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Timothy J. Novotny, appellant and 

cross-appellee, v. Nicole M. Novotny, 

appellee and cross-appellant.

___ N.W.2d ___

Filed August 15, 2023. No. A-22-226.

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. 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.

3. Divorce: Property Division. 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 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.

4. 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.

5. Divorce: Property Division. 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.

Nebraska Supreme Court Online Library

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

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6. ____: ____. 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.

7. ____: ____. Setting aside nonmarital property is simple if the spouse 

possesses the original asset, but can be problematic if the original asset 

no longer exists.

8. Divorce: Property Division: Proof. Separate property becomes marital 

property by commingling if it is inextricably mixed with marital property or with the separate property of the other spouse. But if the separate 

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

that property is nonmarital.

9. Divorce: Property Division: Proof: Testimony. A nonmarital interest 

in property may be established by credible testimony.

10. Trial: Witnesses: Evidence. Triers of fact have the right to test the 

credibility of witnesses by their self-interest and to weigh it against the 

evidence, or the lack thereof.

11. Appeal and Error. Error without prejudice is not a ground for reversal.

12. ____. A lower court cannot commit error in resolving an issue never 

presented and submitted to it for disposition.

13. ____. A party cannot complain of error which the party has invited the 

court to commit.

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

treatment of stored and growing agricultural crops to account for the 

equities of the situation.

15. Appeal and Error. To be considered by an appellate court, an alleged 

error must be both specifically assigned and specifically argued in the 

brief of the party asserting the error.

16. Attorney Fees. Customarily, attorney fees are awarded only to prevailing parties or assessed against those who file frivolous suits.

Appeal from the District Court for Saunders County: 

Christina M. Marroquin, Judge. Affirmed.

Shane J. Placek, of Sidner Law, for appellant.

Alex M. Lierz, of Rembolt Ludtke, L.L.P., for appellee.

Moore and Welch, Judges.
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Bishop, Judge.

INTRODUCTION

The Saunders County District Court dissolved the marriage 

of Timothy J. Novotny and Nicole M. Novotny and divided 

the parties’ property and debts. On appeal, Timothy challenges 

the district court’s decision (1) determining that some or all of 

certain assets were not premarital, (2) imputing the gross value 

of the 2020 grain sold after the date of the parties’ separation, 

and (3) regarding the 2021 crop yield from the parties’ marital 

agricultural property. On cross-appeal, Nicole challenges the 

district court’s division of the marital estate and its decision 

not to order Timothy to reimburse her for health insurance 

premiums, attorney fees, and expert fees. Although we find 

merit to some of Timothy’s arguments related to premarital and 

nonmarital property, we nevertheless affirm the court’s decree 

of dissolution for the reasons discussed below.

BACKGROUND

Timothy and Nicole married in June 2016. They have one 

child, a daughter, born in 2019.

On March 11, 2021, Timothy filed a complaint for dissolution of marriage and sought joint custody of the parties’ daughter, a determination of child support, and an equitable division 

of the parties’ property and debts. In her answer and counterclaim, Nicole sought the same, but she also sought an award 

of attorney fees and costs. Pursuant to a stipulated temporary 

order entered on May 17, the parties were awarded joint custody of their daughter with equal parenting time and Timothy 

was ordered to pay $100 per month in child support. Nicole 

was ordered to continue to provide health insurance coverage 

for Timothy during the pendency of the divorce proceedings 

so long as it remained available to her through her place of 

employment at a reasonable cost.

Trial was held on December 2 and 3, 2021. Timothy, then 

32 years old, and Nicole, then 28 years old, both testified. 

Numerous exhibits were also received into evidence. The 
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parties had already entered into a “50/50” joint legal and 

physical custody parenting plan regarding their daughter; therefore, custody and parenting time were not contested issues at 

trial. The parties’ date of separation was contested, as Timothy 

testified that the parties separated on March 1, 2021, whereas 

Nicole testified that the parties separated on February 20.

Timothy testified that he has been a farmer since 2009. The 

parties married on June 18, 2016, and in November of that 

year, they purchased 54 acres of land, 47.5 of which were 

“farmable,” for approximately $327,000; Timothy described it 

as “a dryland farm” and said “it yields comparable to the other 

dry land in the area.” Timothy valued that property at $329,000 

as of March 1, 2021; he said he looked at the Saunders County 

assessor’s 2020 value of $237,040, “and then their value is 72 

to 73 percent.” Nicole testified that she had the land appraised 

in November 2021 and that it was valued at $345,000. Timothy 

wanted the marital land awarded to him because it related to 

his agricultural production activities. The parties presented 

testimony and exhibits about various other assets and debts 

at trial. We will discuss the evidence related to the contested 

issues as necessary in our analysis.

Pursuant to the district court’s decree entered on March 3, 

2022, and its order nunc pro tunc entered on March 10, the 

parties’ marriage was dissolved, they were awarded joint custody of their daughter with equal parenting time, and Timothy 

was ordered to pay $44 per month in child support. As relevant to this appeal, the court used March 1, 2021, as the valuation date for the marital estate and divided the parties’ property and debts accordingly. As to the disputed property, the 

court valued the parties’ 54 acres of jointly owned farmland 

at $345,000 and the land was awarded to Timothy along with 

the associated loan debt. The court found that Jones Bank savings account No. xxx9529 (#9529) should be considered marital property and not Timothy’s premarital funds. The court 

also found that the 2016 crops were marital property. The 

court determined that the total fair market value of the 2020 
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soybean crop stored with ADM was $41,107.15. It also determined that the 2021 grain associated with the jointly owned 

farmland was valued at $47,045 and should be included in 

the marital estate. Finally, the court determined that only 

$26,456 of the funds received from trading in Timothy’s 2015 

Chevrolet Silverado could be set off as a premarital asset. 

