- 822 -

Nebraska Court of Appeals Advance Sheets

32 Nebraska Appellate Reports

WESTON V. WESTO

Cite as 32 Neb. App. 822

Judith J. Weston, appellee, v .

Benjamin K. Weston, appellant.

___ N.W.3d ___

Filed April 23, 2024. No. A-23-283.

1. Divorce: Child Custody: Child Support: Property Division: Alimony: 

Attorney Fees: Appeal and Error. In a marital dissolution action, an 

appellate court reviews the case de novo on the record to determine 

whether there has been an abuse of discretion by the trial judge. This 

standard of review applies to the trial court’s determinations regarding 

custody, child support, division of property, alimony, and attorney fees.

2. Judges: Words and Phrases. A judicial abuse of discretion exists if the 

reasons or rulings of a trial judge are clearly untenable, unfairly depriving a litigant of a substantial right and denying just results in matters 

submitted for disposition.

3. Divorce: Property Division. The ultimate test in determining the appropriateness of the division of property is fairness and reasonableness as 

determined by the facts of each case. This is the polestar guiding an 

appellate court’s analysis of the issues.

4. ____: ____. Under Neb. Rev. Stat. § 42-365 (Reissue 2016), the equitable division of property is a three-step process. The first step is to classify the parties’ property as marital or nonmarital, setting aside the nonmarital property to the party who brought that property to the marriage. 

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.

5. ____: ____. When classifying property as either marital or nonmarital, 

generally, all property accumulated and acquired by either spouse during 

a marriage is part of the marital estate. Exceptions include property that 

a spouse acquired before the marriage, or by gift or inheritance.

6. Divorce: Property Division: Proof. The burden of proof to show that 

property is nonmarital remains with the person making the claim.

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

07/10/2024 06:11 PM CDT
- 823 -

Nebraska Court of Appeals Advance Sheets

32 Nebraska Appellate Reports

WESTON V. WESTO

Cite as 32 Neb. App. 822

7. Divorce: Property Division. The manner in which property is titled or 

transferred by the parties during the marriage does not restrict the trial 

court’s determination of how the property will be divided in an action 

for dissolution of marriage.

8. Joint Tenancy: Parol Evidence. When real estate is conveyed in joint 

tenancy, any parol evidence to overcome the recorded legal title must be 

clear, unequivocal, and convincing.

9. Evidence: Appeal and Error. When credible evidence is in conflict 

on material issues of fact, an appellate court will consider and may 

give weight to the fact that the trial court observed the witnesses and 

accepted one version of the facts over another.

10. Evidence: Proof. Unless an exception applies, the burden of proof in 

civil cases requires only the greater weight of the evidence.

11. Trial: Witnesses: Appeal and Error. The credibility and weight of 

witness testimony are for the fact finder to determine, and witness credibility is not to be reassessed on appellate review.

12. Trial: Evidence. Evidence not directly contradicted is not necessarily 

binding on the triers of fact and may be given no weight where it is 

inherently improbable, unreasonable, self-contradictory, or inconsistent 

with facts or circumstances in evidence.

13. Divorce: Property Division: Proof: Testimony. A nonmarital interest 

in property may be established by credible testimony.

14. Property Division. With some exceptions, the marital estate does not 

include property acquired by one of the parties through gift or inherit

ance. And there is no exception where an otherwise nonmarital monetary 

gift is spent on a family expense.

15. ____. Commingling of marital and nonmarital assets does not occur 

when separate property remains segregated or is traceable into its 

product.

16. Evidence: Proof. There is no hierarchy of evidence. There is no general rule of evidence that a party must produce the best evidence which 

the nature of the case permits. A trial court weighs the credibility of 

the witnesses and the evidence and determines what evidence should 

be given the greater weight in arriving at a factual determination on 

the merits. In doing so, a trial court may choose what evidence merits 

greater weight.

17. Divorce: Property Division. Compensation for an injury that a spouse 

has or will receive for pain, suffering, disfigurement, disability, or loss 

of postdivorce earning capacity should not equitably be included in the 

marital estate.

18. Property Division. Compensation for past wages, medical expenses, 

and other items that compensate for the diminution of the marital estate 
- 824 -

Nebraska Court of Appeals Advance Sheets

32 Nebraska Appellate Reports

WESTON V. WESTO

Cite as 32 Neb. App. 822

should equitably be included in the marital estate as they properly 

replace losses of property created by the marital partnership.

