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IN THE NEBRASKA COURT OF APPEALS

MEMORANDUM OPINION AND JUDGMENT ON APPEAL

(Memorandum Web Opinion)

GAUDREAULT V. GAUDREAULT

NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION

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

DARLENE R. GAUDREAULT, APPELLEE,

V.

PAUL H. GAUDREAULT, APPELLANT.

Filed June 6, 2023. No. A-22-598.

Appeal from the District Court for Douglas County: JAMES M. MASTELLER, Judge. 

Affirmed.

Joni Visek for appellant.

Ryan P. Watson, of Wagner, Meehan & Watson, L.L.P., for appellee.

MOORE, RIEDMANN, and ARTERBURN, Judges.

MOORE, Judge.

INTRODUCTION

Paul H. Gaudreault appeals from the decree of dissolution entered by the district court for 

Douglas County, dissolving his marriage to Darlene R. Gaudreault. Paul claims that the district 

court erred in excluding the parties’ home from the marital estate and awarding it solely to Darlene, 

and in its valuation of personal property awarded to Darlene. Finding no abuse of discretion, we 

affirm.

STATEMENT OF FACTS

Paul and Darlene were married on July 26, 1975. Prior to the marriage, Darlene was living 

in a home on Nicholas Street in Omaha, Nebraska, which was owned by her grandfather and her 

mother. Paul began living in the home upon the parties’ marriage, and he lived there with Darlene 
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(and subsequently their children) until the parties separated and he moved out in the fall of 2021. 

The children of the marriage have reached the age of majority.

On April 1, 2021, Darlene filed a complaint in the district court, seeking dissolution of her 

marriage to Paul. Paul filed an answer and counterclaim for dissolution on July 1. Paul admitted 

to all paragraphs of Darlene’s complaint and the parties sought an equitable division of the marital 

estate.

Trial was held before the district court in June 2022. In addition to receiving various 

documentary exhibits, the court heard testimony from Darlene, Paul, the parties’ daughter, and 

Darlene’s mother. The following evidence was adduced.

Darlene testified that she began living in the family home in 1974, at which time it was 

owned by Darlene’s mother and grandfather. After Darlene and Paul were married in 1975, Paul 

moved into the home. The couple did not pay rent or insurance on the home and Darlene’s mother 

was responsible for the home’s maintenance.

Paul testified that he assisted in several home improvement projects while living in the 

home. Between 1984 and 1989, the basement was excavated; improvements to the backyard were 

made, including installing a patio, swimming pool, and cedar fence; the home’s siding and doors 

were replaced; and the kitchen was remodeled. Paul stated that he provided the tools and material

for the projects. Paul completed the work because he believed he would later have an interest in 

the property, though he conceded that no one had explicitly made that assurance to him.

Darlene testified that she was gifted an interest in the home by her mother in 1990. A 

“survivorship warranty deed” was entered into evidence, reflecting that in May 1990 Darlene’s 

mother added Darlene as a joint tenant with right of survivorship for $1 of consideration. In 1998, 

the entire home was gifted to Darlene exclusively. Another “survivorship warranty deed” was 

entered into evidence, reflecting that in April 1998, Darlene’s mother conveyed the property to 

Darlene for $1 of consideration. Darlene’s mother testified that she intended for the various 

interests in the home to be a gift for Darlene alone.

Darlene testified that after the home was gifted to her exclusively, Paul no longer worked 

on improvement projects or renovations. Paul would often express that he knew it was Darlene’s 

house, and so was uninterested in putting marital funds or labor towards its improvement. After 

1998, the couple performed nominal improvements, such as replacing a fence and the roof with 

homeowner’s insurance settlement funds, and updating a brick patio with materials provided by 

Darlene’s mother. However no other renovations occurred and the home’s furnace, windows, and 

carpet had not been replaced since Darlene was gifted the home. Darlene testified that no funds 

from the marital account were ever used for any improvements. A list of home improvements, 

compiled by Paul, was entered into evidence and reflects only three projects completed after 1998, 

including replacing the roof, updating the patio, and replacing the garage doors.

The parties’ daughter testified that she grew up in the family home and moved out in 1996. 

While living in the home, she observed many improvement projects, which were paid for by 

Darlene’s mother and grandfather. However, the home improvements had since ceased and the 

home looked largely the same as it did when she moved out. She agreed that many items in the 

home, including the carpet and windows, needed to be replaced.

