- 265 -

Nebraska Court of Appeals Advance Sheets

29 Nebraska Appellate Reports

CHMELKA v. CHMELKA

Cite as 29 Neb. App. 265

Michelle M. Chmelka, appellant, 

v. Kyle L. Chmelka, appellee.

___ N.W.2d ___

Filed December 8, 2020. No. A-20-043.

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. However, when the evidence is in conflict, the appellate court considers and may give weight 

to the fact that the trial court heard and observed the witnesses and 

accepted one version of the facts rather than another.

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

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

submitted for disposition.

4. 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.

5. Trial: Evidence. 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.

6. Child Custody. Joint physical custody is neither favored nor disfavored 

under Nebraska law, and, in fact, no custody or parenting time arrangement is either favored or disfavored as a matter of law.

Nebraska Supreme Court Online Library

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

12/15/2020 08:08 AM CST
- 266 -

Nebraska Court of Appeals Advance Sheets

29 Nebraska Appellate Reports

CHMELKA v. CHMELKA

Cite as 29 Neb. App. 265

7. ____. In addition to the “best interests” factors listed in Neb. Rev. 

Stat. § 43-2923 (Reissue 2016), a court making a child custody determination may consider matters such as the moral fitness of the child’s 

parents, including the parents’ sexual conduct; respective environments 

offered by each parent; the emotional relationship between child and 

parents; the age, sex, and health of the child and parents; the effect on 

the child as the result of continuing or disrupting an existing relationship; the attitude and stability of each parent’s character; and the parental capacity to provide physical care and satisfy the educational needs 

of the child.

8. Divorce: Property Division. In a divorce action, the purpose of a 

property division is to distribute the marital assets equitably between 

the parties.

9. Property Division. The first step in property division is to classify the 

parties’ property as marital or nonmarital.

10. Divorce: Property Division. The marital estate does not include property that a spouse acquired before the marriage, or by gift or inheritance.

11. ____: ____. Separate property becomes marital property by commingling 

if it is inextricably mixed with marital property or with the separate 

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

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

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

party claiming that property is nonmarital.

Appeal from the District Court for Saunders County: 

Christina M. Marroquin, Judge. Affirmed.

John H. Sohl for appellant.

Amie C. Martinez and Megan M. Zobel, of Anderson, 

Creager & Wittstruck, P.C., L.L.O., for appellee.

Pirtle, Chief Judge, and Bishop and Arterburn, Judges.

Pirtle, Chief Judge.

I. INTRODUCTION

Michelle M. Chmelka appeals from the decree entered by 

the Saunders County District Court dissolving her marriage 

to Kyle L. Chmelka. Michelle claims the district court abused 

its discretion in awarding joint legal and physical custody as 

well as equal parenting time. She also disputes the district 
- 267 -

Nebraska Court of Appeals Advance Sheets

29 Nebraska Appellate Reports

CHMELKA v. CHMELKA

Cite as 29 Neb. App. 265

court’s finding that $312,725 of stored grain, seed, fertilizer, 

and chemicals were Kyle’s premarital property. For the reasons 

that follow, we affirm.

II. BACKGROUND

Michelle and Kyle married in December 2014. They have 

two minor children: a son born in 2015 and a daughter born 

in 2017. Neither child was of school age at the time of trial. 

Michelle graduated from high school in 2009 and later received 

an associate’s degree in business in 2011. During the marriage, 

Michelle worked first at a clinic, then at her mother’s gas station in David City, Nebraska. She also acted as the children’s 

primary caretaker throughout the marriage. Kyle graduated 

from high school in 2005 and later received a degree in heating 

and air conditioning. During the marriage, Kyle was a selfemployed farmer. At all times during the marriage, the parties 

lived rent free in a home owned by Kyle’s parents.

Michelle and the children moved out of the marital home 

on May 28, 2018. She filed a complaint for dissolution of 

marriage on July 23. Kyle did not file an answer. After a 

contested hearing, the district court entered an order for temporary custody, ordering Michelle and Kyle to share legal and 

physical custody, each having 1 week of alternating parenting 

time. Michelle was granted primacy in choices regarding the 

children’s medical and religious upbringing; Kyle was given 

primacy regarding education and activities. Testimony showed 

that the parties were able to amicably abide by this parenting 

arrangement for over a year prior to trial.

At trial, Michelle testified that since the separation, she was 

again working at the clinic for 38 hours a week at $17.75 per 

hour. She testified that she had weekends off and had flexibility to care for the children if they were ill or injured. Michelle 

lived within 2 miles of her parents, who were also available to 

care for the children.