Appeal from the District Court for Dawson County: James 

E. Doyle IV, Judge. Affirmed in part, and in part reversed and 

remanded with directions.

Claude E. Berreckman, Jr., of Berreckman & Bazata, P.C., 

L.L.O., for appellant.

Brennon D. Malcom, of Malcom, Nelsen & Windrum, 

L.L.C., for appellee.

Pirtle, Chief Judge, and Riedmann and Welch, Judges.

Pirtle, Chief Judge.

I. INTRODUCTION

The district court for Dawson County dissolved the marriage of Benjamin K. Weston and Judith J. Weston and divided 

the parties’ property and debts. On appeal, Benjamin challenges the district court’s classification and division of property. For the reasons that follow, we affirm in part, and in part 

reverse and remand with directions.

II. BACKGROUND

Benjamin’s appeal takes issue only with the district court’s 

order regarding the classification of certain assets as marital or 

nonmarital property. Therefore, our recitation of facts encompasses only the facts relevant to those issues.

Benjamin and Judith were married on June 20, 2008. Judith 

brought two children into the marriage whom Benjamin eventually adopted. Benjamin and Judith then had two children 

together.

During their marriage, the family lived on rural property in 

Lexington, Nebraska, that Benjamin had lived on since 1987. 

Benjamin’s parents owned the property for most of the time 

he lived there. However, on November 8, 2012, Benjamin’s 

parents conveyed the property by warranty deed to Benjamin 

and Judith as joint tenants. No money was exchanged for 
- 825 -

Nebraska Court of Appeals Advance Sheets

32 Nebraska Appellate Reports

WESTON V. WESTO

Cite as 32 Neb. App. 822

the conveyance of the property; instead, the warranty deed 

states that the conveyance was made “in consideration of 

Love and Affection.”

In 2015, Benjamin was involved in a semi-truck accident 

that left him partially disabled and unable to work. Without 

Benjamin’s income, the family struggled financially. Although 

Benjamin was pursuing a workers’ compensation claim, it 

took several years for the claim to come to fruition. Due to 

their financial difficulties at this time, Judith’s mother assisted 

Benjamin and Judith by paying some of their expenses.

On January 24, 2019, Benjamin received a lump-sum workers’ compensation settlement of $135,811.01. Shortly after 

receiving the settlement, Benjamin and Judith used $34,000 

of the money to pay off a loan on their 2018 Jeep Renegade. 

Additionally, in the summer of 2020, with their then-current 

residence in a near dilapidated state, Benjamin and Judith used 

$60,000 of the settlement money to renovate an old agricultural building on their property into a new residence. As the 

renovation exceeded their $60,000 budget, Judith’s mother 

helped them by contributing $123,947.79 to the project. The 

renovation was completed in the spring of 2021.

In July 2021, Benjamin and Judith separated after one of 

Benjamin’s adopted children accused him of sexually assaulting her 6 years earlier. On August 10, Judith filed an action 

for a dissolution of marriage. A trial was held over the course 

of 2 days in October and November 2022.

1. Trial

Relevant to this appeal, the trial involved the testimony of 

Helen Rempel (Helen), Loretta Weston, Judith, and Benjamin. 

Helen is Judith’s mother and Loretta is Benjamin’s mother.

(a) Conveyance of Property 

to Benjamin and Judith

One of the issues on appeal is whether the real estate conveyed to Benjamin and Judith by Benjamin’s parents was a 

marital asset.
- 826 -

Nebraska Court of Appeals Advance Sheets

32 Nebraska Appellate Reports

WESTON V. WESTO

Cite as 32 Neb. App. 822

Benjamin testified that the real estate was a gift to him from 

his parents. He claimed that prior to his parents’ conveying 

the real estate to him and Judith on November 8, 2012, they 

conveyed it to him individually. He stated they only added 

Judith’s name to the deed because both their names had to be 

on it for Benjamin to receive a grant to build a greenhouse on 

the property. He went on to indicate that Judith knew the gift 

was intended solely for him and that she knew she was only 

included in the deed so they could receive the grant.

