- 136 -

Nebraska Supreme Court Advance Sheets

312 Nebraska Reports

SIMONS V. SIMON

Cite as 312 Neb. 136

Jonathan B. Simons, appellant, v. 

Heather L. Simons, appellee.

___ N.W.2d ___

Filed August 5, 2022. No. S-21-599.

1. Pleadings: Appeal and Error. Permission to amend a pleading is 

addressed to the discretion of the trial court, and an appellate court will 

not disturb the trial court’s decision absent an abuse of discretion.

2. Constitutional Law: Due Process. The determination of whether the 

procedures afforded to an individual comport with constitutional requirements for procedural due process presents a question of law.

3. Trusts: Equity: Appeal and Error. An action to impose a constructive 

trust sounds in equity, which an appellate court reviews de novo on the 

record, giving consideration, where the evidence is in conflict, to the 

fact that the trial court observed the witnesses and their manner of testifying and accepted one version of facts rather than the opposite.

4. Divorce: Child Custody: 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 in his or her determinations regarding custody, child support, division of property, alimony, 

and attorney fees.

5. 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.

6. Appeal and Error. Appellate courts do not generally consider arguments and theories raised for the first time on appeal.

7. Antenuptial Agreements. As a contract, an antenuptial agreement is 

governed by the same principles that are applicable to other contracts, 

but is subject to the particular statutory requirement that an antenuptial 

agreement must be based on fair disclosure.

Nebraska Supreme Court Online Library

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

08/12/2022 09:07 AM CDT
- 137 -

Nebraska Supreme Court Advance Sheets

312 Nebraska Reports

SIMONS V. SIMON

Cite as 312 Neb. 136

8. Contracts: Intent. When the terms of a contract are clear, a court may 

not resort to rules of construction, and terms are accorded their plain and 

ordinary meaning as an ordinary or reasonable person would understand 

them. In such a case, a court shall seek to ascertain the intention of the 

parties from the plain language of the contract.

9. Due Process: Words and Phrases. While the concept of due process 

defies precise definition, it embodies and requires fundamental fairness.

10. Rules of the Supreme Court: Pleadings. The key inquiry for “express 

or implied consent” under Neb. Ct. R. Pldg. § 6-1115(b) is whether the 

parties recognized that an issue not presented by the pleadings entered 

the case at trial.

11. Divorce: Property Division. In an equitable property division governed 

by Neb. Rev. Stat. § 42-365 (Reissue 2016), all property accumulated 

and acquired by either spouse during the marriage is part of the marital 

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

12. Antenuptial Agreements: Property Division. Spouses are able to contract around the general rules of equitable division by using a premarital 

agreement.

13. Trusts: Property: Title: Equity. Under a constructive trust, equity vests 

title to the subject property in the wronged party and the court may issue 

a decree that the title be so conveyed.

14. Trusts: Property: Title. A constructive trust is imposed when one has 

acquired legal title to property under such circumstances that he or she 

may not in good conscience retain the beneficial interest in the property.

15. Trusts: Property: Title: Equity. A constructive trust is a relationship, 

with respect to property, subjecting the person who holds title to the 

property to an equitable duty to convey it to another on the grounds that 

his or her acquisition or retention of the property would constitute unjust 

enrichment.

16. Trusts: Equity. In determining whether to impose a constructive trust, 

the court will consider not only the original situation but also all events 

which have occurred since the defendant began to hold inequitably.

17. Trusts: Proof. A party seeking the remedy of a constructive trust has the 

burden to establish the factual foundation, by evidence which is clear 

and convincing, required for a constructive trust.

18. Trusts: Equity. The constructive trust doctrine is equitable in nature 

and should not be rigidly limited, and the absence of any one factor will 

not itself defeat the imposition of a constructive trust when otherwise 

required by equity.

19. Equity. Where a situation exists which is contrary to the principles of 

equity and which can be redressed within the scope of judicial action, a 

court of equity will devise a remedy to meet the situation.
- 138 -

Nebraska Supreme Court Advance Sheets

312 Nebraska Reports

SIMONS V. SIMON

Cite as 312 Neb. 136

20. ____. Equity is not a rigid concept, and its principles are not applied in 

a vacuum.

21. ____. Equity is determined on a case-by-case basis when justice and 

fairness so require.

22. Trusts: Property: Title: Equity: Proof. Generally, a court, sitting in 

equity, will not impose a constructive trust and constitute an individual 

as a trustee of the legal title for property unless it be shown, by clear 

and convincing evidence, that the individual, as a potential constructive 

trustee, had obtained title to property by fraud, misrepresentation, or 

an abuse of an influential or confidential relationship and that, under 

the circumstances, such individual should not, according to the rules of 

equity and good conscience, hold and enjoy the property so obtained.

23. Trusts: Equity: Unjust Enrichment. A constructive trust is imposed to 

do equity and to prevent unjust enrichment.

24. Unjust Enrichment. Unjust enrichment is a flexible concept, occurring 

when a claim is based on the failure of consideration, fraud, or mistake 

and in other situations where it would be morally wrong for one party to 

enrich himself or herself at the expense of another.

25. Fraud. Fraud comprises all acts, omissions, and concealments involving 

a breach of legal or equitable duty, trust, or confidence justly reposed, 

and are injurious to another, or by which an undue and unconscientious 

advantage is taken of another.

26. Appeal and Error. An appellate court will not consider an issue on 

appeal that was not presented to or passed upon by the trial court.

27. ____. To be considered by an appellate court, an alleged error must be 

both specifically assigned and specifically argued in the brief of the 

party asserting the error.

28. Limitations of Actions: Waiver. A statute of limitations is nonjurisdictional and waivable.

29. Expert Witnessess. The determination of the weight that should be 

given expert testimony is uniquely the province of the fact finder.

30. Valuation. A trial court is not required to accept any one method of 

valuation as more accurate than another accounting procedure.

31. Trusts: Property: Title: Declaratory Judgments. The ownership rights 

of a constructive trust beneficiary, once recognized, are protected from 

the moment the trustee acquired legal title, the constructive trust decree 

being in the nature of a declaratory judgment about the state of title to 

the property.

32. Alimony. The purpose of alimony is to provide for the continued maintenance or support of one party by the other when the relative economic 

circumstances make it appropriate.
- 139 -

Nebraska Supreme Court Advance Sheets

312 Nebraska Reports

SIMONS V. SIMON

Cite as 312 Neb. 136

33. Alimony: Appeal and Error. In reviewing an alimony award, an appellate court does not determine whether it would have awarded the same 

amount of alimony as did the trial court, but whether the trial court’s 

award is untenable such as to deprive a party of a substantial right or a 

just result.

Appeal from the District Court for Douglas County: Gregory 

M. Schatz, Judge. Affirmed in part, and in part vacated.

John A. Kinney, Jill M. Mason, and Samantha M. Robb, of 

Kinney Mason, P.C., L.L.O., for appellant.

Benjamin M. Belmont and Wm. Oliver Jenkins, of Brodkey, 

Cuddigan, Peebles, Belmont & Line, L.L.P., for appellee.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, 

Papik, and Freudenberg, JJ.

Freudenberg, J.

I. INTRODUCTION

In a dissolution action governed by a premarital agreement, 

the court imposed a constructive trust over certain limited 

liability companies titled solely in the respondent’s name, 

such that they were considered additions to the marital estate 

under the agreement. The petitioner appeals the court’s judgment, arguing that the court abused its discretion in allowing 

the respondent to amend her pleadings to conform to the evidence at trial to include the issue of the constructive trust, that 

the trust was in conflict with the premarital agreement, that 

the evidence did not support a constructive trust, and that the 

amount of the trust was in error. The petitioner also challenges 

the court’s award of a $150,000 lump-sum payment under the 

terms of the premarital agreement, an order to maintain life 

insurance to fund a support order, the inclusion of a truck in 

the marital estate, and the amount of the alimony award.

II. BACKGROUND

Jonathan B. Simons brought a complaint for dissolution of 

his marriage to Heather L. Simons. Jonathan and Heather were 
- 140 -

Nebraska Supreme Court Advance Sheets

312 Nebraska Reports

SIMONS V. SIMON

Cite as 312 Neb. 136

married in 2005. Two children, still minors at the time of filing, were born to the marriage. The complaint alleged that a 

premarital agreement controlled the division of their assets and 

debts. In her operative answer, Heather asked, among other 

things, for an equitable division of the marital estate and for 

alimony. She denied the validity of the premarital agreement. 

However, the court ultimately found the agreement was valid, 

and that finding is not challenged on appeal.

1. Issues in Controversy

The court issued a pretrial order directing the parties to submit a letter stating the issues in controversy, the issues not in 

controversy, and a concrete statement of the relief sought. As 

relevant to this appeal, the letter submitted by Heather’s counsel set forth as issues in controversy the following:

4. Whether Jonathan holds one half of the membership 

interest in JBS Kids Play & Fitness, LLC; JBS Properties, 

LLC and Dogwatch, LLC in a constructive trust for the 

benefit of Heather.

5. Does Jonathan have an equitable duty to convey 

one half of the membership interest in JBS Kids Play & 

Fitness, LLC; JBS Properties, LLC and Dogwatch, LLC 

to Heather on the ground that his acquisition or retention of the membership interests would constitute unjust 

enrichment.

6. If the Premarital Agreement is valid and enforceable, 

whether three limited liability companies [Jonathan] organized to operate the parties’ businesses which were started 

during the marriage and in which Heather was an owner 

and held out to the public as being an owner are part of 

the marital estate;

7. Whether the provision of the Premarital Agreement 

stating, “Anything in this section 3.2 to the contrary notwithstanding, in no event shall [Jonathan’s] Property or 

Heather’s Property be made a part of or be considered in 

determining any alimony award as herein contemplated” 
- 141 -

Nebraska Supreme Court Advance Sheets

312 Nebraska Reports

SIMONS V. SIMON

Cite as 312 Neb. 136

is valid, or contrary to law and if contrary to law, is it able 

to be severed from the Premarital Agreement.

8. Whether Jonathan has comingled any purported 

separate funds with marital funds to subject those funds 

to an equitable division;

9. The determination of what assets are part of the 

marital estate and the equitable division of the marital 

estate[.]

A copy of the letter was sent to opposing counsel, who raised 

no objections.

Before trial commenced, Jonathan’s counsel argued to the 

court that the premarital agreement was enforceable and that, 

under the agreement, title controls—assets jointly titled are 

marital while assets not jointly titled are not marital.

Heather’s counsel responded that even with the premarital 

agreement, the court had equitable powers, there were issues 

as to what exactly the agreement means, and “[i]t’s not just a 

matter of title.” Heather’s counsel elaborated that at issue in 

the case was a business Heather and Jonathan started together, 

which they both worked for and which Jonathan represented 

to Heather and to others that he and Heather jointly owned. 

Heather’s counsel argued that the fact the business was titled 

solely in Jonathan’s name should not be controlling of the distribution even under the premarital agreement.