Regarding custody, Michelle testified that she was seeking sole legal and physical custody of the children subject 

to a parenting plan where she and Kyle would alternate time 
- 268 -

Nebraska Court of Appeals Advance Sheets

29 Nebraska Appellate Reports

CHMELKA v. CHMELKA

Cite as 29 Neb. App. 265

between her 9 days and Kyle’s 5 days. She testified she was 

qualified to be sole legal and physical custodian, because she 

put the children’s best interests first, had a flexible job, and 

had been the primary caretaker of the children throughout 

the marriage. Michelle testified that during the marriage, she 

would get the children ready in the morning, transport them to 

and from daycare, bathe them, cook meals, and arrange medical appointments and social activities.

Michelle testified that there had been situations when “the 

kids [were] in Kyle’s care that [she had] questioned their 

safety” and where he had not placed the best interests of the 

children at the forefront. She testified that Kyle abused alcohol 

more than once in her presence during the marriage and regularly “peed the bed” while intoxicated. However, she stated 

that as long as Kyle remained sober, she was not concerned 

for the children’s safety. She testified that since the separation, 

Kyle called her a liar on the phone and in person, sometimes in 

the presence of their children. She also recounted an occasion 

in September 2019 when Kyle called her a “whore” in the presence of their daughter. However, she testified that all derogatory text messages and threats had since stopped.

Michelle testified that during the separation, there was a 

time when their son was sick during Kyle’s parenting time. She 

testified that when she called to check on their son, Kyle told 

her that “he gave [their son] a whole bottle of Tylenol, that he 

was drugged up, that he would be just fine.” When Michelle 

expressed concerns, Kyle claimed he had been joking. After 

she got off the phone, Michelle called the sheriff’s department 

to conduct a welfare check. However, the sheriff was unable 

to make contact with Kyle either in person or via phone. On 

cross-examination, she admitted that she had no other evidence 

that Kyle had failed to give either of their children appropriate 

medical attention.

Michelle also testified that Kyle had been physically abusive to her on more than one occasion. She testified that in the 

spring of 2016, she was sleeping in their bedroom with their 

son when Kyle came home intoxicated. Michelle attempted 
- 269 -

Nebraska Court of Appeals Advance Sheets

29 Nebraska Appellate Reports

CHMELKA v. CHMELKA

Cite as 29 Neb. App. 265

to stop Kyle from entering the room, and he “put [her] up 

against the wall” by pressing his forearm into her throat. 

Michelle then asked him to go downstairs, and Kyle went to 

sleep on the couch.

Michelle testified about a second event that occurred a few 

weeks before she moved out of the home. Around midnight, 

while she was sleeping in the bedroom with the children, Kyle 

came in the bedroom after climbing through an upstairs window. Michelle testified that she had blocked the stairs before 

going to bed to keep Kyle off of the second floor. She testified 

Kyle was lying down in their bed and was “being loud, so he 

had woken up [their son],” who was on the bed beside her. She 

testified Kyle “was trying to roll over towards [her], telling 

[her] she was going to get screwed.” When Kyle would not 

leave her and their son alone, Michelle took him to sleep in a 

different room, but left their daughter sleeping in a crib next to 

the bed. Kyle did not follow her out of the room.

Michelle began to testify about text messages she received 

from Kyle acknowledging another incident of physical abuse. 

However, the court sustained Kyle’s objection based on the 

form of the question, noting that the question “wasn’t consistent with the testimony only because she testified to two incidents, and I don’t know what you’re referring to.” Michelle did 

not testify about any other incidents of physical abuse.

Michelle testified that she was amenable to a provision that 

prohibited both her and Kyle from consuming alcohol before or 

during their parenting time. She testified that Kyle’s abstaining 

from alcohol during his parenting time would allay concerns 

she had regarding the safety of the children. She agreed that 

she would be able to communicate with Kyle regarding their 

children’s needs.

On cross-examination, Michelle admitted that during the 

separation, she had sometimes denied Kyle parenting time 

with the children. She admitted that in spite of the temporary 

order granting Kyle final say in all educational matters, she 

had taken their son to be evaluated for developmental issues 

without consulting Kyle. Michelle agreed that she had become 
- 270 -

Nebraska Court of Appeals Advance Sheets

29 Nebraska Appellate Reports

CHMELKA v. CHMELKA

Cite as 29 Neb. App. 265

intoxicated on more than one occasion during the marriage and 

that she had driven with her children in the car after drinking. 

She admitted that she had raised her voice when speaking to 

Kyle while the children were present.

