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Nebraska Supreme Court Advance S

303 Nebraska Report

ROHDE v. ROHDE

Cite as 303 Neb. 85

Sharon L. Rohde, appellee

Keith E. Rohde, appe

___ N.W.2d ___

Filed May 10, 2019. No. S-18-179.

1. Divorce: 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.

2. Evidence: Appeal and Error. In a review de novo on the record, an 

appellate court is required to make independent factual determinations based upon the record, and the court reaches its own independent 

conclusions with respect to the matters at issue. When evidence is in 

conflict, the appellate court considers and may give weight to the fact 

that the trial court heard and observed the witnesses and accepted one 

version of the facts rather than another.

3. 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.

4. 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.

5. Property Division. As a general rule, a spouse should be awarded onethird to one-half of the marital estate, the polestar being fairness and 

reasonableness as determined by the facts of each case.

6. Divorce: Property Division. 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.

Nebraska Supreme Court Online Library

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

08/02/2019 09:07 AM CDT
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7. 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.

8. Divorce: Property Division: Equity. The purpose of assigning a date 

of valuation in a decree is to ensure that the marital estate is equitably divided.

9. Property Division: Equity: Time. The choice of a date as of which 

assets available for equitable distribution should be identified and valued must be dictated largely by pragmatic considerations.

10. Divorce: Property Division. 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.

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

claiming that property is nonmarital.

Appeal from the District Court for Douglas County: J 

Russell Derr, Judge. Affir

A. Bree Robbins and Nancy R. Shannon, of Cordell Cordell, 

L.L.P., for appellant.

Christopher A. Vacanti, of Vacanti Shattuck, for appellee.

Heavican, C.J., Miller-Lerman, Cassel, Sta

Papik, and Freudenberg, J

Cassel, J

INTRODUCTION

Keith E. Rohde appeals from a decree dissolving his marriage to Sharon L. Rohde, challenging the division of property. Keith proposes two novel theories: (1) All assets must 

be valued using a single date and (2) a coverture formula is 

required to establish the premarital value of a business. We 

decline both invitations. The first would impinge upon the 

discretion necessary to equitably divide a marital estate. And 

the second depends upon speculation and assumptions generally inconsistent with such valuations. Keith’s remaining arguments lack merit. We affirm the decree.
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Cite as 303 Neb. 85

BACKGROUND

Before Sharon filed a complaint for dissolution in November 

2016, she and Keith were married for 21 years. During the 

period between filing and trial, the parties lived separate and 

apart for 1 year. The assets relevant on appeal include real 

estate, notes receivable, businesses, accounts, household goods, 

jewelry, and vehicles.

Real Estate and Notes Rec

The parties owned three properties in Omaha, Nebraska. 

One property was the marital home (184th Plaza home); one 

property was their friend’s home (140th Ave. home), which 

was secured by a note receivable from the friend; and one 

property was occupied by another person (Polk St. home), 

which was secured by a note receivable.

The parties offered appraisals of the 184th Plaza home. 

Sharon’s appraiser valued the home at the date of filing. Keith’s 

appraiser valued the home at the date of trial. Sharon testified 

to the value of the 140th Ave. home note receivable at the 

date of trial and presented evidence of the outstanding note.

Keith stated that prior to the marriage, he put a downpayment on the parties’ first home and acknowledged that Sharon 

repaid him part of the downpayment. He asked the court to 

classify the downpayment as nonmarital.

Business

Since 1989, Keith has owned Metro Excavating Inc. (Metro). 

Keith continued to operate the business throughout the marriage. Keith testified that Metro was operational for over 70 

months before the marriage. Keith asked the district court to 

offset the current value of the business by 23.13 percent as the 

value of the nonmarital business.

Additionally, Keith owns Storage Road Sales & Service 

Inc. (Storage Road). Before Keith married Sharon, he purchased the land for $34,000. He then constructed a building 

on the property that cost $17,000 for the steel framework and 

tin exterior.
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Both parties obtained appraisals of the property and businesses. Keith’s appraiser valued the Storage Road property 

at the date of trial. Sharon’s appraiser gave two valuations 

for the property at the date of filing: the lower appraisal used 

the income capitalization approach, and the higher appraisal 

used the direct sales comparison approach. The higher valuation was rebutted by Keith’s appraiser. Keith testified that 

the nonmarital value of the Storage Road property was 

$252,000.