Loretta corroborated Benjamin’s version of events. She 

stated that she and her husband did not plan to give Benjamin 

the property until their death, but he needed ownership to get 

a grant to build a greenhouse. She stated that they initially 

conveyed the property only to Benjamin, but later added 

Judith’s name because it was required to receive the grant. 

Loretta claimed to still have the documents that conveyed the 

property to Benjamin individually but was not able to produce 

them. She then indicated that her and her husband’s intent 

was to deed the property “for the benefit of [Benjamin].”

Judith contested Benjamin’s and Loretta’s assertions. She 

explained that Benjamin’s parents gave the land to both her 

and Benjamin because they knew she was a good person and 

spouse. Judith also took issue with Benjamin and Loretta’s 

timelines. She stated that there were no discussions regarding 

the grant until a year after the property was already conveyed 

in both their names. Notably, the record is unclear if Benjamin 

and Judith ever applied for the grant, but it does reflect that 

the greenhouse was never built.

The district court found that the evidence presented by 

Benjamin and his mother did not clearly and unequivocally 

overcome the presumption that the real estate was marital property. In its findings, the court stated:

The evidence established the transfer of the real estate 

. . . was part of a pattern of assistance Benjamin’s 

parents provided to the couple. Such assistance was 

provided to both Benjamin and Judith and was part of 
- 827 -

Nebraska Court of Appeals Advance Sheets

32 Nebraska Appellate Reports

WESTON V. WESTO

Cite as 32 Neb. App. 822

Benjamin’s parents’ expressed intention to help the couple maintain and further their marriage and to help the 

couple support and care for their children. The evidence 

established the transfer of the property was a gift to both 

Benjamin and Judith.

Accordingly, the court found that the entire value of the property was included in the marital estate.

(b) Helen’s Contributions to Renovation

An issue in this appeal is whether Helen’s $123,947.79 contribution to the renovation was a gift to Judith, as an advance 

of her inheritance, or a gift given for the joint benefit of 

the marriage.

After Benjamin’s accident, Benjamin and Judith decided 

the family needed a new place to live because the house they 

occupied was decaying. Because Benjamin and Judith were 

unable to afford the costs of renovating the agricultural building on their property, Helen provided them with financial 

assistance. Helen testified that she tracked the amount she 

contributed to the renovation on a weekly basis and calculated 

the total to be $123,947.79 after the work was completed.

Helen and Judith testified that prior to Helen’s providing 

the financial assistance, there was an understanding between 

her, Judith, and Benjamin that the amount Helen was paying to help renovate the building was an advance on Judith’s 

inheritance. Helen explained that she discussed the issue with 

her other children and made it clear to Judith that whatever 

amount she contributed to the project “would be taken out of 

whatever [Judith] received” when Helen and her husband died. 

Judith’s testimony similarly stated there was an agreement that 

the amount Helen contributed to the renovation “was going to 

be taken away [from the] inheritance money that [she] was to 

receive once [her] parents were both gone.”

Helen also described prior occasions where she and her 

husband assisted Benjamin and Judith financially. Helen 

explained that following the marriage in 2008, she helped 
- 828 -

Nebraska Court of Appeals Advance Sheets

32 Nebraska Appellate Reports

WESTON V. WESTO

Cite as 32 Neb. App. 822

them with large, unexpected expenditures. More so, Helen 

stated that after Benjamin’s accident, she and her husband 

assisted them financially on a regular basis. This assistance 

involved helping with vehicle payments, taxes, licensing a 

vehicle, and other miscellaneous costs.

In contrast, Benjamin asserted that Helen and her husband 

told him and Judith that their contributions to the renovation 

were gifts to their entire family. He testified that Helen “said 

it was a gift to us and the kids because we couldn’t live in that 

little house any further.”

The district court found that the $123,947.79 Helen contributed to the renovation project was not marital property. The 

court described the money as “Judith’s inheritance advance” 

and stated that because the full amount was traceable to the 

remodeling project, Judith was entitled to a credit for her 

contributions to the property’s value in the full amount of 

$123,947.79.

(c) Purchase of 2018 Jeep Renegade

An issue in this appeal is whether Benjamin was entitled 

to credit for the value of the 2018 Jeep Renegade because 

he purchased it with money from his workers’ compensation 

settlement.

