- 138 -

Nebraska Supreme Court Advance Sheets

294 Nebraska Reports

STANOSHECK v. JEANETTE

Cite as 294 Neb. 138

Elizabeth E. Stanosheck, appellee, v. 

Joseph P. Jeanette, appellant.

___ N.W.2d ___

Filed July 15, 2016. No. S-15-490.

1. Divorce: Appeal and Error. In actions for dissolution of marriage, 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.

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. Property Division: Appeal and Error. As a general principle, the date 

upon which a marital estate is valued should be rationally related to the 

property composing the marital estate. The date of valuation is reviewed 

for an abuse of the trial court’s discretion.

4. Divorce: Property Division. In a divorce action, the purpose of a 

property division is to distribute the marital assets equitably between 

the parties.

5. Property Division. Equitable property division under Neb. Rev. Stat. 

§ 42-365 (Reissue 2008) 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.

6. ____. The ultimate test in determining the appropriateness of a property 

division is fairness and reasonableness as determined by the facts of 

each case.

7. Divorce: Property Division. As a general rule, all property accumulated and acquired by either spouse during the marriage is part of the 

marital estate, unless it falls within an exception to the general rule.

8. Divorce: Property Division: Proof. Where there is nothing on the 

record to show the source of premarital funds, they should be considered 

part of the marital estate.

Nebraska Supreme Court Online Library

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

07/15/2016 09:06 AM CDT
- 139 -

Nebraska Supreme Court Advance Sheets

294 Nebraska Reports

STANOSHECK v. JEANETTE

Cite as 294 Neb. 138

9. Property Division: Proof. The burden of proof rests with the party 

claiming that property is nonmarital.

10. Divorce: Property Division: Pensions. Under Neb. Rev. Stat. 

§ 42-366(8) (Reissue 2008), the general rule is that amounts added to 

and interest accrued on pension or retirement accounts which have been 

earned during the marriage are part of the marital estate, but contributions before marriage or after dissolution are not assets of the marital estate.

11. ____: ____: ____. Investment earnings accrued during the marriage 

on the nonmarital portion of a retirement account may be classified as 

nonmarital where the party seeking the classification proves: (1) The 

growth is readily identifiable and traceable to the nonmarital portion of 

the account and (2) the growth is due solely to inflation, market forces, 

or guaranteed rate rather than the direct or indirect effort, contribution, 

or fund management of either spouse.

Appeal from the District Court for Cass County: Jeffrey

J. Funke, Judge. Affirmed in part, and in part vacated and 

remanded for further proceedings.

Steven M. Delaney and A. Bree Robbins, of Reagan, Melton 

& Delaney, L.L.P., for appellant.

Amie C. Martinez, of Anderson, Creager & Wittstruck, P.C., 

L.L.O., and Megan M. Schutt, Senior Certified Law Student, 

for appellee.

Wright, Connolly, Miller-Lerman, Cassel, Stacy, and

Kelch, JJ.

Stacy, J.

I. NATURE OF CASE

In this appeal from a decree of dissolution, error is assigned 

to the district court’s classification, valuation, and division 

of certain marital property. After a de novo review, we find 

no abuse of discretion and affirm the district court’s judgment in all respects but one—the division of the parties’ 

retirement accounts. As it regards the retirement accounts, 
- 140 -

Nebraska Supreme Court Advance Sheets

294 Nebraska Reports

STANOSHECK v. JEANETTE

Cite as 294 Neb. 138

we vacate the decree in part and remand the cause for further proceedings.

II. BACKGROUND

Elizabeth E. Stanosheck (Elizabeth) and Joseph P. Jeanette 

(Joseph) were married in 2008. Elizabeth filed for dissolution 

in January 2014. From the time the divorce was filed until 

a few months before trial, the parties lived together in the 

marital home. They had no joint debts other than the mortgage 

on their home, a loan against Joseph’s retirement account, 

and various household expenses. Joseph paid the majority of 

these expenses, and Elizabeth reimbursed him $600 to $800 

per month. During the pendency of the action, a temporary 

order was entered on the agreement of the parties, requiring 

each to contribute payment toward the joint debts and home 

expenses, with Elizabeth paying 40 percent and Joseph paying 

60 percent.

