IN THE NEBRASKA COURT OF APPEALS

MEMORANDUM OPINION AND JUDGMENT ON APPEAL

(Memorandum Web Opinion)

CLASON V. CLASON

NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION

AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).

RACHELLE A. CLASON, APPELLEE,

V.

STEVEN E. CLASON, APPELLANT.

Filed October 25, 2016. No. A-15-626.

Appeal from the District Court for Furnas County: DAVID URBOM, Judge. Affirmed in part, 

and in part reversed and remanded with directions.

Siegfried H. Brauer, of Brauer Law Office, for appellant.

Jaclyn N. Daake, of Duncan, Walker, Schenker & Daake, P.C., L.L.O., for appellee.

MOORE, Chief Judge, and RIEDMANN and BISHOP, Judges.

RIEDMANN, Judge.

I. INTRODUCTION

Steven A. Clason appeals from a decree of dissolution entered by the district court, which 

dissolved his marriage to Rachelle A. Clason, divided the marital assets and debts, and ordered 

Steven to pay Rachelle an equalization payment in the amount of $150,000. Subsequent to the 

trial, Steven filed a motion for a new trial, which was denied by the district court. Steven now 

appeals, and for the reasons that follow, we affirm in part, and in part reverse and remand with 

directions.

Upon our review of the record, we find that the district court erred in failing to classify the 

2013 and partial 2014 real estate taxes as a marital debt. We also find plain error in the trial court’s 

calculation of the amount of Steven’s premarital debt that was paid using marital funds. As a result 

- 1 -
of these errors, we remand the matter to the district court to recalculate the marital estate and 

redistribute the assets and debts between the parties.

II. BACKGROUND

Steven and Rachelle were married on May 29, 2006. No children were born of the 

marriage; however, Rachelle had two minor children from a prior marriage.

On May 23, 2014, Rachelle filed a petition for dissolution of marriage. Almost immediately 

thereafter, she used marital funds to purchase a single family home in Beaver City, Nebraska for 

her and one of her sons. In the petition, Rachelle specifically asked that the parties’ marriage be 

dissolved, that their marital assets and debts be equitably divided, that her maiden surname be 

restored, and that she be awarded alimony and attorney fees.

On July 23, 2014, Steven filed an answer. In his answer, he denied that the marriage could 

not be salvaged and asked that the court refuse to dissolve the parties’ marriage.

Trial was held on March 4, 2015. The parties’ trial testimony centered on whether their 

marriage was irretrievably broken as well as the value of the marital estate. In particular, much of 

the testimony focused on the classification of various assets and debts as well as the amount of 

premarital debts that had been satisfied with marital funds. At the close of trial, both parties agreed 

to submit written closing arguments.

At trial, Rachelle testified that she believed her marriage to Steven was broken beyond 

repair. She stated that there had been multiple incidents involving Steven’s family that had 

negatively impacted the marriage, including receiving harassing phone messages and being 

physically assaulted by his brother. Rachelle also testified to an altercation between her oldest son 

and Steven, which led to her son moving out of state to live with his biological father. Along with 

these incidents, Rachelle stated that she did not feel like Steven put their family first before his 

own family, despite having spoken with him about her concerns.

Apart from familial disputes, Rachelle testified that she and Steven would often get into 

disagreements and that such disagreements were having a negative effect on her health. She stated 

that approximately one month prior to filing the petition for dissolution, Steven abused her trust 

when he used her bid number at an auction to purchase more than $80,000 worth of items without 

her knowledge or consent.

Rachelle testified that prior to moving out, she had tried to communicate more effectively 

with Steven to resolve their problems and that they discussed counseling, although they never 

attended. She finally decided to move out in May 2014 because she felt that the marital home was 

an unhealthy place for her and her youngest son to live. Upon moving out, Rachelle said that she 

received multiple bothersome emails and letters from Steven about her decision to leave him.

