Reed v. Reed

J effrey J ay reed , appellee , v .
C hristine J ennifer reed , appellant .
763 N.W.2d 686
Filed March 20, 2009. 	No. S-06-757.
1. Divorce: Child Custody: Child Support: Property Division: Alimony:
Attorney Fees: Appeal and Error. In an action for the dissolution of marriage,
an appellate court reviews de novo on the record the trial court’s determinations
of custody, child support, property division, alimony, and attorney fees; these
determinations, however, are initially entrusted to the trial court’s discretion and
will normally be affirmed absent an abuse of that discretion.
2. Judgments: Jurisdiction: Appeal and Error. A jurisdictional question that does
not involve a factual dispute is determined by an appellate court as a matter of
law, which requires the appellate court to reach a conclusion independent of the
lower court’s decision.
3. Parties: Words and Phrases. An indispensable or necessary party is one whose
interest in the subject matter of the controversy is such that the controversy
cannot be finally adjudicated without affecting the necessary party’s interest or
which is such that not to address the interest of the necessary party would leave
the controversy in such a condition that its final determination may be wholly
inconsistent with equity and good conscience.
4. Courts: Parties. A court may determine any controversy between parties before
it when it can be done without prejudice to the rights of others or by saving their
rights; but when a determination of the controversy cannot be had without the
presence of other parties, the court must order them to be brought in.
5. Courts: Parties: Jurisdiction. The presence of necessary parties is jurisdictional,
and the absence of necessary parties deprives the district court of jurisdiction.
6. Equity: Parties: Final Orders. All persons whose rights will be directly affected
by a decree in equity must be joined as parties in order that complete justice may
be done and that there may be a final determination of the rights of all parties
interested in the subject matter of the controversy.
7. Equity: Parties: Contracts. All persons interested in the contract or property
involved in a suit, or whose interests therein may be affected by the decree in
equity, are necessary parties.
8. Debtors and Creditors: Conveyances: Fraud: Parties. In all actions brought by
creditors to subject property which it is claimed was fraudulently transferred, the
person to whom the property has been transferred is a necessary party.
9. Courts: Jurisdiction: Divorce: Property Division: Equity. The determination
of one of the parties to a marriage to place property beyond the reach of the other
party, and thus forestall a division of the property, does not operate to deprive the
district court of jurisdiction to determine an equitable division of those assets.
10. Divorce: Property Division. As a general rule, all property accumulated and
acquired by either spouse during a marriage is part of the marital estate.
11. Divorce: Property: Words and Phrases. “Dissipation of marital assets” is
defined as one spouse’s use of marital property for a selfish purpose unrelated
reeD v. reeD 	391
Cite as 277 Neb. 391
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:51 AM CST

to the marriage at the time when the marriage is undergoing an irretriev-
able breakdown.
12. Divorce: Property Division. Marital assets dissipated by a spouse for purposes
unrelated to the marriage should be included in the marital estate in dissolu-
tion actions.
Appeal from the District Court for Hall County: teresa K.
luther, Judge. On motion for rehearing, reargument granted.
See 275 Neb. 418, 747 N.W.2d 18 (2008), for original opinion.
Original opinion withdrawn. Affirmed.
John W. Ballew, Jr., and Jennifer L. Tricker, of Ballew
Covalt, P.C., L.L.O., for appellant.
Mark Porto, of Shamberg, Wolf, McDermott & Depue,
for appellee.
heaviCan, 	C.J., 	Wright, 	C onnolly, 	gerrard, 	stephan,
MCC orMaCK, and M iller-lerMan, JJ.
per C uriaM.
