- 339 -

Nebraska Supreme Court Advance Sheets

298 Nebraska Reports

OSANTOWSKI v. OSANTOWSKI

Cite as 298 Neb. 339

Dori Ann Osantowski, appellee, v. 

Brian Osantowski, appellant.

___ N.W.2d ___

Filed December 8, 2017. No. S-16-807.

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. When evidence is in 

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

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

version of the facts rather than another.

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

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

submitted for disposition.

4. Judgments: Appeal and Error. When reviewing questions of law, an 

appellate court has an obligation to resolve the questions independently 

of the conclusion reached by the trial court.

5. Divorce: Property Division. The ultimate test in determining the appropriateness of the division of property is fairness and reasonableness as 

determined by the facts of each case.

6. ____: ____. Under Neb. Rev. Stat. § 42-365 (Reissue 2016), the equitable division of property is a three-step process. The first step is to classify the parties’ property as marital or nonmarital, setting aside the nonmarital property to the party who brought that property to the marriage. 

The second step is to value the marital assets and marital liabilities 

Nebraska Supreme Court Online Library

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

01/12/2018 08:12 AM CST
- 340 -

Nebraska Supreme Court Advance Sheets

298 Nebraska Reports

OSANTOWSKI v. OSANTOWSKI

Cite as 298 Neb. 339

of the parties. The third step is to calculate and divide the net marital 

estate between the parties in accordance with the principles contained in 

§ 42-365.

7. ____: ____. Generally, all property accumulated and acquired by either 

spouse during a marriage is part of the marital estate. Exceptions 

include property that a spouse acquired before the marriage, or by gift 

or inheritance.

8. Divorce: Appeal and Error. Appeals in domestic relations matters are 

heard de novo on the record, and thus, an appellate court is empowered to enter the order which should have been made as reflected by 

the record.

9. Agriculture: Crops: Animals. Agricultural crops are categorically different in nature from a herd of cattle and, therefore, are not entitled to 

the same treatment for tracing purposes.

10. Agriculture: Crops: Equity. Courts are allowed flexibility in their 

treatment of stored and growing agricultural crops to account for the 

equities of the situation.

11. Property Division: Appeal and Error. As a general principle, the date 

upon which a marital estate is valued should be rationally related to the 

property composing the marital estate. The date of valuation is reviewed 

for an abuse of the trial court’s discretion.

12. Appeal and Error. Absent plain error, errors argued but not assigned 

will not be considered on appeal.

13. Appeal and Error: Words and Phrases. Plain error exists where there 

is an error, plainly evident from the record but not complained of at 

trial, which prejudicially affects a substantial right of a litigant and is of 

such a nature that to leave it uncorrected would cause a miscarriage of 

justice or result in damage to the integrity, reputation, and fairness of the 

judicial process.

14. Appeal and Error. Plain error may be asserted for the first time on 

appeal or be noted by an appellate court on its own motion.

15. Property Division. A nonowning spouse is entitled to some benefit 

when marital funds have been expended to improve or reduce the debt 

on the other spouse’s nonmarital property.

16. Divorce: Property Division: Alimony. In dividing property and considering alimony upon a dissolution of marriage, a court should consider 

four factors: (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.

17. ____: ____: ____. In addition to the specific criteria listed in Neb. Rev. 

Stat. § 42-365 (Reissue 2016), in dividing property and considering 

alimony upon a dissolution of marriage, a court should consider the 
- 341 -

Nebraska Supreme Court Advance Sheets

298 Nebraska Reports

OSANTOWSKI v. OSANTOWSKI

Cite as 298 Neb. 339

income and earning capacity of each party and the general equities of 

the situation.

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

reasonableness as determined by the facts of each case.

Appeal from the District Court for Seward County: James C. 

Stecker, Judge. Affirmed as modified.

John W. Ballew, Jr., and Adam R. Little, of Ballew, Covalt & 

Hazen, P.C., L.L.O., for appellant.

Stan A. Emerson, of Sipple, Hansen, Emerson, Schumacher 

& Klutman, for appellee.

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

Kelch, and Funke, JJ.

Funke, J.

Brian Osantowski appeals from a decree of dissolution 

entered by the Seward County District Court, which dissolved 

his marriage to Dori Ann Osantowski, divided the marital 

assets and debts, and ordered Brian to make an equalization 

payment of $680,000, distributing the estate about equally.

Brian argues that his premarital crops should have been 

treated similarly to a herd of cattle—as a single asset for tracing purposes, that the court made specific errors in the division 

of marital assets, and that its distribution of the marital estate 

was inequitable.

We reject Brian’s argument that crops are similar to cattle herds for tracing purposes. However, we hold that the 

court erred in its division of certain marital assets and debts. 

Therefore, we affirm the district court’s order as modified by 

this opinion.

I. BACKGROUND

Brian and Dori were married on September 23, 2011, and 

separated on or about May 26, 2014. Dori filed a dissolution 
- 342 -

Nebraska Supreme Court Advance Sheets

298 Nebraska Reports

OSANTOWSKI v. OSANTOWSKI

Cite as 298 Neb. 339

complaint in June 2014. Trial was held on January 14 and 

February 12, 2016.

1. Parties’ Marriage

During the marriage, Brian resided primarily in Polk County, 

Nebraska, at a residence owned by his parents. Dori maintained a residence in Lincoln, Nebraska, until May 2013. Dori 

testified that while she was living in Lincoln, she spent a 

minimum of three to four nights per week with Brian in Polk 

County during the academic year and full time during the summers and other school breaks. As of May 2013, Dori resided in 

Polk County full time and commuted to Lincoln for her final 

semester of school.

In September 2013, Dori held a master’s degree in entomology from the University of Nebraska-Lincoln (UNL) and 

was enrolled in a doctoral program for plant health at UNL. 

She testified that while she had originally intended to pursue a Ph.D. in entomology at South Dakota State University, 

she enrolled in a program at UNL instead because Brian had 

objected to the distance. Dori also stated that she changed 

her program to plant health so that she could gain a better 

understanding of agriculture in Nebraska and contribute to the 

Osantowski farming operation.

Dori received a scholarship and a stipend for her school and 

living expenses. She also worked full time during the summers 

in Lincoln, earning between $8,000 and $20,000 in wages for 

2011, 2012, and 2013 each. Most of Dori’s income and scholarship money during the marriage went to tuition, insurance 

payments, payments for her motorcycle, commuting expenses, 

rent and utilities for the Lincoln apartment, and other living 

expenses. She testified that Brian provided minimal financial 

support to her during the marriage, but what he did provide 

was used for the household expenses she paid for the Polk 

County residence. In February 2014, Dori began working full 

time for an annual salary of $75,000 and obtained medical and 

dental insurance for herself and Brian.
- 343 -

Nebraska Supreme Court Advance Sheets

298 Nebraska Reports

OSANTOWSKI v. OSANTOWSKI

Cite as 298 Neb. 339

Brian began farming in 2005. He has a farming operation 

with his two brothers in and around Polk County. Under the 

operation, Brian and his brothers own equipment separately 

but jointly acquire land, which is owned in equal thirds. 

Each brother, however, farms land independently and bears 

the rental fees and input costs for his operation. Accordingly, 

crops and expenses are completely separate and distinct to 

each individual.

Brian testified that he receives benefits from his family 

which increase the profitability of his farming operation, 

including: discounted rental rates of $150 to $200 per acre versus the market rate of $300 to $400 per acre on the majority of 

the land that he rents; the majority of his diesel fuel at no cost 

to him; and the sharing of equipment, labor, shop space, and 

various other expenses.