An appraisal conducted in January 2022 was offered into evidence, which valued the home 

at $200,000. The appraiser noted in the accompanying report that there was a shortage of homes 
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in the area and that the value trend of the neighborhood was increasing at about 14 percent a year. 

Information from the Douglas County Assessor was also entered into evidence, which reflected a 

valuation of $141,600 in May 2022. Darlene found these valuations to be high, as she would have 

to make repairs and cosmetic updates to the home to prepare it for the market. Paul also offered a 

property record from 1975, valuing the family home at $11,720. An inflation worksheet was 

accepted as an aid to the district court and reflects that $11,720 in 1975 equaled $58,819.95 in 

2021.

Darlene and Paul each submitted an accounting of the personal property left in the home, 

and therefore in Darlene’s possession. Paul indicated that the 23 items left in the home totaled 

$18,950. Paul attributed the majority of the value to several antique furniture pieces and to a 

diamond ring. Darlene provided an accounting which valued only 8 items at $515. Darlene testified 

that the diamond ring was her wedding ring, and that any furniture items not included in her 

accounting had been gifts from her family members. Paul conceded that some of the antique 

furniture referenced in his accounting were gifts from Darlene’s grandparents.

On July 11, 2022, the district court entered a decree, dissolving the parties’ marriage. The 

court determined that the interests in the family home that Darlene received in 1990 and 1998 were 

nonmarital assets, as the interests were gifts from Darlene’s mother to Darlene. Regarding whether 

any portion of the appreciation in the home’s value was marital property, the court noted that 

Darlene had established that the appreciation was not attributable to active efforts by either party. 

The court concluded that the home’s appreciation was due to passive forces and accordingly 

awarded Darlene all rights, interests, and obligations concerning the nonmarital home. In a 

property division chart attached to the decree, the court valued Darlene’s personal property in the 

home to be $5,000. Darlene was ordered to make a $43,910.68 equalization payment to Paul within 

90 days of the entry of the decree.

Paul appeals.

ASSIGNMENTS OF ERROR

Paul assigns that the district court erred in (1) its decision to treat the parties’ home as a 

nonmarital asset and award it solely to Darlene, and (2) its valuation of the personal property 

awarded to Darlene.

STANDARD OF REVIEW

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. 

Simons v. Simons, 312 Neb. 136, 978 N.W.2d 121 (2022).

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. Kauk v. Kauk, 310 Neb. 329, 966 N.W.2d 45 

(2021).

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. Simons v. Simons, supra.
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ANALYSIS

Paul assigns error to the district court’s exclusion of the family’s home from the marital 

estate and the award of it separately to Darlene. He also challenges the court’s valuation of personal 

property awarded to Darlene.

Neb. Rev. Stat. § 42-365 (Reissue 2016) authorizes a trial court to equitably distribute the 

marital estate according to what is fair and reasonable under the circumstances. Bock v. Dalbey, 

283 Neb. 994, 815 N.W.2 530 (2012). In a marital dissolution action, the purpose of a property 

division is to distribute the marital assets equitably between the parties. Kauk v. Kauk, supra. There 

is no mathematical formula by which property awards can be precisely determined, but as a general 

rule, a spouse should be awarded one-third to one-half of the marital estate, the polestar being 

fairness and reasonableness as determined by the facts of each case. Id.

The Nebraska Supreme Court recently reiterated the framework for the determination of 

nonmarital property. See Parde v. Parde, 313 Neb. 779, 986 N.W.2d 504 (2023). The court noted 

that prior to its decision in Stevens v. Stevens, 297 Neb. 188, 899 N.W.2d 582 (2017), it treated 

separate property as remaining nonmarital unless both of the spouses contributed to the 

improvement or operation of the property or the spouse not owning the property or not receiving 

the inheritance or gift significantly cared for the property during the marriage. See Van Newkirk v. 

Van Newkirk, 212 Neb. 730, 325 N.W.2d 832 (1982), abrogated, Stephens v. Stephens, supra. But 

in Stephens, the court held that the appreciation or income of a nonmarital asset during the marriage 

is marital insofar as it was caused by the efforts of either spouse or both spouses. Stephens v. 