Christine Jennifer reed and Jeffrey Jay reed’s marriage was
dissolved by the district court, but the court rejected Christine’s
claims that Jeffrey’s predivorce transfers of certain business
assets were fraudulent. The primary issues in this appeal are
whether the transferees of disputed transfers are necessary par-
ties to an action brought under Nebraska’s Uniform Fraudulent
Transfer Act (UFTA),1 and whether Christine can obtain equi-
table relief for the alleged dissipation of marital assets. For the
reasons that follow, we conclude that the absence of necessary
parties precluded Christine from proceeding under the UFTA
and that Christine has not shown that Jeffrey dissipated marital
assets. Therefore, we affirm the district court’s judgment.
BACkgrOUND
In 1997, Christine and Jeffrey formed C.J. reed enterprises,
Inc. (C.J. reed), to purchase and operate a jewelry store.
Christine and Jeffrey obtained bank financing, and Jeffrey’s
parents, James and Precious reed, agreed to act as sureties
on the loan. On July 11, 1997, Christine, Jeffrey, James, and
1 Neb. rev. Stat. §§ 36-701 to 36-712 (reissue 2008).
392 	277 NeBrASkA rePOrTS

Precious executed an agreement setting forth each party’s
rights and obligations. At the time, Christine and Jeffrey each
owned one-half the shares of C.J. reed stock. The agreement
specified that James and Precious could take title to all of C.J.
reed’s stock if Christine or Jeffrey failed to discharge her
or his obligations as owners of C.J. reed to the satisfaction
of James and Precious. Among other things, the agreement
required Christine and Jeffrey to avoid “default” in making
“payment to trade creditors or any other creditors.”
In 2000, James and Precious paid Christine and Jeffrey’s
bank debt and became the sole financiers of the business. The
principal on Christine and Jeffrey’s loan was $576,595.92,
and interest was calculated at $188,163, assuming the loan
was paid within 10 years. Between May 2001 and the time
of the divorce proceeding, Christine and Jeffrey paid $3,000
toward the principal and $40,000 toward the interest. Christine
and Jeffrey each concede that this constituted a “default”
within the meaning of the July 1997 agreement with James
and Precious.
In January 2004, Jeffrey formed r.S. Wheel, L.L.C., with
Dr. Steven Schneider. r.S. Wheel spent $380,000 (or between
$3 and $4 a square foot) to purchase a former motel property
in grand Island, Nebraska, across the street from a location
where Wal-Mart planned to open a store. The hope was that the
land could be resold for a profit due to its location. r.S. Wheel
obtained bank financing for the purchase and, at the time of
trial, owed $383,842.70 on the loan.
Jeffrey informed James in early June 2004 of his intent to
divorce Christine, and James evidently informed Jeffrey that
if Jeffrey was going to divorce Christine, James and Precious
were going to take the jewelry store. So, on June 11, James
and Precious notified their attorney that they wanted to exercise
their option to take title of C.J. reed. On June 15, Christine
and Jeffrey were sent letters informing them that James and
Precious were transferring all the shares of C.J. reed stock to
themselves. An appraiser, hired by Christine, opined that on
March 31, 2004, based on the income of the business, the stock
was worth between $164,900 and $178,700. But it is unclear
from the record and testimony whether that valuation accounted
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Cite as 277 Neb. 391

for the debt to James and Precious, and it appears that it did
not. James and Precious later sold the business, but were unable
to sell it for enough money to cover the outstanding debt.
Jeffrey also discussed his plans to divorce Christine with
Schneider. Schneider said that because of the divorce, Jeffrey
was unsure of his future cashflow or ability to assist in mak-
ing payments on r.S. Wheel’s debt. Jeffrey also suggested that
r.S. Wheel might be unable to sell or develop the property
because of the imminent divorce proceedings. Jeffrey sug-
gested that Schneider find another partner or buy Jeffrey out.
Schneider agreed to buy Jeffrey out, and on June 18, 2004,
Jeffrey transferred his interest in r.S. Wheel to Schneider. In
return, on June 21, Jeffrey received a check for $15,000.
Jeffrey 	filed 	for 	divorce 	on 	June 	24, 	2004. 	Christine
answered Jeffrey’s complaint and counterclaimed for dissolu-
tion. Christine’s operative counterclaim alleged that the trans-
fer of C.J. reed stock and the sale of Jeffrey’s interest in r.S.
