Wednesday, September 21, 2005
NCA finds that Douglas County District Court failed to apply Schumann rule to analyzing marital/non-marital property. Spouses voluntarily revoked their pre-nup agreement before filing divorce, however, this does not automatically alter the characteristics of property they designated as marital or non-marital; Court failed to apply Schuman rule 265 Neb. 459 2003, in which the Nebraska Supreme Court held just 4 months before the divorce trial that in analyzing whether property is marital or not, the actual titling of the property does not automatically determine its marital or non marital nature. Husband failed to allege Schuman error as to one item of property; wife was entitled to some credit on premarital asset because loans she took out helped make payments on it; NCA holds that non expert witness, in this case the wife could testify as to real estate value. NCA also allows court to consider wife's post separation pension contributions to a retirement plan as her own. Nygren v. Nygren. 14 Neb. App. 1 Filed September 20, 2005. No. A-03-1042.Richard R. Nygren appeals the decree of the Douglas County District Court dissolving his marriage to Cheryl A. Nygren and dividing the parties' property. On appeal, he essentially argues that the trial court erred in classifying certain items and assets as marital property and in dividing the marital estate. We hold that the trial court incorrectly applied the rule from Gerard-Ley v. Ley, 5 Neb. App. 229, 558 N.W.2d 63 (1996), that was specifically disapproved in Schuman v. Schuman, 265 Neb. 459, 658 N.W.2d 30 (2003), prior to the trial court's decision. We also hold that the trial court abused its discretion in characterizing some of Richard's nonmarital property as marital property, and we affirm as modified.Richard contends that the evidence does not support a finding that he gifted his premarital assets, including the farmland and farm equipment, to the marital estate. We begin by recalling a basic principle: Property owned by a party at the time of marriage is not marital property. Smith v. Smith, 9 Neb. App. 975, 623 N.W.2d 705 (2001). "At the time the parties made their antenuptial agreement, public policy in Nebraska prohibited enforcement of a provision in such an agreement purporting to forfeit property rights in the event of a divorce. See Mulford v. Mulford, 211 Neb. 747, 320 N.W.2d 470 (1982) (generally, antenuptial agreements providing that in event of divorce or separation, each spouse should forfeit his or her rights in property of other, are contrary to public policy and void as tending to promote divorce). Thus, such agreements were enforceable only in accordance with testamentary dispositions or other transfers taking effect at death. In finding that the parties had gifted their premarital assets to the marriage, the trial court was apparently relying upon Gerard-Ley v. Ley, 5 Neb. App. 229, 558 N.W.2d 63 (1996), in which this court held that when 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. However, approximately 4 months before the trial court filed its decree in this case, the Nebraska Supreme Court expressly disapproved Gerard-Ley in Schuman v. Schuman, supra, which held that the manner in which property is titled or transferred by the parties during a marriage does not restrict the trial court's determination of how the property will be divided in an action for dissolution of marriage. Therefore, we conclude that the trial court applied the wrong rule in determining that the parties had gifted their premarital assets to the marriage. Although we agree with the trial court's determination that the parties agreed to revoke their antenuptial agreement, it does not follow that they also agreed to convert their sole property to jointly owned property. Had they intended to do so, the portion of Richard's will providing that Cheryl would receive a one-half interest in the farm upon Richard's death would have been superfluous, because Cheryl would have already owned a one-half interest in the farm. Thus, the will does not support the notion that the parties intended to gift their premarital interests to each other; instead, it lends support to the opposite conclusion." Because it is undisputed that Richard owned the 40 acres in question prior to the marriage, the initial issue is whether the Van Newkirk exception applies so that the property should be included in the marital estate. The antenuptial agreement, assuming it was ever effective, had been revoked by the parties, and any funds Cheryl earned before the marriage were her separate property, while any funds she earned during the marriage were marital property. See Tyma v. Tyma, 263 Neb. 873, 644 N.W.2d 139 (2002). Therefore, pursuant to Van Newkirk v. Van Newkirk, 212 Neb. 730, 325 N.W.2d 832 (1982), and Tyler v. Tyler, 253 Neb. 209, 570 N.W.2d 317 (1997), we conclude that Cheryl's contributions of not more than $5,200 from her separate property were not so significant as to garner Cheryl an interest in Richard's farm. "Although we conclude that Cheryl never acquired an interest in the farm, the revocation of the antenuptial agreement did operate to allow Cheryl to acquire an interest in the contributions she made to the Wahoo State Bank loan--whether from premarital or marital funds. Therefore, Cheryl is entitled to be compensated in full for her contributions from premarital funds and to receive one-half of the remainder, which came from marital funds. However, Cheryl did not present evidence of the value of her premarital contribution. She testified that she contributed not more than $5,200 in premarital funds, that amount being an estimate of her assets at the time she signed the prenuptial agreement. We consider this estimate upon an estimate to be insufficient evidence of the value of Cheryl's contribution from premarital funds, and we therefore consider her entire contribution of $21,959.29 to be from marital funds and conclude that she is entitled to compensation for half of that sum, or $10,979.65." "First Baptist Church v. State, 178 Neb. 831, 834-35, 135 N.W.2d 756, 758-59 (1965), sets forth the general rule for lay witnesses without ownership testifying about the value of land: It is necessary only to show that he has the means of forming an intelligent opinion derived from an adequate knowledge of the nature and kind of property in controversy, and of its value"we conclude that Cheryl demonstrated an acquaintance with the land and the state of the market and that the trial court did not err in allowing her opinion as to the value of the land, over Richard's objections. Although Neb. Rev. Stat. § 42-366(8) (Reissue 2004) requires that any pension plans, retirement plans, annuities, and other deferred compensation benefits owned by either party be included as part of the marital estate, the plain language of the statute does not require that such assets be valued at the time of dissolution; the expression "at the time of dissolution" in § 42-366(8) qualifies the date at which the marital estate is divided but does not provide that pension-type property must be valued on such date. Hosack v. Hosack, 267 Neb. 934, 678 N.W.2d 746 (2004). The ultimate test in determining the appropriateness of the division of property is fairness and reasonableness as determined by the facts of each case. Tyma v. Tyma, 263 Neb. 873, 644 N.W.2d 139 (2002). Based on this authority, we conclude that the trial court was reasonable and did not abuse its discretion in allowing Cheryl to subtract her postseparation contributions from the value of her annuity. She and Richard were no longer supporting each other at that time, and Cheryl logically accounted for the amount of those contributions. Omaha properties: Cheryl also argues that the parties' first house in Omaha constitutes a marital asset because it was titled in joint tenancy However, at no time does Richard argue or assign that the trial court erred in including the net value of the duplex, which was eventually purchased from the proceeds of the sale of the first Omaha house, in the marital estate. Therefore, we need not consider the classification of these houses further. See Schnell v. Schnell, 12 Neb. App. 321, 673 N.W.2d 578 (2003) (alleged errors must be specifically assigned and specifically argued in order to be considered by appellate court). On our de novo review, we hold that the trial court applied an incorrect standard in determining the marital estate, that the trial court abused its discretion in including some of Richard's farm equipment in the marital estate, and that Cheryl should receive compensation for contributions she made to the farm debt. Therefore, we affirm the trial court's decree, as modified. .
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