Benjamin testified that while his workers’ compensation 

claim was pending, he wanted to buy Judith a new vehicle 

because she never had one. Judith stated that Benjamin told 

her she deserved a new vehicle and that he wanted to buy 

one for her. Benjamin’s account did not differentiate from this 

sentiment. He testified that buying the new vehicle was “[o]ne 

hundred percent” his idea and that he desired to purchase the 

2018 Jeep Renegade because Judith wanted it. Although they 

initially financed the purchase, once Benjamin received his 

settlement, they paid off the loan. Accounting for licensing 

and registration costs, they spent $34,000 of the settlement 

money on the vehicle. The only evidence presented at trial 

regarding the vehicle’s then-current value was that it was 

worth $20,000.
- 829 -

Nebraska Court of Appeals Advance Sheets

32 Nebraska Appellate Reports

WESTON V. WESTO

Cite as 32 Neb. App. 822

The district court found that the money spent to purchase 

the 2018 Jeep Renegade was traceable to Benjamin’s workers’ compensation settlement, a nonmarital asset. However, the 

court concluded that the vehicle was marital property because 

it was “acquired during the marriage for the joint benefit of 

the parties using Benjamin’s non-marital funds.” In a later 

order on Benjamin’s motion for a new trial, the court further 

clarified its ruling as it pertained to the 2018 Jeep Renegade: 

“While Benjamin was able to trace $34,000 of his workers[’] 

compensation settlement to the purchase of the 2018 Jeep, the 

evidence established that at the time the Jeep was purchased 

Benjamin clearly and unequivocally intended it as and made it 

a gift to Judith.” As such, the court found that Benjamin was 

not entitled to credit for the Jeep’s $20,000 value from the 

marital estate.

2. Motion for New Trial

On December 1, 2022, Benjamin motioned for a new trial, 

citing several purported errors made by the district court. On 

March 13, 2023, the district court issued an order that overruled portions of its prior order as an order nunc pro tunc. 

In this order, the district court essentially provided further 

reasoning on several issues and corrected erroneous values for 

the credits given to Judith as a result of Helen’s gift to her. In 

all other respects, the district court overruled the motion for 

new trial and affirmed its prior order.

III. ASSIGNMENTS OF ERROR

Benjamin assigns, restated and reordered, that the district 

court erred by (1) failing to treat the gift of real estate by 

his parents as a nonmarital transfer, (2) finding that Helen’s 

contributions to the renovation were gifts solely made to 

Judith, (3) determining Helen’s contributions to the renovation 

amounted to $123,947.79, and (4) failing to provide Benjamin 

with a credit for the value of the 2018 Jeep Renegade.
- 830 -

Nebraska Court of Appeals Advance Sheets

32 Nebraska Appellate Reports

WESTON V. WESTO

Cite as 32 Neb. App. 822

IV. STANDARD OF REVIEW

[1,2] In a marital dissolution action, an appellate court 

reviews the case de novo on the record to determine whether 

there has been an abuse of discretion by the trial judge. 

Novotny v. Novotny, 32 Neb. App. 142, 995 N.W.2d 64 (2023). 

This standard of review applies to the trial court’s determinations regarding custody, child support, division of property, 

alimony, and attorney fees. Id. A judicial abuse of discretion 

exists if the reasons or rulings of a trial judge are clearly 

untenable, unfairly depriving a litigant of a substantial right 

and denying just results in matters submitted for disposition. Id.

V. ANALYSIS

[3] The ultimate test in determining the appropriateness of 

the division of property is fairness and reasonableness as determined by the facts of each case. Rohde v. Rohde, 303 Neb. 85, 

927 N.W.2d 37 (2019). This is the polestar guiding our analysis 

of the issues. Id.

[4] Under Neb. Rev. Stat. § 42-365 (Reissue 2016), the 

equitable division of property is a three-step process. Rohde 

v. Rohde, supra. The first step is to classify the parties’ property as marital or nonmarital, setting aside the nonmarital 

property to the party who brought that property to the marriage. Id. The second step is to value the marital assets and 

marital liabilities of the parties. Id. The third step is to calculate and divide the net marital estate between the parties in 

accordance with the principles contained in § 42-365. Rohde 

v. Rohde, supra.

[5,6] When classifying property as either marital or nonmarital, generally, all property accumulated and acquired by 

either spouse during a marriage is part of the marital estate. 