Wheel were fraudulent transfers within the meaning of the
UFTA. Christine prayed that the court “make a determination
as to whether a fraudulent conveyance of real and/or personal
property has occurred immediately prior to the filing of this
divorce, whether the marital estate was dissipated as a result
thereof and enter such equitable relief as may be appropriate.”
It should be noted the record contains no indication that James,
Precious, or Schneider were made parties to or formally noti-
fied of the fraudulent transfer claim or that either Christine or
Jeffrey sought to implead James, Precious, or Schneider, or
provide them with formal notice.
On July 26, 2004, Schneider and Jeffrey, who is employed
as a real estate broker, entered into an “exclusive Listing
Agreement” for Jeffrey to list r.S. Wheel’s property for sale
at a price of $925,000. Jeffrey was to receive a 5-percent com-
mission of the gross sale price for his work in selling the prop-
erty. But at the time of trial, the property had not been sold.
Jeffrey testified that the property had been listed at $6 to $8
per square foot and might be worth that once it was developed.
But Jeffrey also testified that r.S. Wheel has “paid $3 to $4 a
square foot for [the property]; that’s what it’s worth.” Jeffrey
and Schneider both testified that the price on the listing was
394 	277 NeBrASkA rePOrTS

high so it would be easier to negotiate with potential buyers by
lowering the price.
In addition, a temporary child support and spousal support
order was entered on December 1, 2004, although the amount
Jeffrey was to pay each month was reduced in an order filed
March 15, 2005. On December 12, Christine filed a motion for
an order to show cause why Jeffrey should not be held in con-
tempt of court, alleging a total arrearage of $9,544.72.
The district court deferred ruling on the contempt issue until
after a trial on all issues had been completed. In its decree, the
court awarded sole legal and physical custody of the parties’
children to Christine and entered permanent awards of child
support and alimony. The court dismissed the contempt action,
reasoning that the “orders for child support and alimony under
[the] Decree are less than the temporary orders and [Jeffrey]
now has greater resources available to pay on arrearages.”
The court also rejected Christine’s arguments with respect to
fraudulent transfers. The court reasoned, with respect to C.J.
reed, that Christine and Jeffrey were in default on their pay-
ments to James and Precious, giving James and Precious the
right to transfer the C.J. reed stock. The court concluded that
“[t]he transfer of stock to James and Precious reed was not a
fraudulent conveyance, but rather a transfer of secured property
pursuant to [the financing agreement].”
With respect to r.S. Wheel, the court reasoned that “the
parties were not in good financial shape” at the time of the
sale and that a divorce was certain to bring additional expenses
in the form of child support and alimony. Jeffrey had testi-
fied that he would have been unable to service his portion of
r.S. Wheel’s debt. Thus, the court concluded that “the sale
of Jeffrey’s interest [in r.S. Wheel] to Dr. Schneider was for
legitimate financial reasons and was not a fraudulent transfer as
alleged by Christine.”
Christine appealed, and we affirmed the judgment.2 Christine
filed a motion for rehearing, which we sustained. We now
withdraw our original opinion, for the reasons explained below,
and substitute this opinion affirming the judgment.
2 See Reed v. Reed, 275 Neb. 418, 747 N.W.2d 18 (2008).
reeD v. reeD 	395
Cite as 277 Neb. 391

ASSIgNMeNTS OF errOr
In her appellate brief, Christine assigns that the district court
erred in failing to (1) find that the transfer of Jeffrey’s inter-
est in r.S. Wheel was a fraudulent transfer in violation of the
UFTA, (2) find that the transfer of Jeffrey’s interest in C.J.
reed was a fraudulent transfer in violation of the UFTA, (3) set
aside the transfers of Jeffrey’s interest in r.S. Wheel and C.J.
reed for the purposes of determining the value of the marital
estate and dividing it equitably, and (4) include the value of
the fraudulent transfers in the marital estate and distribute the
value equitably between the parties.