At the conclusion of the evidence presented at trial, Heather 

moved to amend her pleadings to conform to the evidence so 

as to allege constructive trust and unjust enrichment. A discussion ensued with Jonathan’s counsel arguing that Heather’s 

position relating to a constructive trust was simply a type of 

equitable distribution that would not be applicable if the premarital agreement, which distributed assets by title, was valid. 

Heather’s counsel responded that the claimed constructive 

trust was not mooted by a possible finding that the premarital 

agreement is enforceable; rather, a constructive trust created 

under equitable principles would simply make that asset marital under the terms of the premarital agreement. The record 
- 142 -

Nebraska Supreme Court Advance Sheets

312 Nebraska Reports

SIMONS V. SIMON

Cite as 312 Neb. 136

does not reflect that Jonathan’s counsel raised the waiver provision of the agreement found in section 6.

The court granted the motion to amend the pleadings over 

Jonathan’s objection, stating from the bench, “I don’t see how 

the amendment to the pleadings would change the evidence, 

nor would the Court’s equitable resolution of the issues presented.” The court reasoned further in its written order that 

the issues were set forth in the pretrial letter and that Jonathan 

raised no objection to the litigation of those issues either before 

or during the trial in which those issues were actually litigated. 

The court noted that a constructive trust and unjust enrichment 

are equitable concepts and that Heather raised in her pleadings 

the issue of the equitable division of the marital estate and 

the court’s equitable jurisdiction. Finally, the court found that 

Jonathan was not prejudiced by the amendment.

2. Premarital Agreement

The premarital agreement was entered into evidence at trial. 

Section 1.5 of the agreement describes the “Marital Estate”:

Anything in this Agreement to the contrary notwithstanding, to the extent that [Jonathan] or Heather have acquired 

or in the future acquire and affirmatively transfer or 

convey any assets the title to which, as evidenced by 

some written instrument, is held by them after such 

acquisition, transfer or conveyance in any form of coownership, including but not limited to tenancy in common, joint tenancy, tenancy by the entirety or community 

property, such property shall be deemed to constitute and 

be part of the “Marital Estate.” The Marital Estate shall 

include any appreciation or depreciation on the assets 

forming a part of the Marital Estate but shall not include 

any earnings thereon, proceeds therefrom or replacements 

thereof unless such earnings, proceeds or replacements, 

as the case may be, are also titled in some form of 

co-ownership. . . . The Marital Estate shall be subject to 

division, distribution and disposition as hereinafter provided in this Agreement.
- 143 -

Nebraska Supreme Court Advance Sheets

312 Nebraska Reports

SIMONS V. SIMON

Cite as 312 Neb. 136

Section 3.4, in turn, addresses division of the marital estate, 

providing that “[i]n the event of a future legal separation, 

divorce, annulment or other dissolution of this proposed marriage, [Jonathan] and Heather agree that the Marital Estate 

shall be divided equally between them.”

Section 3.3 sets forth the division of separate property in the 

event of divorce, providing:

As further provided in Section 6 hereinafter, or in any 

other part of this Agreement:

. . . .

(b) Heather hereby waives any and all claims for division of property or property settlement from [Jonathan] 

with respect to [his] Property in the event of a future 

legal separation, divorce, annulment or other dissolution 

of this proposed marriage. Anything in this Agreement 

to the contrary notwithstanding including the foregoing 

sentence, in the event of a future legal separation, which 

ultimately results in a divorce or dissolution; divorce, 

annulment, or other dissolution of this proposed marriage 

(for purposes of this Section, an “Action”) and at the 

time of initiation of such Action, Heather and [Jonathan] 

have children born to them or legally adopted by them 

during the marriage or Heather is pregnant with a child 

of [Jonathan] and Heather, [Jonathan] shall be required 

to pay to Heather a lump sum of money based on the 

number of Full Year(s) of Marriage subsequent to the 

marriage date . . . .

Under the schedule, if the marriage ends after between 10 

and 15 years of marriage, then Jonathan would have to give 

Heather a lump sum of $150,000.

Jonathan’s property is defined in section 1.1 of the 

agreement:

[Jonathan’s] Property. A listing of the assets and liabilities of [Jonathan] has been prepared and a copy thereof 

has been given to Heather and is also attached to this 

Agreement as Exhibit “A,” and is, by this reference, 
- 144 -

Nebraska Supreme Court Advance Sheets

312 Nebraska Reports

SIMONS V. SIMON

Cite as 312 Neb. 136

made a part of this Agreement. Such assets and liabilities 

of [Jonathan] as set forth on Exhibit “A,” together with 

proceeds and income therefrom, replacement(s) thereof 

and appreciation or depreciation in value thereon as more 

specifically described in Sections 1.4, 2.1, 2.2, 4.1, 4.2, 

and 4.3, shall hereinafter be referred to as “[Jonathan’s] 

Property.”

Section 4 of the agreement governs the treatment of assets, 

liabilities, earnings, and expenses during the marriage. Section 

4.1, “Assets as Separate Property,” states:

Each of the parties agrees that, unless and until transferred and conveyed to the Marital Estate as contemplated 

by Sections 1.5 and 4.6, the following described property 

shall remain the separate and solely owned property of its 

owner (i.e., Heather’s Property or [Jonathan’s] Property 

as the case may be):

(a) All property, whether real or personal, owned by 

either party as of the effective date of this Agreement;

(b) All property and property rights acquired by a party 

out of the proceeds or income from property at the effective date of this Agreement, or attributable to appreciation 

in value of such property, whether the enhancement is due 

to market conditions or to the services, skills, or efforts of 

its owner or anyone else; and

(c) All property acquired by either party by gift, devise, 

bequest or inheritance.

Section 4.3 sets forth “Earnings as Separate Property” and 

states that earnings from the work of one of them is the separate property of the person to whom they are attributable.

Section 4.6 describes “Additions to the Marital Estate”:

Nothing in Section 4 shall prohibit the parties from making additions to the Marital Estate from [Jonathan’s] 

Property or from Heather’s Property or from their individual earnings but any such addition must be evidenced 

by some written agreement or acknowledgment of the 

same or some affirmative act resulting in the titling 
- 145 -

Nebraska Supreme Court Advance Sheets

312 Nebraska Reports

SIMONS V. SIMON

Cite as 312 Neb. 136

of additional property as part of the Marital Estate as 

described in Section 1.5 above.

Section 1.6 sets forth Jonathan’s obligation to carry life 

insurance during the marriage, stating in relevant part:

[Jonathan] agrees to acquire, own and maintain, at his sole 

cost and expense, a policy of life insurance insuring his 

life, with a face amount of not less than $1,000,000.00. 

. . . In the event of the parties’ legal separation or dissolution of the proposed marriage while said life insurance 

policy is in effect, the parties agree any cash value attributable thereto shall be equally divided between them, and 

Heather at her election, shall be entitled to retain such 

policy at her sole cost and expense.

Section 6 sets forth a waiver as follows:

Except as otherwise specifically provided in this 

Agreement, each party waives all rights he or she may 

have in all or any part of the property of the other under 

any law now or hereinafter in effect in any jurisdiction, whether by way of dissolution of marriage, separation, descent, courtesy, dower, distributive share, exempt 

property, homestead property, right to elect against a 

will, augmented estate, or any other right or interest, and 

each agrees he or she will not make any claim of any 

kind to the property of the other in the event of death, 

dissolution of marriage, or separation except as specifically contemplated by the provisions of this Agreement, 

if at all. Without limitation, this Agreement shall be construed to be a waiver similar to and with the same force 

and effect as provided by Neb. Rev. Stat. § 30-2316 and 

§ 42-1001, et seq. Stated otherwise, except as otherwise 

provided therein, this Agreement is intended as a waiver 

of all rights to alimony, support, property division, elective share, homestead allowance, exempt property, and 

family allowance by each party in the property of the 

other and a renunciation by each of all benefits which 

would otherwise pass to him or her from the other by 
- 146 -

Nebraska Supreme Court Advance Sheets

312 Nebraska Reports

SIMONS V. SIMON

Cite as 312 Neb. 136

intestate succession, or by virtue of the provisions of 

any will executed before this waiver or by virtue of any 

other law.

Section 8.3 further specifies that to the extent necessary to 

implement its terms, the agreement shall be interpreted as 

a “renunciation pursuant to Neb. Rev. Stat. § 30-2352,” a 

“waiver pursuant to Neb. Rev. Stat. § 30-2316,” a “waiver as to 

the augmented estate pursuant to Neb. Rev. Stat. § 30-2314(c),” 

a “waiver as to homestead rights pursuant to Neb. Rev. Stat. 

§ 40-104,” and a “waiver of spousal rights to qualified retirement plan benefits.”

3. Trial

At trial it was undisputed that Backyard Adventures was 

purchased in the summer of 2009. Heather had quit working in 

2008 after the birth of her and Jonathan’s first child. Jonathan 

was unhappy at his place of employment, and Jonathan and 

Heather looked for a business that could be a good fit for their 

family. Heather described that they were looking for “something we could do together that I would still be able to raise 

our kids but that I would be able to be an active part in and do 

something.” They found Backyard Adventures.

Jonathan worked with an attorney to form a limited liability 

company, JBS Kids Play & Fitness, LLC (JBS Kids Play), to purchase Backyard Adventures at a purchase price of $444,391.04. 

The name “Backyard Adventures” was retained by the seller, 

so Jonathan changed it to Backyard Adventures Playworld and, 

eventually, around 2011, to Backyard Playworld.

Jonathan’s parents gifted $375,000 toward the purchase 

price, transferring the gift directly into a checking account of 

JBS Kids Play. Jonathan testified that the remaining $65,000 of 

the purchase price came from the marital joint account.

At the time of the purchase, the marital joint account had 

a balance of approximately $188,000. Jonathan denied that he 

and Heather had been saving up to purchase a business, stating that “[i]t takes more than $188,000 to buy a business and 
- 147 -

Nebraska Supreme Court Advance Sheets

312 Nebraska Reports

SIMONS V. SIMON

Cite as 312 Neb. 136

operate a business.” Heather, in contrast, understood that they 

had been living frugally and saving the substantial income 

they both made before Heather had their first child in order to 

purchase a business. She testified she did not know that a gift 

from Jonathan’s parents was made and used toward the purchase price. Rather, she was led to believe the purchase money 

came from the joint account.

The evidence was disputed concerning what representations were made by Jonathan with respect to the ownership of 

the business. This line of questioning was not objected to by 

Jonathan’s counsel.

Heather testified that she believed they were purchasing 

Backyard Adventures together and that she had no idea that 

Jonathan was going to be the sole owner under a limited liability company (LLC) established for that purpose. She did not 

learn of the LLC until after the divorce proceedings were commenced. Heather testified that Jonathan indicated to her they 

were co-owners of Backyard Playworld. Heather testified that 

Jonathan introduced her to people as a co-owner.