Steven admitted that there was room for improvement in his marriage to Rachelle and that 

he had sought advice from his pastor on a monthly basis several years prior to the time of 

separation. He emphasized that since filing for dissolution, Rachelle had initiated contact with him 

on several occasions and such contact had not been contentious. Steven testified that he had 

previously asked Rachelle if she would consider counseling and her response was to the effect of, 

“not at this time.” He stated that he believed their marriage was not irretrievably broken and that 

Rachelle had not taken reasonable efforts to preserve their union.

- 2 -
The parties also testified regarding various assets that Steven owned prior the marriage. 

Both parties agreed that all of the farm land, including the land upon which the marital home was 

located, was premarital land belonging to Steven. Steven testified about various premarital assets, 

including household items and farm machinery, which he claimed were disposed of during the 

marriage and never replaced.

Both parties testified that, approximately 10 months into the marriage, Steven filed for 

bankruptcy. Rachelle stated that they did not jointly file for bankruptcy because all of the debts 

were related to running the farm and she did not think it would be fair to file jointly since those 

debts had accrued prior to their marriage. Steven’s premarital debts included in the bankruptcy 

filing consisted of land debt, a lien on cows, liens on farm machinery, prior real estate taxes, and 

a lien on Steven’s 2004 pickup. The bankruptcy filing also included approximately $20,000 of 

credit card debt, although Steven and Rachelle presented conflicting testimony regarding whether 

this debt was premarital. Rachelle testified that all of these debts except the land debt and the 

machinery debt were eventually paid off using marital funds. According to the evidence, the land 

debt was reduced by $49,000 and the farm machinery debt was reduced by $69,875.

The trial court heard testimony regarding various debts that Steven claimed should be 

classified as marital. He testified that the second half of the 2013 real estate taxes and the prorated 

2014 real estate taxes for the parties’ property should be considered marital debts since the 

expenses arose during the time that Rachelle was still living with Steven and benefiting from the 

income produced on the land.

Steven next claimed that a $35,000 debt for “unpaid bills” should be classified as a marital 

liability on the basis that it was for expenses that arose during the marriage. However, when asked 

specifically what those unpaid bills were, Steven was unable to elaborate beyond the description 

previously provided in the joint property statement that the debt was for feed, utilities, and 

attorney’s fees. Steven reported that the farm was involved in two lawsuits--a suit initiated by the 

Department of Environmental Quality (DEQ) and another regarding the Clason Living Trust. He 

testified that Rachelle was not a party to either suit nor had she been involved in the litigation. 

Rachelle stated that she was not aware of the DEQ lawsuit and believed that the matter had already 

been resolved. Steven further claimed that the attorney’s fees for those two lawsuits were separate 

and apart from the attorney’s fees included in the $35,000 figure.

The parties also testified regarding whether Steven had already purchased and planted any 

crops at the time that Rachelle moved out. Rachelle stated that she left around planting season and 

she believed that Steven had either been in the process of planting crops or that he had already 

finished. Steven testified that he had not planted any row crops at that time nor did he believe that 

he had any alfalfa in the ground yet. However, he later admitted that while he may not have had 

anything planted in the ground before Rachelle left, he had already purchased seed and paid for 

some of the crop chemical application.

In its decree, the trial court determined that a 2003 Kia Sedona was Rachelle’s premarital 

property, and thus, belonged solely to her. It determined that the farm real estate, including the 

marital home, the majority of the cattle, and much of the farm equipment was Steven’s premarital 

property and belong solely to him. Regarding marital property, the court awarded Rachelle the 

home she had purchased in Beaver City, Nebraska, her 2010 Dodge Journey, and various items of 

- 3 -
personal and household property. The court awarded Steven the farm equipment and machinery, 

and the majority of household items.