In addition, in our order sustaining Christine’s motion for
rehearing, we directed the parties to brief (1) whether the
public policy of the UFTA would be served by applying its
provisions to the transfer of alleged marital assets and (2)
whether the trial court’s jurisdiction to consider Christine’s
fraudulent transfer claims was affected by the absence of nec-
essary parties.
STANDArD OF revIeW
[1] In an action for the dissolution of marriage, an appellate
court reviews de novo on the record the trial court’s determi-
nations of custody, child support, property division, alimony,
and attorney fees; these determinations, however, are initially
entrusted to the trial court’s discretion and will normally be
affirmed absent an abuse of that discretion.3
[2] A jurisdictional question that does not involve a factual
dispute is determined by an appellate court as a matter of law,
which requires the appellate court to reach a conclusion inde-
pendent of the lower court’s decision.4
ANALySIS
ufta
In our initial decision in this appeal, we held that a former
spouse’s right to an equitable division of the marital estate
is not a “‘right to payment’” under the UFTA and that thus,
3 Sitz v. Sitz, 275 Neb. 832, 749 N.W.2d 470 (2008); Zahl v. Zahl, 273 Neb.
1043, 736 N.W.2d 365 (2007).
4 In re Interest of Taylor W., 276 Neb. 679, 757 N.W.2d 1 (2008).
396 	277 NeBrASkA rePOrTS

a former spouse does not qualify as a “‘creditor’” under the
UFTA by virtue of his or her right to an equitable share of
the marital estate.5 We stated that Christine’s status as a child
support creditor did not confer status as a creditor for pur-
poses of restoring fraudulently transferred assets to the marital
estate. As a result, we concluded that the UFTA did not apply
to Christine’s claims that the predivorce transfers of Jeffrey’s
business interests should be set aside as fraudulent.6 Thus, we
affirmed the district court’s judgment.
But in reaching that conclusion, we failed to note relevant
authority from other jurisdictions holding that a former spouse
may obtain relief from a fraudulent transfer intended to defeat
equitable distribution of the marital estate,7 including authority
specifically arising under those jurisdictions’ versions of the
5 Reed, supra note 2, 275 Neb. at 425, 747 N.W.2d at 23.
6 See id.
7 See, e.g., Buchanan v. Buchanan, 266 va. 207, 585 S.e.2d 533 (2003); A
& L, Inc. v. Grantham, 747 So. 2d 832 (Miss. 1999); Clayton v. Clayton,
153 vt. 138, 569 A.2d 1077 (1989); Fricke v. Fricke, 491 A.2d 990
(r.I. 1985); Pennock v. Pennock, 356 N.W.2d 913 (S.D. 1984); Pattillo
v. Pattillo, 414 So. 2d 915 (Ala. 1982); Du Mont v. Godbey, 382 Mass.
234, 415 N.e.2d 188 (1981); Adamson v. Adamson, 273 Or. 382, 541 P.2d
460 (1975); Pierson v. Barkley, 253 Ark. 131, 484 S.W.2d 872 (1972);
Powers v. Powers, 229 ga. 450, 192 S.e.2d 268 (1972); Stephenson v.
Stephenson, 111 N.H. 189, 278 A.2d 351 (1971); Caldwell v. Caldwell, 5
Wis. 2d 146, 92 N.W.2d 356 (1958); Rozan v. Rozan, 49 Cal. 2d 322, 317
P.2d 11 (1957); Zingone v. Zingone, 136 Colo. 39, 314 P.2d 304 (1957);
Hasegawa v. Hasegawa, 290 A.D.2d 488, 736 N.y.S.2d 398 (2002);
Firmani v. Firmani, 332 N.J. Super. 118, 752 A.2d 854 (2000); Bradford
v. Bradford, 993 P.2d 887 (Utah App. 1999); Dietter v. Dietter, 54 Conn.