Jonathan testified that at some point before closing, he told 

Heather the business would be titled solely in his name. In his 

prior deposition testimony that was adduced at trial, however, 

Jonathan had stated that he did not recall ever discussing the 

ownership interest of the business. Later in his testimony at 

trial, Jonathan stated with respect to whether he told Heather 

“she was not a co-owner of the business,” that “I don’t have 

any recollection of saying one or the other.”

Heather was present at closing but did not sign any of the 

paperwork. She described that she did not think this unusual 

given her prior work experience at a car dealership and her 

understanding that with cash transactions there can be two 

names on the title but only one person needs to sign it.

The closing statement for the purchase described Jonathan 

as “Managing Partner, Buyer.” Heather was not present when 

Jonathan went to his attorney to establish JBS Kids Play. 

Jonathan admitted that he never had a conversation with 
- 148 -

Nebraska Supreme Court Advance Sheets

312 Nebraska Reports

SIMONS V. SIMON

Cite as 312 Neb. 136

Heather explaining that he was forming an LLC in his own 

name for the purpose of being the sole owner of Backyard 

Playworld.

In his deposition testimony adduced at trial, Jonathan had 

stated he did not know why Heather’s name was not on any of 

the paperwork for the purchase of the business. Jonathan testified at trial he did not know if there was any reason Heather 

would have believed for the previous 14 years that she was 

not the co-owner of Backyard Playworld. Jonathan testified 

that when the purchase was made, he and Heather trusted 

each other.

Heather was the only authorized signatory other than 

Jonathan for the bank account associated with JBS Kids Play. 

Without objection, the court accepted into evidence the picture 

of a sign displayed for the public at the entrance of Backyard 

Playworld with a message welcoming customers. It was signed 

by “Heather and Jon Simons - Owners.” Also entered into 

evidence without objection was a copy of the business cards 

provided by Jonathan to Heather, which described a “family 

company” and Heather as “[o]wner.”

A former employee of Backyard Playworld, who had 

worked for Backyard Adventures before the purchase, testified he was introduced to Jonathan and Heather as co-owners 

of the business. He testified that Jonathan specifically introduced Heather to him as an owner and that he had witnessed 

Jonathan introduce Heather to other people as an owner of 

the business.

Heather described that after they purchased Backyard 

Adventures, she worked on site, bringing their 11-month-old 

child to work with her. She generally worked 7 days a week 

from opening at 10 a.m. until 3 p.m. when their child took 

a nap. She worked in the “front of the store” in sales while 

Jonathan worked in the “back.” She continued to work in 

that manner, later bringing their second child to work as well 

or asking the children’s grandparents to babysit, until the 

children’s activities required Heather to be away from work 
- 149 -

Nebraska Supreme Court Advance Sheets

312 Nebraska Reports

SIMONS V. SIMON

Cite as 312 Neb. 136

more often, approximately 3 or 4 years before Jonathan filed 

for divorce. Heather continued to work on an “as-needed” 

basis.

Heather also described contributing and implementing successful new ideas for the business, such as hosting birthday 

parties on a larger scale than the prior owner had and having 

“pay to play” hours. It was also Heather’s idea to host end-ofthe-year school parties, to rent the facilities to organizations, 

to host parties for a charitable foundation, and to set up sponsorship tents at various events.

Jonathan testified that before purchasing Backyard 

Adventures, he and Heather had discussed that she was going 

to work in the business. Jonathan testified that Heather worked 

at Backyard Playworld on the sales floor and answered phone 

calls, explaining “there wasn’t a lot of money to go around as 

far as starting a new business, and . . . my spouse, was, you 

know, not only a reliable employee but obviously a way to 

have a staff without having an expense.”

Jonathan testified that he paid Heather a yearly salary of 

around $10,000 to be able to fund her individual retirement 

account to the maximum allowable each year. Heather was 

paid at the end of the year, and Jonathan would sign the 

checks and deposit them into the marital joint account. The 

record contains copies of yearly checks made out to Heather 

from JBS Kids Play for approximately $7,000 each and signed 

by Jonathan.

Heather described a division of marital responsibilities 

under which she was not privy to their finances. During the 

marriage, Heather did not maintain a separate bank account. 

Jonathan maintained a separate, personal checking account, 

which Heather testified at trial she was not aware of. Heather 

stated she believed all income and gifts were going into 

the joint marital account. However, Jonathan described that 

each year his parents gifted the maximum allowable tax-free 

amount to both him and to Heather and that he deposited 

the check made out to him into his personal account and 
- 150 -

Nebraska Supreme Court Advance Sheets

312 Nebraska Reports

SIMONS V. SIMON

Cite as 312 Neb. 136

deposited the check made out to Heather into their marital 

joint account. Jonathan testified that he took care of all the 

“financials” in their relationship.

The parties’ second child was born in 2010. According to 

Jonathan, he and Heather began experiencing marital difficulties in 2013 and sought legal advice concerning a possible 

divorce in 2017. But they continued to work on their marriage, and Jonathan did not move out until the spring of 2020. 

Heather confirmed the dates of these marital difficulties and 

testified that Jonathan asked her not to leave because he could 

not run Backyard Playworld without her.

In 2017, Jonathan formed DogWatch, LLC, to separate a 

hidden fencing business from Backyard Playworld for purposes of selling it. The proceeds of the sale of DogWatch was 

held in an account under DogWatch’s name, which has a balance of $333,497.24. Heather testified she worked in sales for 

the hidden fencing aspect of the business and handled those 

customers’ needs. According to Heather, it was a joint decision to sell that aspect of the business. She knew a separate 

checking account had been established for DogWatch but did 

not know it had been separated into an LLC under Jonathan’s 

sole ownership.

While Backyard Playworld originally operated out of a 

leased space, Jonathan and Heather decided to purchase a 

building in 2019 from which to operate. Jonathan formed JBS 

Properties, LLC, to make the purchase.

Jonathan testified that Heather was not involved in the 

decision as to which building was ultimately purchased for 

Backyard Playworld in 2019—at least he did not recall that she 

was. Jonathan described that he took Heather to see the building, but he testified she did not help him find it. Jonathan did 

not recall that Heather was involved in planning the layout of 

the new building.

Jonathan testified that Heather had no involvement in the 

formation of JBS Properties. The money to purchase the new 

building came from cash out of JBS Kids Play with the 
- 151 -

Nebraska Supreme Court Advance Sheets

312 Nebraska Reports

SIMONS V. SIMON

Cite as 312 Neb. 136

remainder from financing. Heather’s name is not on any of the 

documents associated with the purchase of the building.

Heather testified it was always their long-term goal to purchase a different location for the business rather than lease 

space. She testified she was involved in discussions regarding 

the move and accompanied Jonathan in looking for possible 

buildings. Once the new building was purchased, according to 

Heather, she helped plan the layout for the new space. Heather 

had no knowledge of the existence of JBS Properties.

At the time of trial, Jonathan’s personal net worth, not 

including the businesses, was approximately $5.3 million. 

Jonathan’s net worth had increased by approximately $4 million during the course of the marriage.

Jonathan testified that the only asset jointly titled to both 

himself and Heather was their house. Their jointly held checking account had been dissolved. Jonathan denied making 

any representations to Heather that she jointly owned JBS 

Kids Play.

Gregory Harr, an accredited business valuator, testified as an 

expert for Heather concerning the value of Backyard Playworld. 

Harr testified that there are three different approaches in 

assigning a value to a business: the asset approach, the income 

approach, and the market approach. Harr explained that the 

asset approach is typically used for companies that are going to 

be liquidated or that are heavy in real estate or securities. Harr 

explained that the market approach uses several different factors to determine a probable sale price. The income approach 

attempts to value a future economic benefit.

Harr valued JBS Kids Play as of 2019 using the “fair value” 

approach, valuing it as a “going concern” utilizing both the 

market approach and the income approach versus the asset 

approach.

Harr testified, without objection, that it was his professional 

opinion that the “fair value” approach was the more accurate 

valuation approach for divorces. Harr explained there is a difference between “fair value” and “fair market value”:
- 152 -

Nebraska Supreme Court Advance Sheets

312 Nebraska Reports

SIMONS V. SIMON

Cite as 312 Neb. 136

Fair market value is going to be the value that is determined by a hypothetical buyer and a hypothetical seller, 

neither one of which is being forced to make a decision as 

to what the — what it’s going to be selling for. The value 

of fair market value, depending upon what you’re going 

to have is if it’s a controlling interest or a noncontrolling 

interest. Discounts come into play for that situation, and 

the size of the discount will depend upon whether it’s 

controlling or non-controlling. But then you also in all 

cases with fair market value you’re going to have a lack 

of marketability that comes into play. And the difference 

between fair market value and fair value is that there 

[are] no discounts in fair value versus fair market value 

because of the situation.

In sum, Harr affirmed he was “just not including in some cases 

the discount for lack of control,” which he would not apply 

anyway in this case.

Daniel Morris, who was accredited in business valuations, 

was the expert retained by Jonathan to assess the value of JBS 

Kids Play, doing business as Backyard Playworld. He testified 

that he chose fair market value as opposed to fair value as the 

standard to determine the valuation of Backyard Playworld 

because

there’s a reasonable expectation that if this business were 

to be sold — not to a specific buyer but to a buyer, which 

is supposed to represent any potential buyer — that the 

price would need to be fair market value in order for that 

transaction to occur.

Morris opined that fair value was not an appropriate methodology in a divorce in Nebraska, explaining that while “both 

methods are used because they are commonly both accepted 

practices,” he did not believe Jonathan would be able to get 

a fair value in the real world if he were to actually sell the 

business. He explained that “therefore, a discount for lack of 

marketability must be applied.”
- 153 -

Nebraska Supreme Court Advance Sheets

312 Nebraska Reports

SIMONS V. SIMON

Cite as 312 Neb. 136

Morris elaborated that one of the big differences between 

fair value and fair market value is fair value does not allow 

discounting. In his valuation, Morris discounted 28 percent 

from the net book value of the going concern, for what Morris 

perceived to be its lack of marketability.

Morris conceded in cross-examination that his valuation utilizing fair market value for JBS Kids Play as a going concern 

was significantly lower than its net book value that could be 

received if liquidated. Morris explained the discrepancy by 

stating that he did not use the asset approach.

Morris conceded that “[p]otentially,” fair value, as opposed 

to fair market value, of a business in a divorce case means 

“we’re not going to use discount because a property isn’t up 

for sale, it isn’t going to be sold.” Morris testified that in his 

experience, he has seen both fair value and fair market value 

approaches utilized in divorce cases. Morris conceded that in 

his interviews with Jonathan there was no indication of an 

intention to sell Backyard Playworld, but he thought that the 

use of fair value favors one spouse by “using a specific buyer.”

Both experts testified as to the unusual amount of cash 

equity being held by JBS Kids Play in comparison to its operating expenses. Its bank account held over $700,000 in cash.