The trial court determined that the credit card debt paid off under Steven’s bankruptcy 

filing should be considered Steven’s premarital debt. The crop seed expense at the time that 

Rachelle moved out was classified as a marital asset and assigned to Steven. The 2013 and 2014 

real estate taxes were classified as nonmarital debt as a lien on premarital property. The trial court 

disregarded the claimed $35,000 debt for “unpaid bills.”

After assigning the assets and debts, the trial court ordered Steven to make an equalization 

payment to Rachelle in the amount of $150,000. The court determined this amount by subtracting 

each party’s assigned debts from his or her assets and then finding the difference between the two 

net totals. The court found that Rachelle had a net total of $87,850 and Steven had a net total of 

$397,497. The trial court then took roughly half the difference between the net totals and ordered 

an equalization payment in that amount. The decree did not award any alimony or attorney’s fees.

Steven now appeals from the decree of dissolution.

III. ASSIGNMENTS OF ERROR

On appeal, Steven asserts, restated, that the trial court erred in (1) finding evidence 

sufficient to determine that the marriage was irretrievably broken; (2) its calculations regarding 

marital property and in imposing an equalization judgment on Steven in the amount of $150,000 

in favor of Rachelle; and (3) failing to order a new trial on Steven’s motion.

IV. STANDARD OF REVIEW

An appellate court’s review in an action for dissolution of marriage is de novo on the record 

to determine whether there has been an abuse of discretion by the trial judge. Longo v. Longo, 266 

Neb. 171 (2003). This standard of review applies to the trial court’s determinations regarding the 

division of property, alimony, and attorney fees. Id. An abuse of discretion occurs when the trial 

court’s reasoning or ruling is based upon reasons that are untenable or unreasonable, and as a result 

a litigant is deprived of a substantial right and denied just results in the matter. Coufal v. Coufal, 

291 Neb. 348 (2015).

V. ANALYSIS

1. MARRIAGE IRRETRIEVABLY BROKEN

Steven asserts that the trial court erred in finding sufficient evidence to determine that his 

marriage to Rachelle was irretrievably broken. Specifically, he claims that Rachelle has not 

demonstrated sufficient effort to preserve their marriage and that she should be required to do so 

before the court finds the marriage to be beyond repair.

Pursuant to Neb. Rev. Stat. § 42-361(2) (Cum. Supp. 2012), if one of the parties has denied 

under oath or affirmation that the marriage is irretrievably broken, the court shall consider all 

relevant factors, including the circumstances that gave rise to the filing of the complaint and the 

prospect of reconciliation, and shall make a finding whether the marriage is irretrievably broken. 

The Nebraska Supreme Court has held that when the relationship of two married parties has 

deteriorated to the point that they can no longer reside with one another, the marriage is 

irretrievably broken. Witcig v. Witcig, 206 Neb. 307, 292 N.W.2d 788 (1980). In reviewing the 

- 4 -
sufficiency of the evidence, an appellate court may give weight to the trial court’s observations of 

the witnesses and their manner of testifying as well as the trial court’s acceptance of one version 

of facts over another. Id.

In this case, Steven and Rachelle presented conflicting evidence regarding whether their 

marriage was irretrievably broken. Steven claimed that Rachelle had demonstrated little to no 

effort to resolve their marital problems and that there was not sufficient evidence to find that their 

marriage could not be salvaged. Conversely, Rachelle testified to ongoing problems in their 

marriage, such as conflicts between Steven and her oldest son as well as conflicts with Steven’s 

family, including physical altercations. She also testified to Steven’s abuse of her trust and his 

refusal to address her concerns that he did not put their family first. Rachelle stated that she had 

made efforts to preserve their marriage, including communicating more with Steven and discussing 

counseling. Despite this, Rachelle continued to feel that the marriage was unhealthy and moved 

out of the marital home in May 2014. Almost immediately, she purchased a home of her own and 

filed for divorce.

