 N.W.2d 400 (2008).
ANALYSIS
gregory assigns as error the district court’s award of prop-
erty, particularly as the award relates to his 457 retirement
plan. He specifically argues that the court erred in awarding a
lump-sum amount of his retirement account rather than a per-
centage of the same which would account for gains and losses
during the time between the rendering of the court’s decision
and the implementation of the decision.
[3-5] In a dissolution of marriage proceeding, if the parties
fail to agree on a property settlement, the court shall order
an equitable division of the marital estate. Neb. Rev. Stat.
§ 42-366(8) (Reissue 2008). For purposes of property divi-
sion, the marital estate includes any pension and retirement
plans owned by either party. See § 42-366(8). Under Neb.
Rev. Stat. § 42-365 (Reissue 2008), the equitable division of
property is a three-step process. Gress v. Gress, supra. The
first step is to classify the parties’ property as marital or non-
marital. Id. The second step is to value the marital assets and
marital liabilities of the parties. Id. The third step is to cal-
culate and divide the net marital estate between the parties in
accordance with the principles contained in § 42-365. Gress
v. Gress, supra.
[6-8] The purpose of a property division is to distribute
the marital assets equitably between the parties. § 42-365.
Although the division of property is not subject to a precise
mathematical formula, the general rule is to award a spouse
one-third to one-half of the marital estate. See, Gress v. Gress,
supra; Carter v. Carter, 261 Neb. 881, 626 N.W.2d 576
(2001). The ultimate test for determining the appropriateness
of the division of property is reasonableness as determined by
the facts of each case. Carter v. Carter, supra.
In the decree, the trial court did not specifically assign
values to the property and debts, but in our de novo review,
it is clear that the court attempted to arrive at a relatively
equal division of assets and debts. Aside from the retirement
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accounts, the court ordered that the remaining assets of any
significant value—the real estate and the tractors—be sold and
the net proceeds equally divided, along with the Ameritrade
account. Although the court’s order did not specifically so
state, it appears and the record supports a conclusion that the
district court intended to order that gregory pay $95,845.50
from his 457 account to Natalie as a property equalization pay-
ment. The record supports the court’s division of the marital
property, including the $95,845.50 payment. Although the par-
ties did dispute the values of some of the marital property, our
review of the record reveals that regardless of which party’s
values the court utilized, the court’s award falls within the
general rule that an equitable division of property is achieved
so long as a spouse is awarded one-third to one-half of the
marital estate.
[9] gregory’s primary argument is that the court erred
in ordering a cash payment from his retirement account as
opposed to dividing the account on a percentage basis. Prior to
entry of the decree, gregory asked the court to reconsider the
award of the lump-sum payment to Natalie, citing the recent
decline in the stock market, which he claimed caused his 457
account to decrease in value. gregory did not, however, offer
evidence at the hearing on his motion to show that the account
had actually decreased in value. gregory makes the same argu-
ment in his brief regarding the decline in the stock market, stat-
ing that between the time of the court’s tentative findings and
his motion to reconsider, “the stock market crashed at levels
not seen since the great Depression,” but of course, statements
of counsel in a brief are not evidence. Brief for appellant at
7. See Home Fed. Sav. & Loan v. McDermott & Miller, 243
Neb. 136, 497 N.W.2d 678 (1993) (when reviewing decision
of lower court, appellate court may consider only evidence
included within record; party’s brief may not expand eviden-
tiary record).
In his brief, gregory asserts that this case is analogous to
our unpublished opinion in Frasier v. Frasier, No. A-07-003,
2008 WL 3523155 (Neb. App. Aug. 12, 2008) (not designated
for permanent publication), and also to Gruber v. Gruber, 261
Neb. 914, 626 N.W.2d 582 (2001). However, both Frasier and
150 	18 NEBRASKA APPELLATE REPORTS

Gruber are distinguishable from the present case. In Gruber,
the Supreme Court affirmed the modification of a decree
necessitated by an employer’s refusal to recognize a qualified
domestic relations order designed to effectuate the division
of a retirement plan. The court held that modification was
appropriate to avoid a gross inequity, based upon “the record
before [the court], particularly the undisputed evidence that
both parties intended to divide the pension equally.” Id. at
922, 626 N.W.2d at 588. In Frasier, which also involved a
modification of a divorce decree, evidence was presented that
the husband’s retirement account became worthless due to his
previous employer’s filing bankruptcy, which, in turn, affected
the division of his remaining retirement benefits. Under the
unique facts of that case, this court concluded that modification
was warranted to avoid gross inequity. In reaching this conclu-
sion, we found that the employer’s bankruptcy and the resultant
decrease in the husband’s pension were unforeseen.
The present case does not involve a modification of a
decree to prevent gross inequity. Further, there is no evi-
dence in the record to suggest either a gross inequity or an
abuse of discretion in the division of the marital estate. To
the extent that gregory’s allegations of market fluctuations
are relevant, we note that such fluctuations would presum-
ably apply to Natalie’s retirement accounts as well and that
such fluctuations, both upward and downward, are an ongoing
occurrence.
[10] As with any item of property, it was necessary for the
trial court in this case to determine the value of the parties’
retirement accounts at a particular point in time in order to
ultimately divide the marital estate in an equitable manner. At
trial, gregory adduced evidence of the value of his retirement
account as of March 31, 2008, which was the most recent
statement available to the court at the trial held on May 28.
It is well settled that there is no “hard and fast” rule concern-
ing the date on which marital property subject to division in a
dissolution proceeding is valued, so long as the selected date
bears a rational relationship to the property to be divided and
is reviewed for an abuse of discretion. See Myhra v. Myhra, 16
Neb. App. 920, 756 N.W.2d 528 (2008). We find no abuse of
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discretion in the trial court’s consideration of the values of the
parties’ retirement accounts as adduced at trial.
[11] We further find no abuse of discretion in dividing the
marital estate by ordering a lump-sum cash payment to Natalie
from gregory’s retirement account as opposed to a payment on
a percentage basis. In dissolution proceedings, the trial court
has broad discretion in valuing and dividing the parties’ retire-
ment accounts. See Schwartz v. Schwartz, 275 Neb. 492, 747
N.W.2d 400 (2008).
For these reasons, we conclude that the district court did not
abuse its discretion when it divided the parties’ property in the
decree, particularly regarding the award to Natalie of a lump-
sum payment instead of a percentage of gregory’s 457 retire-
ment account. The decree ordered a reasonable division of the
marital estate and was not clearly against justice or conscience,
reason, and evidence.
CONCLUSION
In our de novo review, we conclude that the district court
did not abuse its discretion when it divided the parties’ prop-
erty, specifically related to the lump-sum award to Natalie
from gregory’s 457 plan. We affirm the district court’s entry
of the decree.
A ffirmed.
irWin, Judge, concurring.
I agree with the conclusion of the majority that gregory’s
assertions on appeal have no merit. I write separately only
to reaffirm my dissent in the case of Frasier v. Frasier, No.
A-07-003, 2008 WL 3523155 (Neb. App. Aug. 12, 2008) (not
designated for permanent publication), and to expressly disap-
prove of any implication by the majority in the present opinion
that would endorse or extend the holding in Frasier to any
other factual situation.
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