Dori testified that she made the following contributions 

to Brian’s farming operation: Brian would consult her about 

chemical and herbicide application and general soil welfare; 

she created plat maps for all of the Osantowski fields to keep 

field spray records and to help plan for the future; she scouted 

fields for weed growth; she picked up parts and ran errands; 

and she went with Brian to check fields, pivots, and lay irrigation pipe. Brian agreed that Dori performed these tasks 

occasionally, except he explained that the plat maps created 

by Dori were part of her summer employment and that when 

Dori would ride with him to the fields, she did so because she 

enjoyed riding a “four-wheeler” and not because she actually 

helped with irrigation.

Dori also testified that she performed all of the household 

duties at her Lincoln residence and that such duties in the Polk 

County residence were a team effort with Brian.

2. Evidence Offered at Trial

The parties offered into evidence two versions of a joint 

property statement, each listing premarital and marital debts 

and assets. One of the statements was dated May 18, 2015, 

and the other dated January 9, 2016. Each version listed the 
- 344 -

Nebraska Supreme Court Advance Sheets

298 Nebraska Reports

OSANTOWSKI v. OSANTOWSKI

Cite as 298 Neb. 339

same assets and debts; however, slightly different values were 

assigned to some. Additional documents were received into 

evidence to support the property statements, including personal property appraisals from Grubaugh Auction Services, 

LLC; inventory reports from a certified public accountant; 

tax returns; settlement sheets from elevators; bank statements; 

retirement accounts; and balance sheets from several banks, 

including Great Western Bank.

(a) Stored and Growing Crops

In regard to the premarital and marital crop inventory, Brian 

called Michael Hershberger as his expert witness to determine 

the quantity of stored crops that Brian had on the date of marriage and on the date of separation. Hershberger is a certified 

public accountant who works with agricultural clients on a 

regular basis. In reaching his conclusions on these issues, 

Hershberger relied on Brian’s tax returns from 2011 to 2014; 

the total annual yields in Brian’s crop insurance reports, which 

were reported to him by Brian; two crop sales receipts; and 

a spreadsheet summary of Brian’s recorded crop sales. The 

spreadsheet summary was prepared by Brian’s mother, who 

does all of Brian’s bookkeeping.

On the first day of trial, Hershberger gave testimony regarding his determination of crop inventories and a report he 

authored was received into evidence. However, that testimony and the exhibit were stricken from the record, because 

Hershberger had relied on grain elevator receipts which were 

not provided to Dori through discovery. After Brian supplemented his discovery, Hershberger was again called to testify 

regarding the crop inventory.

In regard to the premarital crop inventory, Hershberger 

opined that Brian had a total of 57,156.26 bushels of corn 

in storage on September 23, 2011, and 91,296.09 bushels 

of corn and 10,405.99 bushels of soybeans ready for harvest. On September 23, the price at the local elevator was 

$6.07 for a bushel of corn and $11.57 for a bushel of soybeans. Accordingly, Hershberger concluded that the fair market 
- 345 -

Nebraska Supreme Court Advance Sheets

298 Nebraska Reports

OSANTOWSKI v. OSANTOWSKI

Cite as 298 Neb. 339

value on the date of marriage for Brian’s stored crops was 

$346,938.50 and his unharvested crops were $554,167.27 for 

corn and $120,397.30 for soybeans, totaling $1,021,503.07. 

Based on the spreadsheet summary, he also concluded that 

Brian sold these crops for a total of $1,207,465.53.

Hershberger testified that he believed his estimation of the 

total bushels of crops produced in 2011 was very accurate, 

because Brian had claimed on his crop insurance report that a 

total of 91,863 bushels of corn and 10,151 bushels of soybeans 

were produced.

In regard to the marital crop inventory, Hershberger concluded that the parties had 95,300.36 bushels of corn in storage 

on the date of separation and that a bushel of corn sold for 

$4.66 on that day. Accordingly, he valued the corn in storage 

on the date of separation as $444,099.68.

However, a balance sheet Brian had submitted to Great 

Western Bank, dated March 20, 2014, stated that he had 

135,000 bushels of corn on hand which had a value of 

$573,750. Additionally, in Brian’s November 2014 response 

to Dori’s interrogatories, he stated that the March 20 balance 

sheet reflected the quantity and value of the stored crops. In 

both joint property statements, Dori relied on the March 20 

balance sheet for the quantity and value of crops that were 

marital property.

In the May 2015 joint property statement, Brian failed to 

list the quantity of crops in storage or assign a value thereto. 

But in the January 2016 joint property statement, Brian listed 

14,862 bushels of corn in storage on the date of separation 

with a value of $69,257. At trial, Brian testified that his 

January 2016 estimation of the quantity of corn in storage 

on the date of separation was based on Hershberger’s initial analysis.

Hershberger admitted, however, that his opinions changed 

dramatically from the first day of trial to the second day of 

trial. His valuation of the stored crops on the date of separation changed from $69,259.25 to $444,099.68. While his 
- 346 -

Nebraska Supreme Court Advance Sheets

298 Nebraska Reports

OSANTOWSKI v. OSANTOWSKI

Cite as 298 Neb. 339

valuation of the stored and growing crops on the date of marriage changed from $898,603.04 to $1,021,503.07. Hershberger 

attributed these changes to his mistaken belief that all crops 

were sold before the next harvest began. But after he requested 

that Brian’s mother identify the year of production for each 

crop at issue in the sale transactions on the spreadsheet summary, his analysis changed.

(b) Personal Property and 

Farm Equipment

Minimal testimony was elicited regarding the parties’ premarital and marital personal property and farm equipment. The 

joint property statements set forth the items, and Brian and 

Dori generally agreed to them. The values, however, were not 

agreed upon by the parties. A personal property and equipment 

appraisal was completed by Grubaugh Auction Services and 

was received into evidence. The court generally adopted the 

valuations established in that report.

(c) Real Estate

In regard to real estate, the record shows that Brian owned 

four parcels of real estate prior to the marriage as follows: a 

one-third interest in the “NW1⁄4 [of] Section 8, Township 15 

North, Range 1 West[,] Butler County[, Nebraska]” (Bosshart/

Gruenwald farm); a one-third interest in the “SW1⁄4W1⁄2NW1⁄4

[of] Section 4, Township 15 North, Range 1, Butler County” 

(Hondorfer farm); a one-third interest in the “W1⁄2NE1⁄4 [of] 

Section 8, Township 16 North[, Butler County]” (Dodendorf 

farm); and a one-third interest in the “E1⁄2SE1⁄4 [of] Section 

13, Township 16 North, Range 1, Polk County” (Jahn farm). 

During the marriage, the parties purchased a one-third interest in the “SW1

⁄4 of Section 10, Township 15 North, Range 2 

West and the NW1⁄4 of Section 15, Township 15 North, Range 

2 West, Polk County” (Roberts farm). Secured debt was owed 

against each of the properties.
- 347 -

Nebraska Supreme Court Advance Sheets

298 Nebraska Reports

OSANTOWSKI v. OSANTOWSKI

Cite as 298 Neb. 339

(d) Premarital Debt

In regard to the division of debt, there was no direct evidence 

of the value of Brian’s debts on September 23, 2011. However, 

Brian annually submitted balance sheets to Great Western Bank 

that listed his debts and their value on the date of submission. 

The balance sheets nearest to the date of marriage were dated 

December 8, 2010, and March 8, 2012. The parties relied on 

the debts listed on the March 2012 balance sheet in their joint 

property statements, and the court awarded Brian the six debts 

listed therein as premarital. The court, however, did not include 

corresponding values to these debts.

Though the parties listed different amounts for certain debts, 

the record indicates that the value of the premarital debts 

awarded to Brian are as follows: Great Western Bank 2010 

operating line of credit, $162,000; Great Western Bank loan 

for a 2008 Mercury Milan, $6,927; Bosshart/Gruenwald farm 

secured debt, $125,495; Dodendorf farm secured debt, $31,557; 

“Ag Direct” loan for a Cat Challenger tractor, $49,250; and 

Hondorfer farm secured debt (Great Western Bank account No. 

xxx6688), $247,500. The six debts totaled $622,729.