The court valued the marital estate at $515,000, attributing a 

net marital estate of $412,415 to Timothy and a net marital 

estate of $102,591 to Nicole. The court awarded 60 percent 

($309,000) of the marital estate to Timothy ($515,000 × .60) 

and 40 percent ($206,000) of the marital estate to Nicole 

($515,000 × .40). To achieve that 60-40 distribution, Nicole 

was awarded a property equalization payment of $103,409 

($103,409 + $102,590 = $206,000). The court ordered each 

party to pay his or her own attorney fees.

Timothy appeals, and Nicole cross-appeals.

ASSIGNMENTS OF ERROR

Timothy assigns, consolidated, reordered, and restated, that 

the district court erred in (1) failing to find that some or all of 

certain assets were premarital, including his Jones Bank savings account, the 2015 Chevrolet Silverado, and the 2016 net 

crop proceeds; (2) imputing the gross value of the 2020 grain 

generally sold after the date of separation without considering 

the tax consequences; and (3) imputing the yield from the parties’ marital agricultural property and disregarding the cost of 

inputs, taxes, and labor, as well as the risk in production of the 

2021 crop.

Nicole assigns on cross-appeal that the district court erred 

by failing to (1) equitably divide the net marital estate, (2) 

order Timothy to reimburse her for the cost of his health insurance premium, and (3) order Timothy to reimburse her for 

attorney fees and expert fees.

STANDARD OF REVIEW

[1,2] In a marital dissolution action, an appellate court 

reviews the case de novo on the record to determine whether 
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there has been an abuse of discretion by the trial judge. Eis v. 

Eis, 310 Neb. 243, 965 N.W.2d 19 (2021). This standard of 

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

fees. Id. A judicial abuse of discretion exists if the reasons or 

rulings of a trial judge are clearly untenable, unfairly depriving 

a litigant of a substantial right and denying just results in matters submitted for disposition. Id.

ANALYSIS

General Principles of Law

[3,4] In a dissolution of marriage proceeding, “‘[i]f the parties fail to agree upon a property settlement . . . the court shall 

order an equitable division of the marital estate.’” Dooling v. 

Dooling, 303 Neb. 494, 507, 930 N.W.2d 481, 495 (2019). 

Under Neb. Rev. Stat. § 42-365 (Reissue 2016), the equitable division of property is a three-step process. Dooling 

v. Dooling, supra. 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. Dooling v. Dooling, 

supra. 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. Id.

[5] Generally, all property accumulated and acquired by 

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

Dooling v. Dooling, supra. Exceptions include property that 

a spouse acquired before the marriage, or by gift or inherit

ance. Id.

[6-8] 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. 
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Marshall v. Marshall, 298 Neb. 1, 902 N.W.2d 223 (2017). 

Setting aside nonmarital property is simple if the spouse possesses the original asset, but can be problematic if the original 

asset no longer exists. Id. Separate property becomes marital 

property by commingling if it is inextricably mixed with marital property or with the separate property of the other spouse. 

Id. But if the separate property remains segregated or is traceable into its product, commingling does not occur. Id. The 

burden of proof rests with the party claiming that property is 

nonmarital. Id.

[9,10] A nonmarital interest in property may be established by credible testimony. Burgardt v. Burgardt, 304 Neb. 

356, 934 N.W.2d 488 (2019). A spouse’s own testimony can 

establish a “tracing link,” i.e., tracking an asset to a nonmarital source. Id. at 364, 934 N.W.2d at 495 (internal quotation 

marks omitted). See, also, Brozek v. Brozek, 292 Neb. 681, 

874 N.W.2d 17 (2016). Of course, triers of fact have the right 

to test the credibility of witnesses by their self-interest and to 

weigh it against the evidence, or the lack thereof. Burgardt 

v. Burgardt, supra. Evidence not directly contradicted is not 

necessarily binding on the triers of fact, and may be given no 

weight where it is inherently improbable, unreasonable, selfcontradictory, or inconsistent with facts or circumstances in 

evidence. Id.

Jones Bank Savings Account

Timothy testified that he brought $106,804 into the marriage that he wanted set aside as his premarital asset. At 

the time of the parties’ marriage in June 2016, that amount 

was already in Timothy’s savings account at Community 

State Bank, as evidenced in exhibit 48. On August 1, 2016, 

Timothy withdrew the balance of his Community State Bank 

savings account, now $104,342, and deposited the funds into 

Oak Creek Valley Bank. Timothy testified that Oak Creek 

Valley Bank was later bought by Jones Bank. He stated that 

Jones Bank savings account #9529 was his individual savings 
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account and that it contained his premarital funds. Timothy 

continued to keep that account in his name alone throughout 

the parties’ marriage. He used the account for “[p]aying bills,” 

and it was the cashflow account for his farm.

According to bank records, Jones Bank savings account 

#9529 had a balance of $181,098.78 as of March 1, 2021, the 

date of the parties’ separation. Between February 20 and March 

1, Timothy used funds from the savings account to pay off a 

$69,714.85 operating note, including interest. He testified that 

he usually pays off his operating note “after the first of the year 

when I get grain checks.”