Trial was held in January 2015. The parties reached a comprehensive property settlement agreement, so trial was limited 

to just a few contested issues: (1) whether the marital estate 

should be valued at the time of trial or the time of filing, (2) 

how to divide the remaining proceeds from the sale of the 

marital home, and (3) whether Joseph was entitled to set off 

as nonmarital property a portion of the market growth to his 

retirement account.

1. Valuation Date

Elizabeth asked the court to value the marital estate at the 

time of trial, and Joseph asked that it be valued at the time the 

dissolution was filed. The district court found the date of trial 

was the more appropriate valuation date, reasoning:

Though the evidence indicates that the parties were 

not actively spending time together, such as eating 

meals together or engaging in social activities together, 

the parties were still married, still residing in the 

home together, and still sharing household expenses. 
- 141 -

Nebraska Supreme Court Advance Sheets

294 Nebraska Reports

STANOSHECK v. JEANETTE

Cite as 294 Neb. 138

Therefore, the Court finds that the valuation date for 

the division of assets and debts should be the date of 

trial herein.

2. Division of Proceeds From

Sale of Marital Home

During the marriage, Joseph took out a $50,000 loan 

against his retirement account to contribute to building the 

parties’ home. Payments on the loan were made every 2 

weeks by withholding sums from Joseph’s paycheck. At the 

time of trial, Joseph had paid back $12,000 on the loan. The 

marital home was sold prior to trial. The parties agreed to 

divide a portion of the net sale proceeds immediately and 

held $50,000 from the sale in trust, with the agreement that 

$38,000 of that sum would be used to repay the balance of 

the loan against Joseph’s retirement account. The parties disagreed as to how the remaining $12,000 should be divided. 

Elizabeth asked that it be split equally between the parties, 

and Joseph asked to be awarded the entire $12,000 as reimbursement for the loan payments made during the marriage. 

The district court found the loan was a marital debt and 

noted that all repayment on the debt occurred during the marriage using sums earned during the marriage. The court then 

awarded each party an equal share of the remaining $12,000 

sale proceeds.

3. Division of Retirement

Accounts

Both parties had retirement plans which predated the marriage and which increased in value during the marriage. With 

the exception of Joseph’s Thrift Savings Plan, the parties 

agreed how the various retirement accounts should be classified, valued, and divided. The court accepted the agreement 

of the parties, finding it was fair, reasonable, and not unconscionable. The evidence adduced by the parties concerning 

their respective retirement accounts is set out below.
- 142 -

Nebraska Supreme Court Advance Sheets

294 Nebraska Reports

STANOSHECK v. JEANETTE

Cite as 294 Neb. 138

(a) Elizabeth’s Retirement Accounts

Elizabeth had a retirement account with the Nebraska 

Public Employees Retirement System (NPERS) prior to the 

marriage. During the marriage, she rolled funds over from 

her NPERS account into an account with a securities investment company. Elizabeth also started a 401K retirement 

account with a new employer after the divorce was filed but 

before trial.

With respect to each of Elizabeth’s retirement accounts, 

the parties stipulated that any premarital funds would be set 

off to her and that the “amounts that accrued during the term 

of the marriage” would be divided by the parties. The district 

court accepted the parties’ stipulation and, in the narrative 

portion of the decree, made specific findings that Joseph 

should be awarded 50 percent of the “‘accumulated contributions plus interest’” in both of Elizabeth’s retirement accounts 

from the date of marriage to the date of trial. The judgment 

portion of the decree, however, omitted any reference to 

dividing Elizabeth’s retirement accounts. The record indicates 

Elizabeth’s attorney prepared the decree and Joseph’s attorney 

approved the decree as to form before it was submitted to 

the court.

(b) Joseph’s Retirement Accounts

Joseph had several retirement accounts which predated the 

marriage. He had a 401K defined contribution plan from a 

prior job. He had a Federal Employees’ Retirement System 

(FERS) account through his current employer. Within this 

FERS account, he had a pension fund and a Thrift Savings 

Plan (hereinafter TSP). The TSP is a defined contribution plan. 