In June 2016, Keith entered into three leases with Walvoord 

Finish Grading Inc. (collectively Walvoord Leases). The leases 

were for the equipment of both Metro and Storage Road, as 

well as a property lease. The leases were valued at the date 

of trial, which excluded the first payments made during the 

pendency of the action. Keith asked the district court to take 

into consideration the tax consequences when awarding the 

leases, and specifically in reducing the value by 32 percent. 

Additionally, during the pendency of the action, Keith sold 

several pieces of business equipment.

Sharon presented evidence that she is the sole owner of 

KMT Storage Company, Inc. (KMT), which was appraised at 

the date of filing.

Acco

The parties had several bank and retirement/investment 

accounts. There are three categories of accounts: joint 

accounts, commercial accounts, and investment accounts. The 

parties submitted evidence that allowed the court to value 

the joint and commercial accounts on both the date of filing and trial. Sharon submitted evidence of the value of the 

investment accounts on a separate date. Keith did not offer 

any evidence as to the value of the investment accounts on a 

separate date.

During the pendency of the action, Sharon removed $50,000 

from one of the joint accounts. She testified that she removed 

the money at the advice of counsel to pay bills that Keith used 
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to pay for. Sharon presented evidence of her personal bank 

accounts with a value at the date of filing. The account balance did not account for the full $50,000 removed from the 

joint account.

Remaining As

Keith offered an appraisal of Sharon’s jewelry valued at the 

date of trial. Keith and Sharon offered the same appraisals of 

the household goods at the date of trial.

Sharon offered an appraisal of her Ford Explorer. The vehicle was valued at the date of trial. At the date of filing, Keith 

owned a GMC pickup, and during the pendency of the action, 

he sold the GMC pickup and purchased a Dodge Ram pickup. 

In Sharon’s statement of assets and debts, she valued Keith’s 

Dodge Ram pickup at the date of trial.

Decr

The district court valued the following assets at the date 

of filing: the 184th Plaza home, the commercial accounts, the 

Storage Road property, and the KMT property. It valued the 

following assets at the date of trial: the 140th Ave. home note 

receivable, the joint accounts, the Walvoord Leases, household goods, jewelry, and vehicles. It valued the investment 

accounts and equipment sales on a separate date.

The district court awarded the following assets to Sharon: 

the 184th Plaza home, KMT, the commercial accounts for 

KMT, her personal checking accounts, her jewelry, and the 

Ford Explorer. The district court awarded the following assets 

to Keith: the 140th Ave. home note receivable, Metro and 

Storage Road, the commercial accounts for Metro and Storage 

Road, the Walvoord Leases, the equipment sale, and the Dodge 

Ram pickup. The district court equally split between the parties the Polk St. home note receivable, the joint accounts, the 

investment accounts, and the household goods.

When dividing the marital estate, the district court made 

findings. Regarding the nonmarital value of Metro, it reasoned 
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there was no testimony or evidence as to the value of Metro 

on the date of the marriage 22 years ago and “to sit here and 

for me to place a value on Metro . . . as a going concern in 

1995, I just don’t know that I can do that.” It declined to classify a nonmarital value for the first home downpayment, it 

offset the purchase price and cost of the Storage Road building as nonmarital, it did not consider tax consequences of 

the Walvoord Leases, and it classified Keith’s inherited tools 

as nonmarital.

Keith filed a timely appeal, which we moved to our docket.1

ASSIGNMENTS OF ERROR

Keith assigns that the district court erred (1) by valuing 

assets and debts on different dates, (2) by finding that all of 

Metro was a marital asset and failing to offset any portion as 

nonmarital, and (3) in its classification, valuation, and division 

of assets and debts in the marital estate.

STANDARD OF REVIEW

[1] 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.2

[2] In a review de novo on the record, an appellate court 

is required to make independent factual determinations based 

upon the record, and the court reaches its own independent 

conclusions with respect to the matters at issue. When evidence is in conflict, the appellate court considers and may 

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

the witnesses and accepted one version of the facts rather 

than another.3

[3] A judicial abuse of discretion exists if the reasons or rulings of a trial judge are clearly untenable, unfairly depriving a 

1 See Neb. Rev. Stat. § 24-1106(3) (Cum. Supp. 2018).

2 See Osantowski v. Osantowski, 298 Neb. 339, 904 N.W.2d 251 (2017).

3 Id.
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litigant of a substantial right and denying just results in matters submitted for disposition.4