After the parties separated, Timothy transferred some of 

the money from the Jones Bank savings account into Union 

Bank savings and checking accounts to keep his information 

private, because Nicole’s family members worked at Jones 

Bank. According to Timothy, the transferred money already 

appears on his proposed property settlement wherein Jones 

Bank savings account #9529 was valued at $181,099 as of 

March 1, 2021; he also included $106,804 from “Community 

State Bank” as a premarital asset on his proposed property statement.

On cross-examination, when asked if Jones Bank savings 

account #9529 always had at least $106,000 in it during the 

marriage, Timothy stated that he did not know. Bank records 

received into evidence reveal that the account did not always 

have $106,000 in it during the marriage, and at one point 

in December 2018, it dipped below $76,000, but it does not 

appear that the account ever dipped below $75,000. Timothy 

agreed that during the marriage, marital funds were deposited 

into the account, and that funds from that account were spent 

on marital expenses.

Nicole testified that, although it was not reflected in her 

proposed division of the parties’ assets and debts, she at one 

point in time believed that $75,000 would have been a fair 

award of premarital credit to Timothy for Jones Bank savings account #9529 because that was the lowest balance the 
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account ever reached. However, she no longer believed that it 

was fair to give Timothy a premarital credit, because marital 

funds were comingled in that account.

The district court found:

[Timothy] established the specific identified value of the 

premarital asset as $106,000 and was able to trace that 

amount to the Jones Bank account. However, once his 

separate property was in the Jones Bank account it is 

intermixed with marital property including earnings, tax 

refunds, and stimulus funds generated by the efforts of 

both parties. Although the account never dipped below 

$75,000, it also gained well over $106,000. The gains, 

given the evidence before the Court, care [sic] attributed 

in part to marital funds being placed into the account.

The court found that “there appear to be four years of joint 

marital efforts that increased the balance of the account” and 

“[t]he evidence establishes the intermingling of marital funds 

occurred.” The court found that Timothy did not meet his 

burden of proving that Jones Bank savings account #9529 was 

nonmarital; it was therefore considered marital property.

[11] After reviewing the record, we conclude that while the 

majority of Jones Bank savings account #9529 was marital 

property, $75,000 of the account can be traced to Timothy’s 

premarital interest in the account. As stated previously, at 

one point in December 2018, the value of the Jones Bank 

account dipped below $76,000, but it does not appear that 

the account ever dipped below $75,000. Additionally, at one 

point in time, Nicole believed that $75,000 would have been 

a fair award of premarital credit to Timothy. Because at least 

$75,000 of the Jones Bank savings account could be traced 

to Timothy’s premarital funds, that amount should have been 

set aside as a nonmarital asset, and the district court abused 

its discretion when it failed to do so. That said, the court did 

ultimately take into consideration Timothy’s premarital funds 

from the Jones Bank savings account in its overall division 

of the parties’ marital estate, as will be discussed later in 
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this opinion; thus, the court’s failure to set aside the funds as 

Timothy’s premarital asset was not prejudicial and does not 

warrant reversal. See Connolly v. Connolly, 299 Neb. 103, 

907 N.W.2d 693 (2018) (error without prejudice is not ground 

for reversal).

2015 Chevrolet Silverado

Timothy asked for a $45,000 premarital credit for his 2015 

Chevrolet Silverado. He testified that he bought and paid 

for the brand new Chevrolet Silverado before the parties’ 

marriage, and they later traded it in for Nicole’s 2018 GMC 

Acadia. Timothy testified that the parties purchased the GMC 

Acadia for $26,240 (plus $216 in fees; total of $26,456) and 

that they were given a $45,000 trade allowance. Because the 

trade allowance was more than the vehicle they were buying, the dealership gave them $18,544 back in cash, which 

Timothy put in his Jones Bank savings account #9529 at some 

point. Timothy also testified that they had a $26,456 loan 

on the GMC Acadia for a short period of time because they 

“could get a better deal on it” if they financed it. On crossexamination, Timothy testified that the parties financed the 

GMC Acadia, so he deposited the trade-in amount of $44,300 

($45,000 minus the cost to tint Nicole’s vehicle’s windows) 

into his bank account, and then used some of that money to 

pay off Nicole’s GMC Acadia. On redirect, Timothy clarified 

that the dealer took the Chevrolet Silverado “as a trade-in, 

cosigned it for me so it was theirs, and then I . . . got the 

money for it”; he did not get the money right away but had to 

wait until the Chevrolet Silverado was sold. That money was 

then used to buy Nicole’s vehicle, which is why her vehicle 

was financed for a while.

Nicole testified that Timothy should receive only a $26,456 

credit for his 2015 Chevrolet Silverado trade-in, because that 

was the purchase amount of her GMC Acadia. She said that the 

$45,000 “all went into [Timothy’s] savings account, and then 

money from his savings account paid for the [GMC Acadia]” 

that had been financed.
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The GMC Acadia purchase and the Chevrolet Silverado 

trade-in is reflected in exhibit 50. That exhibit shows that the 

“Total Cash Delivered Price” of the 2018 GMC Acadia was 

$26,456 and that the “Trade Allowance” for a 2015 Chevrolet 

Silverado was $45,000—a difference of $18,544. The exhibit 

also stated a “Balance Owed on Trade” was $45,000 and 

the “Unpaid Balance” was $26,456; “Yes” was checked for 

“Credit Desired.”

