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306 Nebraska Reports

DOERR v. DOERR

Cite as 306 Neb. 350

Tammy M. Doerr, appellee, v. 

Brian P. Doerr, appellant.

___ N.W.2d ___

Filed July 2, 2020. No. S-19-418.

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

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

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

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

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

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

attorney fees.

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

appellate court is required to make independent factual determinations 

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

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

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

submitted for disposition.

4. Divorce: Property Division. In a divorce action, the purpose of a property division is to distribute the marital assets equitably between the 

parties.

5. Property Division. Equitable property division is a three-step process. 

The first step is to classify the parties’ property as marital or nonmarital. 

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.

6. ____. As a general rule, a spouse should be awarded one-third to onehalf of the marital estate, the polestar being fairness and reasonableness 

as determined by the facts of each case.

7. Divorce: Property Division. The marital estate does not 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/

08/28/2020 08:08 AM CDT
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DOERR v. DOERR

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8. Divorce: Property Division: Proof. The burden of proof rests with the 

party claiming that property is nonmarital.

9. Divorce: Property Division. Separate property becomes marital property by commingling if it is inextricably mixed with marital property or 

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

remains segregated or is traceable into its product, commingling does 

not occur.

10. Courts: Evidence. A court is not bound to accept a party’s word in 

lieu of documentary evidence; a court is able to assess the credibility 

of the evidence presented to it and determine to what evidence to give 

weight.

Appeal from the District Court for Dodge County: Geoffrey 

C. Hall, Judge. Affirmed.

Michael J. Wilson, of Berry Law Firm, for appellant.

Michael J. Tasset, of Johnson & Mock, P.C., L.L.O., for 

appellee.

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

Papik, and Freudenberg, JJ.

Heavican, C.J.

INTRODUCTION

The district court dissolved the marriage of Tammy M. 

Doerr and Brian P. Doerr. Brian appeals the court’s property 

division. We affirm.

BACKGROUND

Tammy and Brian met in March 2008 and were engaged 

later that year. The couple was married in April 2012. Both had 

children from previous marriages, but no children were born to 

the couple. Tammy filed for divorce in September 2016. A trial 

was held, and a decree dissolving the parties’ marriage was 

filed February 19, 2019.

Real Property.

As relevant on appeal, the district court for Dodge County 

found that Tammy and Brian worked together to purchase 
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DOERR v. DOERR

Cite as 306 Neb. 350

and remodel the couple’s home on Howard Street in Fremont, 

Nebraska (Howard Street home), during the marriage. The 

court valued the home at $350,000. The district court found 

that Tammy invested $40,000 and that Brian invested $50,000 

as a downpayment. The court further found that the funds used 

to pay for the home were commingled in the time before and 

after the purchase of the home. The district court therefore 

awarded the home to Brian, but awarded half of the home’s 

value, or $165,000, to Tammy, less $10,000 to account for 

Brian’s larger share of the home’s downpayment.

Bank Accounts.

The couple had various bank accounts, some of which were 

jointly held and others which were individually held. At or 

near the time of separation, Tammy transferred funds from the 

parties’ joint money market account with Union Bank into her 

individual checking account with another bank. The district 

court found that $108,600 of the funds transferred were marital 

and ordered an equal division—$54,300 to each party. The parties’ other bank accounts were awarded to the party in whose 

name each respective account was held.

Debts.

The district court ordered that each party should pay marital 

debts held in their respective names, as well as debts individually incurred since the filing of the divorce action.

Equalization Payment.

Based on the court’s determination of the various equity 

shares of each of the parties, the district court ordered Brian 

to make an equalization payment to Tammy in the amount of 

$110,700.

ASSIGNMENTS OF ERROR

Brian assigns that the district court erred in (1) awarding 

Tammy $165,000 in equity in the Howard Street home, (2) 

awarding Tammy $54,300 from the Union Bank account, 
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DOERR v. DOERR

Cite as 306 Neb. 350

(3) failing to award Brian $12,831.67 in funds held in a 

U.S. Bank account controlled by Tammy, (4) failing to order 

Tammy to pay one-half of $16,207.76 in debts, and (5) ordering Brian to pay an equalization payment to Tammy in the 

amount of $110,700.