See id. Exceptions include property that a spouse acquired 

before the marriage, or by gift or inheritance. Id. The burden 

of proof to show that property is nonmarital remains with the 

person making the claim. Plog v. Plog, 20 Neb. App. 383, 824 

N.W.2d 749 (2012).
- 831 -

Nebraska Court of Appeals Advance Sheets

32 Nebraska Appellate Reports

WESTON V. WESTO

Cite as 32 Neb. App. 822

1. Real Estate Conveyed 

by Benjamin’s Parents

Benjamin first assigns the district court abused its discretion by classifying the real estate conveyed by his parents as 

marital property. Although the property was deeded to both 

Benjamin and Judith as joint tenants, Benjamin asserts the real 

estate was gifted only to him.

[7,8] We determine that Benjamin fails to meet his burden 

to show the real estate was nonmarital property. The manner 

in which property is titled or transferred by the parties during 

the marriage does not restrict the trial court’s determination of 

how the property will be divided in an action for dissolution 

of marriage. See Sellers v. Sellers, 294 Neb. 346, 882 N.W.2d 

705 (2016). When real estate is conveyed in joint tenancy, 

any parol evidence to overcome the recorded legal title must 

be clear, unequivocal, and convincing. See Salmon v. Salmon, 

219 Neb. 899, 367 N.W.2d 142 (1985).

In Salmon v. Salmon, supra, a mother deeded property to 

her daughter and son-in-law in exchange for $10,000. The 

mother essentially provided a private mortgage to her daughter and son-in-law where they would pay off the balance over 

a 10-year period. Id. Later in their divorce proceedings, the 

daughter claimed the property was a gift from her mother 

to her. The only evidence the daughter presented to counter 

the recitals in the deed was her mother’s testimony. Id. The 

Nebraska Supreme Court found that in the absence of any 

other evidence, the mother’s testimony “was not so clear, 

unequivocal, and convincing as to overcome the recitals in the 

deed which conveyed the property to the parties as joint tenants.” Id. at 901, 367 N.W.2d at 144.

Benjamin asserts this matter is distinguishable from Salmon 

because there was no exchange of money for the property. 

In terms of classifying whether property is marital, we do 

not see why property that was jointly conveyed to a married 

couple should be treated differently based on whether it was 

given in exchange for value or at no cost at all. The only 
- 832 -

Nebraska Court of Appeals Advance Sheets

32 Nebraska Appellate Reports

WESTON V. WESTO

Cite as 32 Neb. App. 822

difference in analyzing those situations would be the calculation of the value of the gift, whether it was for the full value 

of the property or just a portion. That does not change the 

initial inquiry of deciding for whose benefit the gift was originally intended. For that reason, we conclude that the “clear, 

unequivocal, and convincing” standard from Salmon applies to 

this matter. See 219 Neb. at 901, 367 N.W.2d at 144.

[9] We determine the evidence presented by Benjamin was 

not clear, unequivocal, and convincing to the extent that it 

overcame the recitals in the deed that the property was jointly 

gifted to both him and Judith. The only evidence presented by 

Benjamin to overcome the requisite presumption was his and 

his mother’s testimony that was countered by Judith’s testimony. While this is slightly more evidence than the evidence 

presented in Salmon, we do not believe it rises to the clear, 

unequivocal, and convincing standard. This is particularly true 

when we give weight to the district court’s decision to accept 

Judith’s version of the facts over Benjamin’s and his mother’s. 

See Malousek v. Meyer, 309 Neb. 803, 962 N.W.2d 676 (2021) 

(when credible evidence is in conflict on material issues of 

fact, appellate court will consider and may give weight to fact 

that trial court observed witnesses and accepted one version 

of facts over another). Accordingly, we conclude the district 

court did not abuse its discretion in determining the conveyance of real estate by Benjamin’s parents was a gift to both 

Benjamin and Judith and, therefore, was marital property.

2. Helen’s Contributions 

to Renovation

Benjamin next assigns the district court abused its discretion by finding that Helen’s contributions to the renovation 

project were solely gifts to Judith. Benjamin argues that 

Helen contributed to the renovation with the intent to benefit their whole family, including himself. He continues to 

assert that Helen’s intent did not change until July 2021, after 

Benjamin was accused of sexually assaulting his daughter. He 
- 833 -

Nebraska Court of Appeals Advance Sheets

32 Nebraska Appellate Reports

WESTON V. WESTO

Cite as 32 Neb. App. 822

then generally argues that Judith’s documentary evidence was 

all produced after Helen had already made the payments and 

after her intent had changed.

