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307 Nebraska Reports

HIGGINS v. CURRIER

Cite as 307 Neb. 748

Billy Meredith Higgins, appellee, v. 

Rashell Rene Currier, appellant.

___ N.W.2d ___

Filed November 13, 2020. No. S-19-343.

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

Alimony: Attorney Fees: Appeal and Error. In a marital dissolution 

action, an appellate court reviews the case de novo on the record to 

determine whether there has been an abuse of discretion by the trial 

judge. This standard of review applies to the trial court’s determinations 

regarding custody, child support, division of property, alimony, and 

attorney fees.

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

appellate court is required to make independent factual determinations 

based upon the record, and the court reaches its own independent conclusions with respect to the matters at issue.

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

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

submitted for disposition.

4. Divorce: Property Division. All property accumulated and acquired by 

either spouse during the marriage is part of the marital estate, unless it 

falls within an exception to the general rule.

5. ____: ____. 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.

6. ____: ____. The original capital or value of an asset may be nonmarital, 

while all or some portion of the earnings or appreciation of that asset 

may be marital.

7. ____: ____. The active appreciation rule sets forth the relevant test to 

determine to what extent marital efforts caused any part of an asset’s 

appreciation or income.

8. Divorce: Property Division: Presumptions. Accrued investment 

earnings or appreciation of nonmarital assets during the marriage are 

Nebraska Supreme Court Online Library

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

01/22/2021 08:07 AM CST
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Cite as 307 Neb. 748

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.

9. Divorce: Property Division: Words and Phrases. Appreciation caused 

by marital contributions is known as active appreciation, and it constitutes marital property.

10. ____: ____: ____. Passive appreciation is appreciation caused by separate contributions and nonmarital forces.

11. Divorce: Property Division: Proof. The burden is on the owning 

spouse to prove the extent to which marital contributions did not cause 

the appreciation or income.

Petition for further review from the Court of Appeals, 

Moore, Chief Judge, and Arterburn and Welch, Judges, 

on appeal thereto from the District Court for Douglas County, 

James M. Masteller, Judge. Judgment of Court of Appeals 

affirmed in part, and in part reversed and remanded with 

directions.

Corey J. Wasserburger, of Johnson, Flodman, Guenzel & 

Widger, for appellant.

Megan E. Shupe and Richard W. Whitworth, of Reagan, 

Melton & Delaney, L.L.P., for appellee.

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

Papik, and Freudenberg, JJ.

Papik, J.

In its decree dissolving the marriage of Billy Meredith 

Higgins and Rashell Rene Currier, the district court for Douglas 

County found that Currier should be awarded $10,500 from 

a 401K account owned by Higgins, but otherwise awarded 

Higgins all funds in his retirement and investment accounts. 

Currier appealed, challenging various aspects of the district court’s dissolution decree, and the Nebraska Court of 

Appeals affirmed. See Higgins v. Currier, No. A‐19‐343, 2020 

WL 634183 (Neb. App. Feb. 11, 2020) (selected for posting 

to court website). We granted Currier’s petition for further 
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HIGGINS v. CURRIER

Cite as 307 Neb. 748

review. We find that the Court of Appeals erred in concluding 

that the district court did not abuse its discretion in its disposition of Higgins’ 401K accounts.

BACKGROUND

Parties’ Marriage.

Higgins and Currier were married in Washington on May 

20, 2016. At the time of the marriage, Currier and her son from 

a prior relationship lived in Washington and Higgins lived in 

Council Bluffs, Iowa. Following the marriage, Currier and her 

son moved to Council Bluffs to live with Higgins. Higgins and 

Currier have no children together.

Higgins has been employed by TD Ameritrade since 1997. 

During a portion of the 14 months Currier lived with Higgins, 

she worked part time.

In July 2017, Currier and her son moved back to Washington. 

Shortly thereafter, Higgins moved to Omaha, Nebraska. After 

July 2017, the parties remained in contact and took occasional 

trips to visit one another. The parties were unable to reconcile 

and ended their relationship in March 2018.

Higgins initially filed a complaint for legal separation in 

April 2018, but later filed an amended complaint for dissolution of marriage. Trial was held in December 2018. Higgins 

was represented by counsel at trial. Currier represented herself. 

Both parties testifed and offered exhibits, which were received 

into evidence by the district court.

Summary of Trial Evidence.