ANALYSIS

[4,5] We begin by reciting familiar propositions from the law 

controlling equitable division of marital property and debts. The 

ultimate test in determining the appropriateness of the division 

of property is fairness and reasonableness as determined by the 

facts of each case.5 This is the polestar guiding our analysis of 

the issues. And as we have often repeated, a spouse should be 

awarded one-third to one-half of the marital estate.6

[6] 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 

§ 42-365.7

As we have already noted, when evidence is in conflict, an 

appellate court may give weight to the fact that the trial judge 

heard and observed the witnesses and accepted one version of 

the facts rather than another.8 This rule drives the outcome of 

the issues presented—other than the novel theories that Keith 

asserted. We turn first to those theories.

Valuation D

In brief, Keith argued that the district court erred when it 

failed to value all the assets and debts on a single date. He 

4 Id.

5 Id.

6 See id.

7 Id.

8 See id.
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contended that the court contradicted itself when it valued 

assets on separate dates and stated:

To be consistent, these values to me appear to be the most 

credible given — I’m not saying the others aren’t credible — the most accurate, trying to suggest a time and a 

place for division, so — I don’t want to pick one date for 

one account, one date for another account.

More specifically, Keith contends that the district court erred 

when valuing the 184th Plaza home, the Storage Road and 

KMT properties, and business accounts on the date of filing; 

the 140th Ave. home, jewelry, household goods, joint accounts, 

and vehicles on the date of trial; and the investment accounts 

and business equipment on an unrelated date. He requests us 

to remand the matter back to the district court “with instructions to value the property as of one particular date that is 

relationally related to the [marital] estate or remand for a new 

trial on the issue.”9 We decline to do so.

[7] 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.10

Although we have never explicitly stated that more than 

one valuation date may be utilized in valuing marital assets 

and liabilities, we have alluded to that understanding.11 In 

Brozek v. Brozek,

12 the appellant argued that the date of separation rather than the date of trial was the appropriate date 

to value the marital assets. The district court valued most of 

the marital property at the date of separation, valued farm 

equipment a year after separation, and valued the corporate 

9 Brief for appellant at 15.

10 Osantowski, supra note 2.

11 See, Brozek v. Brozek, 292 Neb. 681, 874 N.W.2d 17 (2016); Davidson v. 

Davidson, 254 Neb. 656, 578 N.W.2d 848 (1998).

12 Brozek, supra note 11.
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shares 3 years later at the date of trial. Although the corporate 

shares were classified as a nonmarital asset for the appellee, the district court found the value at trial, rather than the 

value at separation, to be more persuasive. We did not disturb 

this method.

In Davidson v. Davidson,

13 the district court did not value 

individual assets to establish the marital estate; instead, it used 

the difference in the appellant’s net worth immediately prior to 

marriage and 4 months after filing for dissolution. We relied on 

a Nebraska Court of Appeals’ case, where evidence supported 

valuations made 1 week before trial and were rationally related 

to the property to be divided. We reasoned that the valuation 

of the appellant’s net worth 4 months after filing for dissolution was rationally related to the property composing the marital estate. We concluded that the district court did not abuse 

its discretion.

In Walker v. Walker,

14 the Court of Appeals discussed how a 

valuation date should be determined. The appellant argued that 

the real estate should have been valued at the date of dissolution and not the date of separation. The court acknowledged 

that there is case law to support the proposition that the date of 

trial is the appropriate date for valuation. But, “we find no hard 

and fast rule that prohibits the district court from using other 

times as the appropriate date for valuation purposes so long as 

the value selected bears ‘a rational relationship to the property 

to be divided upon dissolution.’”15

Although many states use a uniform date of separation or 

date of dissolution for their valuation date, several states follow an approach similar to ours.16 New York and Ohio courts 

13 Davidson, supra note 11.

14 Walker v. Walker, 9 Neb. App. 694, 618 N.W.2d 465 (2000).

15 Id. at 699, 618 N.W.2d at 470.

16 1 Barth H. Goldberg, Valuation of Divorce Assets § 1:16 (rev. ed. 2005 & 

Cum. Supp. 2018-19).
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have discussed the issue of valuing separate assets on separate 

dates. In Collins v. Donnelly-Collins,

17 the Appellate Division 

of the Supreme Court of New York stated that “selection of the 

appropriate valuation dates for various assets is addressed to 

the sound discretion of the trial court, upon consideration of all 

of the relevant facts and circumstances in the case.” In Berish 

v. Berish,

18 the Ohio Supreme Court discussed the pragmatic 

difficulties of finding one date that the court could always use 

to value the marital estate. It was reluctant to accept such a 

simple formula, because “‘[t]he formula for division derives 

from the facts of the individual case’” and the court must have 

the “necessary flexibility to exercise its discretion.”19 We find 

these cases persuasive.

