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BOWEN v. BOWEN

Cite as 29 Neb. App. 726

Melvin Kadel Bowen, appellant, v. 

Karen Denise Bowen, appellee.

___ N.W.2d ___

Filed April 6, 2021. No. A-20-194.

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. Judgments: Words and Phrases. An abuse of discretion occurs when 

a trial court bases its decision upon reasons that are untenable or unreasonable or if its action is clearly against justice or conscience, reason, 

and evidence.

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. ____: ____. The ultimate test in determining the appropriateness of the 

division of property is fairness and reasonableness as determined by the 

facts of each case.

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

spouse during a marriage is part of the marital estate.

6. ____: ____. The marital estate does not include property that a spouse 

acquired before the marriage, or by gift or inheritance.

7. ____: ____. Separate property becomes marital property by commingling if it is inextricably mixed with marital property or with the 

Nebraska Supreme Court Online Library

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

04/13/2021 09:07 AM CDT
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BOWEN v. BOWEN

Cite as 29 Neb. App. 726

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

segregated or is traceable into its product, commingling does not occur, 

and thus it does not become marital property.

8. Property Division: Proof. The party claiming that property is nonmarital has the burden of proving the property’s separate status.

9. Divorce: Courts: Property Division. The manner in which property is 

titled or transferred by the parties during the marriage does not restrict 

the trial court’s determination of how the property will be divided in an 

action for dissolution of marriage.

10. Divorce: Property Division: Judicial Sales. A court in a dissolution 

action may provide for the sale of all or part of the parties’ assets in lieu 

of dividing them, if to do so is reasonable in the light of the facts, the 

circumstances of the parties, and the nature of their property.

Appeal from the District Court for Sarpy County: Nathan 

B. Cox, Judge. Affirmed in part, and in part reversed and 

remanded with directions.

Donald A. Roberts, of Lustgarten & Roberts, P.C., L.L.O., 

for appellant.

Mona L. Burton, of Anderson, Creager & Wittstruck, P.C., 

L.L.O., for appellee.

Riedmann, Bishop, and Welch, Judges.

Welch, Judge.

I. INTRODUCTION

Melvin Kadel Bowen appeals the dissolution decree entered 

by the Sarpy County District Court dissolving his marriage to 

Karen Denise Bowen. Melvin contends the district court erred 

in failing to find that certain real property was a marital asset 

and in ordering the sale of real property rather than dividing 

the real property and ordering an equalization payment. For the 

reasons set forth herein, we affirm in part, and in part reverse 

and remand with directions.

II. STATEMENT OF FACTS

Melvin and Karen married in September 2010. No children 

were born of the marriage. Melvin filed for dissolution in 
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BOWEN v. BOWEN

Cite as 29 Neb. App. 726

June 2018. At the time of trial, Melvin was 57 years old and 

Karen was 50 years old.

During the parties’ marriage, Melvin was employed as a 

mission analyst for an information technology company and 

later as a civilian employee for the U.S. Air Force. In addition 

to his salary, Melvin received military retirement and disability payments from the Department of Veterans Affairs (VA) 

resulting from his military service that ended prior to the date 

of the parties’ marriage. Karen was unemployed as of 2015, 

but received VA disability income and monthly Social Security 

benefits. Karen testified that during the marriage, Melvin told 

her she did not have to work or pay any bills.

1. Trial

The evidence adduced at trial that is relevant to this appeal 

centered on the parties’ real property consisting of a property 

on Rahn Boulevard in Nebraska and a property on Sunset 

Drive in North Carolina.

(a) Rahn Boulevard Property

Melvin purchased the Rahn Boulevard property in 2004 

with his ex-wife and originally encumbered the property with a 

mortgage in the amount of $182,663.64.

In October 2010, at Karen’s request, Melvin executed a quitclaim deed adding Karen as a titleholder to the Rahn Boulevard 

property. Melvin testified that he signed the deed voluntarily 

and that it was “[his] intent to include [Karen] on the deed” as 

tenants in common. Although Melvin testified that he added 

Karen’s name to the property “[b]ecause we were married,” 

because he “felt it was the right thing to do,” and “so [Karen] 

would . . . feel comfortable in the house,” he also testified that 

he did not intend to make a gift to Karen of half the value of 

the property.