Additionally, the record contains a 2011 “itemized categories report.” This report shows that Brian paid $296,046.69 

in expenses after the date of the marriage. Brian testified at 

trial that each of these expenses were incurred for his 2011 

crop, which he claimed as a premarital asset, and the court 

awarded him as such. Accordingly, these expenses were premarital debts.

Therefore, Brian’s total premarital debts, as reflected in the 

record, were approximately $918,775.69.

Dori had a $7,000 debt to her father on the date of the marriage, and she was awarded this premarital debt by the court. 

The court did not assign a value to this debt, but on the joint 

property statements, Dori listed its value at $7,000. The record 

does not reflect any reduction of the debt.
- 348 -

Nebraska Supreme Court Advance Sheets

298 Nebraska Reports

OSANTOWSKI v. OSANTOWSKI

Cite as 298 Neb. 339

3. Trial Court’s Decree

In June 2016, the court issued its decree dissolving the parties’ marriage and ordering the division of the marital estate. 

The court determined values for most of the premarital and 

marital assets it awarded.

The court awarded premarital assets to Dori, with a total 

value of $20,600, and to Brian, with a total value of $1,139,047. 

Two of the premarital assets awarded to Brian were the value 

of his 2010 crops, sold in 2011, and his 2011 crops, sold in 

2012, but the court did not assign a value to these assets. It also 

awarded him the funds present on the date of the marriage in 

four separate bank accounts.

However, the court found that all of Brian’s premarital crops 

had been liquidated by the date of separation. It also found that 

Brian deposited the nonmarital proceeds from the liquidated 

crops into his premarital bank accounts, along with the proceeds from the sale of the marital crops. Accordingly, the court 

found that these premarital crops and monetary assets were 

commingled with marital assets. Therefore, it ruled that Brian 

was not entitled to a setoff from the marital estate for these 

premarital assets.

The court also rejected Brian’s argument that crops should 

be treated similarly to a herd of cattle—as a single asset for 

tracing purposes. It reasoned that a herd of cattle is similar 

to land in that it is a self-sustaining and income producing. 

Conversely, it stated that crops are an end product that is marketed and liquidated on a short-term basis to pay the expenses 

of producing it, purchase the seed used for the next crop’s 

production, purchase equipment, and provide the farmer his 

income for the year. Accordingly, the court did not give Brian a 

credit for any of the crops in storage on the date of separation; 

instead, the court awarded Brian all of the crops in storage on 

the date of separation at a value of $573,750.

The court listed the marital debt it awarded to Dori with a 

corresponding value of $3,216. While the court also awarded 

several marital debts to Brian, it did not assign values to all 
- 349 -

Nebraska Supreme Court Advance Sheets

298 Nebraska Reports

OSANTOWSKI v. OSANTOWSKI

Cite as 298 Neb. 339

of them. Nevertheless, the court summarized its award of the 

marital estate as follows: Brian received $2,517,950 in marital assets and $1,145,294 in marital debt for a total estate of 

$1,372,656; Dori received $21,611 in marital assets and $3,216 

in marital debt for a total estate of $18,395.

Regarding the equity of the distribution, the court found 

that the marriage was of short duration and that neither party 

gave up employment or educational opportunities, but that Dori 

did change her educational program to benefit the marriage. 

The court rejected Brian’s argument that Dori should receive 

less than one-third of the marital assets. It reasoned that any 

financial benefit Brian brought to the relationship, above his 

income, was as the landlord of the premarital property he 

farmed and that the proper way to account for such a benefit 

would have been to charge the marriage a cash rent or a cropshare arrangement and segregate it as nonmarital property, of 

which Brian did not do or provide evidence.

The court ordered Brian to make an equalization payment of 

$680,000 to Dori, awarding about half of the marital estate to 

each party.

The court overruled Brian’s subsequent motion for new trial 

or to alter and amend the judgment. Brian appealed.

II. ASSIGNMENTS OF ERROR

Brian assigns, restated and reordered, that the court erred 

in (1) failing to set off premarital property awarded to him 

from the marital estate; (2) failing to set off the value of his 

premarital stored and growing crops; (3) twice awarding him 

the same $78,500 as marital property; (4) valuing the crops 

in storage 2 months prior to separation, when the vast majority of the estate was valued as of the date of separation; (5) 

making significant mathematical errors in its division of the 

marital estate; and (6) dividing the marital estate inequitably 

for a marriage of short duration where the marital estate was 

almost entirely due to the efforts and premarital contributions 

of one party.
- 350 -

Nebraska Supreme Court Advance Sheets

298 Nebraska Reports

OSANTOWSKI v. OSANTOWSKI

Cite as 298 Neb. 339

III. 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.1

[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.2 However, 

when evidence is in conflict, the appellate court considers 

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

observed the witnesses and accepted one version of the facts 

rather than another.3

[3] A judicial abuse of discretion exists if the reasons or 

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

matters submitted for disposition.4

[4] When reviewing questions of law, an appellate court 

has an obligation to resolve the questions independently of the 

conclusion reached by the trial court.5

IV. ANALYSIS

[5,6] Under Nebraska’s divorce statutes, “[t]he purpose of 

a property division is to distribute the marital assets equitably 

between the parties.”6 The ultimate test in determining the 

appropriateness of the division of property is fairness and 

1 See Bergmeier v. Bergmeier, 296 Neb. 440, 894 N.W.2d 266 (2017).

2 See id.

3 Id.

4 Id.

5 See White v. White, 296 Neb. 772, 896 N.W.2d 600 (2017).

6 Neb. Rev. Stat. § 42-365 (Reissue 2016).
- 351 -

Nebraska Supreme Court Advance Sheets

298 Nebraska Reports

OSANTOWSKI v. OSANTOWSKI

Cite as 298 Neb. 339

reasonableness as determined by the facts of each case.7 We 

have stated that under § 42-365, the equitable division of 

property is a three-step process. The first step is to classify 

the parties’ property as marital or nonmarital, setting aside the 

nonmarital property to the party who brought that property to 

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

marital liabilities of the parties. The third step is to calculate 

and divide the net marital estate between the parties in accordance with the principles contained in § 42-365.8

1. District Court Abused Its Discretion

in Failing to Set Off Certain

Nonmarital Assets

[7] Generally, all property accumulated and acquired by 

either spouse during a marriage is part of the marital estate.9

Exceptions include property that a spouse acquired before the 

marriage, or by gift or inheritance.10 Setting aside nonmarital 

property is simple if the spouse possesses the original asset, 

but can be problematic if the original asset no longer exists.11

Separate property becomes marital property by commingling 

if it is inextricably mixed with marital property or with the 

separate property of the other spouse.12 If the separate property 

remains segregated or is traceable into its product, commingling does not occur.13 The burden of proof rests with the party 

claiming that property is nonmarital.14

Brian contends that the court made several errors regarding its determination of premarital assets. The court awarded 

7 Bergmeier, supra note 1.

8 Id.

9 Id.

10 Sellers v. Sellers, 294 Neb. 346, 882 N.W.2d 705 (2016).

11 Id.

12 Id.

13 Id. 14 Bergmeier, supra note 1.
- 352 -

Nebraska Supreme Court Advance Sheets

298 Nebraska Reports

OSANTOWSKI v. OSANTOWSKI

Cite as 298 Neb. 339

Brian the aggregate balance of his four bank accounts on the 

date of the marriage, which was $182,471. However, it failed 

to include any credits for that amount. The court awarded 

Brian the 2010 and 2011 crops, but it did not determine a 

value for those crops. Brian claims that he used $80,000 from 

the premarital crops for a downpayment on real estate purchased during the marriage, but that the court did not give him 

credit for the $80,000.