Stephens, supra. After Stephens, the court has adhered to the framework that 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. Parde v. Parde, supra. The original value 

of an asset may be marital, while all or some of the appreciation of that asset may be marital. Id.

In a marital dissolution action, the equitable division of property is a three-step process. 

The first step is to classify the parties’ property as either marital or nonmarital, setting aside the 

nonmarital property or nonmarital portion of the property to the party who brought the property to 

the marriage. The second step is to value the marital assets and marital liabilities of the parties. 

And the third step is to calculate and divide the net marital estate equitably between the parties. 

Kauk v. Kauk, supra. The court in Parde also confirmed that the three-step process of a marital 

property division must account for appreciation, which may be treated separately from the original 

capital or value of an asset. Parde v. Parde, supra. With these principles in mind, we turn to Paul’s 

assigned errors.

Family Home.

Paul argues that any property acquired by either husband or wife during a marriage is a 

part of the marital estate and cites to Neb. Rev. Stat. § 42-617 (Reissue 2016) for this proposition. 

Paul contends that Darlene’s mother conveyed an interest in the family home to him when she 

gifted Darlene an interest in 1990 and the entire property in 1998.

We find Paul’s reliance on § 42-617 to be misplaced. The 1949 legislative bill which set 

forth § 42-617 also repealed the Community Property Act of 1947. Section 42-617 reads:

As used in sections 42-603 and 42-617 to 42-620, the words property acquired shall 

mean (1) all property acquired by either husband or wife, or both, during marriage, and on 
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and after September 7, 1947, and prior to April 20, 1949, and (2) all property acquired after 

April 20, 1949, (a) by exchange for, (b) by the increase of, (c) with the proceeds of, or (d) 

with the income from, any property defined in subdivision (1) of this section.

§ 42-617; see also, Laws 1949, c. 129, § 1, p. 337. The Nebraska Legislature’s narrow definition 

of “property acquired” was intended to provide limitations of claims to community property. See 

id. Here, Paul uses the language from the first part of § 42-617(1) to argue that he is entitled to 

property acquired by Darlene during the marriage. However, Paul ignores the second part of 

§ 42-617(1), which limits the applicability of the definition to the period between when the 

Community Property Act was enacted and repealed. See id; Laws 1947, c. 156, § 3, p. 427. Because 

Paul and Darlene were not married until after 1949, § 42-617 is inapplicable to the present case.

Paul also cites to Neb. Rev. Stat. § 76-118 (Reissue 2018) to argue that because Darlene 

was identified as “married” in the two deeds, that language included Paul in a joint tenancy. Section 

76-118 outlines the common law requirement of the four unities of time, title, interest, and 

possession necessary to create a joint tenancy. Paul does not point to specific language in the 

statute to support his assertion, and we disagree that the inclusion of the word “married” on a deed 

is sufficient to include an unnamed spouse as a joint tenant.

In its decree, the district court found that the family home had been gifted to Darlene from 

her mother. Gifts and inheritances, even when received during the marriage, are presumed to be 

nonmarital. Parde v. Parde, supra. To make a valid inter vivos gift, there must be an intention to 

transfer title to property, delivery by the donor, and acceptance by the donee. In re Estate of Marsh,

307 Neb. 893, 951 N.W.2d 486, 489 (2020). Both Darlene and her mother testified that the interest 

in the home deeded to Darlene in 1990, and the entire property deeded to Darlene in 1998, were 

intended to be gifts to Darlene exclusively. Darlene’s mother noted that if she wanted the family 

home to go to Paul as well, she would have included both Darlene’s and Paul’s names on the deed. 

Both deeds note that they were given to Darlene in consideration of $1. Paul does not argue that 

Darlene’s gifted interests in 1990 and 1998 were defective in any way. Based on the record before 

us, we conclude that the district court properly found that the family home was a gift and thus, a 

nonmarital asset.

Paul further cites to Neb. Rev. Stat. § 40-104 (Reissue 2016) to argue that in 1998, he was 

conveyed a marital interest by Darlene’s mother because he was never asked to extinguish his 

marital interest. Section 40-104 provides that the “homestead of a married person” cannot be 

“conveyed or encumbered unless the instrument by which it is conveyed or encumbered is 

executed and acknowledged by both spouses.” See § 40-104. This statute is not implicated in this 

case as it was Darlene’s mother, not Darlene, who conveyed various interests in the home. 