Heather testified that she graduated from high school and 

does not have a college degree. When she and Jonathan were 

married, Heather was working in aftermarket sales in the parts 

department at a car dealership. It required her to work approximately 50 hours a week and included working well into the 

evening and on weekends. She earned approximately $95,000 

per year her final 2 years at that job. Prior years averaged 

around $70,000 annually. She had not worked outside the home 

anywhere other than at Backyard Playworld since the birth of 

the oldest child of the marriage approximately 12 years prior 

to the hearing. Heather did not think she could go back to sales 

work at a car dealership due to her obligations caring for the 

children and because of the use of newer technology that she 

has no experience with.
- 154 -

Nebraska Supreme Court Advance Sheets

312 Nebraska Reports

SIMONS V. SIMON

Cite as 312 Neb. 136

Heather submitted a list of monthly living expenses in 

the amount of $13,630. There was evidence that Jonathan’s 

monthly net income was $31,154 and that Heather’s monthly 

net income was $1,098. Other evidence showed Jonathan had a 

net cashflow of $590,990.37, derived from Backyard Playworld 

and various personally owned investment accounts.

4. Decree

(a) Constructive Trust

The court found the premarital agreement to be valid and 

enforceable. However, the court concluded that Heather had 

proved by clear and convincing evidence the existence of a 

constructive trust in Backyard Playworld such that Jonathan 

had an equitable duty to hold half of those businesses in trust 

for Heather; otherwise, Jonathan would be unjustly enriched. 

The court found that the entity the parties originally purchased, 

Backyard Adventures, was ultimately composed of JBS Kids 

Play, JBS Properties, and DogWatch.

The court found that Jonathan and Heather jointly looked 

into business opportunities and decided on purchasing Backyard 

Adventures. Heather believed, based on the discussions with 

Jonathan, that they were purchasing the business together. 

Jonathan told Heather it was not necessary for her to sign any 

documents at closing because it would be a cash transaction. 

Of the $445,000 purchase price for the business, $375,000 

came from a gift from Jonathan’s father.

The court found that when Jonathan and Heather decided in 

2019 to purchase a separate building for Backyard Playworld, 

Heather accompanied Jonathan to see the real estate agent, 

after which Jonathan and Heather jointly decided upon a 

building to purchase, and Heather assisted in planning the 

layout. Heather was led to believe from Jonathan that the 

building was an asset they owned together and was part of 

the business. The money to purchase the building came from 

Backyard Playworld. Heather was unaware until the commencement of the divorce proceedings that Jonathan had 
- 155 -

Nebraska Supreme Court Advance Sheets

312 Nebraska Reports

SIMONS V. SIMON

Cite as 312 Neb. 136

placed the new building in a separate LLC controlled solely 

by Jonathan.

The court found that Jonathan led Heather to believe they 

owned Backyard Playworld together and that Heather was 

unaware Jonathan had formed JBS Kids Play to hold their 

company. The court noted statements by Jonathan to Heather 

and employees working at Backyard Playworld that Heather 

was an owner. The sign at the entry of the building, as well 

as business cards, referred to Heather as an “[o]wner” of 

Backyard Playworld. The court found that Heather worked significant hours at the business up to approximately 3 to 4 years 

before Jonathan filed for divorce, when she reduced her hours 

in order to take their children to and from activities. The court 

found that Heather worked without getting a paycheck and was 

unaware that Jonathan was issuing paychecks in her name, 

which he would deposit into their joint account that held the 

earnings from the business. The court found that Heather contributed toward the growth of the business not only by working 

on the sales floor but also through marketing, the creation of 

paid playtime as a new vehicle for revenue, the expansion of 

the party room rental, and the use of the play areas for events. 

She was also actively involved in the most recent acquisition of 

the new location and its interior layout.

The court observed that under section 4.6 of the premarital 

agreement, neither party was prevented from adding to the 

marital estate from their separate property and that, under section 3.4, the marital estate is to be divided equally. The court 

found that Jonathan contributed Backyard Playworld (which 

included JBS Kids Play, JBS Properties, and DogWatch) to the 

marital estate and that it should be divided equally between 

Jonathan and Heather.

The court found that the value of JBS Kids Play was 

$1,444,722. It found the value of DogWatch to be $333,497.24, 

which reflected the cash balance of the DogWatch account 

that held the proceeds from its sale. The court found that JBS 

Properties had an “equity value” of $500,000. Thus, the court 
- 156 -

Nebraska Supreme Court Advance Sheets

312 Nebraska Reports

SIMONS V. SIMON

Cite as 312 Neb. 136

found that the total value of Backyard Playworld and its associated entities—to be divided equally between the parties—was 

$2,278,219.24.

(b) Gift of $375,000

The court specifically found that the $375,000 gifted to 

Jonathan by his father and utilized in the purchase of Backyard 

Adventures was added to the marital estate pursuant to section 

4.6 of the premarital agreement. Thus, it became a marital asset 

subject to division.

(c) Truck

The court found that Jonathan’s 2019 Ram pickup truck with 

a value of $57,141 should be made part of the marital estate.

(d) $150,000

Pursuant to section 3.3(b) of the agreement, the court found 

that Jonathan was obligated to pay Heather $150,000 from 

Jonathan’s separate estate. This was above and beyond the 

division of the marital estate.

(e) Alimony and Life Insurance

The court awarded Heather monthly alimony of $5,500 for 

72 months. The court also ordered child support, which is not 

at issue in this appeal.

The court ordered Jonathan to maintain life insurance coverage in an amount sufficient to fund his child support and 

spousal support obligations in the event of his death.

III. ASSIGNMENTS OF ERROR

Jonathan assigns that the trial court erred (1) by allowing Heather to amend her pleadings to include claims of 

fraud, unjust enrichment, and constructive trust after the trial, 

unfairly surprising him with new claims and denying him due 

process; (2) in its finding that Heather proved by clear and 

convincing evidence that Jonathan engaged in fraud and would 

be unjustly enriched unless Backyard Playworld were added 

to the marital estate via constructive trust; (3) in dividing the 
- 157 -

Nebraska Supreme Court Advance Sheets

312 Nebraska Reports

SIMONS V. SIMON

Cite as 312 Neb. 136

marital estate and ordering life insurance to fund support; (4) 

in using the opinion of Heather’s expert in valuing Backyard 

Playworld; (5) in its award of alimony; (6) in the specific findings related to documents signed at closing and the purchase of 

Backyard Adventures; and (7) in failing to impose the waiver 

in the Premarital Agreement.

IV. STANDARD OF REVIEW

[1] Permission to amend a pleading is addressed to the discretion of the trial court, and an appellate court will not disturb 

the trial court’s decision absent an abuse of discretion. 1

[2] The determination of whether the procedures afforded 

to an individual comport with constitutional requirements for 

procedural due process presents a question of law. 2

[3] An action to impose a constructive trust sounds in equity, 

which we review de novo on the record, giving consideration, 

where the evidence is in conflict, to the fact that the trial court 

observed the witnesses and their manner of testifying and 

accepted one version of facts rather than the opposite. 3

[4] 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 in his or her 

determinations regarding custody, child support, division of 

property, alimony, and attorney fees. 4

[5] 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. 5

1 United Gen. Title Ins. Co. v. Malone, 289 Neb. 1006, 858 N.W.2d 196 

(2015).

2 Dycus v. Dycus, 307 Neb. 426, 949 N.W.2d 357 (2020).

3 See, ProData Computer Servs. v. Ponec, 256 Neb. 228, 590 N.W.2d 176 

(1999); Ford v. Jordan, 220 Neb. 492, 370 N.W.2d 714 (1985).

4 See Vanderveer v. Vanderveer, 310 Neb. 196, 964 N.W.2d 694 (2021).

5 Devney v. Devney, 295 Neb. 15, 886 N.W.2d 61 (2016).
- 158 -

Nebraska Supreme Court Advance Sheets

312 Nebraska Reports

SIMONS V. SIMON

Cite as 312 Neb. 136

[6] Appellate courts do not generally consider arguments 

and theories raised for the first time on appeal. 6

[7] As a contract, an antenuptial agreement is governed by 

the same principles that are applicable to other contracts, but is 

subject to the particular statutory requirement that an antenuptial agreement must be based on fair disclosure. 7

[8] When the terms of a contract are clear, a court may not 

resort to rules of construction, and terms are accorded their 

plain and ordinary meaning as an ordinary or reasonable person 

would understand them. In such a case, a court shall seek to 

ascertain the intention of the parties from the plain language of 

the contract. 8

V. ANALYSIS

Several issues are presented in this appeal pertaining to the 

constructive trust, the first of which is whether the court erred 

in considering the question of a constructive trust at all, given 

that it was not specifically mentioned in Heather’s responsive 

pleading. Beyond that, Jonathan argues that the constructive 

trust was inconsistent with the premarital agreement and that 

the evidence was generally insufficient to establish a constructive trust. Lastly, Jonathan argues that the valuation of the trust, 

based on fair value, was an abuse of discretion.

The remaining issues presented in this appeal concern (1) a 

$150,000 lump-sum payment under the terms of the premarital 

agreement, which Jonathan claims to be inconsistent with the 

constructive trust; (2) an order to maintain life insurance to 

fund the support order, which he argues is inconsistent with the 

premarital agreement; (3) the inclusion of a truck in the marital 

estate, which Jonathan argues was already part of the business 

valuation informing the constructive trust; and (4) the alimony 

award, which Jonathan argues was excessive.

6 Maria T. v. Jeremy S., 300 Neb. 563, 915 N.W.2d 441 (2018).

7 In re Estate of Jakopovic, 261 Neb. 248, 622 N.W.2d 651 (2001).

8 Id.
- 159 -

Nebraska Supreme Court Advance Sheets

312 Nebraska Reports

SIMONS V. SIMON

Cite as 312 Neb. 136

1. Amendment of Pleadings

Before addressing the merits of the constructive trust, we 

first consider Jonathan’s argument that the court erred in 

allowing amendment of the pleadings to include the issue 

of a constructive trust, as well as his related argument that 

his procedural due process rights were violated by a lack of 

timely notice to defend against the alleged constructive trust. 