Brian further contends that based on his testimony and 

that of Hershberger, he had met his burden to trace the value 

of his crops on the date of marriage. In the alternative, he 

asserts that we should treat crops as a single unit for tracing 

purposes, as the Nebraska Court of Appeals did with livestock in Shafer v. Shafer.

15 He asserts that both livestock and 

crops are biological commodities that are sustained through 

the reinvestment of the proceeds from their sales and that 

crops are not self-sustaining merely as a result of the proprietary nature of seeds which producers are contractually obligated to not replant. Accordingly, he asserts that we should 

deduct the crops he had on the date of marriage from the 

crops in storage on the date of separation and set it off from 

the marital estate. Additionally, he argues that the $80,000 

downpayment he made on the Roberts farm was traceable to 

premarital funds.

Dori contends that under our decision in Brozek v. Brozek,

16

the court correctly found that Brian was not entitled to a setoff 

of his premarital crops or the proceeds from those crops and 

the premarital funds in his accounts because they no longer 

existed or had been commingled with marital assets at the 

time of separation. She also argues that Brian is not credible and that therefore, Hershberger’s analysis should not be 

relied on.

15 Shafer v. Shafer, 16 Neb. App. 170, 741 N.W.2d 173 (2007), modified on 

denial of rehearing 16 Neb. App. 327, 743 N.W.2d 781 (2008).

16 Brozek v. Brozek, 292 Neb. 681, 874 N.W.2d 17 (2016).
- 353 -

Nebraska Supreme Court Advance Sheets

298 Nebraska Reports

OSANTOWSKI v. OSANTOWSKI

Cite as 298 Neb. 339

(a) Valuing Brian’s Premarital 

Stored and Growing Crops

We begin by noting that the court awarded Brian the 2011 

stored and growing crops as premarital assets, but did not 

assign a value to those crops.

In exhibit 37, Hershberger’s detailed analysis showed the 

number of bushels of crops Brian possessed on the date of 

marriage. While Dori vigorously contested Brian’s credibility and Hershberger’s reliability, she presented no alternative estimations. Further, Hershberger’s estimation of Brian’s 

stored crops and growing crops in 2011 was supported by 

the crop insurance reports, tax returns, balance sheets, and 

sales receipts in the record. Exhibit 37 stated the value of 

Brian’s stored and growing crops on the date of marriage was 

$1,021,503.07.

[8] Appeals in domestic relations matters are heard de novo 

on the record, and thus, an appellate court is empowered to 

enter the order which should have been made as reflected by 

the record.17 Because the record shows the appropriate nonmarital value of these assets, we assign $1,021,503.07 as the 

value of Brian’s premarital stored and growing crops.

(b) Crops Are Not Similar to 

Livestock for Tracing

In Sellers v. Sellers,

18 we adopted the Court of Appeals’ 

reasoning it posited in Shafer that a cattle herd owned at the 

time of the marriage could, based on the totality of the circumstances, be treated as a single asset for tracing purposes and set 

off from the marital estate as separate property if such a result 

was equitable.

There, the husband had been engaged in the cattle business 

throughout the marriage and continually reinvested the proceeds from the sale of cattle into the acquisition of new cattle. 

We recognized that

17 Schuman v. Schuman, 265 Neb. 459, 658 N.W.2d 30 (2003).

18 Sellers, supra note 10.
- 354 -

Nebraska Supreme Court Advance Sheets

298 Nebraska Reports

OSANTOWSKI v. OSANTOWSKI

Cite as 298 Neb. 339

“one cannot draw a straight line from a cow owned [at 

the time of the marriage] to a cow owned [at the time of 

divorce,] which is the prototypical ‘tracing’ of a premarital asset so as to set it aside to the party who owned it at 

the time of the marriage.”19

However, we reasoned that treating a cattle herd as a single asset “‘acknowledged the realities of what happens over 

time in a cattle operation’” rather than “‘exalt[ing] form over 

substance and ignor[ing] the equitable nature of a dissolution action.’”20

In Brozek, however, we declined to extend this exception 

to the tracing requirement to premarital machinery because 

unlike a herd of cattle, which is self-sustaining through reproduction, equipment depreciates in value as it deteriorates and 

becomes outdated.21

We agree with the trial court’s reasoning in this case: A 

herd of cattle is more similar to real property than to personal 

property. As we stated in Brozek, a herd of cattle is generally 

self-sustaining, through reproduction and reinvestment, and is 

not subject to depreciation, because it consistently maintains 

its number- and income-producing capabilities. Crops, on the 

other hand, are more similar to milk products produced by 

a herd of dairy cattle. Both are short-term assets that are the 

product of investing input, maintenance, and equipment costs. 

They are liquidated on a short-term basis and continuously 

rolled into production. While a crop cycle is longer and crops 

may be stored for several years, crops, like milk products, are 

still end products that account for the income of the individuals 

raising them.

[9] Brian’s argument that crops would be self-sustaining 

absent contractual requirements to not replant is unavailing. 

Even if a crop could be used as a source of seed for replanting, 

19 Id. at 354, 882 N.W.2d at 711, quoting Shafer, supra note 15.

20 Id. at 355, 882 N.W.2d at 712, quoting Shafer, supra note 15.

21 Brozek, supra note 16.
- 355 -

Nebraska Supreme Court Advance Sheets

298 Nebraska Reports

OSANTOWSKI v. OSANTOWSKI

Cite as 298 Neb. 339

it would result only in a decrease in the input cost of the production of the short-term asset that is produced through the 

continued cycle of cultivation and liquidation. Accordingly, we 

hold that agricultural crops are categorically different in nature 

from a herd of cattle and, therefore, are not entitled to the same 

treatment for tracing purposes.

(c) Brian Is Entitled to Setoff of 

Certain Nonmarital Assets

In Brozek, we also considered whether the husband was 

entitled to a setoff for the balance of his bank accounts and 

the value of crops he possessed on the date of the marriage. 

In that case, the parties had been married nearly 20 years 

and the stored crops at the time of their separation, valued at 

$1.2 million, were the most substantial asset of the $2.5 million net marital estate. At trial, the husband estimated, through 

“an armful of exhibits,” that the premarital balance of his 

accounts was $79,000.22 Additionally, he was not able to show 

the actual number of crop bushels he harvested the year of the 

marriage, but, relying on the acres he farmed and the average 

yield of the area, he estimated the crop’s value at $190,000. 

He claimed that proceeds of the premarital crop were reflected 

in the current crop, because he continually rolled his proceeds 

into the subsequent year’s expenses.

We held that the husband was not entitled to a setoff from 

either source of premarital assets, because after 20 years, he 

could “not identify the different permutations that his premarital property underwent during the marriage.”23 We reasoned 

that his reinvestment was “mixed with the proceeds of marital 

harvests and subject to the vicissitudes of the farming economy 

for nearly 20 years” and that he presented no evidence of 

the unknown number of deposits and withdrawals from his 

accounts during the marriage.24

22 Id. at 698, 874 N.W.2d at 31.

23 Id. at 699, 874 N.W.2d at 31.

24 Id. at 699, 874 N.W.2d at 32.
- 356 -

Nebraska Supreme Court Advance Sheets

298 Nebraska Reports

OSANTOWSKI v. OSANTOWSKI

Cite as 298 Neb. 339

In Kalkowski v. Kalkowski,

25 “we decline[d] to adopt any 

bright-line rule as to whether or not crops which will eventually generate income may be treated as divisible marital property in a dissolution proceeding.” Our analysis considered at 

the forefront our long-standing principle that the ultimate test 

in determining the appropriateness of the division of property 

is fairness and reasonableness as determined by the facts of 

each case.26

There, the parties were married for over 10 years and 

the wife was the primary caregiver to the four marital children while the husband farmed. The husband argued that his 

stored and growing crops were inventory, not a traditional 

asset, because they represented income he had already earned 

but not realized and income that he had not yet earned. 