Melvin testified that during the parties’ marriage, there 

were improvements made to the Rahn Boulevard property, 

including the installation of granite countertops and crown 

molding in the kitchen. According to Melvin, he and Karen 
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Cite as 29 Neb. App. 726

installed the backsplash themselves and he alone paid for these 

upgrades. Melvin testified that at the time of trial, a Sarpy 

County website listed the value of the Rahn Boulevard property at approximately $213,000 and the remaining mortgage 

balance was $51,000.

Melvin also testified he discovered Karen had executed a 

real estate transfer statement and quitclaim deed of the Rahn 

Boulevard property to herself and her two daughters dated 

March 2018. Melvin explained he was unaware that Karen 

executed these documents.

Karen testified Melvin deeded half of the Rahn Boulevard 

house to her because she told Melvin she did not want to live 

in a house previously inhabited by Melvin and his ex-wife 

and that she was uncomfortable with the property being titled 

solely in his name. She further explained another reason 

Melvin included her on the deed “was that I owned half of 

that house to do whatever I choose to do with, and he had 

his half that he could do whatever he wanted to do as far 

as if something would happen to either one of us.” Further, 

Karen testified that after she moved into the property in July 

2010, the property still had the furnishings from Melvin’s first 

marriage which Karen explained was “not going to work. I 

didn’t want to live like that,” so she took responsibility for 

refurnishing the property. Karen moved out of the residence 

on December 15, 2018. Karen testified that at the time of 

trial, the value of the Rahn Boulevard property was $250,300 

with a mortgage balance of $54,597.34. In exhibit 61, Karen’s 

“Suggestions to the Court” (which was received as an aid to 

the court), she suggested that Melvin should be awarded the 

Rahn Boulevard property.

(b) Sunset Drive Property

During the parties’ marriage, they purchased the Sunset 

Drive property located in North Carolina for $263,000. Melvin 

testified he paid $26,000 as a downpayment with money from 

his premarital accounts. In connection with that purchase, the 

court received exhibit 21, which included a bank statement 
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BOWEN v. BOWEN

Cite as 29 Neb. App. 726

indicating that as of November 20, 2018, the unpaid principal 

balance on the mortgage for the Sunset Drive property was 

$214,865.65 and the total amount paid against the mortgage 

balance during the marriage was $21,846.24.

Melvin testified that he should be awarded the Sunset Drive 

property, that the current value of the property was $295,000, 

and that the current mortgage balance was $214,865.65. Karen 

agreed Melvin should be awarded the Sunset Drive property, 

but testified the value of the property was $309,800. Karen testified that after reducing the equity in the property by Melvin’s 

$26,000 downpayment, the remaining $68,935 in equity in the 

property should be divided equally.

2. Dissolution Decree

The district court entered a decree of dissolution in August 

2019. In the decree, as relevant to this appeal, the district 

court found Melvin owned the Rahn Boulevard property prior 

to the marriage, but added Karen’s name to the deed giving 

her “joint status of ownership,” making the property part of 

the marital estate. The district court ordered the sale of the 

Rahn Boulevard property with the proceeds or liabilities split 

equally between the parties. The district court found the parties acquired the Sunset Drive property during the marriage 

but utilized $26,000 of Melvin’s premarital assets in making a 

downpayment for the property. The district court also ordered 

a sale of the Sunset Drive property with any profits or losses 

split equally between the parties after reducing the equity by 

$26,000 for Melvin’s downpayment.

Melvin moved for a new trial or, in the alternative, to alter 

or amend the decree, alleging the district court’s findings were 

not supported by the facts or the law. In support of his motion, 

Melvin argued the court erred in finding the Rahn Boulevard 

property was a marital asset and in ordering the sale of the 

Sunset Drive property. Following a hearing, the district court 

denied Melvin’s motion for new trial or to alter or amend 

the decree.
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BOWEN v. BOWEN

Cite as 29 Neb. App. 726

Karen filed a motion to clarify, which in relevant part 

requested clarification on how the parties were to accomplish 

the sales of the Rahn Boulevard and Sunset Drive properties. 

In response, the district court entered an order stating that if 

Melvin or Karen wished to purchase the Rahn Boulevard property, the Sunset Drive property, or both,

he/she may do so if the parties are able to agree upon 

a sales price. The purchasing party would then have 30 

days after closing on the property in question within 

which to provide the non-purchasing party’s portion of 

the proceeds from the sale of the home(s).