During the marriage, Joseph rolled over approximately $85,000 

from his 401K into the TSP.

Regarding Joseph’s FERS pension, the parties agreed 

Elizabeth was entitled to a portion of his pension “based upon 

the date of the marriage, the length of service of [Joseph], and 

the overlap between date of marriage, date of service, and the 
- 143 -

Nebraska Supreme Court Advance Sheets

294 Nebraska Reports

STANOSHECK v. JEANETTE

Cite as 294 Neb. 138

valuation date.” The district court accepted the parties’ stipulation in that regard and found that Joseph had approximately 

19 years of premarital service that would be excluded from 

Elizabeth’s share of the annuity payments. The court then 

awarded each party 50 percent of Joseph’s FERS pension 

benefits accrued from the date of marriage to the date of trial. 

No error is assigned to the manner in which the court divided 

Joseph’s FERS pension.

The parties’ primary disagreement at trial was over how to 

classify, value, and divide that portion of Joseph’s TSP which 

accumulated during the parties’ marriage. Simplified, the parties agreed that all contributions made to Joseph’s TSP before 

the marriage were properly set off as nonmarital property and 

that the nonmarital funds rolled over into the TSP during the 

marriage were properly set off as nonmarital property. But the 

parties disagreed on whether all of the TSP investment earnings that accrued during the marriage were properly included 

in the marital estate.

Joseph took the position that some of the TSP growth that 

accrued during the marriage was marital property and that 

some was not. Specifically, he argued that the growth attributable to the nonmarital property portion of his TSP should also 

be classified as nonmarital and set off entirely to him. Joseph 

presented the testimony of an actuary who determined the 

total number of shares held in the TSP at the time of the marriage, the time the divorce was filed, and the time of trial. The 

expert then determined the value of the TSP account at each 

point in time by multiplying the number of shares in the TSP 

on that date by the price per share on that date. The expert 

testified the price per share varied with market conditions and 

over time had moved slowly in conjunction with movement in 

the stock market.

According to the expert, on the date of marriage, the TSP 

had 21,485.8536 shares valued at $15.3822 per share, for a 

total value of $330,499.70. The subsequent rollover of his 

premarital 401K into the TSP resulted in the purchase of an 
- 144 -

Nebraska Supreme Court Advance Sheets

294 Nebraska Reports

STANOSHECK v. JEANETTE

Cite as 294 Neb. 138

additional 4,839.3736 TSP shares valued at $17.6207 per share 

for a total value of $85,273.15. On the date of trial, the TSP 

contained 32,523.5724 shares valued at $22.8987 per share 

for a total value of $744,747.52. As such, it was the expert’s 

opinion that at the time of trial, Joseph’s TSP had a total value 

of $744,747.52, of which $141,934.05 was marital (6,198.3452 

shares at $22.8987 per share) and $602,813.47 was nonmarital 

(26,325.2272 shares at $22.8987 per share).

Elizabeth took the position that, just as the parties agreed 

to do with both of her retirement accounts, the court should 

classify all the passive market growth which occurred during 

the marriage as marital property and should divide it equally 

between the parties.

The district court made a factual finding that the increases 

in value to Joseph’s TSP during the marriage were “attributable to the rollover of [his 401K] retirement plan, additional 

contributions made to the plan by [Joseph] during the marriage, and growth attributable to market gains.” The court 

cited our holdings in Priest v. Priest1 and Reichert v. Reichert2

for the general proposition that “the marital estate includes 

that portion of pensions or retirement accounts earned during the marriage.” The court then rejected Joseph’s suggestion that investment income derived from the nonmarital 

property portion of his TSP account should be set off as 

nonmarital property, reasoning: “[N]either Nebraska case law 

nor Nebraska statutory authority authorize the classification 

of passive accumulations earned during the marriage as a 

non-marital asset. Therefore, this Court finds that the passive 

accumulations of the TSP account earned during the parties’ 

marriage are part of the marital estate.” The court set off as 

nonmarital the value of the TSP on the date of the marriage 

($330,499.70) and the value of Joseph’s 401K on the date it 

1 Priest v. Priest, 251 Neb. 76, 554 N.W.2d 792 (1996).

2 Reichert v. Reichert, 246 Neb. 31, 516 N.W.2d 600 (1994).
- 145 -

Nebraska Supreme Court Advance Sheets

294 Nebraska Reports

STANOSHECK v. JEANETTE

Cite as 294 Neb. 138

was rolled over into the TSP ($85,273.15). As to the remaining TSP sums, the court awarded Elizabeth 50 percent of the 