Nevertheless, he included the crops with an assigned value as 

an asset in the joint property statement and at trial, requested 

that they be awarded to him. Therefore, we held that the court 

did not abuse its discretion in including the crops in the marital estate.

[10] Income earned from one or both spouses’ employment 

during a marriage is a marital asset.27 However, as we recognized in Kalkowski, crops are a product of a farming operation 

that are not income but generate income upon their liquidation. 

Under this reasoning, crops produced before the marriage and 

sold during the marriage would generally be considered marital 

income, but crops produced during the marriage but sold after 

would not. Accordingly, we allow courts flexibility in their 

treatment of stored and growing agricultural crops to account 

for the equities of the situation.

In this case, Brian entered the marriage with a large amount 

of income from his liquidated crops and unrealized income in 

the form of growing and stored crops. The court determined 

25 Kalkowski v. Kalkowski, 258 Neb. 1035, 1042, 607 N.W.2d 517, 524 

(2000).

26 Id.

27 Davidson v. Davidson, 254 Neb. 656, 578 N.W.2d 848 (1998).
- 357 -

Nebraska Supreme Court Advance Sheets

298 Nebraska Reports

OSANTOWSKI v. OSANTOWSKI

Cite as 298 Neb. 339

that this income and unrealized income should not be considered a marital asset because it was fully earned prior to the 

marriage. On the other hand, the court chose to include the 

stored crops and proceeds from the sale of crops produced during the marriage in the marital estate but not the crops growing 

at the time of separation, because the cultivation and risk for 

these crops remained predominantly with Brian. This decision 

by the court fairly accounted for the realities of this situation; 

Brian should not have been punished for holding crops produced and fully grown before the marriage.

The court, however, set off no value from its award of these 

premarital assets to Brian because it found that the income 

had been commingled with marital assets. We recognize the 

law concerning tracing, but we also recognize the overarching 

principle in the division of marital property is equity, ultimately guided by fairness and reasonableness.

We reject Brian’s proposition that providing evidence of 

the value of growing and stored crops on the date of marriage 

is sufficient for purposes of tracing; instead, it would simply 

be a necessary prerequisite for the analysis. Nevertheless, we 

hold that applying the rigid requirements of tracing in this 

case would unfairly deprive Brian of his premarital efforts 

and result in his being double charged in the division of the 

marital estate by depriving him of his premarital assets and 

then awarding him the real or personal property in which they 

were invested.

Hershberger testified that had grain prices not been rising to 

historic levels, the standard practice would have been for Brian 

to liquidate his stored crops before the next harvest, which 

began around the time of the marriage. Further, Brian would 

likely not have held his 2011 crops through the 2012 harvest 

when they were no longer traceable.

In Brozek, the court included in the marital estate the crops 

in storage and the balance of the husband’s bank accounts, 

which held the income from crop sales, on the date of the 

separation. It also included in the marital estate the husband’s premarital crops and proceeds therefrom in his bank 
- 358 -

Nebraska Supreme Court Advance Sheets

298 Nebraska Reports

OSANTOWSKI v. OSANTOWSKI

Cite as 298 Neb. 339

accounts. However, this case is distinguishable for a number 

of reasons.

First, in Brozek, the husband could not definitively identify 

the values of his premarital assets. Just as one could not trace 

an unknown value of assets, it would be unreasonable to set off 

a value of assets that is not proved. As mentioned above, Brian 

clearly established that the value of his stored and growing 

crops was $1,021,503.07. Further, while Brian did not produce 

bank statements proving the premarital balance of his accounts, 

Dori did not contest the values he provided on the second joint 

property statement. Accordingly, the balance of the accounts, 

as assigned by the court, was $182,471.

Second, the equities in Brozek were vastly different than 

in this case. In Brozek, the estimated value of the premarital 

assets was less than 10 percent of the net marital estate. Here, 

the value of Brian’s premarital assets was nearly 87 percent of 

what the court stated was the net marital estate.

Third, the parties in Brozek had been married nearly 20 

years. Brian and Dori’s marriage, on the other hand, lasted 

only 31 months, spanning only 2 full crop cycles. Through 

the course of a long-term marriage, proceeds reinvested in 

crops are subject to the vicissitudes of the market, equipment 

purchased with such proceeds deteriorates and is replaced 

with equipment purchased through solely marital funds, and 

the equity of commingling funds becomes less severe. In light 

of the short-term marriage here, it would be inequitable to 

allow Dori to benefit from an increase to the marital estate 

of over $1.2 million in assets because of Brian’s inability to 

trace them.

Accordingly, based on the equities of the situation in this 

case, the court’s failure to set off the value of Brian’s premarital bank accounts and crops placed Brian at a vast disadvantage 

in the division of marital property. Therefore, fairness and 

reasonableness require a determination that the court abused 

its discretion in not setting off $1,203,974.07 from the marital estate.
- 359 -

Nebraska Supreme Court Advance Sheets

298 Nebraska Reports

OSANTOWSKI v. OSANTOWSKI

Cite as 298 Neb. 339

2. Valuation and Distribution

of Marital Assets

(a) Trial Court Abused Its Discretion 

by Double Counting Assets

Brian argues that the court double counted assets by awarding him check No. 1718, for $78,500, and the 2011 John Deere 

tractor model 9630T without deducting the downpayment on 

the tractor as evidenced by check No. 1718.

In exhibit 20, Dori listed the checks and their values that 

she argued were prepayments for farming expenses associated with the 2014 crop that Brian paid with marital funds 

before the separation. She did not claim any interest in the 

2014 crops but argued that the prepayments with marital assets 

should be considered marital property. Included in the exhibit 

20 list was check No. 1718 for $78,500, which was dated 

February 3, 2014. At trial, however, both parties testified that 

check No. 1718 was used as a downpayment for the 2011 John 

Deere tractor.

In its decree, the court awarded Brian all of the prepaid farm 

expenses listed in exhibit 20 as marital assets, including check 

No. 1718 with the value of $78,500. The court also awarded 

Brian the 2011 John Deere tractor model 9630T, at a value of 

$140,000, which represented its fair market value of $205,000 

minus the premarital value of a Cat Challenger tractor that was 

sold for $65,000 and used toward its purchase.

The court’s failure to deduct the $78,500 prepayment on 

the 2011 John Deere tractor model 9630T from the tractor’s 

value resulted in an increase to Brian’s net marital estate of 

$78,500. Accordingly, the court abused its discretion in substantially increasing the value of the marital estate it awarded 

to Brian.

(b) Court Abused Its Discretion 

by Valuing Crops in Storage 

as of March 20, 2014

Brian contends that the court erred in accepting Dori’s value 

of the stored crops that relied on his March 20, 2014, balance 
- 360 -

Nebraska Supreme Court Advance Sheets

298 Nebraska Reports

OSANTOWSKI v. OSANTOWSKI

Cite as 298 Neb. 339

sheet. He argues this valuation is inequitable, because it represents the quantity of stored crops and the price per bushel on 

March 20, 2014, rather than the actual date of separation over 2 

months later. Accordingly, he argues that the quantity and value 

of crops in storage should be valued at $444,099.68, because 

the evidence shows that he had only 95,300.36 bushels of corn 

on May 31, 2014, and the price per bushel of corn on that day 

was $4.66.

Dori contends that the quantity and valuation of the parties’ 

stored crops is a disputed factual matter and that we should 

defer to the trial court’s decision, because it had the opportunity to evaluate the credibility of the witnesses. She contends 

that unlike Brian and his expert, Hershberger, she has consistently maintained her opinion that the stored crop’s marital 

value was $573,750, which the court accepted.