The district court found that at the time of the marriage, 

Timothy owned a 2015 Chevrolet Silverado that was later 

traded in for the purchase of a 2018 GMC Acadia that was 

awarded to Nicole in the divorce. The court stated that exhibit 

71 (copies of checks) confirmed that the parties financed a 

portion of the GMC Acadia and made payments on the GMC 

Acadia to a bank. The court determined that “[t]he only traceable amount from the Chevrolet to the Acadia is the $26,456” 

because “[t]he balance was deposited into the Jones Bank savings account, which has been determined to be a marital fund.” 

Accordingly, the court set off only $26,456 to Timothy as a 

premarital asset.

Based on our review of the record, we find that the district 

court did not abuse its discretion in setting aside only $26,456 

as Timothy’s premarital asset from the Chevrolet Silverado. 

That was the only amount traceable to the GMC Acadia, and 

it appears the remaining funds went into Jones Bank savings 

account #9529, which has already been deemed marital (other 

than the $75,000 that was Timothy’s premarital interest in 

the account).

2016 Net Crop Proceeds

The parties were married on June 18, 2016. Prior to the date 

of the parties’ marriage, Timothy paid various 2016 expenses 

related to his farming operation, including $82,947.50 cash 

rent, $18,857.98 for seed, and $4,931.41 for fertilizer. Timothy 

had an operating note, and expenses were applied against 

the operating note. He acknowledged that the 2016 crop 
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would have been harvested during the parties’ marriage and 

that the taxes paid on the 2016 crop would have been paid 

jointly by the parties because they filed joint tax returns for the 

relevant years.

On his proposed property settlement statement, exhibit 79, 

Timothy listed $65,473 in premarital assets for the “2016 

Harvest less balance of operating note.” This amount was calculated by taking the approximately $168,173 in deposits from 

the settlement checks Timothy received from the grain sold 

from his 2016 crop (checks received October 2016 to January 

2017) and subtracting the approximately $102,700 operating 

note balance that existed on the date of the parties’ marriage. 

Timothy sought to have the $65,473 set off as his premarital asset.

Nicole testified that Timothy should not be granted a premarital credit for the 2016 crops because they were harvested 

during the marriage with her help. She helped “[r]un the grain 

cart,” helped pay for expenses related to the harvest and storage of the crop, and had to pay taxes on the income received 

in their joint tax returns. Timothy stated that Nicole “never 

helped with anything with my farming operation” but she did 

help for a few hours a day or two on property someone else 

owned; Timothy barter exchanged labor on that property for 

equipment use.

The district court noted Timothy’s reliance on Osantowski 

v. Osantowski, 298 Neb. 339, 904 N.W.2d 251 (2017), and

Chmelka v. Chmelka, 29 Neb. App. 265, 953 N.W.2d 288 

(2020), to support his position that he should get a setoff 

for the 2016 crops. See Osantowski v. Osantowski, supra

(stored and growing crops on date of marriage were premarital; even though income from stored and growing crops later 

comingled with marital assets, fairness and reasonableness 

required setoff of clearly established premarital value in light 

of short-term marriage of 31 months which spanned only 

two full crop cycles); Chmelka v. Chmelka, supra (husband 

entitled to setoff for established value of stored grain and 
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farm inputs—seed, fertilizer, and chemicals—he had prior to 

short-term marriage). Compare Brozek v. Brozek, 292 Neb. 

681, 874 N.W.2d 17 (2016) (husband not entitled to set off 

value of crops he possessed on date of marriage; he could not 

show actual number of crop bushels harvested year of marriage and relied on acres he farmed and average yield in area; 

further, he could not identify different permutations premarital 

property underwent during 20-year marriage; court reasoned 

husband’s reinvestment was mixed with proceeds of marital 

harvests and subject to vicissitudes of farming economy for 

nearly 20 years).

However, the district court stated that in both Osantowski 

v. Osantowski, supra, and Chmelka v. Chmelka, supra, the 

husbands had already harvested the grain that they sought to 

set aside at the time of marriage, a distinguishing fact from 

the current case. The court stated that although Timothy had 

already paid inputs for the 2016 crop year out of the farm 

operating note prior to the parties’ marriage, it was after the 

parties’ marriage that the crops were harvested, the income 

was paid to Timothy, and the operating note was paid down 

with marital funds. And while the husbands in Osantowski v. 

Osantowski, supra, and Chmelka v. Chmelka, supra, came into 

the marriage with an asset that could be valued with specificity, the court found that “[t]he value of [Timothy’s] harvest 

was unknown, speculative, and could have been a deficit or an 

asset.” The court stated that “Nicole and [Timothy] both bore 

the risk of what the fruits of [Timothy’s] labor, during the 2016 

crop year would be” and “[b]oth parties were employed and 

contributing to the marital estate at the time the operating loan 

was being paid down.” Because “both parties bore the risk of 

profit or loss, jointly paid tax on the income, and the prepaid 

expenses were financed through a note that incurred interest 

during the marriage and was paid down during the marriage 

by marital funds,” the court considered the 2016 crops to be 

marital property.
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Initially we note that the district court misstated the facts in 

Osantowski v. Osantowski, supra. In that case, the husband had 

both stored and growing crops at the time of the marriage. That 

said, we cannot say that the district court abused its discretion 

when it did not set off the 2016 grain crop to Timothy as a premarital asset. As noted by the court, both parties bore the risks 

associated with the 2016 crop, and the operating note was paid 

down with marital funds; there was also some evidence that 

Nicole contributed her labor to the 2016 crop.