In regard to the marital estate, Michelle admitted that she 

had been aware Kyle had premarital property, but did not know 

the extent of it. She stated she “was not involved in the farming 

portion” of the marriage. She admitted she had no evidence to 

contradict Kyle’s assertions regarding farm supplies and equipment he owned or had an interest in prior to the marriage.

Kyle testified that he began farming with his father in 2011. 

He testified that although he and his father help out with each 

other’s fields, all of the money earned from Kyle’s fields 

belongs solely to him. Although it varies by season, Kyle’s 

work schedule is flexible. During the marriage, he stated that 

he was able to spend less time with the children than Michelle 

because of his role as a self-employed farmer. However, he 

testified that he was able to, and occasionally did, take the 

children to daycare, bathe them, and feed them when his schedule allowed. He has a large extended family that lives in the 

area, and at the time of trial, he saw his parents and sister at 

least weekly.

Kyle testified that he has a close relationship with his children. During Kyle’s parenting time, he and the children play 

outside, sled in the wintertime, read books, watch television, 

and attend family gatherings. Kyle maintains a routine with 

the children, bathes them, puts them to bed, feeds them, and 

transports them to and from daycare.

Kyle testified regarding an incident when Michelle unilaterally removed the children from the daycare provider they had 

been using since birth without telling Kyle. He requested that 

the parties continue to share joint legal and physical custody 

under the same conditions as the temporary custody order.

Regarding the marital estate, Kyle testified that he worked 

solely as a farmer during the entire marriage. He testified 

that prior to the marriage, he had stored certain amounts 

of grain, seed, fertilizer, and other chemicals. He presented 
- 271 -

Nebraska Court of Appeals Advance Sheets

29 Nebraska Appellate Reports

CHMELKA v. CHMELKA

Cite as 29 Neb. App. 265

documentation that showed the amounts and values of the 

stored farming assets, which included checks he had written, 

documents from his bank, and his tax returns. The evidence 

showed that Kyle owned $242,362 of grain, $40,000 of seed, 

$19,863 of fertilizer, and $10,500 of chemicals prior to the 

marriage, for a total of $312,725.

On cross-examination, Kyle admitted that he had called himself a “piece of shit father” to Michelle at some point after the 

separation in an attempt to win Michelle back. He also admitted that he had confessed to Michelle that he had a drinking 

problem. He admitted that he could not trace his premarital 

assets to any property that existed at the time of trial.

Kyle called the children’s former daycare provider to testify. 

She testified that prior to becoming a licensed in-home daycare 

provider, she had been employed by Child Protective Services 

for 10 years. She was familiar with child abuse, child neglect, 

juvenile offenders, and behavioral difficulties in children. She 

testified she had been acquainted with Michelle and Kyle 

since their son started daycare at 6 weeks old. She testified 

that Kyle’s parenting was always “[a]ppropriate” and that he 

“was very open in conversations with [her] about what the kids 

needed or how their day was.”

Kyle’s aunt, brother-in-law, and grandmother testified at 

trial. They testified that Kyle was affectionate and caring with 

the children and that they had never seen anything concerning 

in his interactions with them. They also all testified generally 

that Michelle frequently drank alcohol to the point of intoxication and that they had witnessed arguments between Michelle 

and Kyle during the marriage.

The district court entered an order dissolving the marriage. 

In its second amended decree of dissolution, the court found 

that both Michelle and Kyle were fit and proper parents and 

that awarding joint legal and physical custody was in the best 

interests of the children. Specifically, the decree found that the 

evidence failed to establish that the children were ever mistreated or neglected by Kyle during the course of the marriage 

or subsequently. Parenting time was split into an alternating 
- 272 -

Nebraska Court of Appeals Advance Sheets

29 Nebraska Appellate Reports

CHMELKA v. CHMELKA

Cite as 29 Neb. App. 265

week-on-week-off schedule. Michelle was granted primacy 

in deciding matters related to religion and medical care; Kyle 

was granted primacy in matters related to education and activities. Neither the second amended decree of dissolution nor the 

court’s oral comments from the bench at trial referenced Neb. 

Rev. Stat. § 43-2932 (Reissue 2016) or made findings related 

to that section.

Regarding distribution of property, the district court found 

that Kyle had met his burden of proof regarding the amount 

and value of stored grain and farm inputs he had owned at the 

time of the marriage, and it ordered an amount of $312,725 to 

be set off to him. This appeal followed.

III. ASSIGNMENTS OF ERROR

Michelle asserts, restated, that the district court abused its 

discretion in (1) failing to find this is a case involving domestic abuse as defined in Nebraska’s Parenting Act, (2) awarding 

joint legal and physical custody, (3) awarding equal parenting 

time, and (4) finding Kyle should receive a $312,725 set off for 

farming assets he held prior to the marriage.