“‘accumulated contributions plus interest’” from the date of 

marriage to the date of trial.

Joseph timely appealed, and we granted his petition to 

bypass the Nebraska Court of Appeals.

III. ASSIGNMENTS OF ERROR

Joseph assigns, rephrased and consolidated, that the district 

court erred in four respects: (1) valuing the marital estate at 

the time of trial rather than the date the divorce was filed; (2) 

dividing the remaining $12,000 from the sale of the marital 

home equally, rather than awarding the entire sum to Joseph; 

(3) classifying all of the growth in Joseph’s TSP account during the marriage as marital property; and (4) omitting reference to Joseph’s share of Elizabeth’s retirement accounts in the 

judgment portion of the decree.

IV. STANDARD OF REVIEW

[1,2] In actions for dissolution of marriage, 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.3 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.4

V. ANALYSIS

1. Valuation Date

[3] As a general principle, the date upon which a marital estate is valued should be rationally related to the 

3 Molczyk v. Molczyk, 285 Neb. 96, 825 N.W.2d 435 (2013).

4 Brozek v. Brozek, 292 Neb. 681, 874 N.W.2d 17 (2016).
- 146 -

Nebraska Supreme Court Advance Sheets

294 Nebraska Reports

STANOSHECK v. JEANETTE

Cite as 294 Neb. 138

property composing the marital estate.5 The date of valuation 

is reviewed for an abuse of the trial court’s discretion.6

Here, the court valued all the marital property at the time 

of trial rather than the date the divorce action was filed. The 

court found it significant that, even after filing for divorce, the 

parties continued to live together in the marital home and share 

in household expenses. The valuation date applied by the district court was rationally related to the property composing the 

marital estate, and we find no abuse of discretion in valuing the 

marital estate at the time of trial. Joseph’s assignment of error 

to the contrary is without merit.

2. Sale Proceeds

[4-6] In a divorce action, the purpose of a property division is to distribute the marital assets equitably between the 

parties.7 Equitable property division under Neb. Rev. Stat. 

§ 42-365 (Reissue 2008) is a three-step process.8 The first 

step is to classify the parties’ property as marital or nonmarital.9

 The second step is to value the marital assets and marital 

liabilities of the parties.10 The third step is to calculate and 

divide the net marital estate between the parties.11 The ultimate test in determining the appropriateness of a property 

division is fairness and reasonableness as determined by the 

facts of each case.12

5 Blaine v. Blaine, 275 Neb. 87, 744 N.W.2d 444 (2008); Tyma v. Tyma, 263 

Neb. 873, 644 N.W.2d 139 (2002); Brunges v. Brunges, 260 Neb. 660, 619 

N.W.2d 456 (2000).

6 See, Blaine, supra note 5; Tyma, supra note 5.

7 Tyma, supra note 5.

8 Id.

9 Id.

10 Id.

11 Id.

12 Id.
- 147 -

Nebraska Supreme Court Advance Sheets

294 Nebraska Reports

STANOSHECK v. JEANETTE

Cite as 294 Neb. 138

[7] After selling their home during the pendency of this 

case, the parties reached agreement regarding an equitable 

division of all but $12,000 of the net sale proceeds. Elizabeth 

asked that the remaining $12,000 be divided equally between 

the parties, and Joseph asked that the $12,000 be awarded 

solely to him as reimbursement for payments made on the TSP 

loan. It is undisputed that Joseph made these loan payments 

through automatic paycheck withholding of money earned during the marriage. As a general rule, all property accumulated 

and acquired by either spouse during the marriage is part of 

the marital estate, unless it falls within an exception to the 

general rule.13

The court divided the $12,000 equally between the parties, 

reasoning that the TSP loan was a marital debt and all repayment on the debt occurred during the marriage using sums 

earned during the marriage.14 The court did not abuse its discretion in awarding the parties an equal share of the remaining $12,000 sale proceeds.