2020 Grain

At the time of the parties’ separation in March 2021, 

Timothy had some 2020 grain stored at ADM and Syngenta, 

and he agreed that all of that grain was marital property. The 

parties have no dispute regarding the value of the corn stored 

at Syngenta and later sold; a total of $73,052. There was also 

no dispute that $6,648 of corn sold with Frontier was marital. 

However, there was a dispute over the value of the soybeans 

stored at ADM that were later sold.

Timothy testified that he had 3,000 bushels of 2020 soybeans stored with ADM that were sold at three different 

times in 2021 for an average of $13.30 per bushel; a total 

of $39,900 as reflected on his proposed property settlement. 

When asked why Nicole had higher prices on her proposed 

property settlement, Timothy testified that during discovery, 

he gave the price of soybeans that day; however, he did not 

sell the soybeans that day because he thought the price would 

go up. On cross-examination, when asked when he sold the 

3,000 bushels of soybeans in 2021, Timothy stated that he 

“[did not] remember the dates” but “I want to say July was 

a thousand bushel[s], and then August was possibly another 

thousand bushel[s], and then I don’t remember the last one.” 

He agreed that in July, he sold the soybeans for $14.99 per 

unit less the storage assessment and inspection fees. When 

asked how he arrived at the average value for the 3,000 bushels, Timothy said, “I remember one was 1450 [sic], one was 
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12 — 12 something, and one was 13 something,” then said, 

“so I just averaged them three together,” and “[i]t ended up 

being 1330 [sic].”

Nicole testified that 2,000 bushels of the soybeans should 

be valued at $14.04 per bushel, less the storage fee expenses, 

because that was what Timothy disclosed the value to be at the 

time of discovery. However, Nicole later discovered that the 

other 1,000 bushels were sold for $14.99 per bushel; therefore, 

that 1,000 bushels should be valued at the higher amount.

The district court found that 3,000 bushels of soybeans 

stored with ADM were sold in three separate transactions of 

1,000 bushels each. The first 1,000 bushels were sold in July 

2021 for $14.99 per unit, and after discounting for the storage, assessment, and inspection fees, the net proceeds were 

$14,507.15. The court recounted Timothy’s testimony in arriving at market value—he averaged all three transactions and 

arrived at $13.30 per bushel—and said, “[t]he Court accepts 

[Timothy’s] valuation for the remaining 2000 bushel and values it at $26,600.00.” Accordingly, the court calculated the 

total market value of the 2020 soybean crop stored with ADM 

at $41,107.15.

In his brief on appeal, Timothy claims that the district court 

abused its discretion in utilizing a higher price per bushel 

than the evidence indicated. However, based on the record, 

we find no abuse of discretion as Timothy’s “average” pricing 

was not indicative of the actual sale for at least some of the 

grain. The district court did the best it could with the evidence 

before it.

Additionally, as to the $120,627 in 2020 grain (ADM, 

Sygenta, and Frontier), Timothy claims that it was “unreasonable and patently unfair to assess the full value of the 2020 

grain to him without any consideration of tax consequences; 

and, that it would be more reasonable for the District Court 

to divide taxable marital assets equally.” Brief for appellant 

at 22-23. “Following such a rule would obligate Nicole to 

claim 1/2 of the 2020 grain proceeds on her 2020 or 2021 
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tax returns, depending on the date of sale. Under the existing Decree of Dissolution, [Timothy] is paying income tax on 

grain that ultimate [sic] goes to Nicole.” Id. at 23. He suggests 

that a “[r]easonable solution[] to this issue would result in 

each party claiming their respective value of the 2020 grain 

sold on their individual income tax returns; or, [Timothy] 

would receive a 25% discount” based on his tax bracket. Id.

at 24.

[12,13] However, as noted by Nicole in her brief, “[Timothy] 

argues for the first time on appeal that the district court should 

have separated taxable grain separately from other assets.” 

Brief for appellee at 14. On his proposed property settlement statement, Timothy included all 2020 grain stored and 

sold postseparation in the marital estate and allocated it to 

himself. “[Timothy] cannot now claim the district court erred 

in adopting the proposed distribution of assets and allocation 

of debts he presented.” Id. See Seid v. Seid, 310 Neb. 626, 

967 N.W.2d 253 (2021) (lower court cannot commit error in 

resolving issue never presented and submitted to it for disposition; moreover, party cannot complain of error which party 

has invited court to commit). We find no abuse of discretion 

regarding the district court’s valuation and treatment of the 

2020 grain.

2021 Crop

Timothy claimed that the 2021 corn crop from the marital 

land should not be considered a marital asset and that Nicole 

should not be entitled to any of it because she did not pay 

any of the inputs and she did not do any of the labor; all of 

the inputs were paid, and his labor expended, after the parties 

separated, and he took all of the risk if there was not a crop. 

He explained, “I am not asking for half of Nicole’s wages 

from her work. She was not there helping me do any of the 

work or paying for any of the bills.” Nicole also did not have 

to pay any of the federal or state taxes for the 2021 crop. 