[11] As a general principle, the date upon which a marital estate is valued should be rationally related to the property composing the marital estate. The date of valuation is 

reviewed for an abuse of the trial court’s discretion.28

As discussed in the background section, the parties spent a 

considerable period of time at trial contesting the quantity and 

value of corn that the parties owned at the time of separation. 

Hershberger testified that his determination in exhibit 37 of 

the quantity of corn in storage was based on Brian’s or Brian’s 

mother’s determination as to what year of crops were reflected 

in the sales receipts in the fall of 2014. He also testified that 

if the information he was provided was inaccurate, then so 

was exhibit 37. Exhibit 37 is the final valuation that Brian 

relied upon and what he argues we should find the value as 

on appeal.

Exhibit 37 shows that the bushels of corn the parties owned 

on March 20, 2014, was 142,040.44. Hershberger’s report 

showed the bushels of corn the parties owned on May 31, 

2014, was 95,300.36. The record also contains five sales 

28 Stanosheck v. Jeanette, 294 Neb. 138, 881 N.W.2d 599 (2016).
- 361 -

Nebraska Supreme Court Advance Sheets

298 Nebraska Reports

OSANTOWSKI v. OSANTOWSKI

Cite as 298 Neb. 339

receipts which show the quantity of stored crops decreased 

between March 20 and May 31, 2014, by 46,740.08 bushels as 

a result of Brian’s selling the grain. In addition, the record contains deposit slips showing that the proceeds from each of the 

five sales were deposited into Brian’s farm checking account 

between April 8 and May 12, 2014. The value of Brian’s farm 

checking account was determined as of May 31, 2014.

The court’s reliance on the corn values as of March 20, 

2014, and its reliance on the bank account balance as of 

May 31, 2014, creates a double counting of the corn’s value. 

Accordingly, the court abused its discretion in disregarding this 

evidence and relying on the March 20, 2014, balance sheet 

alone, because it resulted in a valuation that was not rationally 

related to the property composing the marital estate. Therefore, 

the value of crops in storage on the date of separation awarded 

to Brian is $444,099.68.

(c) Errors Argued But Not Assigned

Dori contends that on the date of separation, Brian had 

45,024.032 bushels of corn stored at Husker Coop, with a 

value of $209,811.93, which was not included in the court’s 

award. Her argument is based on an August 23, 2013, settlement sheet from Husker Coop, which shows that Brian had 

70,024.02 bushels of corn stored there and that he sold 25,000 

bushels of the stored corn. She argues that there is no record of 

this remaining corn being sold and that it is not accounted for 

on Brian’s March 20, 2014, balance sheet.

Brian argues that the court incorrectly added the value of 

the bank accounts it awarded to Dori as marital property. 

If Brian were correct, the court’s mistake would constitute 

plain error.29 His argument, however, is more properly characterized as asserting that the court incorrectly valued the 

marital assets in Dori’s First National Bank savings account 

29 See Clason v. Clason, No. A-15-626, 2016 WL 6210946 (Neb. App. Oct. 

25, 2016) (selected for posting to court website).
- 362 -

Nebraska Supreme Court Advance Sheets

298 Nebraska Reports

OSANTOWSKI v. OSANTOWSKI

Cite as 298 Neb. 339

No. xxx632 by relying on the value listed in the first joint 

property statement, $500, rather than the second joint property statement, $4,627.

[12] Absent plain error, errors argued but not assigned will 

not be considered on appeal.30 The court’s findings and its 

award concerning both the crops in storage on the date of separation and account No. xxx632 were supported by evidence 

presented to the court. Therefore, we do not consider either 

parties’ argument.

3. Plain Error Committed by Court

[13,14] Plain error exists where there is an error, plainly 

evident from the record but not complained of at trial, which 

prejudicially affects a substantial right of a litigant and is of 

such a nature that to leave it uncorrected would cause a miscarriage of justice or result in damage to the integrity, reputation, and fairness of the judicial process.31 Plain error may be 

asserted for the first time on appeal or be noted by an appellate 

court on its own motion.32

(a) Trial Court Erred in Valuing 

Marital Debt on Roberts Farm

In its decree, the court explained that Brian had listed 

secured debt on the real estate, including the Bosshart/

Gruenwald farm, the Dodendorf farm, and the Roberts farm, 

in the amount of $1,063,797. As a result, the court calculated 

the value of the secured marital debt on the Roberts farm by 

deducting the value of Brian’s premarital debt on the Bosshart/

Gruenwald farm and the Dodendorf farm on the date of the 

marriage from the total stated amount. After making the deduction, it determined that the marital debt secured by real estate 

was $894,081.

30 Hike v. State, 297 Neb. 212, 899 N.W.2d 614 (2017).

31 State v. Robbins, 297 Neb. 503, 900 N.W.2d 745 (2017).

32 Id.
- 363 -

Nebraska Supreme Court Advance Sheets

298 Nebraska Reports

OSANTOWSKI v. OSANTOWSKI

Cite as 298 Neb. 339

However, in the January 2016 joint property statement, both 

parties listed the amount of the debt on the Roberts farm to be 

$871,297, which is the amount stated in the March 20, 2014, 

balance sheet. Accordingly, the court mistakenly valued the 

Roberts farm debt to be $22,784 more than it actually was.

The court’s valuation of the Roberts farm was not based on 

the evidence and resulted in Brian’s being awarded an additional $22,784 in marital debt. In doing so, the court committed 

plain error in this valuation.

Since we give Brian credit for his premarital crop inventory, 

his argument that he used $80,000 from the premarital crops 

for a downpayment on the Roberts farm is without merit.

(b) Court Failed to Set Off Brian’s 

Premarital Dodendorf Farm 

Debt From Marital Estate

The court awarded Brian the debt owed on the Dodendorf 

farm as a marital debt but did not assign a value. The parties agreed in both joint property statements that the value of 

this debt at the time of separation was $17,451. Under Dori’s 

valuation of the debt, however, she stated on both joint property statements that the debt was premarital, and Brian did 

the same on the second joint property statement. This debt 

is listed in Brian’s February 18, 2010, balance sheet, and the 

court awarded the Dodendorf farm to Brian as a premarital asset.

In awarding Brian the debt on the Dodendorf farm as a 

marital debt, it committed plain error in failing to set off the 

debt as premarital in the amount of $17,451.

(c) Trial Court Failed to Value and Award 

Certain Marital Assets and Debts

As mentioned above, under § 42-365, a court has a duty to 

value and divide all of the assets and debts constituting the 

marital estate. In this case, the court’s failure to do so in the 

following instances significantly affected the valuation and 

equitable distribution of the marital estate.
- 364 -

Nebraska Supreme Court Advance Sheets

298 Nebraska Reports

OSANTOWSKI v. OSANTOWSKI

Cite as 298 Neb. 339

As mentioned above, because appeals in domestic relations 

matters are heard de novo on the record, an appellate court is 

empowered to enter the order which should have been made 

as reflected by the record.33 In each of the following instances, 

the court’s findings and the record provide a sufficient basis to 

value and award the assets and debts.

(i) Marital Property That Should Have 

Been Awarded to Brian as Assets

Both joint property statements and both of the personal 

property and equipment appraisals from Grubaugh Auction 

Services contain the following items of property: “2012 Brandt 

Grain Deck,” “2010 Polaris 550 ATV,” a one-third interest in two pivots (Roberts farm), a one-third interest in the 

Hondorfer farm well pump, a 48-foot grain bin, and a 24-foot 

enclosed car trailer. Brian valued these items at a combined 

total of $25,900, and Dori valued them at a combined total 

of $78,010. At trial, Brian testified that his valuations were 

based on the appraisals from Grubaugh Auction Services, and 

Dori testified that her valuations were based on the depreciation schedules from Brian’s tax returns or the May 20, 2014, 

balance sheet.