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

[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. 3

ANALYSIS

On appeal, Brian’s argument centers around what he claims 

are the proceeds from his separate property, and he alleges 

that the district court erred in awarding half of those proceeds 

to Tammy. In summary, Brian argues that he paid the entire 

$262,000 purchase price of the Howard Street home from the 

proceeds he earned selling a home he had owned in Fontanelle, 

Nebraska. Brian further asserts that the remainder of the proceeds were deposited into the couple’s money market account 

and that the balance of that account never dipped below the 

amount of the proceeds he deposited.

1 White v. White, 304 Neb. 945, 937 N.W.2d 838 (2020).

2 Id.

3 Id.
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DOERR v. DOERR

Cite as 306 Neb. 350

Tammy later transferred $108,600 from that money market 

account into her individual checking account. Brian contends 

that those funds are traceable to the sale of his separate property, that the funds are themselves separate property, and 

that the district court erred in awarding Tammy half of that 

amount.

[4-6] In a divorce action, the purpose of a property division 

is to distribute the marital assets equitably between the parties. 4

Equitable property division is a three-step process. 5 The first 

step is to classify the parties’ property as marital or nonmarital. 6 The second step is to value the marital assets and marital 

liabilities of the parties. 7 The third step is to calculate and 

divide the net marital estate between the parties. 8 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. 9

[7-9] The marital estate does not include property that a 

spouse acquired before the marriage, or by gift or inheritance. 10 The burden of proof rests with the party claiming that 

property is nonmarital. 11 Setting aside nonmarital property is 

simple if the spouse possesses the original asset, but can be 

problematic if the original asset no longer exists. 12 Separate 

property becomes marital property by commingling if it is 

inextricably mixed with marital property or with the separate 

property of the other spouse. 13 If the separate property remains 

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

5 White, supra note 1.

6 Id.

7 Id.

8 Id.

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

10 Id.

11 Id.

12 Id.

13 Id.
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segregated or is traceable into its product, commingling does 

not occur. 14

Equity in Howard Street Home.

In his first assignment of error, Brian argues that the district 

court erred in awarding Tammy roughly half of the equity 

in the Howard Street home, contending he proved at trial 

that he contributed all of the purchase price of the home. He 

also assigns that the district court erred in valuing the home 

at $350,000.

We turn first to the value of the martial home as determined 

by the district court. The record includes numerous values for 

the home, but one of those values was $350,000, a value determined by a real estate professional. The district court did not 

err in placing this value on the home.

We turn next to Brian’s contention regarding Tammy’s 

equity in the home. Brian contends that he paid the $1,000 

“earnest deposit” on the residence and paid the entire $50,000 

downpayment. Brian further asserts that he sold his house in 

Fontanelle and that with those proceeds, he paid off the debt on 

the Howard Street home. Conversely, Tammy argues that she 

paid $40,000 of the downpayment for the Howard Street home 

with cash she had in her safe.

The facts surrounding the Howard Street home are somewhat complicated. The property was purchased by Brian in 

April 2012 for $262,000. At the closing, there was a balance 

due of $259,691.63, which credited the purchase price in various particulars, including an earnest payment of $1,000.

There is nothing in the record to show how the funds at the 

closing of the Howard Street home were paid. Brian argues 

that he came up with $50,000—a combination of $10,000 cash 

and $40,000 from various other sources, including liquidating 

his son’s college savings plan and taking at least two withdrawals from his individual retirement account. Brian testified 

that this money was not so much a downpayment as funds that 

14 Id.
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DOERR v. DOERR

Cite as 306 Neb. 350

were owed because the house did not appraise out and the bank 

would not fund the entire purchase price.

Brian offered into evidence statements showing the college 

savings plan and the individual retirement account transactions, as well as deposit slips he testified were for a combination of cash and check deposits. Tammy relies on many 

of the same deposit slips to show that she had given Brian 

$40,000 to deposit in the bank. Tammy testified that she had 

this money prior to the marriage and even when she declared 

bankruptcy, but that she had not declared the money in the 

bankruptcy proceedings.