Moreover, because we have found that the home was gifted to Darlene by her mother, Paul never 

had a marital interest in the home which needed to be extinguished.

Paul next argues that because he made a variety of repairs and renovations to the property 

from 1975 until he moved out of the family home in 2021, the appreciation of the home’s value is 

marital property. Paul cites to the Van Newkirk case for the proposition that the home has become 

marital property due to his contribution to and significant care of the property.

As noted above, the Nebraska Supreme Court abrogated the Van Newkirk case and now 

follows an active appreciation framework as outlined in Stevens v. Stevens, supra. The burden is 
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on the owning spouse to prove the extent to which marital contributions did not cause the 

appreciation or income. Id. Both Darlene and Paul testified to improvements Paul made to the 

family home through various projects and renovations. However, the record reflects that the 

majority of these projects were completed prior to 1998, when Darlene was gifted the property in 

its entirety. Darlene noted various items in the home which were in need of repair or replacement 

and the parties’ daughter stated that the home looked the same as it did when she moved out in 

1996. Paul’s own list of improvement projects shows only three which were completed after 1998. 

Darlene testified that two of those projects, replacing the roof and updating the patio, were funded 

by an insurance settlement and her mother, respectively. Further, the appraisal conducted in 

January 2022 noted that a scarcity of homes in the area was contributing to an increasing value 

trend.

Based on the timing of the home improvement projects and the evidenced market trends, 

we find that the increase in the home’s value is attributable to passive appreciation. See Stevens v. 

Stevens, supra (passive appreciation is appreciation caused by separate contributions and 

nonmarital forces). Thus the district court did not abuse its discretion in determining that Darlene 

had established that the appreciation in the home’s value was not due to the active efforts of either 

party, and in awarding the home solely to Darlene.

Personal Property.

Lastly, Paul argues that the personal property retained by Darlene should have been valued 

at $18,950, and that the district court’s valuation of $5,000 was inequitable. Paul contends that 

Darlene’s many refinished and preserved antiques were undervalued. Paul also alleges that the 

parties’ homeowner’s insurance policy, which includes $211,000 in coverage for personal 

property, indicates that Darlene continues to insure property far in excess of $18,950.

Paul and Darlene each submitted an accounting of the personal property left in the home 

and in Darlene’s possession. Paul’s accounting included 23 items, valued at a total of $18,950, 

whereas Darlene’s accounting included 8 items, valued at a total of $515. Paul conceded at trial 

that some of the antique pieces included in his accounting were gifts to Darlene. See Parde v. 

Parde, 313 Neb. 779, 986 N.W.2d 504 (2023) (gifts are presumed to be nonmarital). Additionally, 

Darlene identified the diamond ring in Paul’s accounting as her wedding ring, which our appellate 

case law has found to be a gift. See, Ireland v. Ireland, No. A-00-1274, 2002 WL 484221 (Neb. 

Ct. App. Apr. 2, 2002) (not designated for permanent publication); Dougherty v. Dougherty, No. 

A-93-1077, 1995 WL 437504 (Neb. Ct. App. July 25, 1995) (not designated for permanent 

publication). Thus, these particular antiques and the diamond ring are not included in the marital 

estate and need not be equitably divided.

However, some items of personal property appear in both of Paul’s and Darlene’s 

accounting, valued at significantly different amounts. For example, Paul valued a living room chair 

at $300, while Darlene placed the value at $50. Where credible evidence is in conflict on a material 

issue of fact, the appellate court considers, and may give weight to, the circumstances that the trial 

judge heard and observed the witnesses and accepted one version of the facts rather than another. 

Garrison v. Otto, 311 Neb. 94, 970 N.W.2d 495 (2022). The district court received the parties’

accounting and heard testimony from both Paul and Darlene regarding the personal property left 

in the family home, including where the items were purchased and for how much. The district 
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court determined that the value of the personal property was $5,000, an amount between the 

valuations provided by each party. We cannot say that the district court abused its discretion in 

this finding.

CONCLUSION

The district court did not abuse its discretion in excluding the parties’ home from the 

marital estate and awarding it solely to Darlene, or in its valuation of personal property awarded 

to Darlene.

AFFIRMED.