Timothy said dry land in the area would cash rent for $220 
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per acre. So, if the district court were to grant Nicole some 

income from the land, Timothy would prefer that the court 

give her one-half of what the cash rent would be for the 47.5 

farmable acres.

Nicole testified that she was asking for the 2021 crop to be 

divided in the marital estate because she was “still owner of the 

land.” While she believed the yield was higher, she was willing to accept Timothy’s testimony that there were 188 bushels 

of corn harvested per acre on the marital land. Nicole valued 

the corn crop at $5.44 per bushel because “[t]hat was the average price” in October 2021. Nicole clarified that she was not 

asking the court to include any 2021 crops that were harvested 

from land rented by Timothy, but only to include crops from 

the marital land.

Timothy testified that his yield on the parties’ marital land 

was “47 and a half times 188” in 2021. The corn was planted 

in April, which was after the parties’ separation, and he delivered the presold corn in October. Timothy could not remember 

the contract price for the presold corn but said it would be “the 

same or less” than the current price of corn. When asked how 

much less it could be, Timothy replied, “I would say it could 

be around $5, it could be 40 to 50 cents less.”

The district court recognized that the parties separated on 

March 1, 2021, which was prior to when Timothy planted, 

sprayed, harvested, and cultivated the 2021 crop. The court 

also found that the separation occurred prior to when Timothy 

“pa[id] inputs for the 2021 crop.” Further, relying on Eis v. 

Eis, 310 Neb. 243, 965 N.W.2d 19 (2021), the court found 

that the 2021 crop harvested from the parties’ marital farmland 

was marital property. Relying on Timothy’s testimony that he 

yielded 188 bushels of corn per acre, and Nicole’s testimony 

using 46 acres with a market price of $5.44 per bushel of corn, 

the court valued the 2021 grain associated with the marital 

farmland at $47,045.

Although the district court found that the parties were 

separated prior to when Timothy paid inputs for the 2021 
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crop, it nevertheless computed a gross value for the crop and 

did not reduce that value by any expenses or inputs associated with growing and harvesting the crop. We find no fault 

with the court’s decision to decline to reduce the crop value 

by such costs, because a clear record was not made regarding 

such expenses. Timothy testified that when the parties separated on March 1, 2021, he had not yet prepaid any expenses 

(e.g., inputs, fertilizer, seed, cash rent) for that crop year, but 

he did acknowledge paying off his operating note between 

February 20 and March 1, 2021, which note had a balance of 

$69,714.85. The obligation was paid off with funds from the 

Jones Bank account before the parties separated. It is not clear 

from the record what farming expenses were included in that 

operating note; however, exhibit 38 reflects various expenditures for fertilizer, chemicals, and seed, invoiced in January 

and February 2021, and for which payments of more than 

$47,000 were made during those same 2 months before the 

parties separated. It is also unclear from the record whether 

any of the fertilizer, chemicals, and seed invoiced and paid 

before the parties separated was attributable to the crops 

grown on the marital land or the rented land or both. And 

while exhibit 38 includes copies of checks dated in March 

after the parties separated for “seed + treatment” and “chemicals,” there is again no evidence identifying what portions of 

those expenses were for only the crops being grown on marital 

land versus the crops being grown on rented land. Therefore, 

while it is possible some inputs for the 47.5 marital acres were 

paid after the parties separated, it is also possible some were 

paid before the parties separated.

Because the record is unclear on the value of inputs for 

the 2021 crop grown on the marital land, we conclude the 

district court did not abuse its discretion by failing to reduce 

the value of the 2021 crop by any inputs associated with it. 

We also find no abuse of discretion in the court’s decision to 

accept Nicole’s dollar per bushel value for the corn crop. And 

to the extent that Timothy argues that the district court did 
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not consider the tax consequences for the 2021 grain, we 

find no abuse of discretion given that Timothy did not offer 

any evidence for the possible tax consequences of selling the 

stored grain. We turn now to Timothy’s primary argument 

related to the 2021 corn crop grown on the marital land.

Timothy contends that Nicole should have received no benefit from the 2021 crop whatsoever. In determining that the 

2021 corn crop grown on the marital land was marital property, the district court relied on Eis v. Eis, 310 Neb. 243, 965 

N.W.2d 19 (2021). In Eis, the trial court found that the grain 

held in storage in 2019 did not yet exist as of the date of the 

parties’ separation in March 2018, but that it was generated in 

part by the ownership of the marital land and in part by the 

husband’s efforts after the date of separation. The district court 

valued the grain as of the date of the trial and allocated the 

value 60 percent to the husband for his efforts postseparation 

and 40 percent to the marital estate due to the joint ownership 

of the land that generated the grain. On appeal, the husband 

argued that the wife should not be entitled to grain proceeds 

after she filed for divorce and that the district court should 

have used the date of separation rather than the date of trial 

as the valuation for the grain awarded; the Nebraska Supreme 

Court disagreed on both counts.

[14] The Nebraska Supreme Court stated that courts are 

allowed flexibility in their treatment of stored and growing 

agricultural crops to account for the equities of the situation and that the district court, in accounting for the equities 

between the parties, assigned a 60-40 split to the grain: 60 

percent solely to the husband as nonmarital property based on 

evidence that he alone contributed to the farming operations 

postseparation and 40 percent to the marital estate based on 

evidence that the crops were grown and harvested as a result 

of joint marital ownership of the land. The Supreme Court 

stated, “The fact that [the wife] was not contributing financially to farming operations after [the March 2018 separation 

date] does not preclude her from receiving a portion of the 
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2019 grain, because such interest derives from her share of 

ownership in the real property.” Id. at 252-53, 965 N.W.2d 

at 26.