Much of the evidence at trial concerned investment and 

retirement accounts owned by Higgins. Higgins testified that 

he had a TD Ameritrade account with an account number ending in “3733” (the 3733 account). He testified that the 3733 

account was in existence prior to the marriage and that he did 

not make any deposits into the 3733 account during the marriage. Higgins’ counsel referred to the account as a “brokerage 

account” during direct examination. Higgins asked that the 
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HIGGINS v. CURRIER

Cite as 307 Neb. 748

court award all funds in that account to him as a premarital asset.

In addition, Higgins testified that he had a 401K account, 

which was established prior to the marriage. He also asked 

that the district court award that account to him, but he did not 

provide any other testimony or documentation with respect to 

that account.

Currier also presented evidence regarding Higgins’ accounts. 

She testified that Higgins had two different 401K accounts and 

that he was depositing $1,500 per month into the accounts. 

Currier also introduced and the court received two account 

statements for a TD Ameritrade 401K account with an account 

number ending in “0510” (the 0510 account). The account statements are in Higgins’ name and are from May 2016 and March 

2018. These statements show that the 0510 account had a value 

of $218,182.02 as of May 2016 and a value of $359,128.29 as 

of March 2018. The statements show that Higgins held stocks 

and mutual funds within the account and that securities were 

sold and purchased and interest income was received during 

the period summarized by each statement. When referencing 

the account statements for the 0510 account, Currier noted that 

the account statements corresponded to the month the parties 

were married and the month the parties separated and asked the 

district court to divide the account equitably.

The district court also received evidence regarding the purchase and sale of the Council Bluffs house in which the parties 

resided together. Higgins testified that he purchased that house 

in 2014 for approximately $675,000 and that, at the time, the 

house was appraised at $625,000. Higgins testified that he 

made a downpayment on the purchase of about $350,000, and 

a closing statement shows that he and his previous wife borrowed $315,000 to purchase the house.

Higgins testified that, at Currier’s request, he sold the 

Council Bluffs house in July 2017. Higgins testified that the 

house sold for $615,000, about $58,000 less than its purchase 

price, and that he paid about $31,000 in fees and closing 
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costs. He testified that he realized about $300,000 from its 

sale. Following the sale of the house, Higgins used $25,000 of 

the proceeds to pay off a marital credit card debt. He applied 

the rest of the proceeds to the purchase of a new house in 

Omaha. Higgins asked the district court to award him the 

Omaha house as nonmarital property traceable to his premarital 

Council Bluffs house.

District Court Decree.

In March 2019, the district court entered a decree of dissolution, dissolving the marriage and identifying and dividing the 

marital estate. Perhaps unsurprisingly, given the duration of the 

marriage, relatively little property was identified as marital and 

subject to equitable division. The district court awarded Currier 

$303, representing half of the balance in a bank account in 

both parties’ names. The court also awarded her $3,570, a sum 

representing half of an income tax refund that accumulated 

during the portion of 2016 the parties were married.

The district court found that the TD Ameritrade account ending in “0733” (presumably the 3733 account) was Higgins’ premarital asset and that “all accumulations to [that] account were 

from that premarital asset.” It awarded Higgins that account 

and any other “TD Ameritrade accounts which belonged to 

[Higgins] prior to the marriage.”

In a separate subsection of the decree, the district court 

discussed retirement plans. It found that Higgins had a 

401K account through TD Ameritrade which was established 

prior to the marriage. It found that during the marriage, he 

made monthly contributions of $1,500 from marital funds 

to that account. The court found that for purposes of dividing the marital portion of the 401K account, the operative 

dates for the marriage were from May 2016 to July 2017 

and that Higgins thus made $21,000 in contributions to the 

401K account that were subject to division. Accordingly, it 

awarded Currier $10,500 from Higgins’ 401K and ordered it 

transferred through a qualified domestic relations order. The 
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Cite as 307 Neb. 748

district court awarded the parties any other retirement plans 

held in their own names.

In a subsection of the decree addressing real property, the 

district court concluded that the Council Bluffs house was not 

a marital asset. It also concluded that the equity in the Council 

Bluffs house could be traced to the house Higgins purchased in 

Omaha. It found that the Omaha house was not a marital asset 

and thus awarded Higgins all right, title, interest, and equity in 

that property.

Court of Appeals.