App. 481, 737 A.2d 926 (1999); Gerow v. Covill, 192 Ariz. 9, 960 P.2d 55
(Ariz. App. 1998); Leathem v. Leathem, 94 Ohio. App. 3d 470, 640 N.e.2d
1210 (1994); Johnson v. Dowell, 592 So. 2d 1194 (Fla. App. 1992); In re
Marriage of Pahlke, 154 Ill. App. 3d 256, 507 N.e.2d 71, 107 Ill. Dec. 407
(1987); Sherry v. Sherry, 108 Idaho 645, 701 P.2d 265 (Idaho App. 1985);
Sloan v. Sloan, 683 S.W.2d 751 (Tex. App. 1984); In re Marriage of Huth,
437 N.e.2d 1042 (Ind. App. 1982); Beatty v. Beatty, 186 So. 2d 855 (La.
App. 1966). See, also, Wallace v. Wallace, 170 W. va. 146, 291 S.e.2d
386 (1982); Rozan v. Rozan, 129 N.W.2d 694 (N.D. 1964). See, generally,
Brett r. Turner, Division of Third-Party Property in Divorce Cases, 18 J.
Am. Acad. Matrim. Law 375 (2003).
reeD v. reeD 	397
Cite as 277 Neb. 391

UFTA8 or its functionally similar predecessor, the Uniform
Fraudulent Conveyance Act.9 While many of those courts have
not found it necessary to discuss the “creditor” status of the
spouse, others have specifically held that the spouse is a
“creditor” within the meaning of the relevant statute.10 This
is significant because § 36-712 requires that the UFTA “be
applied and construed to effectuate its general purpose to make
uniform the law with respect to the subject of the act among
states enacting it.” In addition, we did not consider the broad
prayer for relief in Christine’s operative counterclaim, which
could encompass enforcement of the past-due child support
award. And we have held that a child support creditor may use
the UFTA to pursue transferred assets that are needed to satisfy
a child support award.11
In the end, however, we need not decide the extent to which
the UFTA is applicable to the equitable division of marital
property. In this case, as suggested by our briefing order on
reargument, application of the UFTA was precluded by the
failure to join necessary parties.
[3-5] An indispensable or necessary party is one whose
interest in the subject matter of the controversy is such that the
controversy cannot be finally adjudicated without affecting the
necessary party’s interest or which is such that not to address
the interest of the necessary party would leave the controversy
in such a condition that its final determination may be wholly
inconsistent with equity and good conscience.12 A court may
8 See, Firmani, supra note 7; Bradford, supra note 7; Dietter, supra note 7;
Gerow, supra note 7; In re Marriage of Zabel v. Zabel, 210 Wis. 2d 336,
565 N.W.2d 240 (Wis. App. 1997); Varner v. Varner, 662 So. 2d 273 (Ala.
Civ. App. 1994). Cf. Chu v. Hong, 249 S.W.3d 441 (Tex. 2008).
9 Compare, Unif. Fraudulent Transfer Act, 7A (part II) U.L.A. 2 (2006);
Unif. Fraudulent Conveyance Act, 7A U.L.A. 427 (1985). See, Du Mont,
supra note 7; Caldwell, supra note 7. See, also, Rozan, 129 N.W.2d 694,
supra note 7; Galgano v. Ortiz, 287 A.D.2d 688, 732 N.y.S.2d 77 (2001).
10 See, Du Mont, supra note 7; Bradford, supra note 7; In re Marriage of
Zabel, supra note 8. See, also, Zingone, supra note 7; Johnson, supra note
7.
