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Cite as 304 Neb. 356

Harlan D. Burgardt, appellee and

cross-appellant, v. Shirley L. 

Burgardt, appellant and

cross-appellee.

___ N.W.2d ___

Filed November 1, 2019. No. S-17-1116.

1. 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.

2. 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.

3. 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. 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.

4. 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.

5. Evidence: Proof. Unless an exception applies, the burden of proof in 

civil cases requires only the greater weight of the evidence.

6. ____: ____. There is no general rule of evidence that a party must produce the best evidence which the nature of the case permits.

Nebraska Supreme Court Online Library

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

12/13/2019 09:06 AM CST
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7. Evidence: Witnesses: Testimony. A witness’ testimony, like a document, is a kind of evidence.

8. Divorce: Property Division. The first step in the equitable division of 

property 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.

9. Divorce: Property Division: Pensions. Contributions to retirement 

accounts before marriage are not assets of the marital estate.

10. Divorce: Property Division: Presumptions. Gifts and inheritances, 

even when received during the marriage, are presumed to be nonmarital.

11. Divorce: Property Division: Proof. In a marital dissolution proceeding, the burden of proof rests with the party claiming that property is 

nonmarital.

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

in property may be established by credible testimony.

13. 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.

14. Divorce: Property Division: Evidence: Proof. The value of the nonmarital portion of an asset must be established by the greater weight of 

the evidence.

Petition for further review from the Court of Appeals, 

Moore, Chief Judge, and Pirtle and Arterburn, Judges, on 

appeal thereto from the District Court for Adams County, Terri

S. Harder, Judge. Judgment of Court of Appeals reversed, and 

cause remanded with direction.

Richard L. Alexander, of Richard Alexander Law Office, for 

appellant.

Nicholas D. Valle, of Langvardt, Valle & James, P.C., L.L.O., 

for appellee.

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

Papik, and Freudenberg, JJ.

Cassel, J.

I. INTRODUCTION

On appeal from a district court’s dissolution of marriage, 

the Nebraska Court of Appeals reversed the determinations 
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that a portion of the husband’s 401K and proceeds from an 

inheritance constituted nonmarital property.1 We disapprove of 

two imperatives articulated by the Court of Appeals: nonmarital property must be proved by documentary evidence and its 

value must be “definitively” established. Because we cannot 

say the district court abused its discretion in setting off property as nonmarital in accordance with the husband’s testimony, 

we reverse the decision of the Court of Appeals and remand 

the cause with direction.

II. BACKGROUND

1. Evidence at Trial

Harlan D. Burgardt and Shirley L. Burgardt married in 

1992. The district court dissolved their marriage in 2017. On 

further review, we focus on two items of property: the portion of a 401K accumulated before marriage and the proceeds 

from an inheritance. At this stage, neither party otherwise 

contests the division of property. We limit our recitation of 

evidence accordingly.

(a) 401K

In 1978, Harlan began working for a natural gas distribution company. Fourteen years later, he married Shirley. And 14 

years after that, Harlan retired. Through his employment, he 

had a 401K account.

Harlan believed that he began contributing to the 401K in 

“about ’85.” He testified that on the date of his marriage in 

1992, his 401K was valued at $130,000. Upon questioning, 

he stated that the number “sticks out in my mind just plain as 

day.” Although Harlan tried to obtain documentation from his 

former employer to support the value, the company did not 

keep records dating back to 1992.

Shirley testified that she was not aware of any 401K that 

Harlan had prior to marriage worth $130,000. Thus, she 

1 Burgardt v. Burgardt, 27 Neb. App. 57, 926 N.W.2d 452 (2019).
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valued the premarital portion at $0 on the parties’ joint property statement. She had no evidence to dispute that Harlan 

contributed to the 401K prior to marriage.

In 2010, Harlan withdrew the funds from the 401K and 

“moved it into an IRA into a cash fund” solely in his name. 

A bank statement shows a beginning balance for the IRA on 

January 1 to be $445,486.12. The money was later spent on 

four major purchases or projects. It was used to purchase the 

“other farm,” which was titled in both parties’ names. Money 

was used for improvements to the “home farm,” which contained a house where the parties once lived. Harlan also used 

money from the IRA to buy equipment. The equipment was 

“all auctioned off” and the proceeds put in the bank. Finally, 

the money was used to buy gold and silver coins. In 2013, 

Harlan purchased 1,000 silver coins for $53,120, followed 

shortly thereafter by a purchase of 1,859 coins for $99,735.35. 

In 2014, Harlan exchanged silver coins to acquire 71 gold 

coins for $29,962. He testified that he currently had 51 gold 

coins in his possession, but that there should be 71 (i.e., one 

sheet containing 20 coins was missing).