IV. STANDARD OF REVIEW

[1-3] 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. 

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

This standard of review applies to the trial court’s determinations regarding custody, child support, division of property, alimony, and attorney fees. Id. 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. Id. However, when the 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. Id. A judicial abuse of 

discretion exists if the reasons or rulings of a trial judge are 
- 273 -

Nebraska Court of Appeals Advance Sheets

29 Nebraska Appellate Reports

CHMELKA v. CHMELKA

Cite as 29 Neb. App. 265

clearly untenable, unfairly depriving a litigant of a substantial 

right and denying just results in matters submitted for disposition. Id.

V. ANALYSIS

1. Custody and Parenting Time

(a) Evidence of Domestic Abuse

Michelle first argues that the district court erred when it 

found that she did not prove by a preponderance of the evidence 

that Kyle had committed domestic abuse and therefore did not 

make specific written findings as required by the Parenting 

Act. She argues that the evidence at trial showed “a pattern of 

abusive, violent behavior by Kyle toward Michelle after Kyle 

becomes intoxicated.” Brief for appellant at 16.

Here, the district court did not impose any limitations on 

Kyle’s custody of the parties’ children, let alone make special written findings that such limitations would protect the 

children or Michelle from harm. Neither did the district court 

explicitly find that § 43-2932 did not apply in this case, either 

in its decree or at trial. However, the Nebraska Supreme Court 

has, in the past, presumed that where a district court does not 

impose limitations or make special findings, it fails to do so 

because it found that § 43-2932 did not apply. See Randy S. v. 

Nicolette G., 302 Neb. 465, 924 N.W.2d 48 (2019) (presuming 

in bench trial that judge was familiar with and applied proper 

rules of law unless it clearly appears otherwise). We thus similarly presume that the court found Michelle did not meet her 

burden of proof under § 43-2932. And, for reasons explained 

below, we find no basis upon which to reverse the district 

court’s determination that neither limitations nor special findings were required in this case.

Nebraska’s Parenting Act establishes certain requirements 

which must be met where a parent is found by a preponderance of the evidence to have committed child abuse or neglect, 

child abandonment, or domestic intimate partner abuse, 

or to have interfered with the other parent’s access to the 
- 274 -

Nebraska Court of Appeals Advance Sheets

29 Nebraska Appellate Reports

CHMELKA v. CHMELKA

Cite as 29 Neb. App. 265

child. Section 43-2932(3) sets forth these additional requirements, stating:

If a parent is found to have engaged in any activity specified in subsection (1) of this section, the court shall not 

order legal or physical custody to be given to that parent 

without making special written findings that the child and 

other parent can be adequately protected from harm by 

such limits as it may impose under such subsection. The 

parent found to have engaged in the behavior specified in 

subsection (1) of this section has the burden of proving 

that legal or physical custody, parenting time, visitation, 

or other access to that parent will not endanger the child 

or the other parent.

In this case, evidence that Kyle abused Michelle is limited 

to two incidents. First, Michelle testified that in the spring 

of 2016, Kyle pushed Michelle against the wall with his 

forearm when she tried to physically block his entry to their 

bedroom. Michelle then asked Kyle to sleep downstairs, and 

he complied.

The second incident occurred in May 2018, shortly before 

the parties separated. After Michelle blocked off the stairs to 

keep Kyle off of the second floor, Kyle climbed through an 

upstairs window and went to their bedroom. Kyle got into 

the bed where Michelle and their son were sleeping and said 

to Michelle that she was “going to get screwed.” Kyle then 

attempted to roll over toward Michelle. Michelle left the bedroom with their son, but left their daughter sleeping in her crib 

in the same room as Kyle.

[4] Michelle argues, but does not specifically assign, that the 

district court erred in sustaining Kyle’s objection to testimony 

regarding a third incident of alleged abuse. 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. Diamond v. State, 302 Neb. 892, 926 N.W.2d 71 

(2019). Therefore, we do not consider this argument.

[5] In considering the record, we do not find testimony that 

there existed a pattern or history of similar abusive actions 
- 275 -

Nebraska Court of Appeals Advance Sheets

29 Nebraska Appellate Reports

CHMELKA v. CHMELKA

Cite as 29 Neb. App. 265

by Kyle. Although Michelle references “years of misdeeds” by 

Kyle, she did not present any evidence of such at trial. Brief 

for appellant at 18. It is correct that Kyle did not refute 

Michelle’s testimony, but Michelle incorrectly asserts that 

merely presenting uncontroverted evidence of abuse automatically meets her burden of proof. The rule is well established 

in this jurisdiction that 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. Burgardt v. Burgardt, 304 Neb. 356, 934 N.W.2d 

488 (2019).