We begin by addressing apparent confusion regarding the 

requisite burden of proof on this issue. In their briefs, both 

parties cite the “clear, unequivocal[,] and convincing” standard used in the prior section for the transfer of the real estate 

by Benjamin’s parents. Brief for appellant at 15; brief for 

appellee at 11. The district court also referenced this standard in its order on Benjamin’s motion for new trial. In that 

order, the court stated: “The evidence from Judith’s mother 

was clear, unequivocal, and convincing that she gave Judith 

money for the construction and remodeling of Benjamin 

and Judith’s home as gifts intended as an offset or advance 

upon the inheritance she intended to make to Judith upon her 

death.” The reliance on this standard for the ordinary classification of property as marital or nonmarital is incorrect.

[10] Unless an exception applies, the burden of proof in 

civil cases requires only the greater weight of the evidence. 

Burgardt v. Burgardt, 304 Neb. 356, 934 N.W.2d 488 (2019) 

(applying this burden to dissolution of marriage case where 

division of property was at issue). Accordingly, the correct 

burden of proof in classifying the parties’ property as marital 

or nonmarital requires only the greater weight of the evidence. 

The prior section concerning the conveyance of real estate 

by Benjamin’s parents utilized the “clear, unequivocal, and 

convincing” burden of proof because it fell under an exception used by the Supreme Court in Salmon v. Salmon, 219 

Neb. 899, 901, 367 N.W.2d 142, 144 (1985). Because there 

is no similar exception raised for the classification of assets 

relevant to this assignment, the burden of proof is the same as 

any other civil matter. Accordingly, Judith, as the party making the claim that the property is nonmarital, only needs to 

prove the contributions from her mother were gifts to her by 

the greater weight of the evidence. See, id.; Plog v. Plog, 20 

Neb. App. 383, 824 N.W.2d 749 (2012).
- 834 -

Nebraska Court of Appeals Advance Sheets

32 Nebraska Appellate Reports

WESTON V. WESTO

Cite as 32 Neb. App. 822

[11,12] Imperative to our analysis is the district court’s 

determination on credibility. The credibility and weight of 

witness testimony are for the fact finder to determine, and 

witness credibility is not to be reassessed on appellate review. 

See State v. Davis, 310 Neb. 865, 969 N.W.2d 861 (2022). In 

its order on Benjamin’s motion for new trial, the district court 

dismissed Benjamin’s evidence as not credible:

Benjamin offered no credible or convincing evidence 

to show the transfer of money from Judith’s mother to 

Judith for the purchase of construction materials and services was intended to be a gift to him as well as Judith. 

Benjamin offered no convincing evidence to negate the 

testimony of Judith’s mother that the money she gave 

to Judith was intended as an offset to the money Judith 

would otherwise receive upon the death of Judith’s 

mother. All the payments by Judith’s mother were traced 

to the home remodeling project and Benjamin’s evidence did not negate or undermine the tracing of the 

gifted funds.

Although we do not reassess the district court’s findings as 

to credibility on appeal, the court’s ruling that Benjamin’s 

evidence was not credible does not automatically mean that 

Judith carried her burden of proof. Evidence not directly contradicted is not necessarily binding on the triers of fact and 

may be given no weight where it is inherently improbable, 

unreasonable, self-contradictory, or inconsistent with facts 

or circumstances in evidence. Burgardt v. Burgardt, supra. 

Therefore, we must still analyze whether Judith presented sufficient evidence to meet her burden.

[13] We find that Judith met her burden to demonstrate that 

Helen’s contributions were gifts to her. A nonmarital interest in property may be established by credible testimony. Id. 

Judith presented evidence in the form of testimony and documents. Helen and Judith both testified that there was a mutual 

understanding between Helen, her husband, Judith, Benjamin, 

and Helen’s other children that any amount given to Judith 
- 835 -

Nebraska Court of Appeals Advance Sheets

32 Nebraska Appellate Reports

WESTON V. WESTO

Cite as 32 Neb. App. 822

was an advance on her inheritance. Helen explained that she 

kept track of weekly expenses to account for necessary deductions from Judith’s inheritance and submitted a list of these 

expenses into evidence. We conclude this is sufficient to prove 

by the greater weight of the evidence that Helen’s contributions to the renovation were gifts to Judith.