[8,9] We decline to mandate that a trial court must use only 

one valuation date in equitably dividing a marital estate. The 

date for valuation must be rationally related to the property 

being divided. Frequently, a single valuation date will be 

appropriate; but sometimes, it will not. The purpose of assigning a date of valuation in a decree is to ensure that the marital 

estate is equitably divided.20 This harkens back to the polestar 

of equitable division, which is fairness and reasonableness 

under the facts of the case. What may be a fair and reasonable 

valuation on one date for an asset may be unfair and unreasonable for another asset on the same date. “The choice of a date 

as of which assets available for equitable distribution should 

be identified and valued must be dictated largely by pragmatic 

considerations.”21 It can become arduous for the district court 

to determine one date that fairly and reasonably values the 

17 Collins v. Donnelly-Collins, 19 A.D.3d 356, 357, 796 N.Y.S.2d 159, 160 

(2005).

18 Berish v. Berish, 69 Ohio St. 2d 318, 432 N.E.2d 183 (1982).

19 Id. at 321, 432 N.E.2d at 185.

20 Blaine v. Blaine, 275 Neb. 87, 744 N.W.2d 444 (2008).

21 Berish, supra note 18, 69 Ohio St. 2d at 319, 432 N.E.2d at 184.
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entire marital estate.22 We choose not to tie the hands of the 

district court; thus, the court need not find “‘[o]ne [date] to 

rule them all.’”23

During oral argument, Keith retreated somewhat from the 

original contention made in his brief. He conceded that at trial, 

he had failed to present evidence to value the entire marital 

estate on a single date. In other words, his evidence did not 

attempt to value all of the marital property as of one, and only 

one, date. Therefore, it seems disingenuous to now argue that 

the district court should have selected a single valuation date 

despite his own failure to adduce evidence accordingly.

The dates used by the district court to value the marital 

estate were rationally related to the respective items of property. The value at the date of filing was rationally related 

to the 184th Plaza home, the commercial accounts, and the 

business properties, because once the parties separated, these 

assets no longer benefited them both. The value at the date of 

trial was rationally related to the 140th Ave. home, jewelry, 

joint accounts, household goods, and vehicles, because several assets had no variation in value and the joint accounts 

were still used by both parties until the time of trial. The 

values of the investment accounts and equipment sales were 

rationally related to the valuation date, because the parties 

presented only one date to value each asset. We conclude 

that the district court did not abuse its discretion in valuing 

marital assets on dates that rationally related to the property 

being divided.

Nonmarital Business

Keith argues that the district court abused its discretion 

when it failed to classify any portion of Metro as nonmarital. He requests this court to adopt the coverture formula to 

22 See Berish, supra note 18.

23 See J.R.R. Tolkien, The Fellowship of the Ring 49 (Houghton Mifflin 

1994) (1954).
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determine the nonmarital value of Metro. He testified that 

Metro had been in existence for 320 months and that over 

70 of those months were prior to the marriage. He contends 

that 23.13 percent of Metro’s value was nonmarital, which, he 

argues, we should deduct from the marital estate.

We note that at trial, Keith argued that his nonmarital valuation of Metro is “not really a coverture method.” The district 

court responded that “the manner in which the value is trying to be determined is more or less a coverture method.” 

The district court acknowledged that the business was worth 

something when the parties married, but declined to adopt 

the valuation because there was no testimony or evidence 

presented as to the worth of the business at the time of 

the marriage.

[10,11] 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.24 The burden of 

proof rests with the party claiming that property is nonmarital.25 Because Keith claimed that a portion of Metro was nonmarital, it was his burden to show what interest or value was 

nonmarital.