11 See Parker v. Parker, 268 Neb. 187, 681 N.W.2d 735 (2004).
12 Pestal v. Malone, 275 Neb. 891, 750 N.W.2d 350 (2008).
398 	277 NeBrASkA rePOrTS

determine any controversy between parties before it when it
can be done without prejudice to the rights of others or by sav-
ing their rights; but when a determination of the controversy
cannot be had without the presence of other parties, the court
must order them to be brought in.13 The presence of necessary
parties is jurisdictional, and the absence of necessary parties
deprives the district court of jurisdiction.14
[6-8] An action under the UFTA is equitable in nature,15 and
all persons whose rights will be directly affected by a decree
in equity must be joined as parties in order that complete jus-
tice may be done and that there may be a final determination
of the rights of all parties interested in the subject matter of
the controversy.16 Specifically, all persons interested in the
contract or property involved in the suit, or whose interests
therein may be affected by the decree in equity, are necessary
parties.17 Thus, we held at common law that “‘in all actions
brought by creditors to subject property which it is claimed
was fraudulently transferred, . . . [t]he person to whom the
property has been transferred is . . . a necessary party.’”18 That
generally reflects the law under the UFTA,19 and in marital
dissolution actions.20
13 Neb. rev. Stat. § 25-323 (reissue 2008).
14 See Pestal, supra note 12.
15 See Dillon Tire, Inc. v. Fifer, 256 Neb. 147, 589 N.W.2d 137 (1999).
16 See Langemeier v. Urweiler Oil & Fertilizer, 259 Neb. 876, 613 N.W.2d
435 (2000).
17 See id.
18 First Nat. Bank of Plattsmouth v. Gibson, 69 Neb. 21, 26, 94 N.W. 965,
967 (1903). See, also, Scheve v. Vanderkolk, 97 Neb. 204, 149 N.W. 401
(1914); Ainsworth v. Roubal, 74 Neb. 723, 105 N.W. 248 (1905).
19 See, Valvanis v. Milgroom, 529 F. Supp. 2d 1190 (D. Haw. 2007); Nastro
v. D’Onofrio, 263 F. Supp. 2d 446 (D. Conn. 2003); Tanaka v. Nagata, 76
Haw. 32, 868 P.2d 450 (1994); Estes v. Titus, 273 Mich. App. 356, 731
N.W.2d 119 (2006), affirmed in part and in part vacated on other grounds
481 Mich. 573, 751 N.W.2d 493 (2008).
20 See, Becker v. Becker, 138 vt. 372, 416 A.2d 156 (1980); Murray v.
Murray, 358 So. 2d 723 (Miss. 1978). Cf. McGinley v. McGinley, 7 Neb.
App. 410, 583 N.W.2d 77 (1998).
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Cite as 277 Neb. 391

Of course, the problem in this case is that Christine’s fraudu-
lent transfer claims implicate the interests of James, Precious,
and Schneider, who ended up with the assets that Christine
claims were fraudulently transferred. Because those interests
would be affected if the transfers were set aside or the assets
attached, James, Precious, and Schneider were necessary par-
ties to that extent.
[9] But Christine’s counsel asserted, at oral argument on
rehearing, that Christine was not seeking to have the transfers
set aside; rather, she had only sought to have the value of the
transferred assets included in the marital estate for purposes of
equitable division. It has been held that if an action is brought
for wrongful transfer and it is possible to fashion relief which
does not adversely affect the transferee’s interest, then the
transferee may not need to be joined in an action for judg-
ment of damages against a defendant.21 And we have held that
the determination of one of the parties to a marriage to place
property beyond the reach of the other party, and thus fore-
stall a division of the property, does not operate to deprive the
district court of jurisdiction to determine an equitable division
of those assets—i.e., to award the value of a share of the dis-
puted assets.22
Jeffrey’s counsel contended, at oral argument on rehearing,
that Christine’s waiver of any remedy other than equitable
credit had not been clear before the rehearing was sustained
and that our briefing order raised the issue of necessary par-
ties. We are inclined to agree, but accept Christine’s conces-
sion at face value. given that concession, the question at this
point is whether Christine is making a claim under the UFTA
at all.