(b) Inheritance

Harlan testified that after his father died in 2006 (during the 

marriage), he received an inheritance from the estate. Harlan 

received a 25-percent share, which amounted to $60,000. 

Instead of receiving money, Harlan used his share as a credit 

toward the purchase of the home farm from his siblings. The 

additional money needed to purchase the farm—approximately 

$100,000—came from a bank account.

Shirley testified that the funds to purchase the farm came 

from their joint bank account, which was funded by the sale of 

the parties’ house in Colorado. The parties later sold the home 

farm for $348,800. The sale proceeds were placed in the parties’ joint account at Great Western Bank, which had a balance 

of $358,000 in July 2015.
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2. Property Division in Decree

As part of the division of the marital estate, the decree 

awarded Harlan 71 gold coins valued at $19,330 (which placed 

the responsibility for the lost coins solely upon Harlan). In 

effect, the decree equally divided the proceeds from the 401K, 

but it separately set off to Harlan $130,000 for the value of the 

nonmarital proceeds from the 401K.

The decree awarded each party $179,000 (one-half of the 

balance) of the Great Western Bank account. But it separately 

set off $60,000 to Harlan as “[l]and inheritance.”

Including both marital and nonmarital property, the decree 

awarded Harlan assets totaling $399,730 and Shirley assets 

amounting to $205,300. After deducting amounts representing nonmarital property ($190,000 at issue here, plus $4,000 

attributable to a truck which is not now disputed), the ultimate 

division of property was an award of $205,730 to Harlan and 

an award of $205,300 to Shirley.

Shirley appealed, and Harlan filed a cross-appeal.

3. Court of Appeals’ Decision

The Court of Appeals found that Harlan did not meet his 

burden of proving that his 401K had a value of $130,000 at 

the time of marriage and that he did not prove the amount he 

inherited from his father.

[1] 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.2 But instead of affirming as modified, the Court of 

Appeals reversed in part and remanded to the trial court with 

directions. It directed the trial court to award Shirley half of the 

awards of $130,000 and $60,000 previously set off to Harlan 

as nonmarital property. It also found that the net tax liability 

of $27,494 should be divided evenly between the parties and 

deducted from the shares of each party’s marital property. The 

2 Osantowski v. Osantowski, 298 Neb. 339, 904 N.W.2d 251 (2017).
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Court of Appeals’ effective modification of the decree regarding the tax liability is not contested on further review and, 

thus, shall be carried out in a modified decree.

Harlan filed a petition for further review, which we granted.

III. ASSIGNMENTS OF ERROR

In his petition for further review, Harlan assigns two errors 

which we consolidate. He claims that the Court of Appeals 

erred in determining that because he offered no documentary 

evidence at trial to support his undisputed testimony, he failed 

to meet his burden of proof that he had $130,000 in a 401K 

at the time of marriage and that he received a $60,000 inheritance during the marriage.

IV. STANDARD OF REVIEW

[2-4] 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.3 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.4

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.5 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.6

3 Dooling v. Dooling, 303 Neb. 494, 930 N.W.2d 481 (2019).

4 Id.

5 Id.

6 Id.
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V. ANALYSIS

1. Foundational Principles

We begin by recalling three foundational principles that, 

along with the standard of review, guide our decision.

[5] The first principle is the burden of proof imposed in this 

case. In the realm of factfinding, the function of a standard 

of proof is to instruct the fact finder concerning the degree 

of confidence our society thinks he or she should have in the 

correctness of factual conclusions for a particular type of adjudication.7

 Unless an exception applies, the burden of proof in 

civil cases requires only the greater weight of the evidence.8

The greater weight of the evidence means evidence sufficient 

to make a claim more likely true than not true.9 That burden of 

proof applies here.

[6,7] Second, we are mindful that there is no hierarchy of 

evidence. “‘[T]here is no general rule of evidence that a party 

must produce the best evidence which the nature of the case 

permits.’”10 A witness’ testimony, like a document, is a kind of 

evidence.11 A trial court weighs the credibility of the witnesses 

and the evidence and determines what evidence should be 

given the greater weight in arriving at a factual determination 

on the merits.12 In doing so, a trial court may choose to accord 

greater weight to a document. Given the frailties of memories, documentary evidence relating to a long past event and 

7 See In re Interest of Christopher T., 281 Neb. 1008, 801 N.W.2d 243 

(2011).

8 See, In re Application No. OP-0003, 303 Neb. 872, 932 N.W.2d 653 

(2019); Flores v. Flores-Guerrero, 290 Neb. 248, 859 N.W.2d 578 (2015).

9 Flores v. Flores-Guerrero, supra note 8.

10 Equitable Life v. Starr, 241 Neb. 609, 615, 489 N.W.2d 857, 862 (1992), 

quoting Michael H. Graham, Handbook of Federal Evidence § 1001.0 (3d 

ed. 1991).