If neither party chooses to purchase one and/or both 

homes, the same shall be placed on the market within 60 

days of the date of this order. [Melvin] shall be responsible to prepare the properties for sale and any reasonable 

costs to prepare the houses for sale shall be deducted 

from the proceeds and reimbursed to him prior to a division pursuant to the Court’s Decree. If [Melvin] and 

[Karen] cannot agree on a realtor within 15 days of this 

order, then Re/Max Real Estate Company will be used, 

and a specific realtor is to be randomly assigned by the 

company in each market. If the parties cannot agree on a 

sales price, the Re/Max Real Estate Company’s agent will 

provide the offering price using their best professional 

judgment of the fair market values of each property. 

[Melvin] and [Karen] shall cooperate in the sale of the 

homes in signing all necessary documents. [Karen’s] portion of the proceeds shall be paid within 30 days of the 

closing of each home.

Melvin has timely appealed to this court.

III. ASSIGNMENTS OF ERROR

Melvin contends that the district court erred (1) in finding the Rahn Boulevard property was a marital asset and (2) 

in ordering the sale of the Rahn Boulevard and Sunset Drive 

properties rather than awarding the properties to him and 

ordering an equalization payment from Melvin to Karen.
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BOWEN v. BOWEN

Cite as 29 Neb. App. 726

IV. 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. Dycus v. Dycus, 307 Neb. 426, 949 N.W.2d 

357 (2020).

[2] An abuse of discretion occurs when a trial court bases 

its decision upon reasons that are untenable or unreasonable 

or if its action is clearly against justice or conscience, reason, 

and evidence. Windham v. Kroll, 307 Neb. 947, 951 N.W.2d 

744 (2020).

V. ANALYSIS

1. Marital Estate

Melvin first argues the district court erred in finding the 

Rahn Boulevard property was a marital asset. In support of his 

contention, Melvin argues that he clearly purchased the property prior to his marriage with Karen and added Karen’s name 

to the title because she did not want to live in the house previously inhabited by himself and his ex-wife and that he simply 

added Karen’s name to the title to assuage her discomfort in 

living in a property previously purchased and inhabited by 

Melvin and his ex-wife. More specifically, Melvin asserts that 

by adding Karen’s name to the title, he did not intend to make 

a gift of the property. As such, he argues his actions did not 

convert the premarital property into marital property.

[3,4] Regarding the marital estate, the Nebraska Supreme 

Court has articulated:

Under Neb. Rev. Stat. § 42-365 (Reissue 2008), 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 
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BOWEN v. BOWEN

Cite as 29 Neb. App. 726

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. 

See, Sitz v. Sitz, 275 Neb. 832, 749 N.W.2d 470 (2008); 

Plog v. Plog, 20 Neb. App. 383, 824 N.W.2d 749 (2012). 

The ultimate test in determining the appropriateness of 

the division of property is fairness and reasonableness as 

determined by the facts of each case.

Despain v. Despain, 290 Neb. 32, 41, 858 N.W.2d 566, 

573 (2015).

[5-8] In classifying assets as marital or nonmarital, the 

Nebraska Supreme Court has explained:

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. Setting 

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

original asset no longer exists. 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. The burden of proof rests with the party claiming that property is nonmarital.

Brozek v. Brozek, 292 Neb. 681, 698, 874 N.W.2d 17, 31 (2016).

Applying these principles to the case at bar, it is clear from 

the record that Melvin acquired the Rahn Boulevard property 

prior to his marriage to Karen. As such, the property would 

be considered nonmarital and set aside for Melvin unless the 

property became marital because of actions taken by Melvin 

and Karen after their marriage.

In this case, approximately a month after their marriage, 

Melvin added Karen to the title of the Rahn Boulevard property. Karen moved into the property and lived there with 

Melvin, and the parties made certain improvements to the 
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property. Melvin testified he funded these improvements, but 

the record is unclear as to whether the improvements were 

made with marital or nonmarital funds. After reviewing the 

evidence, the district court found:

[Melvin] added [Karen’s] name to the title on that property, hereby giving her joint status of ownership to the 

same. Accordingly, the Court finds that said property is 

marital property. Thus, the Court orders that said property 

should be sold and any proceeds or liabilities shall be 

split equally (50/50) between the parties.

Melvin argues that in making this finding, the district court 

applied a presumption that was disapproved by the Nebraska 

Supreme Court in Schuman v. Schuman, 265 Neb. 459, 658 

N.W.2d 30 (2003).