Currier appealed. Among other things, she assigned that 

the district court had erred in classifying the increase in value 

of the 0510 account and the Council Bluffs house as nonmarital property. The Court of Appeals affirmed the district 

court’s decree.

The Court of Appeals found that the district court did not 

abuse its discretion by declining to include in the marital estate 

the amount by which the 0510 account increased during the 

marriage. The Court of Appeals recognized that the question 

of whether the increase in value was appropriately treated 

as nonmarital called for the application of the active appreciation rule, whereby the burden is on the owning spouse to 

prove the extent to which marital contributions did not cause 

the appreciation or income. It also acknowledged the district 

court’s receipt of account statements showing that the value 

of that account increased from $218,182.02 in May 2016 to 

$359,128.29 in March 2018 and that stocks and mutual funds 

were sold and purchased within the account during that time. 

It concluded, however, that those statements did not indicate 

that active appreciation was the cause of the increase in value, 

but, rather, they suggested that “the account fluctuates, presumably depending on market forces.” Higgins v. Currier, 

No. A‐19‐343, 2020 WL 634183 at *6 (Neb. App. Feb. 11, 

2020) (selected for posting to court website).
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Cite as 307 Neb. 748

The Court of Appeals also concluded the district court did 

not err by finding that the Council Bluffs residence was a nonmarital asset.

ASSIGNMENTS OF ERROR

Currier argues on further review that the Court of Appeals 

erred by improperly shifting the burden to her to prove that 

the increase in value in the 0510 account during the parties’ 

marriage was due to active appreciation. She argues that, in 

this regard, the Court of Appeals’ opinion is at odds with our 

recent opinion in White v. White, 304 Neb. 945, 937 N.W.2d 

838 (2020). She contends that the increase in value of the 0510 

account during the marriage should have been treated as marital property subject to equitable division.

Currier also claims that the Court of Appeals erred by failing 

to find that mortgage payments made during the marriage were 

inextricably comingled with the equity in the marital residence. 

We find no error in the district court’s disposition of this issue, 

and we see no need for further comment on it. Therefore, our 

analysis below is limited to the assignment of error concerning 

the disposition of the 0510 account.

STANDARD OF REVIEW

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

the case de novo on the record to determine whether there has 

been an abuse of discretion by the trial judge. This standard of 

review applies to the trial court’s determinations regarding custody, child support, division of property, alimony, and attorney 

fees. White v. White, supra.

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

is required to make independent factual determinations based 

upon the record, and the court reaches its own independent 

conclusions with respect to the matters at issue. Id.

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

litigant of a substantial right and denying just results in matters 

submitted for disposition. Id.
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Cite as 307 Neb. 748

ANALYSIS

Currier introduced evidence showing that the value of the 

0510 account increased during the course of the marriage. The 

account statements Currier introduced showed that the value of 

the account was $218,182.02 in May 2016 and $359,128.29 in 

March 2018. Currier argues that the district court should have 

classified this increase in value as marital property and divided 

it equitably.

[4‐6] We have said that 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. Stephens v. Stephens, 297 Neb. 188, 899 N.W.2d 582 

(2017). Thus, for example, income from either party that accumulates during the marriage is a marital asset. Id. 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. Id. Therefore, the 

original capital or value of an asset may be nonmarital, while 

all or some portion of the earnings or appreciation of that asset 

may be marital. Id.

Currier argues that is the case here. Although she concedes 

that the value of the 0510 account at the time of the parties’ 

marriage was Higgins’ nonmarital property, she contends that 

the growth in that account during the marriage was marital. 

She argues that this result is compelled by the active appreciation rule.

[7‐11] The active appreciation rule sets forth the relevant 

test to determine to what extent marital efforts caused any 

part of an asset’s appreciation or income. White v. White, 304 

Neb. 945, 937 N.W.2d 838 (2020). Under the rule, accrued 

investment earnings or appreciation of nonmarital assets during 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. Id. Appreciation caused by 
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Cite as 307 Neb. 748

marital contributions is known as active appreciation, and it 

constitutes marital property. Id. Passive appreciation is appreciation caused by separate contributions and nonmarital forces. 

Id. The burden is on the owning spouse to prove the extent to 

which marital contributions did not cause the appreciation or 

income. Id.