Regardless of how Steven viewed the marriage, Rachelle’s actions and testimony made it 

clear that she did not believe their marriage could be salvaged and she had no intention of 

reconciling with him. When reviewing conflicting evidence, this court will give weight to the 

factual determinations made by the trial court. Based upon the record before us, we find no abuse 

of discretion in the trial court’s determination that the marriage was irretrievably broken. 

Therefore, there is no merit in this assignment of error.

2. CALCULATIONS OF MARITAL ESTATE

Steven next asserts that the trial court abused its discretion in its calculations regarding the 

marital estate. Specifically, he argues that the court erred in disregarding a marital debt of $35,000, 

assigning $20,000 of premarital credit card debt against him, not classifying the 2013 and partial 

2014 real estate taxes as a marital debt, failing to credit him for substantial premarital assets, and 

in classifying his 2014 crop seed expense as a marital asset. Upon our de novo review of the record, 

we find that the trial court erred in classifying the real estate taxes as a nonmarital debt. We also 

find plain error in the trial court’s calculations regarding the amount of Steven’s premarital debt 

paid with marital funds. Accordingly, we affirm in part, and in part reverse and remand with 

directions.

Before we address Steven’s specific assertions in regard to the calculation of the marital 

estate, we briefly review the controlling legal principles. Pursuant to Neb. Rev. Stat. § 42-365 

(Reissue 2008), the “purpose of a property division is to distribute the marital assets equitably 

between the parties.” Sellers v. Sellers, 294 Neb. 346, 882 N.W.2d 705, (2016). However, the 

marital estate is not divided by a rigid mathematical formula. McCollister v. McCollister, 219 Neb. 

711, 365 N.W.2d 825 (1985). “The ultimate test in determining the appropriateness of the division 

of property is fairness and reasonableness as determined by the facts of each case.” Sellers v. 

Sellers, supra. It is well established that the equitable division of property is a three-step process. 

First, the court classifies the parties’ property as marital or nonmarital, setting aside any nonmarital 

property to the party who brought that property to the marriage. Next, the court values the marital 

assets and marital liabilities of the parties. Lastly, the court calculates and divides the net marital 

estate between the parties in accordance with the principles contained in § 42-365. Id. In general, 

- 5 -
all property accumulated and acquired by either spouse during marriage is considered part of the 

marital estate. Brozek v. Brozek, 292 Neb. 681, 874 N.W.2d 17 (2016). The exceptions to this rule 

are when a spouse acquires property by gift or inheritance. Id. Where one party to a dissolution 

claims a particular piece of property to be nonmarital, the burden of proof lies with that party. Id.

(a) $35,000 Debt

Steven claims that the trial court should have included a debt for unpaid bills in the amount 

of $35,000 as a marital debt. In the joint property statement, he cites the cost of feed, utilities, and 

attorney’s fees as the sources of this debt. Steven argues that these expenses arose as part of normal 

living and operating expenses and as such, should be classified as marital.

Yet, on cross-examination, Steven was unable to give any further explanation for exactly 

which bills have not been paid and how much was still owing on each. He admitted that any bills 

for legal work done on behalf of Rachelle had been paid long before and that she was not a party 

to either the DEQ or Clason Living Trust lawsuits. Furthermore, Steven includes attorney’s fees 

for each lawsuit as separate items listed in the property statement. He testified at trial that those 

are just projected amounts in order to settle those lawsuits, but we are not convinced that those 

attorney’s fees are distinct from what Steven claims to be part of the $35,000. Rachelle testified 

that as of the time of separation, she was not aware of any unpaid bills nor was she aware of the 

DEQ lawsuit. Beyond Steven’s assertions that this $35,000 marital debt exists, we find nothing in 

the record to support the existence of these unpaid bills nor the amount of debt claimed. As a result, 

we find the trial court did not abuse its discretion in disregarding this as a marital debt.

(b) Premarital Credit Card Debt

Steven argues that since neither party included his premarital credit card debt on their joint 

property statement, the trial court erred in assigning such debt to him. He claims that the court 

should not have included that debt against either party.