Permission to amend a pleading is addressed to the discretion 

of the trial court, and an appellate court will not disturb the 

trial court’s decision absent an abuse of discretion. 9 The determination of whether the procedures afforded to an individual 

comport with constitutional requirements for procedural due 

process presents a question of law. 10

[9] While the concept of due process defies precise definition, it embodies and requires fundamental fairness. 11 Generally, 

procedural due process requires parties whose rights are to be 

affected by a proceeding to be given timely notice, which is 

reasonably calculated to inform the person concerning the subject and issues involved in the proceeding; a reasonable opportunity to refute or defend against a charge or accusation; a 

reasonable opportunity to confront and cross-examine adverse 

witnesses and present evidence on the charge or accusation; 

representation by counsel, when such representation is required 

by constitution or statute; and a hearing before an impartial 

decisionmaker. 12

Nebraska’s pleading rules provide for amendments to conform to the evidence, stating:

When issues not raised by the pleadings are tried by 

express or implied consent of the parties, they shall be 

treated in all respects as if they had been raised in the 

pleadings. Such amendment of the pleadings as may 

9 United Gen. Title Ins. Co. v. Malone, supra note 1.

10 Dycus v. Dycus, supra note 2.

11 Eric H. v. Ashley H., 302 Neb. 786, 925 N.W.2d 81 (2019).

12 Id.
- 160 -

Nebraska Supreme Court Advance Sheets

312 Nebraska Reports

SIMONS V. SIMON

Cite as 312 Neb. 136

be necessary to cause them to conform to the evidence 

and to raise these issues may be made upon motion of 

any party at any time, even after judgment; but failure 

so to amend does not affect the result of the trial of 

these issues. If evidence is objected to at the trial on the 

ground that it is not within the issues made by the pleadings, the court may allow the pleadings to be amended 

and shall do so freely when the presentation of the merits 

of the action will be subserved thereby and the objecting 

party fails to satisfy the court that the admission of such 

evidence would prejudice the party in maintaining the 

party’s action or defense upon the merits. The court may 

grant a continuance to enable the objecting party to meet 

such evidence. 13

Even when a party does not move to amend pleadings, a court 

may constructively amend pleadings on unpleaded issues in 

order to render a decision consistent with the trial. 14

[10] A court’s determination of questions raised by the facts, 

but not presented in the pleadings, should not come at the 

expense of due process, 15 and thus, our standards governing 

whether a court has abused its discretion in ordering constructive amendment of the pleadings are generally consistent with 

the fundamental fairness standards of procedural due process. 

We have said that the key inquiry for “express or implied 

consent” under § 6-1115(b) is whether the parties recognized 

that an issue not presented by the pleadings entered the case 

at trial. 16

We have held that express consent may thus be found when 

a party has stipulated to an issue or the issue is set forth in 

13 Neb. Ct. R. Pldg. § 6-1115(b).

14 Denali Real Estate v. Denali Custom Builders, 302 Neb. 984, 926 N.W.2d 

610 (2019).

15 Eric H. v. Ashley H., supra note 11.

16 R & B Farms v. Cedar Valley Acres, 281 Neb. 706, 798 N.W.2d 121 

(2011).
- 161 -

Nebraska Supreme Court Advance Sheets

312 Nebraska Reports

SIMONS V. SIMON

Cite as 312 Neb. 136

a pretrial order. 17 As the court below rightly emphasized, 

Jonathan had actual notice before trial that the issue of a constructive trust was to be tried, and he did not object or move 

for a continuance. The letter by Heather’s counsel, which was 

ordered by the court to set forth the issues in controversy, 

explicitly set forth the question of a constructive trust, unjust 

enrichment, and whether, even if the premarital agreement 

were valid, Heather was entitled to an ownership interest due 

to Jonathan’s representations. Jonathan’s counsel was given a 

copy of this letter and did not raise any objections to the issues 

in controversy stated therein.

Jonathan’s arguments that the letter was not a “pleading” 

and that it did not explicitly use the words “fraud” or “misrepresentation” miss the point. Fraud and misrepresentation are 

concepts inherent to any constructive trust claim, and a filing 

need not be a pleading in order to give the other party a timely 

and clear indication of the issues to be tried. Under the facts 

presented, we hold that the court did not abuse its discretion in 

ordering amendment of the pleadings pursuant to § 6-1115(b). 

We relatedly hold that because Jonathan had timely notice of 

the issues to be tried, the litigation of the constructive trust 

claim did not violate Jonathan’s constitutional right to procedural due process. We turn to the merits of the constructive trust.

2. Imposing Constructive Trust

[11] In an equitable property division governed by Neb. 

Rev. Stat. § 42-365 (Reissue 2016), all property accumulated 

and acquired by either spouse during the marriage is part of 

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

general rule. 18 Under equitable property division, even if 

an asset was acquired before the marriage, accrued investment earnings or appreciation of nonmarital assets during 

17 Blinn v. Beatrice Community Hosp. & Health Ctr., 270 Neb. 809, 708 

N.W.2d 235 (2006).

18 See Stephens v. Stephens, 297 Neb. 188, 899 N.W.2d 582 (2017).
- 162 -

Nebraska Supreme Court Advance Sheets

312 Nebraska Reports

SIMONS V. SIMON

Cite as 312 Neb. 136

the marriage are presumed marital unless the party seeking 

the classification of the growth as nonmarital proves: (1) The 

growth is readily identifiable and traceable to the nonmarital 

portion of the account and (2) the growth is not due to the 

active efforts of either spouse. 19

[12] Spouses are able to contract around the general rules of 

equitable division by using a premarital agreement. 20 Neb. Rev. 

Stat. § 42-1004 (Reissue 2016) permits parties to a premarital 

agreement to contract with respect to, among other things, “The 

rights and obligations of each of the parties in any of the property of either or both of them whenever and wherever acquired 

or located” and “[t]he disposition of property upon separation, 

marital dissolution, death, or the occurrence or nonoccurrence 

of any other event.” In this appeal, there is no dispute that the 

premarital agreement between Heather and Jonathan was valid 

and enforceable.

(a) Coexistence With Premarital Agreements

The district court implemented the terms of the premarital 

agreement after imposing upon Jonathan a constructive trust 

with respect to one-half of the interest in the limited liability companies (LLCs) of Backyard Playworld, deeming them 

part of the marital estate under the agreement. It is true that 

this result happens to be similar to what would have occurred 

under equitable division under § 42-365, unless Jonathan had 

sustained his burden to prove the assets to be nonmarital. It is 

also true that “[t]he remedy of constructive trust may not be 

applied randomly to adjust general equities between spouses or 

as a punitive measure . . . .” 21 It does not follow, however, that 

the court conflated the remedy of constructive trust with simple 

equitable division.

19 See id.

20 See Cook v. Cook, 26 Neb. App. 137, 918 N.W.2d 1 (2018).

21 Saff v. Saff, 61 A.D.2d 452, 456, 402 N.Y.S.2d 690, 693 (1978). See, 

also, 9 Alan D. Scheinkman, West’s McKinney’s Forms Matrimonial and 

Family Law § 3:11 (Feb. 2022).
- 163 -

Nebraska Supreme Court Advance Sheets

312 Nebraska Reports

SIMONS V. SIMON

Cite as 312 Neb. 136

[13-15] A constructive trust can coexist with valid premarital agreements setting forth separate and marital property similarly to the one here presented, 22 and the principles governing 

a constructive trust are meaningfully different from those 

governing the general equitable division of marital property. 

Under a constructive trust, equity vests title to the subject 

property in the wronged party and the court may issue a decree 

that the title be so conveyed. 23 A constructive trust is imposed 

when one has acquired legal title to property under such circumstances that he or she may not in good conscience retain 

the beneficial interest in the property. 24 In such a situation, 

equity converts the legal titleholder into a trustee holding the 

title for the benefit of those entitled to the ownership thereof. 25

A constructive trust is a relationship, with respect to property, 

subjecting the person who holds title to the property to an 

equitable duty to convey it to another on the grounds that his 

or her acquisition or retention of the property would constitute 

unjust enrichment. 26

We disagree with Jonathan’s general assertion that a constructive trust cannot be utilized to establish ownership for 

purposes of implementing a valid premarital agreement. And 

we find nothing in the ownership provisions of the premarital 

agreement set forth above that precludes the remedy of a constructive trust as the means of recognizing that certain assets, 

regardless of their original legal titling, are co-owned and 

therefore part of the marital estate to be divided equally under 

the premarital agreement.

22 See Martin v. Farber, 68 Md. App. 137, 510 A.2d 608 (1986). See, also, 

Peden v. Peden, 972 So. 2d 106 (Ala. Civ. App. 2007); Leathers and 

Leathers, 98 Or. App. 152, 779 P.2d 619 (1989).

23 See Caryl A. Yzenbaard et al., Bogert’s The Law of Trusts and Trustees 

§ 471 (3d ed. 2009).

24 Dreesen Enters. v. Dreesen, 308 Neb. 433, 954 N.W.2d 874 (2021); Wait 

v. Cornette, 259 Neb. 850, 612 N.W.2d 905 (2000).

25 Wait v. Cornette, supra note 24.

26 Dreesen Enters. v. Dreesen, supra note 24.
- 164 -

Nebraska Supreme Court Advance Sheets

312 Nebraska Reports

SIMONS V. SIMON

Cite as 312 Neb. 136

(b) Evidence Supporting Constructive Trust

Jonathan alternatively asserts that the court erred in finding 

the evidence presented at trial supported a constructive trust 

and that thus, it misused the vehicle of a constructive trust to 

adjust the general equities between the parties. We review a 

court’s determination of a constructive trust de novo on the 

record, giving consideration to the fact that the trial court 

observed the witnesses and accepted one version of facts rather 

than another. 27

[16-21] In determining whether to impose a constructive 

trust, the court will consider not only the original situation but 

also all events which have occurred since the defendant began 

to hold inequitably. 28 A party seeking the remedy of a constructive trust has the burden to establish the factual foundation, by 

evidence which is clear and convincing, required for a constructive trust. 29 However, it has been said that the constructive 

trust doctrine is equitable in nature and should not be rigidly 

limited and that the absence of any one factor will not itself 

defeat the imposition of a constructive trust when otherwise 

required by equity. 30 We have explained that where a situation 

exists which is contrary to the principles of equity and which 

can be redressed within the scope of judicial action, a court 

of equity will devise a remedy to meet the situation. 31 Equity 

is not a rigid concept, and its principles are not applied in a 

vacuum. 32 Equity is determined on a case-by-case basis when 

justice and fairness so require. 33

[22,23] Generally, a court, sitting in equity, will not impose 

a constructive trust and constitute an individual as a trustee 

27 See ProData Computer Servs. v. Ponec, supra note 3.

28 See Yzenbaard, supra note 23.

29 Dreesen Enters. v. Dreesen, supra note 24.

30 In re Koreag, Controle et Revision S.A., 961 F.2d 341 (2d Cir. 1992).

31 Anderson v. Bellino, 265 Neb. 577, 658 N.W.2d 645 (2003).

32 Manker v. Manker, 263 Neb. 944, 644 N.W.2d 522 (2002).

33 Id.
- 165 -

Nebraska Supreme Court Advance Sheets

312 Nebraska Reports

SIMONS V. SIMON

Cite as 312 Neb. 136

of the legal title for property unless it be shown, by clear 

and convincing evidence, that the individual, as a potential 

constructive trustee, had obtained title to property by fraud, 

misrepresentation, or an abuse of an influential or confidential 

relationship and that, under the circumstances, such individual 

should not, according to the rules of equity and good conscience, hold and enjoy the property so obtained. 34 A constructive trust is imposed to do equity and to prevent unjust 

enrichment. 35

[24,25] We have explained that unjust enrichment is a flexible concept, 36 occurring when a claim is based on the failure 

of consideration, fraud, or mistake and in other situations 

where it would be morally wrong for one party to enrich himself or herself at the expense of another. 37 We have explained 

in the context of a constructive trust that “fraud” comprises all 

acts, omissions, and concealments involving a breach of legal 

or equitable duty, trust, or confidence justly reposed, and are 

injurious to another, or by which an undue and unconscientious advantage is taken of another. 38 Similarly, with respect 

to “confidential relationship,” it has been said that “[e]quity 

has never bound itself by any hard and fast definition of the 

phrase ‘confidential relation’ and has not listed the necessary elements for such a relationship to exist but rather has 

reserved discretion to apply the doctrine whenever it believes 

that a suitable occasion has arisen,” 39 but “[o]ften the parties are related by blood or marriage and that relationship 

when coupled with the status of the parties as to health, age, 

34 Dreesen Enters. v. Dreesen, supra note 24.

35 Vogt v. Town & Country Realty of Lincoln, Inc., 194 Neb. 308, 231 N.W.2d 

496 (1975).