[14] We next determine that the gifts maintained their status as gifts although they were spent on the renovation that 

benefited both Benjamin and Judith. In Becher v. Becher, 299 

Neb. 206, 908 N.W.2d 12 (2018), the Supreme Court found 

that a gift by the wife’s father used to pay off the mortgage on 

the marital home did not change the gift to marital property. 

In its reasoning, the court stated:

With some exceptions, the marital estate does not 

include property acquired by one of the parties through 

gift or inheritance. And there is no exception where an 

otherwise nonmarital monetary gift is spent on a family 

expense. Therefore, the referee’s finding that the portion 

of the gift spent on the mortgage payoff lost its gift status 

because it was applied to a marital expense was contrary 

to the law and against the weight of the evidence.

Id. at 220, 908 N.W.2d at 26. Accordingly, Helen’s gifts to 

Judith did not lose their nonmarital status because they were 

spent on a renovation that benefited the entire family, including Benjamin.

We conclude the district court did not abuse its discretion 

in finding that Helen’s contributions to the renovation were 

nonmarital property.

3. Value of Helen’s Contributions 

to Renovation

Benjamin next assigns the district court abused its discretion in valuing the amount of Helen’s gifts to Judith at 

$123,947.79. Benjamin essentially argues the evidence used 

to arrive at this figure is inconsistent with other evidence and 

includes expenses not attributed to the renovation. His brief 
- 836 -

Nebraska Court of Appeals Advance Sheets

32 Nebraska Appellate Reports

WESTON V. WESTO

Cite as 32 Neb. App. 822

proceeds to dissect and compare the invoices in the record 

with Helen’s handwritten list of expenditures that provided the 

$123,947.79 figure.

[15] We begin by noting that even if some of the expenditures included in the $123,947.79 figure were not spent on 

the renovation, they were still gifts to Judith. See Becher v. 

Becher, supra. But Judith cannot receive credit for the gifts 

that were not spent on the renovation because those expenses 

are not traceable into their product. See Marshall v. Marshall, 

298 Neb. 1, 902 N.W.2d 223 (2017) (finding that commingling of marital and nonmarital assets does not occur when 

separate property remains segregated or is traceable into its 

product). Helen testified that she tracked the amount of money 

she gave Judith on a weekly basis, so Helen knew how much 

to deduct from Judith’s inheritance. Helen stated that she used 

these tracked expenditures to create her handwritten list of 

expenses once the renovation was complete. The handwritten 

list of expenses was the list that the court received as evidence 

and used to calculate its total of $123,947.79.

[16] In relying solely on Helen’s handwritten list to come 

up with the $123,947.79 figure, the district court appears to 

have disregarded certain parts of the parties’ testimony and 

the invoices submitted to support the expenditures. As the 

Supreme Court has stated, “there is no hierarchy of evidence.” 

Burgardt v. Burgardt, 304 Neb. 356, 362, 934 N.W.2d 488, 

494 (2019). There is no general rule of evidence that a party 

must produce the best evidence which the nature of the case 

permits. Id. A trial court weighs the credibility of the witnesses 

and the evidence and determines what evidence should be 

given the greater weight in arriving at a factual determination 

on the merits. Id. In doing so, a trial court may choose what 

evidence merits greater weight. See id.

However, several of these tracked expenses did not directly 

pertain to the renovation. Looking at Helen’s list in conjunction with the corresponding invoices, Helen spent $892.59 

to pay Benjamin and Judith’s propane bills, $781.76 to pay 
- 837 -

Nebraska Court of Appeals Advance Sheets

32 Nebraska Appellate Reports

WESTON V. WESTO

Cite as 32 Neb. App. 822

their electric bills, and $1,868.69 to pay their homeowners 

insurance. In total, this amounts to $3,543.04 that was not 

spent on the renovation but was credited to Judith by the district court. Because these expenses are not traceable into their 

product, whereas the expenses for the renovation are traceable 

into the improved value of the real estate, Judith should not 

have been granted credit for them.