The UFTA is simply the latest in a line of statutes dating
back to the reign of elizabeth I23 that declares rights and pro-
vides remedies for unsecured creditors against transfers that
21 See Gerow, supra note 7.
22 See Baker v. Baker, 201 Neb. 409, 267 N.W.2d 756 (1978).
23 See An Act Against Fraudulent Deeds, Alienations, etc., 1570, 13 eliz. c.
5, § 2 (eng.).
400 	277 NeBrASkA rePOrTS

impede the collection of claims.24 In other words, the purpose
of the UFTA is to provide creditors with a means to satisfy
debts using assets that have been fraudulently transferred.25
But Christine has waived any interest in pursuing the disputed
assets. As a result, Christine is not seeking any remedy that is
not available to her in a dissolution action as an alleged dis-
sipation of marital assets.26 And we read Christine’s operative
counterclaim, and her appellate argument, to articulate a claim
for equitable relief under that doctrine.
Christine notes that the UFTA permits a creditor to obtain,
“subject to applicable principles of equity,” “any other relief the
circumstances may require.”27 But under these circumstances,
the “applicable principles of equity” are the well-established
equitable principles applicable to valuation and division of the
marital estate—including the doctrine of dissipation, which
provides the relief that Christine is requesting.
We have said that where all the parties necessary to a proper
and complete determination of an equity cause were not before
the court, an appellate court may remand the cause for the
purpose of having such parties brought in.28 But there is no
reason to do so here, because Christine has, in effect, waived
her UFTA claim in favor of a claim for dissipation of marital
assets. James, Precious, and Schneider are not necessary par-
ties to such a claim.29
To summarize: To the extent that Christine sought to set
aside the disputed transfers, the trial court lacked jurisdic-
tion because of Christine’s failure to join necessary parties.
But Christine now disclaims any interest in setting aside the
transfers. So her claim is best characterized as a claim for
24 See, generally, Mejia v. Reed, 31 Cal. 4th 657, 74 P.3d 166, 3 Cal. rptr. 3d
390 (2003).
25 See, generally, Unif. Fraudulent Transfer Act, supra note 9, Prefatory
Note, 7A (part II) U.L.A. 4.
26 See, Harris v. Harris, 261 Neb. 75, 621 N.W.2d 491 (2001); Baker, supra
note 22; Malin v. Loynachan, 15 Neb. App. 706, 736 N.W.2d 390 (2007).
27 See § 36-708.
28 Vaccaro v. City of Omaha, 254 Neb. 800, 579 N.W.2d 535 (1998).
29 See Baker, supra note 22.
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Cite as 277 Neb. 391

dissipation of marital assets, which she also presented, and
which requires only Christine and Jeffrey as parties. We need
not further consider the UFTA or Christine’s first two assign-
ments of error. Instead, we consider Christine’s arguments and
her third and fourth assignments of error in the context of dis-
sipation of marital assets, discussed below. We note, however,
that much of our reasoning below would also have been rele-
vant under the UFTA.
dissipation of M arital assets
[10-12] As a general rule, all property accumulated and
acquired by either spouse during a marriage is part of the mari-
tal estate.30 We have explained that “[d]issipation of marital
assets” is defined as one spouse’s use of marital property for a
selfish purpose unrelated to the marriage at the time when the
marriage is undergoing an irretrievable breakdown.31 As a rem-
edy, we have held that marital assets dissipated by a spouse for
purposes unrelated to the marriage should be included in the
marital estate in dissolution actions.32
It is apparent that the disputed transfers in this case took
place at the time when the marriage was undergoing an irre-
trievable breakdown, as both transfers took place specifically
because Jeffrey intended to file for divorce. The record estab-
lishes that Jeffrey’s interest in r.S. Wheel and the parties’
interest in C.J. reed were marital assets. And we assume, for
purposes of this analysis, that disposing of marital assets for
less than fair market value, in an alleged attempt to shield the
assets from equitable distribution, would represent their use for
a selfish purpose unrelated to the marriage.