However, testimony elicited at trial by both Steven and Rachelle indicates that Steven did 

in fact have premarital credit card debt. By his own admission, he was operating off of credit cards 

in 2006 out of necessity in order to keep his farming and cattle operations running. Steven admitted 

that after filing for bankruptcy, approximately $20,000 of credit card debt was paid off using 

marital funds. The trial court found this testimony to be credible and issued its order assigning this 

debt against Steven. We will give weight to the trial court’s finding of fact in this regard. We 

therefore find there was no abuse of discretion in its determination that Steven did have $20,000 

of premarital credit card debt that was paid off using marital funds.

(c) Real Estate Taxes

Steven assigns that the trial court erred in classifying the 2013 and prorated 2014 real estate 

taxes as a nonmarital debt. He argues that such expenses followed naturally from his farming 

operation, which produced income benefiting both him and Rachelle. As such, he claims the debt 

should be classified as marital and equitably divided between the parties. We agree.

In Meints v. Meints, 258 Neb. 1017, 608 N.W.2d 564 (2000), the Nebraska Supreme Court 

held that “[i]ncome tax liability incurred during the marriage is one of the accepted costs of 

producing marital income, and thus, we hold that income tax liability should generally be treated 

- 6 -
as a marital debt.” The Court ruled that income taxes incurred during marriage are an accepted, 

and in fact necessary, expense in the production of income. Id. Any income generated from 

employment during marriage is generally considered a marital asset. Brozek v. Brozek, supra. We 

likewise find that real estate taxes assessed on farmland used for income production during the 

marriage are analogous to income taxes. Such taxes are a necessary expense for the ownership and 

use of that land in order to produce marital income, and that income benefits both spouses.

Here, the trial court classified the real estate taxes for 2013 and the first five months of 

2014 as Steven’s nonmarital debt on the basis that the real estate itself was a premarital asset, 

which was subsequently awarded to him as such. However, Steven and Rachelle were married and 

living together for the entirety of that time period. Both parties testified to working on the farm 

and they both benefited from the income generated from the ownership and use of the land. While 

we recognize that the taxes arose from premarital land, the taxes themselves arose during the 

course of the marriage as a result of Steven and Rachelle’s ownership and use of the land to 

produce income. To assign such liability to Steven alone, when Rachelle enjoyed the benefits of 

the income produced on that land, would be patently unjust. We find that the trial court abused its 

discretion in failing to equitably divide the 2013 and the prorated 2014 real estate taxes between 

the parties. Accordingly, we reverse, and remand to the trial court to equitably divide and assign 

the real estate tax liabilities.

(d) Appellant’s Premarital Assets

Steven alleges that the trial court erred in not crediting him for substantial premarital assets 

that were subsequently sold, consumed, or disposed of during the marriage. Specifically, he points 

to a number of household items such as living room furniture, computer and printer, washer and 

dryer, refrigerator, TV and stereo, and a bedroom set. He also includes various pieces of 

equipment, the livestock and feed he owned at the time of the marriage, and the crops that were 

growing at that time.

Steven testified that many of the household items were outdated and no longer usable; 

therefore, they were disposed of. In order to receive credit for premarital property, the spouse 

claiming the credit must be able to trace its value. See Brozek v. Brozek, supra. By Steven’s own 

admission, the household items no longer had value at the time at which they were disposed. As a 

result, he was not entitled to any credit for them.

As to the equipment, Steven testified that he sold most of it for a nominal value, but he did 

not trace where those proceeds went. As stated in Brozek v. Brozek, supra, to trace the value of an 

item of premarital machinery that has been traded in during marriage, we would need evidence of 

the ratio of marital-to-nonmarital funds the spouse used to acquire the new asset. We do not have 

any such evidence in this case. The cattle have also been sold, but again, Steven did not trace where 

those proceeds went. He testified that the growing crops would have gone into additional cattle or 

been sold, but again, there was no testimony tracing those proceeds.