In Stephens v. Stephens, 297 Neb. at 205, 899 N.W.2d at 

595, we made clear that these principles “apply equally to 

appreciation or income during the marriage of any nonmarital 

asset.” We also explained that placing the burden on the owning spouse to prove that the growth is not due to active efforts 

“is the better policy, because it places the burden on the party 

who has the best access to the relevant evidence.” Id. at 206, 

899 N.W.2d at 595.

We recently had occasion to apply the active appreciation 

rule in White v. White, supra. In that case, the husband created 

an investment account with funds he inherited. He argued that 

the district court abused its discretion by treating the appreciation in that account during the course of the marriage as 

marital property. We rejected the argument. We explained that 

under the active appreciation rule articulated in Stephens v. 

Stephens, supra, it was the husband’s burden to establish that 

the growth in the account was attributable solely to passive 

market forces or separate contributions. We also noted ways 

in which the husband might have been able to carry this burden: by showing that the growth was consistent with “some 

recognized benchmark of general market growth,” that the 

annual rate of return was guaranteed or statutorily prescribed, 

or that he relied on the recommendations or management of 

his account by a third party. White v. White, 304 Neb. at 961, 

937 N.W.2d at 851. But because the husband failed to present 

evidence on any of these points or any evidence showing that 

his efforts did not cause the appreciation, we found that the 

district court did not err in classifying the appreciation in the 

account as marital.
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HIGGINS v. CURRIER

Cite as 307 Neb. 748

Currier argues that under the active appreciation rule, as 

applied in White, the increase in the value of the 0510 account 

is also marital property subject to equitable division. She does 

not dispute that Higgins satisfied the first element of the active 

appreciation rule by showing that the growth in the 0510 

account was readily identifiable and traceable to the nonmarital 

portion of the account. But she contends that like the husband 

in White, Higgins introduced no evidence showing that the 

growth was not due to the active efforts of either spouse.

In response to this argument, Higgins has not directed us 

to any evidence in the record that might tend to show that the 

increase in the value of the 0510 account came about as a result 

of something other than the active efforts of either spouse. 

Indeed, during closing argument, Higgins’ counsel seemed to 

acknowledge the lack of such evidence, stating “there’s been 

absolutely no testimony that would guide the Court in determining how to divvy up any income and interest that would 

have come into that account during the time . . . that these folks 

have been married.”

Unable to point to evidence that the increase in value in the 

0510 account was the result of passive appreciation, Higgins 

attempts to undermine Currier’s argument in other ways. First, 

he contends that Currier did not adequately raise this issue in 

the district court. We disagree. In referencing the exhibit she 

offered into evidence showing the increase in value of the 

0510 account between May 2016 and March 2018, Currier 

mentioned that the account statements corresponded with the 

month the parties were married and the month they separated, and she asked the district court to “divide that equitably.” Higgins’ counsel appeared to understand that Currier 

was asking that at least some portion of Higgins’ accounts 

be treated as marital property subject to equitable division. 

On cross‐examination, he had Currier confirm that she was 

asking the district court to award her a portion of Higgins’ 

401K, and, in closing argument, he contended that, with the 

possible exception of funds that were contributed to accounts 
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Cite as 307 Neb. 748

during the marriage, Higgins should be awarded the entirety 

of any investment or retirement accounts. We believe Currier 

adequately informed the district court and Higgins that she 

sought the equitable division of the 0510 account.

Higgins also argues that despite the lack of evidence that 

the increase in the value of the 0510 account was the result of 

passive appreciation, the Court of Appeals correctly applied 

the active appreciation rule. Again, we disagree. The Court 

of Appeals stated that the exhibits Currier offered regarding 

the 0510 account did not show any funds being deposited, 

but instead showed stocks and mutual funds being sold and 

purchased within the account along with the receipt of interest income. It noted that the March 2018 statement showed 

a $20,000 loss for the month. It concluded that this evidence 

“does not indicate that active appreciation is the cause of 

the increase in value during the marriage; rather, it indicates 

that the account fluctuates, presumably depending on market 

forces.” Higgins v. Currier, No. A‐19‐343, 2020 WL 634183 

at *6 (Neb. App. Feb. 11, 2020) (selected for posting to 

court website).

Although the Court of Appeals recognized earlier in its 

opinion that the burden is on the owning spouse to prove the 

extent to which marital contributions did not cause the appreciation or income, its analysis treated Currier as if she had the 

burden to show that the increase was caused by active appreciation. After concluding that the exhibits Currier offered did 

not demonstrate active appreciation, the Court of Appeals presumed that the account increased due solely to market forces. 