The burden to show that the Howard Street home was 

paid for with proceeds from the Fontanelle home, and thus 

was Brian’s separate property, was on Brian. Brian offered 

documentation that certain deposits had been made in the time 

prior to the closing on the house. He also testified that the full 

amount of the money he deposited was his and that the money 

actually went to paying the downpayment on the Howard 

Street home.

[10] Of course, a party’s testimony alone may sustain that 

party’s burden of proof. But a court is not bound to accept a 

party’s word in lieu of documentary evidence; a court is able 

to assess the credibility of the evidence presented to it and 

determine to what evidence to give weight. 15 In this case, the 

district court found Brian’s testimony and his accompanying documentary evidence not credible and therefore found that 

the Howard Street home was marital property. Accordingly, 

the district court awarded roughly half of the home’s 

equity to Tammy. We cannot find that this decision was an 

abuse of discretion. There is no merit to Brian’s first assignment of error.

Bank Accounts.

In his second and third assignments of error, Brian argues 

that the district court erred in its division of the parties’ bank 

15 See Burgardt v. Burgardt, 304 Neb. 356, 934 N.W.2d 488 (2019).
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accounts. Most notably, Brian argues the district court erred 

in awarding Tammy $54,300, which he claims were proceeds 

from the sale of the Fontanelle house, and thus his separate 

property, that were deposited into the couple’s money market account.

It is not disputed that Brian had proceeds of $187,399.82 

after the sale of the Fontanelle property. Brian maintains these 

proceeds were deposited into his checking account, less the 

payment of some taxes, and deposited into the couple’s money 

market account to be used only as a cushion for the couple’s 

checking account. Therefore, the proceeds are traceable and 

remain his separate property up to at least $117,000.

There is nothing in the record to support Brian’s assertion 

that the money was transferred as he contends. According to 

the bank statement for January 4 to February 4, 2014, there 

was a beginning balance of $150,000.41 in the money market 

account. But those same records show that during the same 

statement period, $35,588.37 was deposited into that account. 

There is no indication that the account had not previously 

existed or that the proceeds of the sale of the Fontanelle house 

were $150,000.41. It is Brian’s burden to show that the funds 

were separate property. The district court concluded that he 

failed to do so, and we find no error in that conclusion.

By extension, then, when Tammy emptied the money market account a few years later, she had a right to those funds. 

The district court did not err in awarding Tammy half of the 

$108,600 in her possession and in awarding the other half 

to Brian.

In addition to the Union Bank account, Tammy had a 

separate checking account with U.S. Bank with a balance of 

approximately $12,831.67. Brian argues that he is entitled to 

one-half of that amount because Tammy did not prove it was 

her separate property.

But Tammy did not argue it was her separate property. The 

district court awarded Tammy the accounts in her name and 

awarded Brian the accounts in his name. It was not error for 
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DOERR v. DOERR

Cite as 306 Neb. 350

the court to award the accounts in this manner, and there is 

no merit to Brian’s second and third assignments of error.

Debts.

In his fourth assignment of error, Brian assigns that the 

district court erred by not equally dividing marital debt comprising a U.S. Bank credit card balance of $6,439.76 and a 

bill for preseparation renovations for $9,768. There was documentary evidence of these debts in the record; however, the 

district court simply ordered each party to pay all debts in that 

party’s name, as well as debts individually incurred by each 

since the filing of the divorce action. The court reasoned that 

it “cannot and will not account for which party paid for the 

butter or which party paid for the eggs during the course of 

the marriage.”

The amount of debt at issue here is approximately $8,000. 

Even assuming that the court should have ordered Tammy to 

pay that portion of the debt, such would not make the district 

court’s division of property erroneous. The court’s reasoning 

that it was not going to parse out every purchase supports its 

conclusion. There is no merit to this assignment of error.

Equalization Payment.

Having concluded that the district court did not err in its 

division of the marital estate, we likewise find no merit to 

Brian’s contention that the amount of the equalization payment 

was in error. As such, there is no merit to Brian’s final assignment of error.

CONCLUSION

The decision of the district court is affirmed.

Affirmed.