36 City of Scottsbluff v. Waste Connections of Neb., 282 Neb. 848, 809 

N.W.2d 725 (2011).

37 In re Graphics Technology, Inc., 306 B.R. 630 (8th Cir. 2004).

38 See Fisher v. Keeler, 142 Neb. 728, 7 N.W.2d 659 (1943).

39 Yzenbaard, supra note 23, § 482 at 281.
- 166 -

Nebraska Supreme Court Advance Sheets

312 Nebraska Reports

SIMONS V. SIMON

Cite as 312 Neb. 136

education, and dominance may lead a court to find that a confidential relationship exists.” 40

Only a few cases in Nebraska have addressed constructive trusts in property accumulated during a marital or similar 

relationship.

In Manker v. Manker,

 41 we affirmed the imposition of a 

constructive trust upon one half of the personal property titled 

solely in the name of the ex-husband whom the plaintiff mistakenly believed she was still married to. 42 The parties cohabitated for 19 years and held themselves out to be married. Less 

than a year after the parties were married, the defendant filed 

a petition for dissolution and then falsely told the plaintiff he 

had dismissed the action when, in reality, he received a default 

judgment. Believing them to be married, the plaintiff allowed 

the defendant to handle all the couple’s finances and control all 

the assets. While occupying a “superior position in the relationship,” the ex-husband placed nearly all of the property accumulated during their cohabitation in his sole name. 43 These facts, 

we said, supported the district court’s finding of a constructive 

trust. Moreover, while the plaintiff had learned more than 4 

years before bringing the action that she was not married to 

the defendant, we affirmed the lower court’s conclusion that 

the defendant, who had acted inequitably and dishonestly and 

cajoled the plaintiff into delaying any action, could not rely on 

the statute of limitations as a defense.

In contrast, in Dreesen Enters. v. Dreesen,

 44 also involving a cohabitating relationship that continued after the parties’ 

divorce, albeit only sporadically, we affirmed the court’s denial 

of a constructive trust against the ex-husband’s corporation for 

40 Id. at 292-93.

41 Manker v. Manker, supra note 32.

42 See, also, Blome v. Blome, 201 Neb. 687, 271 N.W.2d 466 (1978); 

Workman v. Workman, 174 Neb. 471, 118 N.W.2d 764 (1962).

43 Manker v. Manker, supra note 32, 263 Neb. at 962, 644 N.W.2d at 537.

44 Dreesen Enters. v. Dreesen, supra note 24.
- 167 -

Nebraska Supreme Court Advance Sheets

312 Nebraska Reports

SIMONS V. SIMON

Cite as 312 Neb. 136

one-half of the value of a house the ex-wife was living in and 

where, for awhile, the ex-husband also lived. 45 The lower court 

ultimately found more credible the ex-husband’s testimony that 

he had fully disclosed to the ex-wife that the subject property 

would be titled solely in his company’s name, that the parties 

had explicitly agreed the ex-wife would pay rent to live there, 

and that $50,000 for the downpayment provided by the ex-wife 

was, under the parties’ express oral agreement, merely a bridge 

loan. We affirmed the lower court’s monetary judgment in 

favor of the ex-wife for the unpaid $50,000 loan.

Similarly, in Peterson v. Massey,

 46 we affirmed the court’s 

denial of a constructive trust, given the dearth of evidence 

presented by the decedent wife’s heirs from a prior marriage to 

support their claim to one half of the widower husband’s farm 

under the theory that the couple had orally agreed to enter into 

a partnership. There were no allegations of wrongdoing or of 

dominance or disparities in health, age, or education. The evidence consisted only of statements by the husband referring to 

the farm as “‘our’” property and saying “‘[i]t’s your’s as well 

as mine,’” 47 a one-time contribution by the wife of $750 in 

capital and goods, and the fact that the wife had occasionally 

worked in the field.

Cases from other jurisdictions provide further illustration 

of when and how constructive trusts are imposed in favor of a 

spouse upon closely held business enterprises.

In Janke v. Janke,

 48 the appellate court affirmed the lower 

court’s imposition of a constructive trust in half of a tavern 

business titled solely in the husband’s name. 49 Both parties 

45 See, also, Wells v. Wells, 3 Neb. App. 117, 523 N.W.2d 711 (1994).

46 Peterson v. Massey, 155 Neb. 829, 53 N.W.2d 912 (1952).

47 Id. at 833, 53 N.W.2d at 915.

48 Janke v. Janke, 47 A.D.2d 445, 366 N.Y.S.2d 910 (1975).

49 See, also, e.g., West v. Christensen, 576 B.R. 223 (D. Utah 2017); Brown v. 

Odom, 425 S.C. 420, 823 S.E.2d 183 (S.C. App. 2019); Keeney v. Keeney, 

223 S.W.3d 843 (Ky. App. 2007); Levin v. Levin, 43 Md. App. 380, 405 

A.2d 770 (1979); Genter v. Genter, 270 So. 2d 388 (Fla. App. 1972).
- 168 -

Nebraska Supreme Court Advance Sheets

312 Nebraska Reports

SIMONS V. SIMON

Cite as 312 Neb. 136

were signatories to the bank loan used for its purchase, it was 

the parties’ intention to operate the tavern as a husband and 

wife operation, the wife worked extensive hours at the tavern, 

the husband’s salary and a small inheritance by the wife were 

contributed to the business, and all family needs were paid for 

by business proceeds. The court explained that though a promise in words might have been lacking, the promise underlying 

the constructive trust may be implied. “The understanding of 

the parties should be interpreted not literally and irrespective 

of its setting but sensibly and broadly with all its reasonable 

implications.” 50 Under the facts of the case, noted the court, 

“the entire relationship and the actions and contributions made 

by both parties were instinct with a mutual promise of a joint 

endeavor for the benefit of both.” 51 In other words, “[t]he 

absence of any express promise formalizing the venture grows 

out of the very confidence and trust implicit in the marriage 

relationship.” 52 The court concluded that it would constitute 

unjust enrichment to permit the husband to retain for himself 

all of the business assets to which each contributed and which 

each rightfully expected to share.

In Leathers and Leathers,

 53 the court likewise affirmed 

an award to the wife of an undivided one-half interest in 

properties purchased by the business titled solely in the husband’s name. 54 It did so despite a valid antenuptial agreement 

assigning to the husband all property owned by the husband 

or thereafter acquired “‘by any means whatsoever.’” 55 The 

court found that the evidence supported a partnership in the 

business and that the property purchased when the business 

was titled solely in the husband’s name was therefore held 

50 Janke v. Janke, supra note 48, 47 A.D.2d at 448, 366 N.Y.S.2d at 914.

51 Id.

52 Id., 47 A.D.2d at 448-49, 366 N.Y.S.2d at 914.

53 Leathers and Leathers, supra note 22.

54 See, also, Scull v. Scull, 94 A.D.2d 29, 462 N.Y.S.2d 890 (1983).

55 Leathers and Leathers, supra note 22, 98 Or. App. at 155, 779 P.2d at 620.
- 169 -

Nebraska Supreme Court Advance Sheets

312 Nebraska Reports

SIMONS V. SIMON

Cite as 312 Neb. 136

in partnership by the parties. The evidence of the partnership was that the business was later changed to a jointly 

owned proprietorship that held 80 percent of the company 

assets, the wife worked for the business without compensation 

for 22 years, the wife was consulted before purchasing any 

property, the wife was registered with the commissioner as a 

“co-proprietor,” and the wife was held out to employees as a 

co-owner of the business. 56

In a somewhat similar case, Scull v. Scull,

 57 the court 

imposed a constructive trust based on an implied agreement 

of a joint venture, noting that “an agreement for joint venture 

between spouses is rarely spelled out in writing” and can be 

implicit. Such promises within the confines of a marital association combined with independent evidence “of a pattern or a 

lifestyle indicating that the parties were engaged in a joint venture,” when combined with unjust enrichment, were sufficient 

to establish a constructive trust in that case. 58

In contrast, under the facts presented in Turner v. Turner,

 59

the court found the evidence insufficient to impose a constructive trust in 50 percent of a closely held corporation and 

affirmed the lower court’s determination also so finding. The 

business in question was a lighting business that had evolved 

from the husband’s childhood hobby. The husband was the 

president, owning 65 shares of its stock. His technical knowledge and skill, noted the court, were crucial to the business’ 

success. The wife held 10 shares of the stock. The wife performed many tasks for the business but was compensated at 

a significantly higher salary than the salary drawn by the husband. 60 During the marriage, the parties discussed the wife’s 

desire to hold more stock and, despite her explicit requests, 

56 Id. at 158, 779 P.2d at 622.

57 Scull v. Scull, supra note 54, 94 A.D.2d at 34, 462 N.Y.S.2d at 893.

58 Id.

59 Turner v. Turner, 147 Md. App. 350, 809 A.2d 18 (2002).

60 Id.
- 170 -

Nebraska Supreme Court Advance Sheets

312 Nebraska Reports

SIMONS V. SIMON

Cite as 312 Neb. 136

there was no evidence her husband ever promised to give her 

an equal number of shares. 61

The district court observed Heather’s and Jonathan’s testimonies and accepted one version of facts rather than another. 

Viewing the evidence in that light, we find the evidence more 

similar to those cases finding support for a constructive trust 

than to those that do not. Heather testified as to an implied 

promise or understanding between her and Jonathan that they 

were acquiring a business with their joint savings and that 

they were going to run the business together. She noted that 

they had worked together since the day they had met and have 

the same work ethic, so it was always their long-term goal to 

find their own business that both of them could have an active 

role in. The parties had in fact accumulated from their joint 

earning $188,000 in their joint bank account at the time of the 

initial purchase of Backyard Adventures, and Heather had no 

idea that there was a substantial gift utilized for the purchase 

such that only $65,000 from their joint account ultimately 

was used.

Jonathan represented to Heather, employees, and the public 

at large that they were co-owners of the business. Heather was 

designated as “[o]wner” on business cards and signage, and 

she was a cosignatory on JBS Kids Play’s account. Heather 

contributed a substantial amount of labor over the years with 

minimal pay, which Jonathan described as a way of having 

staff without having expense. Additionally, Heather contributed 

toward the growth of the business by being the public face of 

the venture, working the “front of the store,” and through marketing events and her ideas that expanded the business’ offerings to the public and maximized the layout of their showroom 

and party rooms. She claimed that Jonathan had told her he 

could not run the business without her.