The Nebraska Supreme Court distinguished its decision 

from prior cases where it considered when crops would be 

considered marital income. See, Osantowski v. Osantowski, 298 

Neb. 339, 904 N.W.2d 251 (2017) (analyzed effects of crop 

harvesting and storage postseparation as it related to marital 

income where husband owned farmland jointly with brothers 

but not with wife); Kalkowski v. Kalkowski, 258 Neb. 1035, 

607 N.W.2d 517 (2000). The Supreme Court said:

In contrast to Osantowski, the grain held in storage by 

[the husband] was harvested from land that was jointly 

owned by [the wife] herself and was already part of 

the marital estate. The issue considered by the district 

court was not one of marital income, or whether income 

transformed the crop into a marital asset, but, rather, the 

determination and possession of marital property upon 

which the grain was initially grown and harvested. [The 

wife’s] entitlement to the grain does not revolve around 

the fact that crops depend upon sale for realization as 

income, because the tangible grain itself is already marital property.

Our holdings in Kalkowski v. Kalkowski are distinguished here for the same reason. Kalkowski revolved 

around a determination of crops as income in order to 

constitute marital property when one spouse otherwise 

had no claim to the crops, whereas this case was based 

on a determination that the real property generating the 

crop was already a marital asset. Other cases addressing crop storage and marital property determinations are 

distinguishable on this issue where they relate only to 

premarital property or crops already in storage at the time 

of marriage. These cases thus do not preclude [the wife] 

from a share of the grain even when it was produced 
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during the marriage but harvested and sold, or stored for 

future sale, postseparation.

Eis v. Eis, 310 Neb. 243, 253-54, 965 N.W.2d 19, 27 (2021) 

(emphasis in original). The Supreme Court further found that 

using the trial date for valuation was not an abuse of discretion 

because that was the only date for which evidence of value 

was given.

In his brief, Timothy relies on Osantowski v. Osantowski, 

supra, for his argument as to why the 2021 crop should not 

be included in the marital estate. However, as noted above, 

in Osantowski, the postseparation crop harvesting and storage 

occurred on land in which the wife had no ownership interest. The current case is more in line with Eis v. Eis, supra, 

because the crops were harvested on marital farmland. Like in 

Eis, Nicole’s interest in the 2021 crop derived from her share 

of ownership in the real property on which it was produced. 

However, unlike in Eis, the district court did not allocate any 

portion of the 2021 crop solely to Timothy as nonmarital property based on evidence that he alone contributed to the farming operations postseparation, after which the remaining portion of the 2021 crop could be allocated to the marital estate 

based on evidence that the crops were grown and harvested as 

a result of joint marital ownership of the land. Accordingly, we 

conclude the district court abused its discretion in treating the 

2021 crop solely as a marital asset.

Ordinarily, we would remand this issue to the district court 

to determine a nonmarital portion and a marital portion for 

the 2021 corn crop grown on marital land by taking into consideration Timothy’s contributions to the farming operations 

postseparation and setting off a nonmarital portion, by using 

the cash rent value as proposed by Timothy, or by some other 

solution to account for the equities of the situation. However, 

we find that a calculation error in the court’s asset and debt 

table makes it unnecessary to remand the issue. When totaling the assets attributed to Timothy, the court calculated 

total assets of $712,051. However, our calculations of those 
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assets total $748,951. This resulted in $36,900 in marital 

assets not being attributed to Timothy when the court did 

its final calculations. If that amount is added back in, as it 

should be, and the $47,045 value for the 2021 corn crop is 

reduced to reflect some setoff for nonmarital contributions 

by Timothy, the revised calculations could possibly result in 

a higher equalization amount owed to Nicole. For example, if 

on remand the district court followed the Eis example and set 

off 60 percent of the 2021 crop to Timothy as nonmarital and 

40 percent as marital, then only $18,818 would be reflected 

as a marital asset attributed to Timothy instead of the $47,045 

currently reflected; this results in $720,724 in total assets 

apportioned to Timothy. After subtracting his total debts 

($273,180) and the premarital setoff ($26,456), Timothy’s net 

marital estate is $421,088 instead of the current $412,415. 

This results in a slightly higher equalization owed to Nicole. 

And if Timothy’s suggested alternative of a cash rent value 

is used, then $10,450 (47.5 acres × $220/acre) would be 

reflected as a marital asset attributed to Timothy instead of 

the $47,045 currently reflected; this results in $712,356 in 

total assets apportioned to Timothy. After subtracting his 

total debts ($273,180) and the premarital setoff ($26,456), 

Timothy’s net marital estate is $412,720, which barely differs 

from the current $412,415.

Accordingly, we conclude the benefit Timothy received by 

the district court’s mathematical error provides an equitable 

equivalent to reducing the marital value of the 2021 corn crop. 

Notably, Timothy’s preferred cash rent option for calculating 

the marital interest results in an almost identical net marital 

estate for Timothy as the original decree. As a result, any error 

by the district court related to the 2021 crop was not prejudicial 

to Timothy and avoids the necessity of a remand.