But in this case, the record does not establish that the assets
were disposed of for less than what they were worth. C.J.
reed, at the time James and Precious took possession of its
stock, was encumbered by a debt of over half a million dol-
lars. The income approach to valuation taken by Christine’s
expert witness does not appear to have accounted for that debt
30 Harris, supra note 26.
31 Id. at 87, 621 N.W.2d at 501.
32 See, id.; Malin, supra note 26.
402 	277 NeBrASkA rePOrTS

in valuing the business. But even if it had, the record also
establishes that James and Precious were not able to sell the
business for enough money to cover the debt. While James and
Precious took C.J. reed as an asset from the marital estate,
they also relieved the marital estate of the debt that Christine
and Jeffrey had incurred. In short, the record does not establish
that the transfer of C.J. reed diminished the total value of the
marital estate.
Similarly, the record does not establish that Jeffrey’s sale of
his interest in r.S. Wheel was for less than fair market value.
At the time of trial, the real property that was r.S. Wheel’s
sole asset was encumbered by debt greater than the original
purchase price of the property. Nor does the record contain an
independent appraisal of the property’s value.
Christine relies on the fact that by the time of trial, the
property had been listed for sale at a far greater price than had
been paid for it. But the record establishes that the property
had not sold at that price, and Jeffrey testified that the listing
price was based on improvements to the property that had not
yet been made. Beyond that, it is clear from the record that the
listing price was an amount that Schneider and Jeffrey hoped,
but did not expect, to receive. A price is the amount that a will-
ing seller indicates would be acceptable payment for property
offered for sale, but value is the price actually obtainable for
property offered for sale in a market.33
In other words, the listing price was what r.S. Wheel was
asking for the property, but “[a]sking is one thing, getting is
something quite different.”34 The listing price was not sufficient
to prove the fair market value of the property, in the absence of
other evidence establishing that the property was worth more
than had been paid for it less than 6 months before Jeffrey’s
interest in r.S. Wheel had been transferred. Because the record
does not establish that r.S. Wheel’s assets were worth more
than its outstanding debt, there is no evidence that Jeffrey’s
interest in r.S. Wheel was worth more than the $15,000
33 State v. Garza, 241 Neb. 256, 487 N.W.2d 551 (1992).
34 Id. at 264-65, 487 N.W.2d at 557.
reeD v. reeD 	403
Cite as 277 Neb. 391

Schneider paid for it. Thus, there is no evidence that the mari-
tal estate was diminished by the transfer.
On our de novo review of the record, we find no evidence
showing that the value of the marital estate was diminished by
the transfers of C.J. reed and r.S. Wheel. The district court
did not abuse its discretion in declining to include those assets
in the marital estate. We find no merit to Christine’s remaining
assignments of error.
CONCLUSION
On rehearing, our original opinion in this matter is with-
drawn. And for the reasons stated above, we affirm the judg-
ment of the district court.
affirMed.
M iChael albert, appellee , v. heritage adMinistration
serviCes , inC., appellant.
763 N.W.2d 373
Filed March 20, 2009. 	No. S-07-1044.
1. Breach of Contract: Damages. A suit for damages arising from breach of a
contract presents an action at law.
2. Judgments: Appeal and Error. In a bench trial of a law action, the trial court’s
factual findings have the effect of a jury verdict and will not be disturbed on
appeal unless clearly wrong.
3. Contracts: Appeal and Error. The interpretation of a contract involves a ques-
tion of law, in connection with which an appellate court has an obligation to reach
its conclusions independently of the determinations made by the court below.
Appeal from the District Court for Lancaster County: Jodi
nelson, Judge. Affirmed.
Tim 	engler, 	of 	Harding 	& 	Shultz, 	P.C., 	L.L.O., 	for
appellant.
Paul e. galter, of Butler, galter, O’Brien & Boehm, for
appellee.
Wright, C onnolly, gerrard, stephan, MCC orMaCK, and
M iller-lerMan, JJ.
404 	277 NeBrASkA rePOrTS