11 See Columbia Nat. Bank v. German Nat. Bank, 56 Neb. 803, 77 N.W. 346 

(1898).

12 Lockwood v. Lockwood, 205 Neb. 818, 290 N.W.2d 636 (1980).
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prepared by one not affected by it may be entitled to greater 

consideration than oral testimony.13 Ordinarily, a contemporaneous memorandum of an event is entitled to greater evidentiary weight than another recollection of it.14 But it does not 

follow that where there is no documentary evidence, a party’s 

testimony alone cannot satisfy a burden of proof.

[8-11] Third, it is well settled that the first step in the 

equitable division of property 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.15 Contributions to retirement accounts before marriage 

are not assets of the marital estate.16 Gifts and inheritances, 

even when received during the marriage, are presumed to 

be nonmarital.17 In a marital dissolution proceeding, the burden of proof rests with the party claiming that property is 

nonmarital.18

With these principles in mind, we turn to the two imperatives upon which the Court of Appeals relied.

2. Necessity of Documentary Evidence

Although the district court accepted Harlan’s testimony as 

sufficient to establish portions of the property as nonmarital, 

the Court of Appeals rejected Harlan’s claims solely on the 

basis that he lacked documentation. Regarding the 401K, the 

Court of Appeals stated:

The problem with Harlan’s claim is that it is based 

solely on his own recollection. Harlan failed to adduce 

any documentation whatsoever regarding when the 401K 

came into existence, what contributions were made to it 

13 See 32A C.J.S. Evidence § 1286 (2008).

14 Id.

15 See Rohde v. Rohde, 303 Neb. 85, 927 N.W.2d 37 (2019).

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

17 Westwood v. Darnell, 299 Neb. 612, 909 N.W.2d 645 (2018).

18 Rohde v. Rohde, supra note 15.
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by him or his employer, and how it was invested or grew 

over the years.19

The Court of Appeals recognized that Harlan tried to obtain 

records to demonstrate the value of his 401K in 1992, but 

could not do so because his former employer did not maintain 

those records. The Court of Appeals then suggested a number 

of other records that perhaps Harlan could have obtained. It 

found that the trial court erred in setting off $130,000 to Harlan 

“based solely on his testimony.”20 And with regard to the inheritance, the Court of Appeals noted that Harlan presented documentation to support his claim that he received an inheritance, 

but that he “presented no documentation which in any way 

establishes or corroborates the amount of that inheritance.”21

In effect, the Court of Appeals held that Harlan’s testimony 

could not be accepted without documentary support. That goes 

too far.

[12,13] A nonmarital interest in property may be established 

by credible testimony.22 In Brozek v. Brozek,

23 we recognized 

that a spouse’s own testimony can establish a “‘tracing link,’” 

i.e., tracking an asset to a nonmarital source. 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.24 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, self-contradictory, 

or inconsistent with facts or circumstances in evidence.25 We 

19 Burgardt v. Burgardt, supra note 1, 27 Neb. App. at 65, 926 N.W.2d at 

460.

20 Id. at 67, 926 N.W.2d at 461.

21 Id. at 68, 926 N.W.2d at 462.

22 See Kerr v. Kerr, 770 N.W.2d 567 (Minn. App. 2009).

23 Brozek v. Brozek, 292 Neb. 681, 701, 874 N.W.2d 17, 32 (2016).

24 State on behalf of Mariah B. & Renee B. v. Kyle B., 298 Neb. 759, 906 

N.W.2d 17 (2018).

25 Fredericks Peebles v. Assam, 300 Neb. 670, 915 N.W.2d 770 (2018).
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acknowledged in Brozek that the trial court was “entitled to 

discount [the husband’s] testimony about [an alleged premarital 

asset] because of his admitted uncertainty.”26

While documentary evidence may be more persuasive, it is 

not absolutely required. In a case where the husband did not 

produce bank statements proving the premarital balance of his 

bank accounts but the wife did not contest the values he listed 

on a joint property statement, we found an abuse of discretion 

by the trial court in failing to set off the value of premarital 

bank accounts.27 In Onstot v. Onstot,

28 we affirmed the trial 

court’s decision to not grant the husband credit for the value of 

a premarital house at the time of marriage, stating that “assuming [the husband’s] testimony established the value of the residence at $100,000 at the time of the marriage, he did not testify

or supply any documentation as to whether the residence was 

either encumbered or unencumbered at that time and, if encumbered, to what extent.” This statement implies that premarital 

equity could have been established by testimony alone. In a 

case where undisputed testimony established items as premarital, the Court of Appeals determined that the trial court erred in 

classifying the items as marital property.29

Of course, a party opting to rely upon his or her testimony 

alone does so at the risk of nonpersuasion. In a case where the 

trial court set aside the total amount of premarital funds that the 

husband claimed he used to purchase property, we reduced the 

amount of the set aside—even though the husband’s testimony 

was uncontradicted—because there was nothing in the record 

to show the source of certain funds.30 In Brozek, we affirmed 

the trial court’s decision declining to set off any amount to the 

26 Brozek v. Brozek, supra note 23, 292 Neb. at 701, 874 N.W.2d at 32.

27 See Osantowski v. Osantowski, supra note 2.

28 Onstot v. Onstot, 298 Neb. 897, 904, 906 N.W.2d 300, 306 (2018) 

(emphasis supplied).