Equitable Division of Marital Estate

In her proposed distribution of the parties’ assets and debts, 

Nicole was seeking an equalization payment to ensure that 
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the parties each got one-half of the marital estate. However, 

the district court “recognize[d] that Timothy had a significant 

amount of funds in his savings account when the parties were 

married” and “[t]hat money, while co-mingled with marital 

property, contributed to the growth of the marital estate.” 

The court therefore ultimately found that Timothy should be 

awarded 60 percent of the marital estate and that Nicole should 

be awarded 40 percent of the estate. 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. Dooling v. Dooling, 303 Neb. 494, 

930 N.W.2d 481 (2019). Nicole’s award was within the generally acceptable range. The district court properly exercised its 

discretion to consider the equities of the case and to account 

for Timothy’s premarital funds in this manner. Although it 

does not amount to a perfect setoff of the $75,000 we found 

traceable to Timothy’s premarital funds, the 60-40 allocation 

resulted in the receipt by Timothy of considerably more in 

his net marital estate than Nicole. We therefore cannot say the 

court abused its discretion in the overall division of the marital estate.

[15] To the extent that Nicole argues that the district court 

erred in including her premarital Jones Bank certificate of 

deposit in the marital estate, she did not specifically assign 

such as error. To be considered by an appellate court, an 

alleged error must be both specifically assigned and specifically argued in the brief of the party asserting the error. Simons 

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

Health Insurance Premium

At trial, Nicole asked that Timothy be ordered to reimburse her for the $3,400 in health insurance premiums that 

she paid for him since the date of the filing for dissolution; 

she provided an insurance premium cost breakdown. Timothy 

stated that he never agreed to reimburse Nicole for his health 

insurance premiums she paid after the date of separation and 
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that such reimbursement was not part of their stipulated 

temporary order. Nicole acknowledged that the parties never 

reached an agreement on reimbursement prior to the temporary order. And the temporary order does not state that 

Timothy must reimburse Nicole for his portion of the health 

insurance premiums.

Pursuant to a stipulated temporary order entered on May 

17, 2021, Nicole was to continue to provide health insurance 

coverage for Timothy during the pendency of the divorce proceedings so long as it remained available to her through her 

place of employment at a reasonable cost; each party was to 

be solely and individually responsible for their own respective unreimbursed medical costs. We note that in the relevant 

temporary child support calculation, Nicole received all of the 

health insurance deductions.

We find that the district court did not abuse its discretion 

when it did not order Timothy to reimburse Nicole for the cost 

of his health insurance premium.

Attorney Fees and Expert Fees

Nicole argues that the district court abused its discretion in 

failing to order Timothy to reimburse her for attorney fees.

[16] Customarily, attorney fees are awarded only to prevailing parties or assessed against those who file frivolous suits. 

Parde v. Parde, 31 Neb. App. 263, 979 N.W.2d 788 (2022). 

In awarding attorney fees in a dissolution action, a court 

shall consider the nature of the case, the amount involved in 

the controversy, the services actually performed, the results 

obtained, the length of time required for preparation and pres

entation of the case, the novelty and difficulty of the questions raised, and the customary charges of the bar for similar 

services. Id.

At trial, Nicole asked that Timothy be ordered to pay a 

portion of her attorney fees because “[w]e spent a lot of time 

doing a lot of research and . . . fighting over every little penny 

of the thing when we could have just moved on and made 
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a better settlement.” The attorney’s affidavit in support of 

attorney fees that was received into evidence at trial showed 

that Nicole had already incurred $20,916.36 in fees and 

expenses, not including her attorney’s anticipated preparation 

and attendance at trial. Nicole believed that Timothy should 

have to reimburse her for her attorney fees after October 6, 

2021, because that “was our mediation date and it could have 

been settled at [sic] that date.” She had incurred approximately $9,000 in attorney fees and expenses after October 

6, and the trial was estimated to cost her about $5,000; she 

believed Timothy should have been responsible for $10,000 of 

her attorney fees. On cross-examination, Nicole acknowledged 

that she was changing the classification of assets in the week 

leading up to trial.

In her brief on appeal, Nicole argues that she was the prevailing party on all of the contested issues with the exception 

of the percentage of the division of the marital estate, and 

that it was an abuse of discretion for the district court not 

to award any attorney fees to her. However, Timothy argues 

that “[o]bjectively, [his] position at trial was far closer to the 

District Court’s equitable division of the marital estate” and 

that “Nicole’s argument is undermined by the outcome of 

trial.” Reply brief for appellant at 7. We find that the district 

court did not abuse its discretion when it ordered each party to 

pay his or her own attorney fees. And with regard to Nicole’s 

request to “award her attorney’s fees in connection with this 

appeal,” brief for appellee at 14, we direct her to Neb. Ct. R. 

App. P. § 2-106(G) (rev. 2022).

Although Nicole assigned on cross-appeal that the district 

court abused its discretion when it failed to order Timothy 

to reimburse her for expert fees (i.e., the land appraisal 

report), she did not specifically argue the expert fees in her 

brief on cross-appeal. See Simons v. Simons, 312 Neb. 136, 

978 N.W.2d 121 (2022) (to be considered by appellate court, 

alleged error must be both specifically assigned and specifically argued in brief of party asserting error). Nevertheless, 
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we find that the district court did not abuse its discretion when 

it did not order Timothy to reimburse her for her expert fees.

CONCLUSION

For the reasons stated above, we affirm the decision of the 

district court.

Affirmed.

Bishop, Judge, participating on briefs.