The court awarded Brian “[a]ny property not specifically 

listed, but in [his] possession.” Further, the court relied on the 

Grubaugh Auction Services appraisals over Brian’s depreciation schedule for valuing all of the items it valued. Dori did not 

assign error to the court’s reliance on those appraisals, so we 

will defer to the court’s judgment on that issue.

Accordingly, we award these remaining assets to Brian 

and find their value as follows: “2012 Brandt Grain Deck,” 

$10,500; “2010 Polaris 550 ATV,” $3,500; a one-third interest in two pivots (Roberts farm), $2,000; a one-third interest 

in the Hondorfer farm well pump, $4,000; a 48-foot grain bin, 

$1,500; and a 24-foot enclosed car trailer, $4,400.

33 Schuman, supra note 17.
- 365 -

Nebraska Supreme Court Advance Sheets

298 Nebraska Reports

OSANTOWSKI v. OSANTOWSKI

Cite as 298 Neb. 339

(ii) Value of Marital Debts 

Awarded to Brian

When listing the unsecured marital debts that were awarded 

to Brian, the court provided no corresponding values. It summarized the total marital debts awarded to Brian as $1,145,294. 

We can find no combination of debts in the record that total 

this amount.

The value of the following debts awarded to Brian were 

undisputed: Roberts Farm, $871,297; “Ag Direct” loan for 

the Cat Challenger tractor, $30,548; “John Deere Financial,” 

$183,000; and “Chase Auto Finance,” $30,785. As a result, 

we determine the amount of debt awarded to Brian to be 

$1,115,630.

However, other debts were inconsistently listed on the joint 

property statements or the evidence varied as to the amounts 

owed, including the Great Western Bank operating line of 

credit, a Sears credit card debt, and a Cabela’s credit card debt.

At trial, the president of Great Western Bank and Brian’s 

primary lender testified that the March 20, 2014, balance 

sheet accurately stated that Brian owed $1,486 on the operating line of credit on that date but that it had no balance owed 

on the date of separation. Dori did not challenge this witness’ credibility, and the court made no finding that he was 

not credible.

In regard to the Sears and Cabela’s credit cards, Dori introduced evidence to show that both debts were paid in full on 

the date of separation.

Brian also claimed for the first time on the second joint 

property statement that he had a marital debt from unpaid 

property taxes. Under the title of the debt, Brian listed the four 

properties, presumably, from which the taxes were owed. One 

of these was the Roberts farm, but the others were premarital 

properties. Real estate taxes on nonmarital property are nonmarital debts.34 Brian did not submit any supporting evidence 

34 2 Brett R. Turner, Equitable Distribution of Property § 6:97 (3d ed. 2005 

& Supp. 2016-17).
- 366 -

Nebraska Supreme Court Advance Sheets

298 Nebraska Reports

OSANTOWSKI v. OSANTOWSKI

Cite as 298 Neb. 339

of this claim or of the value attributable to the Roberts farm. 

The court did not award or value this debt.

Based on the record, we conclude that there was no debt 

owed on the Sears and Cabela’s credit cards or the Great 

Western Bank operating line of credit on the date of separation. We also conclude that Brian failed to submit sufficient 

evidence to show how much, if any, unpaid taxes he owed on 

the Roberts farm; accordingly, the court did not err in failing 

to assign it.

(iii) Brian Should Have Been Awarded 

Value of Reduction in His 

Premarital Debts as Asset

[15] “[A] non-owning spouse is entitled to some benefit when marital funds have been expended to improve or 

reduce the debt on the other spouse’s nonmarital property.”35

As discussed above, Brian had $918,775.69 in premarital 

debts between loans on his nonmarital property and expenses 

incurred in the production of his 2011 crop. According to 

Brian’s premarital debts listed on the March 20, 2014, balance sheet, only $209,951 of these debts existed on the date of 

separation. As a result, Brian’s premarital debts were reduced, 

during the marriage, by approximately $708,824.69. In light 

of the fact that we set off the premarital value of Brian’s bank 

accounts and stored and growing crop inventory, it would be 

inequitable to not also include in the marital estate this benefit 

conferred to Brian. Accordingly, we award Brian the value of 

his premarital debts reduced with marital funds.

4. Division and Valuation of

Marital Property

Brian argues that the court committed mathematical errors 

in totaling the parties’ assets and debts, which created errors 

in the equalization payment it ordered. After reviewing the 

35 Jones v. Jones, 2014 Ark. 96, at 5, 432 S.W.3d 36, 40 (Feb. 27, 2014). 

Accord 24 Am. Jur. 2d Divorce and Separation § 486 (2008). See, also, 

Gangwish v. Gangwish, 267 Neb. 901, 678 N.W.2d 503 (2004).
- 367 -

Nebraska Supreme Court Advance Sheets

298 Nebraska Reports

OSANTOWSKI v. OSANTOWSKI

Cite as 298 Neb. 339

order, we agree that the court committed an abuse of discretion by incorrectly totaling the values of its award and relying 

on those values to calculate the marital estate and equalization payment.

Having resolved Brian’s assignments of error and noticing 

plain error on the division of the marital estate, we provide the 

following division of debts and assets of the parties:

Item Brian Dori

Bank Accounts $ 218,120.00 $ 5,272.00

Real Estate 981,333.00 0.00

Vehicles 59,500.00 17,500.00

Farm Equipment 280,701.00 0.00

Crop Inventory 444,099.68 0.00

Prepaid Farm Expenses 164,643.00 0.00

401K 0.00 1,739.00

Household Goods & Furnishings 5,200.00 0.00

Reduction in Premarital Debt 708,824.69 0.00

Debt (1,115,630.00) (3,216.00)

Premarital Crop Inventory (1,021,503.07) (0.00)

Premarital Bank Accounts (182,471.00) (0.00)

TOTAL $ 542,817.30 $21,295.00

Based on the balance sheet above, the total value of the 

marital estate is $564,112.30. The value of the marital estate 

awarded to Brian is $542,817.30, and the value awarded to 

Dori is $21,295. An equal distribution would require a payment 

from Brian to Dori in the amount of $260,761.15.

5. Division of Marital Estate

Brian contends that the court’s equal distribution of the 

marital estate is inequitable based on our principles for distributing the marital estate. Additionally, Brian argues that we 

should award Dori less than the standard 33 to 50 percent of 

the marital estate, under Davidson v. Davidson.

36 He argues 

this case is factually analogous to Davidson, except the wife 

in Davidson abandoned a promising career for the marriage, 

36 Davidson, supra note 27.
- 368 -

Nebraska Supreme Court Advance Sheets

298 Nebraska Reports

OSANTOWSKI v. OSANTOWSKI

Cite as 298 Neb. 339

while Dori did not forgo any opportunities. Further, he asserts 

that the division does not provide him a means to pay the 

award, because it will likely put him out of business.

Dori contends that the court’s distribution was warranted 

because both parties worked hard during the marriage and she 

changed her field of study and college for her doctoral program 

to benefit the marriage. She argues that the unique circumstances in Davidson are not applicable here, because Brian had 

been farming only a short time before the marriage and held no 

stock options or retention shares. Further, she asserts that there 

is no evidence to support Brian’s claim that he cannot make 

the equalization payment, because at the time of separation, he 

had little short-term debt and significant liquid assets and had 

prepaid many of his 2014 farm expenses.