3. Retirement Accounts

Joseph assigns that the district court erred in several respects 

when classifying, valuing, dividing, and decreeing division of 

the parties’ retirement accounts. As it regards Joseph’s TSP, 

he does not dispute that a portion of his TSP is properly classified as marital property, but he argues the trial court abused 

its discretion in classifying all of the appreciation which 

occurred during the marriage as marital property. Joseph 

also argues the court’s decision to determine the value of the 

TSP shares, rather than divide the marital shares outright, 

was improper. Finally, as it regards Elizabeth’s retirement 

13 Sitz v. Sitz, 275 Neb. 832, 749 N.W.2d 470 (2008).

14 Id. at 837-38, 749 N.W.2d at 475 (husband’s “contributions to the savings 

plan were made with deductions from his . . . paycheck which was marital 

property. Accordingly, the contributions to the savings plan made during 

the marriage . . . were subject to division”).
- 148 -

Nebraska Supreme Court Advance Sheets

294 Nebraska Reports

STANOSHECK v. JEANETTE

Cite as 294 Neb. 138

accounts, Joseph argues the court erred by failing to reference 

his share of Elizabeth’s retirement accounts in the judgment 

portion of the decree.

[8,9] The rules regarding classification of property in dissolution actions are well established. Generally, all property 

accumulated and acquired by either spouse during a marriage 

is part of the marital estate.15 Where there is nothing on the 

record to show the source of premarital funds, they should be 

considered part of the marital estate.16 The burden of proof 

rests with the party claiming that property is nonmarital.17

[10] Neb. Rev. Stat. § 42-366(8) (Reissue 2008) provides: 

“The court shall include as part of the marital estate, for purposes of the division of property at the time of dissolution, 

any pension plans, retirement plans, annuities, and deferred 

compensation benefits owned by either party, whether vested 

or not vested.” When applying this statute, we have held 

generally that amounts added to and interest accrued on pension or retirement accounts which have been earned during 

the marriage are part of the marital estate, but contributions 

before marriage or after dissolution are not assets of the marital estate.18

In Coufal v. Coufal,

19 decided after the decree was entered 

in the present case, we recognized a narrow and fact-specific 

exception to the general rule that the marital estate includes 

amounts added to and interest accrued on pensions and 

retirement accounts. The husband in Coufal participated in 

NPERS. Before the marriage, his NPERS account had a 

balance of $76,271.45. At trial, he presented evidence the 

15 Coufal v. Coufal, 291 Neb. 378, 866 N.W.2d 74 (2015).

16 Shockley v. Shockley, 251 Neb. 896, 560 N.W.2d 777 (1997).

17 See, Brozek, supra note 4; Gangwish v. Gangwish, 267 Neb. 901, 678 

N.W.2d 503 (2004).

18 Coufal, supra note 15.

19 Id.
- 149 -

Nebraska Supreme Court Advance Sheets

294 Nebraska Reports

STANOSHECK v. JEANETTE

Cite as 294 Neb. 138

account had a balance of $219,830.07. Pursuant to Neb. Rev. 

Stat. § 84-1301(17) (Reissue 2014), members of NPERS 

were guaranteed a statutory rate of return on their retirement 

plans. The husband claimed the premarital portion of his 

NPERS account should be valued to include the statutorily 

guaranteed interest on his premarital principal. He offered 

expert testimony establishing that, given the statutory rate 

of return, the adjusted value of his premarital principal was 

$120,010.82.

The district court in Coufal concluded the interest accruing 

on the premarital portion of the husband’s NPERS account was 

part of the marital estate, reasoning that the interest accruing 

during the marriage did not fit into any recognized exception 

to the general rule that property acquired by either party during the marriage is included in the marital estate.