We conclude the district court did not abuse its discretion in relying on Helen’s handwritten list to account for the 

amount she gifted Judith for the renovation, but it did abuse 

its discretion by including in that amount expenses that were 

not traceable to the improvements on the property. Therefore, 

the district court awarded Judith an excessive credit in the 

amount of $3,543.04. As the money from the sale of the parties’ home is currently held in trust by the court, we direct the 

district court to deduct the amount of Judith’s credit held in 

trust by $3,543.04, thereby increasing Benjamin’s share by the 

same amount.

4. Credit for 2018 Jeep Renegade

Benjamin next assigns the district court abused its discretion 

by not granting him a $20,000 credit for the value of the 2018 

Jeep Renegade he purchased with funds from his workers’ 

compensation settlement.

[17,18] The parties do not contest that the $34,000 used to 

purchase the vehicle came from Benjamin’s workers’ compensation settlement. They also do not contest that these funds 

were nonmarital property. However, for the sake of completeness, we first determine that the district court correctly found 

that the workers’ compensation settlement was Benjamin’s 

nonmarital property. In Parde v. Parde, 258 Neb. 101, 602 

N.W.2d 657 (1999), the Supreme Court held that proceeds 

from personal injury awards can be marital or nonmarital 

assets depending on what damages the settlement was intended 

to compensate. In that case, the court held:
- 838 -

Nebraska Court of Appeals Advance Sheets

32 Nebraska Appellate Reports

WESTON V. WESTO

Cite as 32 Neb. App. 822

[C]ompensation for an injury that a spouse has or will 

receive for pain, suffering, disfigurement, disability, or 

loss of postdivorce earning capacity should not equitably be included in the marital estate. On the other hand, 

compensation for past wages, medical expenses, and other 

items that compensate for the diminution of the marital 

estate should equitably be included in the marital estate 

as they properly replace losses of property created by the 

marital partnership.

Id. at 109-10, 602 N.W.2d at 663. Benjamin’s workers’ compensation settlement falls within the category that should not 

equitably be included in the marital estate. As such, the settlement was Benjamin’s nonmarital property.

We now address whether the district court should have 

granted Benjamin a $20,000 credit for the purchase of the 

2018 Jeep Renegade. Benjamin contends he should receive 

the credit because the funds used to purchase the vehicle 

were traceable to his workers’ compensation settlement. In 

contrast, Judith argues that the funds used to purchase the 

vehicle became marital property when Benjamin gifted her 

the vehicle.

We conclude that the district court did not abuse its discretion in refusing to give Benjamin the $20,000 credit. 

Benjamin’s and Judith’s uncontradicted testimony indicates 

that it was Benjamin’s idea to purchase the vehicle and that 

he wanted to purchase it for Judith. The district court found 

that although the funds were traceable to Benjamin’s workers’ compensation settlement, there was no evidence that 

Benjamin intended to maintain the separate character of the 

settlement proceeds. Put differently, the district court essentially found that Benjamin failed to meet his burden of proof 

to show those funds were not marital property. The burden of 

proof to show that property is nonmarital remains with the 

person making the claim. Plog v. Plog, 20 Neb. App. 383, 

824 N.W.2d 749 (2012). As there was no evidence adduced to 

contradict Benjamin’s and Judith’s testimony that the vehicle 
- 839 -

Nebraska Court of Appeals Advance Sheets

32 Nebraska Appellate Reports

WESTON V. WESTO

Cite as 32 Neb. App. 822

was bought for Judith or to affirmatively show the vehicle’s 

value was not marital property, we do not believe the district 

court’s conclusion was clearly untenable or unreasonable. 

Accordingly, we determine the district court did not abuse its 

discretion in not granting Benjamin a credit for the value of 

the 2018 Jeep Renegade.

VI. CONCLUSION

We conclude the district court did not abuse its discretion in 

finding that the real estate conveyed to Benjamin and Judith 

by Benjamin’s parents was marital property and that Benjamin 

was not entitled to a credit for the value of the 2018 Jeep 

Renegade. However, we determine the district court abused 

its discretion in awarding Judith credit for the $3,543.04 that 

Helen spent to pay expenses unrelated to the renovation. 

Accordingly, we reverse the district court’s decision with 

directions to deduct the amount of Judith’s credit held in trust 

by $3,543.04, thereby increasing Benjamin’s share by the 

same amount.

Affirmed in part, and in part reversed 

and remanded with directions.