[9] In Schuman, the court addressed the application of a 

joint-title presumption in connection with property distribution following a dissolution of marriage. The specific principle 

to be applied was framed by the court as follows: “‘“[W]hen 

a husband and wife take title to a property as joint tenants, 

even though one pays all the consideration therefor, a gift is 

presumed to be made by the spouse furnishing the consideration to the other . . . .” [Citations omitted.] This presumption 

is a rebuttable presumption.’” Schuman, 265 Neb. at 469, 658 

N.W.2d at 39. After noting that the Nebraska Court of Appeals 

had previously applied the gift presumption in connection 

with the distribution of property following a dissolution in 

Gerard-Ley v. Ley, 5 Neb. App. 229, 558 N.W.2d 63 (1996), 

the Schuman court held:

The Court of Appeals erred in applying the aforementioned principle in Gerard-Ley. None of the cases cited in 

the quote above involved a dispute between spouses over 

property distribution following a dissolution of marriage. 

The manner in which property is titled or transferred 

by the parties during the marriage does not restrict the 

trial court’s determination of how the property will be 

divided in an action for dissolution of marriage. As a 

general rule, all property accumulated and acquired by 
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either spouse during the marriage is part of the marital 

estate, unless it falls within an exception to the general 

rule. Heald v. Heald, 259 Neb. 604, 611 N.W.2d 598 

(2000). To the extent that the Court of Appeals’ opinion 

in Gerard-Ley can be interpreted to mean that nonmarital 

property which during a marriage is titled in joint tenancy cannot be considered as a nonmarital asset in an 

action for dissolution of marriage, such interpretation is 

expressly disapproved.

265 Neb. at 469-70, 658 N.W.2d at 39.

Melvin argues that the district court’s finding here clearly 

applied the gift presumption rule disapproved of in Schuman

and that the district court erred in concluding the Rahn 

Boulevard property became a marital asset. Although we agree 

with Melvin that the act of adding Karen to the title is not 

dispositive of the issue, we disagree that the district court’s 

ultimate conclusion was in error.

Although Melvin’s act of adding Karen’s name to the title 

did not create a presumption that he gifted the property to her, 

it was evidence to be considered with all other evidence here in 

determining whether the Rahn Boulevard property retained its 

character as a nonmarital asset following the parties’ marriage. 

Stated differently, even though adding Karen to the title does 

not create a presumption that Melvin gifted the asset to her, it 

does provide some evidence of Melvin’s state of mind at the 

time he added her name to the title. As a general rule, property 

which one party brings into the marriage is excluded from the 

marital estate. Onstot v. Onstot, 298 Neb. 897, 906 N.W.2d 300 

(2018). However, the burden of proof to show that property is a 

nonmarital asset remains with the person making the claim. Id. 

Applying that burden, we hold the district court did not abuse 

its discretion in finding the Rahn Boulevard property became 

a marital asset following certain circumstances occurring after 

Melvin’s marriage to Karen.

In support of that finding, the record indicates that Karen 

objected to living in the Rahn Boulevard property due to 

its affiliation with Melvin’s ex-wife. In order to assuage her 
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concerns, Melvin agreed to add Karen to the title of the Rahn 

Boulevard property, and the record includes evidence that 

Melvin told Karen she was free to do what she wanted with 

her half of the property. This testimony, together with the 

testimony of how the parties subsequently worked together to 

improve the Rahn Boulevard property and their postmarriage 

living arrangements, was sufficient to support the district 

court’s determination that Melvin intended to convert this onetime nonmarital property into marital property. And, although 

following the Nebraska Supreme Court’s holding in Schuman 

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

not prohibited from considering a previously nonmarital asset 

that is jointly titled during marriage as a nonmarital asset, it is 

not required to do so. Such a finding depends on the facts and 

circumstances of each case.

In this case, Melvin simply did not satisfy his burden of 

showing the Rahn Boulevard property remained a nonmarital 

asset following the parties’ marriage. Further, we note Melvin 

did not present evidence to support a finding that at least a 

portion of the equity in the property, the part accruing prior to 

his marriage to Karen, should be considered nonmarital property. For instance, there was no evidence offered regarding the 

value of the property or the mortgage balance as of the date 

of the marriage. Instead, the issue was framed by Melvin as 

having preserved the entirety of the property as nonmarital. As 

discussed above, having failed to satisfy his burden to establish 

the Rahn Boulevard property was nonmarital, the court did not 

err in finding the Rahn Boulevard property became marital 

property. The first assigned error fails.