Both parties testified that Jonathan handled the parties’ 

finances and sorted through their mail. All family needs were 

61 See id.
- 171 -

Nebraska Supreme Court Advance Sheets

312 Nebraska Reports

SIMONS V. SIMON

Cite as 312 Neb. 136

paid by business proceeds. Heather described a “traditional” 

spousal relationship where Jonathan handled their accounting. 

Heather stated, “[H]e was very dominant and ‘I’m the man’ 

type person, and I allowed it, I guess.” Despite not signing the 

relevant paperwork, Heather testified she did not suspect at any 

point during the marriage that she was not in fact a co-owner of 

Backyard Playworld. Jonathan, with the help of attorneys and 

without Heather’s knowledge, crafted several LLCs in his own 

name. The family needs were paid for almost exclusively by 

business proceeds, although a significant amount of proceeds 

were left as cash assets in the business accounts titled solely in 

Jonathan’s name. The family was also supported in small part 

by cash gifts to Heather, which were deposited into the parties’ joint account. Only after the divorce action was filed did 

Heather learn that “this whole time he’d been lying to me, he’d 

been using me, he had been completely taking advantage of my 

trust in him, and it was all a lie.”

Jonathan focuses on Heather’s prior experience at a car 

dealership as evidence that she should have known she was not 

a co-owner because she did not sign any paperwork. In cases 

where a constructive trust is imposed on a business venture 

titled in only one spouse’s name, some paperwork is usually 

involved that the plaintiff spouse is aware of. This is but one 

circumstance for a court to consider in determining whether 

equity requires the imposition of a consructive trust. There is 

little support for the premise that the plaintiff spouse should 

be foreclosed from a constructive trust claim simply because 

that spouse has some knowledge of paperwork involved in the 

formation of the subject business venture, which the plaintiff 

spouse did not sign. We defer to the trial court’s determination that, despite knowing she did not sign certain paperwork, 

Heather did not have actual knowledge she was not a co-owner. 

The court did not err in determining that, under all the relevant 

circumstances, the equities lay with Heather.

The evidence was sufficient to show a confidential relationship under which Heather contributed to and rightfully 
- 172 -

Nebraska Supreme Court Advance Sheets

312 Nebraska Reports

SIMONS V. SIMON

Cite as 312 Neb. 136

expected to share in the business as a partner or co-owner. 

There was an implied promise of a joint venture that Jonathan 

did not act in accordance with when he surreptitiously orchestrated several LLCs in his sole name. The evidence was sufficient to prove Jonathan would be unjustly enriched if he were 

allowed to keep for himself the benefit of Heather’s substantial 

contributions to the business made under that understanding 

between them. Viewing the evidence de novo, but with consideration for the fact that the district court observed the witnesses and accepted one version of facts rather than another, 

we conclude that Heather established the factual foundation, 

by evidence which is clear and convincing, required for a 

constructive trust. The district court did not err in finding the 

evidence sufficient to support the imposition of a constructive 

trust in one-half of Backyard Playworld.

Jonathan asserts the court erroneously made a finding that 

he told Heather there was no need to sign paperwork because 

the purchase of Backyard Adventures was going to be a cash 

transaction. This finding appears to be derived from Heather’s 

cross-examination, wherein she was questioned as to why she 

did not suspect she was not a co-owner by virtue of the fact 

that she was not asked to sign anything during the closing of 

the purchase of Backyard Adventures. She explained that “we 

were paying cash, so [Jonathan] signed, and [I] trusted my 

husband’s word.” The court also refers in its order to closing 

arguments and “proposed findings,” which are not in the appellate record. As we have already explained, the failure to sign 

the paperwork was at best marginally material to the overall 

question of whether Heather proved a constructive trust. The 

technical misstatement in the court’s order does not call into 

question its ultimate finding of a constructive trust.

Jonathan similarly takes issue with the court’s statement in 

its order that “Backyard Playworld was originally purchased 

by [Jonathan] and [Heather] as Backyard Adventures, Inc.” He 

argues there is no support for this finding in any witness statement or document from the trial record. It appears from the 
- 173 -

Nebraska Supreme Court Advance Sheets

312 Nebraska Reports

SIMONS V. SIMON

Cite as 312 Neb. 136

context that the court was well aware that Backyard Playworld 

was not legally purchased by both parties. We understand this 

statement as referring to the understandings and representations that led to the imposition of the constructive trust. This 

also is not sufficient grounds to call into question the court’s 

judgment.

(c) Consistency With Waiver Provision 

of Premarital Agreement

[26] Jonathan raises for the first time in this appeal the argument that establishing title under a constructive trust was prohibited by section 6 of the Premarital Agreement, wherein each 

party agreed “he or she will not make any claim of any kind 

to the property of the other in the event of death, dissolution 

of marriage, or separation except as specifically contemplated 

by the provisions of this Agreement.” The section also states, 

“[E]ach party waives all rights he or she may have in all or any 

part of the property of the other under any law . . . whether by 

way of dissolution of marriage . . . or any other right or interest.” This section was not specifically addressed by the court. 

An appellate court will not consider an issue on appeal that 

was not presented to or passed upon by the trial court. 62

In any case, we do not read this provision as prohibiting 

Heather from claiming title through a constructive trust. Unlike 

other rights to someone else’s property, which are established 

under laws such as the homestead allowance, 63 a constructive 

trust does not give rights to the property of another; it establishes who actually owns the property. The constructive trust 

established that the Backyard Playworld LLCs were never the 

sole property of Jonathan; rather, title to the LLCs were equally 

Jonathan’s and Heather’s. Heather’s waiver of any rights to 

Jonathan’s property under section 6 and other provisions of the 

premarital agreement is therefore consistent with the district 

court’s order.

62 de Vries v. L & L Custom Builders, 310 Neb. 543, 968 N.W.2d 64 (2021).

63 See Neb. Rev. Stat. § 30-2322 (Reissue 2016).
- 174 -

Nebraska Supreme Court Advance Sheets

312 Nebraska Reports

SIMONS V. SIMON

Cite as 312 Neb. 136

(d) Mention of Statute of Limitations

[27,28] Jonathan also raises for the first time on appeal the 

statute of limitations in relation to the constructive trust. He 

does so not in his assignments of error but only in passing 

in the argument section of his appellate brief concerning the 

alleged unfair surprise of the possibility of a constructive trust. 

To be considered by an appellate court, an alleged error must 

be both specifically assigned and specifically argued in the 

brief of the party asserting the error. 64 A statute of limitations 

is nonjurisdictional and waivable. 65 As the statute of limitations was not presented to or passed upon below and was not 

specifically assigned, or clearly argued, on appeal, we will not 

address in this appeal any question of the statute of limitations 

as pertains to the constructive trust.

(e) Fair Value Versus Fair Market Value

We turn to Jonathan’s challenge to the monetary value of 

the LLCs upon which the constructive trust was imposed. 

Jonathan argues the court erred in accepting the valuation 

by Heather’s expert, who utilized fair value rather than fair 

market value in making that valuation. Jonathan did not seek 

to exclude Harr’s testimony, and he did not object to Harr’s 

opinion that fair value was a more accurate valuation approach 

for divorces. Jonathan states on appeal that the “problem” 

with using fair value is its failure to contemplate minority 

discounts and discounts for lack of marketability, but he concedes that “[t]rial courts should have the discretion to reject 

or apply such discounts in the divorce context, to be sure.” 66

While Jonathan’s arguments respecting fair value versus fair 

market value are somewhat unclear, we view the issue preserved below and presented to us on appeal as an attack on the 

weight the court accorded Harr’s opinions as opposed to their 

admissibility.

64 Diamond v. State, 302 Neb. 892, 926 N.W.2d 71 (2019).

65 State v. Wiemer, 3 Neb. App. 821, 533 N.W.2d 122 (1995).

66 Brief for appellant at 46.
- 175 -

Nebraska Supreme Court Advance Sheets

312 Nebraska Reports

SIMONS V. SIMON

Cite as 312 Neb. 136

[29,30] Even in equity actions, which are generally subject 

to de novo review, we have said that the determination of the 

weight that should be given expert testimony is uniquely the 

province of the fact finder. 67 And we have also said in this context that a trial court is not required to accept any one method 

of valuation as more accurate than another accounting procedure. 68 We have held that a trial court’s valuation of a closely 

held corporation is reasonable if it has an acceptable basis in 

fact and principle, 69 and there is no reason to hold the valuation 

of an LLC to a different standard.

We hold that the district court did not abuse its discretion 

in the weight it accorded Harr’s expert opinion. Heather’s and 

Jonathan’s experts’ opinions as to the proper method of valuation under the circumstances of this case were in conflict, and 

the district court gave more weight to Harr’s testimony, which 

had an acceptable basis in fact and principle. The court’s valuation of Backyard Playworld was reasonable. It did not err in 

valuing Backyard Playworld in accordance with Harr’s fair 

value methodology.

Jonathan argues somewhat abstractly that “experts should be 

required to articulate their opinions” about discounts and that 

“falsely claiming” fair value has been used in Nebraska divorce 

cases as “at best, a clever way to avoid cross-examination 

on your failure to intellectually address important valuation 

issues” and “[a]t worst,” the presentation of an “artificially 

inflated business value in the hopes that a court might ‘bite’ if 

not conversant with business valuations.” 70 But we observe that 

Jonathan’s own expert, Morris, testified that both fair value and 

fair market value were commonly accepted practices and that 

he had seen both types of valuation utilized in divorce cases. 

67 See Anderson v. A & R Ag Spraying & Trucking, 306 Neb. 484, 946 

N.W.2d 435 (2020).

68 See, id.; Bryan v. Bryan, 222 Neb. 180, 382 N.W.2d 603 (1986).

69 Id.

70 Brief for appellant at 46.
- 176 -

Nebraska Supreme Court Advance Sheets

312 Nebraska Reports

SIMONS V. SIMON

Cite as 312 Neb. 136

Further, Harr did in fact articulate his opinions about the use of 

discounts in a dissolution case, such as this one, where the sale 

of the business is not being contemplated. We find no support 

for Jonathan’s apparent argument that Harr’s testimony was 

impermissibly misleading.

(f) $375,000 Gift

Next, Jonathan argues the court should have, at a minimum, 

set off the $375,000 gift that his parents contributed toward 

the purchase of Backyard Playworld and considered it part of 

Jonathan’s personal property for purposes of the division of 

assets. Jonathan’s only support for this assertion is the general 

proposition that under equitable division, a marital estate does 

not include property that a spouse has acquired before the 

marriage or by gift or inheritance. 71 However, the $375,000 

became part of Backyard Playworld, the division of which was 

governed by the premarital agreement and the constructive 

trust, not equitable division governed by § 42-365.