[16-18] In dividing property and considering alimony upon 

a dissolution of marriage, a court should consider four factors: (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.37 In addition to the specific criteria listed in 

§ 42-365, in dividing property and considering alimony upon 

a dissolution of marriage, a court should consider the income 

and earning capacity of each party and the general equities of 

the situation.38 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.39

In Davidson, the marital estate was valued at $7,886,119, of 

which the husband’s employee stock options and stock retention shares alone accounted for $5,655,974.40 At the time of the 

37 Anderson v. Anderson, 290 Neb. 530, 861 N.W.2d 113 (2015).

38 Id.

39 See Lorenzen v. Lorenzen, 294 Neb. 204, 883 N.W.2d 292 (2016), citing 

Millatmal v. Millatmal, 272 Neb. 452, 723 N.W.2d 79 (2006).

40 Davidson, supra note 27.
- 369 -

Nebraska Supreme Court Advance Sheets

298 Nebraska Reports

OSANTOWSKI v. OSANTOWSKI

Cite as 298 Neb. 339

marriage, the husband was Union Pacific Railroad’s president 

and chairman. About 1 year into the marriage, he was named 

president of the Union Pacific Corporation, and about 2 years 

into the marriage, he was promoted to chief operating officer 

of that same corporation. We acknowledged that the bulk of the 

marital estate consisted of stock options and retention shares 

that were earned as a result of those promotions.

In considering the equitable division of the estate, we noted 

that the husband’s “33-year career in the railroad industry had 

reached its zenith at the time the parties were married” and 

that he had been receiving stock options and retention annually for the 10 years preceding the marriage.41 We also noted 

that the wife provided social support, tutored the husband’s 

college-age son, and interrupted a successful career for the 

marriage. On the other hand, the husband’s nonmarital children did not reside permanently with the parties and the wife 

was able to finish her Ph.D. during the marriage. Further, 

we reasoned:

Considering that no children were born to the parties, 

that the parties separated after 2 years, that the marriage 

lasted 38 months, that [the husband’s] career was well 

established, and that [the wife] is highly educated and 

capable of finding employment, we conclude that the trial 

court’s adherence to the general guidelines was an abuse 

of discretion.42

Accordingly, based on the circumstances of the case, which 

we stated were “unique,” we reversed the court’s order granting the wife 33 percent of the marital estate and held that the 

wife was entitled to only $950,000, or about 12 percent of the 

marital estate.43

In the instant case, we reject Brian’s argument that the 

circumstances warrant deviating from our general rule for 

41 Id. at 670, 578 N.W.2d at 859.

42 Id. at 671, 578 N.W.2d at 859.

43 Id. at 672, 578 N.W.2d at 860.
- 370 -

Nebraska Supreme Court Advance Sheets

298 Nebraska Reports

OSANTOWSKI v. OSANTOWSKI

Cite as 298 Neb. 339

dividing the marital estate. While some of the factors for 

dividing the marital estate in this case are similar to those in 

Davidson, the unique circumstances in Davidson that warranted the deviation is not.

The facts in Davidson were unique because the husband’s 

career reached its zenith at the same time that the parties married. As a result of the husband’s career-long efforts, he was 

twice promoted during the short-term marriage, which resulted 

in his receiving employee stock options and stock retention 

shares far in excess of his regular salary. While we accounted 

for the portion of the option and shares that were nonmarital, the remaining value had still resulted substantially from 

his premarital efforts and the husband had no ability to prevent these assets from becoming marital as they were income 

from employment.

Because we decided that Brian was entitled to a setoff of 

his premarital assets above, there is nothing in this case that 

approaches the inequity we found in Davidson.

Admittedly, the following factors in this case are similar 

to those in Davidson: the marriage was short term, no children were born of the marriage, Brian contributed a disproportionate amount of finances to the estate, Dori received a 

professional doctoral degree during the marriage, and both 

parties are well situated to engage in gainful employment. 

Also, unlike in Davidson, Dori did not forgo any employment 

opportunities, and, while she changed her educational plans, 

Dori received a comparable education to what she would have 

in South Dakota.

While these factors may support awarding Dori only 33 percent of the marital estate, as the lower court in Davidson had, 

the circumstances of the parties and their contributions to the 

marriage support a more equal distribution.

In Davidson, the wife made little contribution to the marriage, financially or through other efforts, which we described 

as occasional tutoring of the husband’s son and volunteer work.

Here, Dori worked full time during her breaks from school 

and after graduation, and she received financial support from 
- 371 -

Nebraska Supreme Court Advance Sheets

298 Nebraska Reports

OSANTOWSKI v. OSANTOWSKI

Cite as 298 Neb. 339

her scholarship for living expenses. While she earned less than 

Brian, she bore most of the costs of the apartment in Lincoln, 

her living expenses in Lincoln, and her travel expenses. Brian, 

on the other hand, lived in a house provided by his parents 

and provided no evidence of expenses outside of his farming 

operation. Brian provided little financial support to Dori during the marriage, which prevented her from accruing savings 

or other assets.

Further, while her education was comparable to what she 

would have received, she changed her field of study to enable 

her to contribute to the farming operation. While her contributions to the farming operation during the marriage were minimal, what she did contribute was based primarily on knowledge she obtained from her studies, which showed the utility of 

the educational decisions she made.

Additionally, Dori bore the majority of the burden of travel 

during the marriage to allow the parties to see each other. 

During the portion of the marriage when Dori resided in 

Lincoln, she still traveled to the Polk County residence 3 or 

4 days a week. During the other portion of the marriage when 

Dori resided in Polk County, she commuted to Lincoln for 

school and her full-time summer employment. Brian traveled 

to Lincoln frequently during the first winter of the marriage 

but carried little of the burden thereafter. Further, Dori was 

solely responsible for maintaining her Lincoln residence and 

also put in considerable efforts at the Polk County residence. 

Brian testified that she would provide extra assistance at the 

Polk County residence during his busy season, which allowed 

him to focus on his farming operation.

While reasonable minds could differ as to what the appropriate distribution of the marital estate within the general range 

should have been in this case, an abuse of discretion is a highly 

deferential standard of review. Our opinion, based on an independent review of the record, supplants the court’s decision 

only in the instance where its decision was untenable. Brian 

contributed more financially to the marital estate, but Dori also 

earned income throughout the marriage and was responsible 
- 372 -

Nebraska Supreme Court Advance Sheets

298 Nebraska Reports

OSANTOWSKI v. OSANTOWSKI

Cite as 298 Neb. 339

for much of the expenses. She also bore a disproportionate 

amount of homemaking duties and the burden to ensure she 

and Brian could spend time together regularly during the marriage. Finally, as the trial court reasoned, Brian had the opportunity to keep his family gifts and nonmarital property contributions, which contributed heavily to his earnings, separate 

from the estate, but did not. Accordingly, we cannot say that 

the decision by the district court was unreasonable or unfair.

Brian presented no evidence to support his claim that the 

equalization payment would threaten the continuation of his 

business. He was awarded substantial cash assets, prepaid 

farming expenses for 2014, and the crops produced that year, 

the expenses of which would likely have been paid in the prior 

year when they were produced. Accordingly, we find no merit 

to his claim that requiring him to make an equalization payment was unfair.

V. CONCLUSION

We affirm the court’s decision that stored and growing 

crops should not be treated the same as cattle herds for tracing purposes, but we hold that the court committed an abuse 

of discretion and plain error in its distribution of nonmarital 

and marital assets and debts. Notably, based on the circumstances of this case, we find that the court erred in not setting 

off the value of Brian’s stored and growing crops on the date 

of marriage and not assigning a credit to the marital estate for 

the substantial amount of Brian’s premarital debts that were 

reduced during the marriage.

Further, we hold that the court did not abuse its discretion 

in awarding Dori one-half of the marital estate. In light of our 

holdings above, we modify the court’s order consistent with 

this opinion and order Brian to make an equalization payment 

of $260,761.15.

Affirmed as modified.

Wright, J., not participating in the decision.