29 See Schmeidler v. Schmeidler, 25 Neb. App. 802, 912 N.W.2d 278 (2018).

30 See Frost v. Frost, 227 Neb. 414, 418 N.W.2d 220 (1988).
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husband for the premarital portion of two checking accounts 

(he testified one account had about $79,000 at the time of marriage), crops from a 1993 harvest, and machinery owned at the 

time of marriage (but later sold or traded).31 A party seeking 

recognition of nonmarital property may find it easier to meet 

his or her burden of persuasion with documentary support. But 

its absence does not automatically defeat the claim.

3. Definitively Proved

The Court of Appeals also determined that Harlan “failed to 

meet his burden of proof to definitively identify the value of 

his claimed premarital asset.”32 “Definitively” means “[s]o as 

to decide or settle the matter; decisively, conclusively, finally, 

definitely.”33

In doing so, the Court of Appeals misread our decision in 

Brozek. The Court of Appeals stated that we “reversed the trial 

court judgment, finding that the husband had not definitively 

identified the values of his premarital assets.”34 We did neither. 

Rather, we affirmed the trial court’s judgment, concluding, as 

did the trial court, that the husband failed to trace the value of 

property alleged to be premarital. We stated that he did “not 

identify the different permutations that his premarital property 

underwent during the marriage” and that “we cannot follow the 

threads in the hodgepodge of figures.”35

[14] It is axiomatic that an item must be identified in 

order to be set off as nonmarital. But its value need not be 

definitively or conclusively proved; the greater weight of the 

31 Brozek v. Brozek, supra note 23.

32 Burgardt v. Burgardt, supra note 1, 27 Neb. App. at 68, 926 N.W.2d at 462 

(emphasis supplied).

33 “Definitively,” Oxford English Dictionary Online, http://www.oed.com/

view/Entry/4889 (last visited Sept. 24, 2019).

34 Burgardt v. Burgardt, supra note 1, 27 Neb. App. at 66, 926 N.W.2d at 

461.

35 Brozek v. Brozek, supra note 23, 292 Neb. at 699, 874 N.W.2d at 31.
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evidence is sufficient. In other words, the value of the nonmarital portion of an asset must be established by the greater 

weight of the evidence.

4. Resolution

In summary, we reject the Court of Appeals’ articulations 

that documentary evidence is necessary to establish a claim 

to nonmarital property and that a nonmarital value must be 

proved “definitively.” While Harlan had the burden of persuading the district court of the nonmarital character of the property 

and its value, he succeeded in doing so. On appeal, our standard of review governs. And here, it is important to recognize 

that the district court heard and observed the witnesses and 

accepted one version of the facts rather than another. As we 

have said, this court is not inclined to disturb the division of 

property made by the trial court unless it is patently unfair on 

the record.36

The district court set off to Harlan $130,000 as the nonmarital value of his 401K and $60,000 as the nonmarital value 

of his inherited share of the home farm. Evidence supports 

the court’s award. Harlan testified that his 401K was valued at $130,000 at the time of marriage. When asked, “Are 

you aware of any kind of 401-K Harlan had before marriage 

worth $130,000,” Shirley responded, “No.” But on crossexamination, she admitted she had no evidence to dispute 

that Harlan contributed to the 401K prior to marriage. Harlan 

testified that his inherited share of his father’s farm was worth 

$60,000, and Shirley did not dispute this. This was not a situation where the trial court rejected a party’s unsupported testimony and, in affirming, an appellate court noted the lack of 

documentary evidence. Here, the district court evidently found 

Harlan’s testimony to be credible and set off the amounts 

claimed as nonmarital. Upon our de novo review, we cannot 

say it abused its discretion in doing so.

36 Tavlin v. Tavlin, 194 Neb. 98, 230 N.W.2d 108 (1975).
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VI. CONCLUSION

Upon our de novo review, we find no abuse of discretion by 

the district court in setting off to Harlan amounts representing 

nonmarital portions of his 401K and inheritance. We reverse 

the decision of the Court of Appeals as to those items and 

remand the cause to that court with direction to affirm the district court’s decree as modified to divide the net tax liability of 

$27,494 evenly between the parties.

Reversed and remanded with direction.