2. Property Division

Next, Melvin contends the district court erred in ordering 

the sale of the Rahn Boulevard and Sunset Drive properties 

because neither Melvin nor Karen disputed that he should 

be awarded those properties. Instead, Melvin argues that the 

properties should have been awarded to him and that he 

should have been ordered to pay an appropriate equalization 
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payment in relation to the equity in the properties. Melvin 

argues that because the parties agreed he should be awarded 

the properties, the district court abused its discretion in ordering the sale of the properties.

[10] “Nebraska courts do not generally order sales of marital assets to facilitate distribution. In the few cases where a 

sale is ordered, the sale was the only practical way to divide 

the parties’ assets.” Kellner v. Kellner, 8 Neb. App. 316, 328, 

593 N.W.2d 1, 10 (1999). After discussing the few Nebraska 

cases in which marital property had been ordered sold, this 

court stated:

[A] court in a dissolution action may provide for the sale 

of all or part of the parties’ assets in lieu of dividing them, 

if to do so is reasonable in the light of the facts, the circumstances of the parties, and the nature of their property. 

Such action, of course, must be within the statutory dictate that the division of the assets be reasonable, having 

regard for the circumstances of the parties as provided in 

§ 42-365, and that it satisfy the ultimate test of fairness 

and reasonableness articulated by case law.

Kellner, 8 Neb. App. at 332, 593 N.W.2d at 12.

Here, although the parties agreed that the district court 

should award both the Rahn Boulevard and Sunset Drive 

properties to Melvin, they disagreed on the market value of 

both properties and differed on the mortgage balance of the 

Rahn Boulevard property. Melvin valued the Rahn Boulevard 

property at $213,000, whereas Karen valued the property at 

$250,300. Melvin testified the Rahn Boulevard property had 

a mortgage balance of $51,000, whereas Karen testified the 

mortgage balance was slightly under $54,600. Based upon 

the parties’ testimonies, Melvin asserted the net value of the 

Rahn Boulevard property was $162,000 ($213,000 less the 

$51,000 mortgage) and Karen’s net value of the property 

was $195,700 ($250,300 less the $54,600 mortgage). Thus, 

the parties’ valuations for the Rahn Boulevard property were 

$33,700 apart.
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Similarly, regarding the Sunset Drive property, Melvin valued the property at $295,000, whereas Karen valued the property at $309,800. Melvin testified the current mortgage balance 

on the property was just under $214,900, which was not disputed by Karen. Based upon the parties’ testimonies, Melvin’s 

net value of the Sunset Drive property was $80,100 ($295,000 

less the $214,900 mortgage) and Karen’s net value of the 

property was $94,900 ($309,800 less the $214,900 mortgage). 

Thus, the parties’ valuations of the Sunset Drive property 

were only $14,800 apart. Further, Karen testified that Melvin 

should be awarded the Sunset Drive property and that the 

equity in the property should be reduced by Melvin’s $26,000 

downpayment.

Based upon the circumstances present in this case, including that the parties’ valuations of the Rahn Boulevard property 

and the Sunset Drive property were relatively close, a $33,700 

difference in one and a $14,800 difference in the other; that 

both parties agreed Melvin should be awarded both properties; and that Melvin had sufficient assets from which to pay 

an equalization payment, the district court’s decision to order 

the Rahn Boulevard and Sunset Drive properties sold was 

not reasonable. Accordingly, we reverse the district court’s 

order requiring the parties to sell the Rahn Boulevard and 

Sunset Drive properties and remand the cause with directions 

for the district court to determine the value of these assets 

on the existing record; award the two properties to Melvin; 

order Melvin to refinance the mortgages in his name alone, 

if necessary, by a date certain with the parties to evenly 

share that expense; order a payment to Karen to equalize the 

marital equity in these properties; and provide for any other 

orders necessary to accomplish our directives set forth in 

this opinion.

VI. CONCLUSION

For the foregoing reasons, we affirm the district court’s 

determination that the Rahn Boulevard property was marital. However, we reverse the district court’s order for the 
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parties to sell the Rahn Boulevard and Sunset Drive properties and remand the cause with directions for the district court 

to determine the value of these assets on the existing record; 

award the two properties to Melvin; order Melvin to refinance 

the mortgages in his name alone, if necessary, by a date certain 

with the parties to evenly share that expense; order a payment 

to Karen to equalize the marital equity in these properties; and 

provide any other orders necessary to accomplish our directives set forth in this opinion.

Affirmed in part, and in part reversed 

and remanded with directions.