On appeal, we framed the issue as “whether the increase 

in value of the premarital portion of the retirement account 

should be considered as part of the marital estate.”20 To determine which portion of the NPERS retirement account was 

nonmarital, we examined to what extent the appreciation in 

the separate premarital portion of the account was caused 

by the efforts of either spouse. We analogized the NPERS 

account to a certificate of deposit with a fixed rate of interest 

owned by one spouse before the marriage. And we observed 

that the increase in value of the premarital portion of the 

NPERS account was not contingent on the husband’s continued employment, but, rather, was guaranteed by statute prior 

to the marriage and was not derived from the contributions of 

either party during the marriage. We concluded the increase 

in value of the premarital portion of the husband’s retirement account was readily identifiable and traceable to the 

premarital principal, and we rejected the suggestion that the 

growth was inextricably commingled with marital property. 

20 Id. at 382, 866 N.W.2d at 78.
- 150 -

Nebraska Supreme Court Advance Sheets

294 Nebraska Reports

STANOSHECK v. JEANETTE

Cite as 294 Neb. 138

Ultimately, we concluded on the unique facts in Coufal that 

the increase in value of the premarital portion of the NPERS 

account was not a marital asset.21

We stated in Coufal that “[o]ur reasoning and conclusion 

are specific to the facts presented in this case,”22 but Joseph 

argues on appeal that our reasoning has application beyond 

the NPERS retirement account at issue in Coufal to potentially include retirement accounts like the TSP at issue here. 

Elizabeth argues it would be inequitable to apply the Coufal

exception to Joseph’s retirement account while not applying it 

to hers, particularly when she had an NPERS account which 

predated the marriage—the precise type of account we considered in Coufal.

[11] We agree the reasoning of Coufal is not necessarily 

restricted to any particular kind of retirement account; rather, 

the applicability of Coufal depends upon the facts of each 

case and the evidence adduced. After Coufal, investment 

earnings accrued during the marriage on the nonmarital portion of a retirement account may be classified as nonmarital 

where the party seeking the classification proves: (1) The 

growth is readily identifiable and traceable to the nonmarital 

portion of the account and (2) the growth is due solely to 

inflation, market forces, or guaranteed rate rather than the 

direct or indirect effort, contribution, or fund management of 

either spouse.

Here, we are mindful that neither the parties nor the district court had the benefit of our analysis in Coufal when this 

case was tried or decided. It makes little sense to conduct 

a de novo review of the evidence adduced and the findings 

made against a standard neither known to nor contemplated 

by the parties or the court at the time the case was tried. 

Because Coufal recognized a fact-specific exception to the 

21 Coufal, supra note 15.

22 Id. at 381, 866 N.W.2d at 77.
- 151 -

Nebraska Supreme Court Advance Sheets

294 Nebraska Reports

STANOSHECK v. JEANETTE

Cite as 294 Neb. 138

general rules governing classification and division of retirement accounts and because here, both parties have retirement 

accounts which may arguably fall within the exception, we 

conclude it is appropriate to vacate that portion of the decree 

which divided the parties’ retirement accounts and remand 

the cause for further consideration and/or proceedings. In so 

doing, we express no opinion regarding the applicability of 

the Coufal exception to the specific facts of this case.

Accordingly, we vacate that portion of the decree which 

classifies, values, and divides the parties’ retirement accounts, 

and we remand the cause for further consideration and/or proceedings regarding the equitable division of the parties’ retirement accounts.

Because we are vacating the decree as it regards division of 

the parties’ retirement accounts and remanding the cause for 

further proceedings, it is unnecessary to reach Joseph’s final 

assignment of error.

VI. CONCLUSION

The judgment of the district court is affirmed in all respects 

but one. That portion of the decree concerning the retirement 

accounts of the parties is vacated, and the cause is remanded 

to the district court for further consideration and/or proceedings to determine the appropriate classification, valuation, and 

division of the parties’ retirement accounts.

 Affirmed in part, and in part vacated and

remanded for further proceedings.

Heavican, C.J., not participating.