This was an incorrect application of the active appreciation 

rule. The burden was on Higgins to show that the increase 

in the 0510 account was the result of passive appreciation. 

Higgins was obligated to adduce evidence to carry that burden 

as opposed to relying on presumptions. He did not do so. Thus, 

under the active appreciation rule, the increase in value of the 

0510 account during the marriage should have been treated as 

marital property.
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HIGGINS v. CURRIER

Cite as 307 Neb. 748

We are not swayed from this conclusion by Higgins’ contention at oral argument that Currier’s argument is flawed because 

the district court, for purposes of determining contributions to 

Higgins’ 401K, treated the marriage as effectively concluded 

in July 2017 when Currier returned to Washington. Higgins 

pointed out that although Currier offered evidence of the value 

of the account in March 2018, she did not offer evidence of 

the value of the account in July 2017. He claimed that there is 

thus no evidence of how much the value of the 0510 account 

increased from the beginning of the marriage until its effective 

conclusion as determined by the district court.

Higgins is correct that Currier did not introduce evidence 

showing the value of the 0510 account in July 2017, but that 

does not affect our conclusion that under these circumstances, 

the increase between May 2016 and March 2018 should have 

been treated as marital property subject to equitable division. 

As we have discussed, because Higgins did not show that the 

increase in the 0510 account resulted from passive appreciation, the increase in the account during the marriage should 

have been treated as marital property under the active appreciation rule. To the extent the value of the account increased 

after the effective end of the marriage as determined by the 

district court and rendered any marginal increase after that 

time nonmarital property, Higgins had the burden to prove 

it. See Burgardt v. Burgardt, 304 Neb. 356, 363, 934 N.W.2d 

488, 494 (2019) (“[i]n a marital dissolution proceeding, the 

burden of proof rests with the party claiming that property 

is nonmarital”). Higgins, however, introduced no evidence 

regarding the value of the 0510 account in July 2017 or any 

other time.

For all these reasons, we conclude that the increase in the 

value of the 0510 account should have been treated as marital 

property subject to equitable division. The district court abused 

its discretion by finding otherwise, and the Court of Appeals 

erred by failing to reverse on this issue.
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Disposition.

Currier argues that given the district court’s error, we should 

modify the decree to award her half of the increase in the value 

of the 0510 account. While our de novo on the record standard of review permits us to modify a dissolution decree, we 

believe it best to instead reverse, and remand with directions 

in this case.

As we have noted, while the district court did not treat the 

entire increase of the 0510 account as marital property, it did 

find that Higgins deposited $21,000 into a 401K account during the marriage. It determined those were marital contributions and, as a result, awarded Currier $10,500 from the 401K 

account. It is not clear to us from the decree or the broader 

record, however, whether the district court determined that 

those contributions were made to the 0510 account or another 

account. If the contributions were found to be made to the 0510 

account, it would be double counting to treat both those contributions and the full $140,946.27 increase in the 0510 account 

as marital property. If the contributions were found to be made 

to some other account, however, then the entire increase in the 

0510 account should be treated as marital property in addition 

to the $21,000 in marital contributions the district court treated 

as marital in its initial decree.

Given this uncertainty in the record and because the district 

court is in a better position to make an equitable division, we 

will return this case to the district court. We do so by remanding the cause to the Court of Appeals and directing that it 

reverse the district court’s decree in part and remand the cause 

to the district court with the following directions. The district 

court should clarify whether the $21,000 in contributions 

found by the district court to be marital property were made to 

the 0510 account. If so, an additional $119,946.27 should also 

be treated as marital. If not, an additional $140,946.27 should 

be treated as marital. The district court should also determine 

the equitable division of marital property. See Stephens v. 

Stephens, 297 Neb. 188, 899 N.W.2d 582 (2017) (remanding 
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to district court to determine equitable distribution of asset 

found to be marital). All such determinations should be made 

based on the existing record.

CONCLUSION

The Court of Appeals and the district court erred in their 

application of the active appreciation rule. We reverse the 

decision of the Court of Appeals to the extent it affirmed the 

district court’s award of all but $10,500 from Higgins’ 401K 

account to Higgins. On that issue, we remand the cause to the 

Court of Appeals and direct that it reverse the district court’s 

decree in part and remand the cause with directions to the district court as outlined above. In all other respects, we affirm.

Affirmed in part, and in part reversed

and remanded with directions.