As the spouse claiming credit for nonmarital property that was disposed of during the 

marriage, Steven had the burden of tracing the proceeds and he failed to meet his burden. The trial 

court did not abuse its discretion in failing to credit him for this premarital property.

- 7 -
(e) Crop Seed Expense

The trial court classified the $25,000 crop seed expense as a marital asset and assigned it 

to Steven. He now claims that the crop seed should have been classified as a nonmarital asset on 

the basis that it was purchased after the time of separation. Steven testified that as of the date that 

Rachelle left, he had not yet planted anything that year. However, he admitted that he had already 

purchased seed and had paid for some of the crop chemical application. The trial court included 

this expense as a marital asset because even though Steven may not have planted any crops before 

he and Rachelle separated, he had already purchased the seed, which would have used marital 

funds. Steven has the burden to show that these expenses were not paid for with marital funds, and 

we do not find sufficient evidence in the record to meet this burden. We therefore find no abuse of 

discretion in the determination that the crop seed expense was a marital asset and could properly 

be assigned to Steven.

(f) Plain Error

Additionally, we find that there is another error concerning the trial court’s calculation and 

division of the marital estate. The trial court calculated Steven’s premarital debts that were paid 

using marital funds and included that amount in its calculation of total marital property assigned 

to him. It then subtracted the amount of marital debt assigned to Steven from his total marital 

property to determine his net total share of the marital estate. The trial court then used the 

difference between Steven’s net total share and Rachelle’s net total share to determine the amount 

of the equalization payment awarded to Rachelle.

However, in calculating the decrease in premarital debt assigned to Steven, the trial court 

appears to have incorrectly added the values. The trial court lists each of Steven’s premarital debts 

that had been paid with marital funds: $229,000 real property mortgage debt, of which $49,000 

had been paid during the marriage; $100,000 lien on cows which according to Rachelle had been 

completely paid during the marriage; $120,000 liens on farm machinery, of which $69,875 had 

been paid during the marriage; $13,047 real estate taxes; $20,500 debt on 2004 pickup; and 

$20,000 credit card debt. Adding these amounts together, the trial court found that $182,422 of 

Steven’s premarital debts had been paid using marital funds. That number appears to be in error. 

We find the sum of these debts to be $272,422. We cannot find evidence in the record to support 

the trial court’s figure.

This error affects Steven’s net total share of the marital estate, which in turn affects the 

amount of the equalization payment awarded to Rachelle. Steven makes no specific assignment of 

error regarding the trial court’s calculations of the decrease in his premarital debt and Rachelle 

does not challenge the calculations by cross-appeal. Nonetheless, the calculations are clearly 

wrong and we find that such is plain error. Thus, upon remand, the trial court should recalculate 

the marital estate and the equalization payment, if any.

3. DENIAL OF MOTION FOR NEW TRIAL

Steven assigns that the trial court erred in denying his motion for a new trial. However, he 

does not state the grounds upon which he claims this was in error. His brief contains no argument 

whatsoever pertaining to this assignment of error. An alleged error must be both specifically 

assigned and specifically argued in the brief of the party asserting the error in order to be 

- 8 -
considered by an appellate court. Olson v. Olson, 13 Neb. App. 365, 693 N.W.2d 572 (2005). We 

therefore do not address this assigned error.

VI. CONCLUSION

Upon our de novo review of the record, we find that the trial court erred in calculating the 

marital estate, specifically in classifying the real estate taxes as a nonmarital debt. We also find 

the trial court committed plain error in miscalculating the amount of Steven’s premarital debts that 

were paid using marital funds. As a result of these errors, we remand the matter to the trial court 

to recalculate the marital assets and debts, redistribute them between the parties, and recalculate 

the equalization payment, if any. We affirm the remainder of the trial court’s decision.

AFFIRMED IN PART, AND IN PART REVERSED

AND REMANDED WITH DIRECTIONS.

- 9 -