[31] Jonathan fails to make any argument under the law of 

constructive trusts that the gift utilized toward the purchase 

price of Backyard Adventures should be set off as Jonathan’s 

personal property. The money was deposited directly into the 

account held by JBS Kids Play. Jonathan’s parents did not 

intervene in the action to claim any interest therein; rather, it 

was undisputed that it was a gift. The ownership rights of a 

constructive trust beneficiary, once recognized, are protected 

from the moment the trustee acquired legal title, the constructive trust decree being in the nature of a declaratory judgment 

about the state of title to the property. 72 Thus, the gift was to 

the jointly owned business. We have already held in our de 

novo review that the constructive trust was not in error, and we 

do not find reason to set off from that trust the amount of the 

$375,000 gift to the LLC.

71 See Doerr v. Doerr, 306 Neb. 350, 945 N.W.2d 137 (2020).

72 See Restatement (Third) of Restitution and Unjust Enrichment § 55, 

comment e. (2011).
- 177 -

Nebraska Supreme Court Advance Sheets

312 Nebraska Reports

SIMONS V. SIMON

Cite as 312 Neb. 136

(g) Truck

Jonathan argues that the truck owned at the time of filing for 

divorce, and valued at $57,141, should not have been calculated as part of the marital estate because it was owned by the 

corporation and therefore was already included in the constructive trust that was given a separate value. It was undisputed at 

trial that the truck was titled in the name of the business. The 

court found the truck became part of the marital estate pursuant to section 4.6 of the premarital agreement. And from the 

court’s calculations dividing the marital estate, it is clear the 

court awarded the value of the truck to be divided twice, once 

as part of the constructive trust and again as separately listed 

marital property. We agree with Jonathan that this was in error. 

That part of the order itemizing the truck as part of the marital 

estate is vacated.

3. Lump-Sum Payment Under Agreement

The court explained that the sum of $981,180 to equalize the division of the marital estate did not include the 

$150,000 owed under section 3.3(b) of the premarital agreement. Jonathan takes issue with the court’s order awarding the 

agreed-upon property equalization lump-sum payment in addition to the constructive trust. He presents no law to support this 

argument. Nor does he appeal to the terms of the premarital 

agreement in relation to the lump sum. Rather, in a brief argument, Jonathan characterizes the court’s order of a lump sum 

in addition to the constructive trust on Backyard Playworld as 

turning “the divorce decree into a kind of Frankenstein of contract and equity.” 73

The premarital agreement in section 3.3 sets forth that 

Heather waived “any and all claims for division of property or property settlement from [Jonathan] with respect to 

[Jonathan’s] Property in the event of a future legal separation, divorce, annulment or other dissolution of this pro

posed marriage” in exchange for a lump sum of money 

73 Brief for appellant at 45.
- 178 -

Nebraska Supreme Court Advance Sheets

312 Nebraska Reports

SIMONS V. SIMON

Cite as 312 Neb. 136

based on the number of “Full Years of Marriage Subsequent 

to Marriage Date,” which, in this case of the marriage ending after between 10 and 15 years of marriage, is $150,000. 

(Emphasis supplied.) As already discussed, the constructive 

trust means that title to the Backyard Playworld LLCs is 

held in co-ownership. The premarital agreement contemplated 

the lump-sum settlement to be made in addition to the equal 

division of the marital estate, which included assets held in 

co-ownership. What was waived was Heather’s right to an 

equitable share in property solely owned by Jonathan which, 

due to the constructive trust, the LLCs were not. We disagree 

with Jonathan’s assertion that the court’s enforcement of the 

lump-sum settlement was improper.

4. Alimony Award

Jonathan argues on appeal that the award of alimony was 

an abuse of discretion because it was excessive. He makes no 

argument that Heather’s right to alimony was waived in the 

prenuptial agreement. 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 

in his or her determinations regarding custody, child support, 

division of property, alimony, and attorney fees. 74

Under § 42-365, “The purpose of alimony is to provide for 

the continued maintenance or support of one party by the other 

when the relative economic circumstances and the other criteria enumerated in this section make it appropriate.” The court 

may order payment of such alimony by one party to the other 

as may be

reasonable, having regard for the circumstances of the 

parties, duration of the marriage, a history of the contributions to the marriage by each party, including contributions to the care and education of the children, and interruption of personal careers or educational opportunities, 

and the ability of the supported party to engage in gainful 

74 See Vanderveer v. Vanderveer, supra note 4.
- 179 -

Nebraska Supreme Court Advance Sheets

312 Nebraska Reports

SIMONS V. SIMON

Cite as 312 Neb. 136

employment without interfering with the interests of any 

minor children in the custody of such party. 75

[32] Accordingly, we have articulated four factors that are 

relevant to alimony: (1) the circumstances of the parties, (2) 

the duration of the marriage, (3) the history of contributions 

to the marriage, and (4) the ability of the supported party to 

engage in gainful employment without interfering with the 

interests of any minor children in the custody of each party. 76

In addition, a court should consider the income and earning 

capacity of each party and the general equities of the situation. 77 Alimony is not a tool to equalize the parties’ income, 

but a disparity of income or potential income might partially 

justify an alimony award. 78 The purpose of alimony is to provide for the continued maintenance or support of one party by 

the other when the relative economic circumstances make it 

appropriate. 79

[33] In reviewing an alimony award, an appellate court does 

not determine whether it would have awarded the same amount 

of alimony as did the trial court, but whether the trial court’s 

award is untenable such as to deprive a party of a substantial 

right or a just result. 80 The ultimate criterion is one of reasonableness. 81 An appellate court is not inclined to disturb the 

trial court’s award of alimony unless it is patently unfair on 

the record. 82

Heather does not have a college degree. She has not 

worked outside the home anywhere other than at Backyard 

Playworld since the birth of the oldest child of the marriage 

75 § 42-365.

76 See Seivert v. Alli, 309 Neb. 246, 959 N.W.2d 777 (2021).

77 Id.

78 Id.

79 Id.

80 Id.

81 Id.

82 Id.
- 180 -

Nebraska Supreme Court Advance Sheets

312 Nebraska Reports

SIMONS V. SIMON

Cite as 312 Neb. 136

approximately 12 years prior to the hearing. The child support 

calculator entered into evidence without objection showed 

Jonathan’s monthly net income as $31,154 and Heather’s 

monthly net income as $1,098. Other evidence showed that 

Jonathan had a net cashflow for 2019 of $590,990.37, derived 

from the Backyard Playworld LLCs, as well as various investment accounts. Before having children, Heather worked at 

a car dealership where she earned approximately $95,000 

per year her final 2 years at that job. In previous years, she 

had earned around $70,000 annually. Heather did not think 

she could go back to sales work at a car dealership due to 

her obligations caring for the children and because of the 

use of newer technology that she has no experience with. 

Heather submitted a list of her monthly living expenses totaling $13,630.

The district court found that based on this evidence and considering the factors in § 42-365, Jonathan should pay alimony 

in the sum of $5,500 per month for 72 months. Jonathan’s 

argument challenging this alimony award is that the constructive trust based on Heather’s being a former “dynamic and 

energetic leader and owner” of Backyard Playworld is irreconcilable with an alimony award based on Heather’s being 

a “homemaker” and “housewife.” 83 According to Jonathan, 

Heather “cannot be both.” 84 If Heather is a business leader 

then, according to Jonathan, “she has the talent and acumen 

to earn a substantial income and the alimony claim cannot 

stand.” 85 We find no merit to this argument. Under the evidence presented and arguments made, we cannot conclude that 

the court’s award of alimony was patently unfair.

5. Life Insurance to Fund Support

Lastly, Jonathan argues that the court’s order that he maintain 

life insurance covering his support obligations is inconsistent 

83 Brief for appellant at 47.

84 Id.

85 Id.
- 181 -

Nebraska Supreme Court Advance Sheets

312 Nebraska Reports

SIMONS V. SIMON

Cite as 312 Neb. 136

with the premarital agreement. He asserts that because of 

the court’s order, he is being required to maintain an additional life insurance policy beyond that required by the agreement. Heather responds that the premarital agreement does not 

require Jonathan to maintain this life insurance after the dissolution of the marriage.

Section 1.6 of the premarital agreement sets forth Jonathan’s 

obligation to carry life insurance during the marriage in the 

amount of at least $1 million; however, Heather is correct that 

it provides:

In the event of the parties’ legal separation or dissolution 

of the proposed marriage while said life insurance policy 

is in effect, the parties agree any case value attributable thereto shall be equally divided between them, and 

Heather at her election, shall be entitled to retain such 

policy at her sole cost and expense.

While Jonathan points out that he testified at trial that he was 

maintaining life insurance in accordance with the premarital 

agreement, this provision is plain that the agreement no longer 

obligates him to do so upon the dissolution of the marriage. 

Thus, the court’s decree does not impose upon Jonathan a 

life insurance obligation that is duplicative of an obligation 

imposed under the agreement. We find no merit to this assignment of error.

VI. CONCLUSION

We affirm the decree in all respects with the exception of 

the court’s itemization of the truck as part of the marital estate, 

which we vacate. The truck is part of the constructive trust.

Affirmed in part, and in part vacated.

Cassel, J., concurring.

Lest the bar and trial bench misunderstand the court’s decision—believing that it sanctions the remedy of a constructive 

trust in run‐of‐the‐mill marital dissolution actions—I wri

separately. I address two aspects.
- 182 -

Nebraska Supreme Court Advance Sheets

312 Nebraska Reports

SIMONS V. SIMON

Cite as 312 Neb. 136

First, the application here was driven by the enforcement of 

a premarital agreement. The parties utilized a premarital agreement to circumvent (at least partially) the principles of equitable division of property dictated by the dissolution statutes. 1

Had they not done so, I suggest that a constructive trust would 

have had no application. In other words, where parties bring 

individual property to a marriage and do not attempt to use a 

premarital agreement regarding division of property, the division of property would be controlled solely by §§ 42‐365 and

42‐366 and our decisions construing those statutes

Second, I have considerable doubt that the remedy of a 

constructive trust would apply to parties’ actions prior to marriage. In the absence of a premarital agreement, the status of 

property brought to a marriage is governed by the first step 

of a three‐step process. 2 The first step is to classify the parties’ property as either marital or nonmarital, setting aside the

nonmarital property to the party who brought the property to 

the marriage. 3 Any given property can constitute a mixture of 

marital and nonmarital interests; a portion of an asset can be 

marital property while another portion can be separate property. 4 The burden of proof rests with the party claiming that 

property is nonmarital. 5 Here, the disputed property was not 

“property brought to a marriage.” 6 Today’s decision should not 

be misunderstood as precedent for applying a constructive trust 

in the first step of the three‐step process. It is not necessary

to consider the issue here, and I do not understand the court’s 

opinion as doing so.

With this understanding, I join the court’s opinion.

1 See Neb. Rev. Stat. §§ 42‐347 to 42‐381 (Reissue 2016 & Cum. Supp

2020).

2 See Kauk v. Kauk, 310 Neb. 329, 966 N.W.2d 45 (2021).

3 Id.

4 Id.

5 Id.

6 See id.