In dissolution actions in Nebraska, the coverture formula 

has been extended only to dividing pensions26 and termination 

payments from employment by an insurance company.27

“‘Simplified, the coverture formula provides that the 

numerator of the fraction used to determine the marital 

portion is essentially the number of months of credible service of the employed spouse while married and 

therefore is the pension contribution while married and 

that the denominator is the total number of months 

24 Osantowski, supra note 2.

25 Stanosheck v. Jeanette, 294 Neb. 138, 881 N.W.2d 599 (2016).

26 See Webster v. Webster, 271 Neb. 788, 716 N.W.2d 47 (2006).

27 See Bergmeier v. Bergmeier, 296 Neb. 440, 894 N.W.2d 266 (2017).
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that the spouse has [been] or will be employed which 

resulted in the pension the employee will receive. This 

denominator number includes and will include the time 

the employed spouse worked before, during, and after 

the marriage.’”28

We have not applied the coverture formula to the valuation of the premarital portion of a business. We suspect that 

the variations in revenue and expenses from year to year, the 

growth or decline of a business due to numerous factors, and 

the variations in business cycles make it extremely unlikely 

that the coverture formula would produce anything other than 

mere speculation or conjecture. While we are not prepared to 

definitively preclude a trial court from ever using the coverture 

formula for such a purpose, we think it is unlikely to be appropriate except in very unusual circumstances.

We note that in other states, there have been isolated 

instances where intermediate appellate courts have accepted 

the use of the coverture formula as a method to determine 

nonmarital business value.29 But in each of those cases, the 

appellate court affirmed a valuation method selected by a trial 

court; in none did the appellate court mandate the use of such 

a method. No state supreme court has expressly adopted the 

coverture formula as a method to determine nonmarital business value.

We are not satisfied that the coverture formula was appropriate under the facts of this case. Therefore, the district court 

did not abuse its discretion when it declined to apply that 

method.

We next look to whether other evidence was presented for 

the nonmarital value of Metro. Other than the notion of using 

the coverture formula, no evidence was submitted to value 

28 Id. at 451-52, 894 N.W.2d at 275 (quoting Klimek v. Klimek, 18 Neb. App. 

82, 775 N.W.2d 444 (2009) (emphasis in original)).

29 See, Haslem v. Haslem, 133 Ohio App. 3d 257, 727 N.E.2d 928 (1999); 

Edwards and Edwards, 141 Or. App. 11, 917 P.2d 504 (1996).
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Metro as a going concern at the time when the parties were 

married. Where there is nothing on the record to show the 

source of premarital funds, they should be considered part 

of the marital estate.30 There was no credible evidence in the 

record to support a nonmarital value of Metro. It necessarily 

follows that the district court did not abuse its discretion when 

it classified all of Metro as marital property.

Remaining Argu

Keith makes several additional arguments pertaining to 

the valuation and division of marital and nonmarital assets. 

He argues that the district court failed to classify the first 

home down payment as nonmarital, failed to consider tax 

consequences of the Walvoord Leases, failed to separate the 

Walvoord Leases payments made to the joint account before 

division, incorrectly valued the nonmarital value of the Storage 

Road property, and incorrectly adopted Sharon’s appraisals for 

the 184th Plaza home and the Storage Road property. After 

reviewing the record de novo, we conclude that the district 

court did not abuse its discretion in equitably dividing the 

marital and nonmarital assets. These arguments lack merit.

Additionally, Keith argues that the district court failed to 

reduce an award of the joint accounts to Sharon by $50,000; 

erroneously valued nonmarital tools as part of the marital 

estate; and accounted twice for money used to purchase the 

Dodge Ram pickup.

Although there appear to have been some mathematical 

variations from the pronounced decision to the written decree, 

the difference in the adjusted equalization amount would 

amount to less than one-half of 1 percent of the entire marital estate. And Keith did not avail himself of the remedies to 

correct this at the trial court level. His trial counsel approved 

the form of the decree. Thus, Keith was clearly aware of its 

content. And he did not pursue a motion to alter or amend the 

30 Stanosheck, supra note 25.
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judgment. As we have stated throughout this opinion, fairness 

and reasonableness is our guiding polestar. We cannot say 

that mathematical variations amounting to less than one-half 

of 1 percent of the entire marital estate resulted in an unfair 

or unreasonable division. We conclude that these mathematical variations are not clearly untenable, nor do they deprive 

Keith of a just result; therefore, the district court did not abuse 

its discretion.

CONCLUSION

Having reviewed the record de novo, we conclude that 

the district court did not abuse its discretion in determining 

the valuation dates for the marital assets and in classifying, 

valuing, and dividing the marital estate. Therefore, we affirm 

the decree.

Affirm