An appellate court considers, and may give weight to, the 

fact that the trial judge heard and observed the witnesses and 

accepted one version of the facts rather than another. Blank v. 

Blank, 303 Neb. 602, 930 N.W.2d 523 (2019). Here, we give 

weight to the fact that the district court heard and observed 

both Michelle and Kyle while at trial and did not find sufficient 

evidence of domestic abuse.

On this record, we cannot say that the district court erred 

in not applying § 43-2932. As in Randy S. v. Nicolette G., 

supra, we believe that the district court’s decision not to apply 

§ 43-2932 is most sensibly understood as reflecting that the 

district court did not accept Michelle’s trial testimony to prove 

by a preponderance of the evidence that Kyle engaged in a 

pattern of domestic abuse against Michelle. Therefore, the 

court was not required to make written findings as outlined in 

§ 43-2932(3). This argument fails.

(b) Lack of Notice

Michelle next argues that the district court abused its discretion in awarding joint legal and physical custody because Kyle 

“never filed an Answer or otherwise pled placing custody at 

issue.” Brief for appellant at 20. However, she does not argue 

this claim beyond a single sentence.

We construe Michelle’s claim as an argument that she was 

not afforded due process, because she lacked notice that the 
- 276 -

Nebraska Court of Appeals Advance Sheets

29 Nebraska Appellate Reports

CHMELKA v. CHMELKA

Cite as 29 Neb. App. 265

court might award joint legal and physical custody. In Blank 

v. Blank, supra, a wife argued that the trial court had erred in 

awarding joint custody, because neither side requested joint 

custody and the court did not provide notice of its consideration. In Blank, the court found no error and determined that 

both parties had received notice prior to trial that joint custody 

was at issue through the wife’s initial pleadings, proposed parenting plans, and hearings for temporary custody.

Here, Michelle’s initial complaint clearly placed the children’s custody at issue by requesting sole legal and physical 

custody. Prior to trial, Kyle appeared at the hearing for temporary custody and testified regarding his desire for custody 

and parenting time. At trial, Kyle presented his own proposed 

parenting plan requesting joint legal and physical custody and 

equal parenting time. Considering these factors, it is clear that 

Michelle received adequate notice that custody of the children 

was at issue and that Kyle desired both joint legal and physical 

custody and parenting time. This argument fails.

(c) Best Interests

Michelle further argues that even if the court did not abuse 

its discretion in failing to find this case was one governed by 

§ 43-2932(3), the court erred in finding joint legal and physical 

custody was in the children’s best interests.

[6] Joint physical custody is neither favored nor disfavored 

under Nebraska law, and, in fact, no custody or parenting time 

arrangement is either favored or disfavored as a matter of law. 

State on behalf of Kaaden S. v. Jeffery T., 303 Neb. 933, 932 

N.W.2d 692 (2019). When determining the best interests of the 

child in deciding custody, a court must consider, at a minimum, 

(1) the relationship of the minor child to each parent prior to 

the commencement of the action; (2) the desires and wishes of 

a sufficiently mature child, if based on sound reasoning; (3) the 

general health, welfare, and social behavior of the child; (4) 

credible evidence of abuse inflicted on any family or household 

member; and (5) credible evidence of child abuse or neglect or 

domestic intimate partner abuse. § 43-2923(6).
- 277 -

Nebraska Court of Appeals Advance Sheets

29 Nebraska Appellate Reports

CHMELKA v. CHMELKA

Cite as 29 Neb. App. 265

[7] In addition to these statutory “best interests” factors, a 

court making a child custody determination may consider matters such as the moral fitness of the child’s parents, including 

the parents’ sexual conduct; respective environments offered 

by each parent; the emotional relationship between child and 

parents; the age, sex, and health of the child and parents; the 

effect on the child as the result of continuing or disrupting an 

existing relationship; the attitude and stability of each parent’s 

character; and the parental capacity to provide physical care 

and satisfy the educational needs of the child. Schrag v. Spear, 

290 Neb. 98, 858 N.W.2d 865 (2015).

The Parenting Act also provides that the best interests of a 

child require a parenting plan that provides for a child’s safety, 

emotional growth, health, stability, physical care, and regular 

school attendance and which promotes a child’s continued 

contact with his or her families and parents who have shown 

the ability to act in the child’s best interests. § 43-2923(1) 

and (3).

In support of her position that joint legal and physical custody was not in the children’s best interests, Michelle points 

to the fact that Kyle once described himself as a “piece of shit 

father,” that he told the children Michelle was a liar, and that 

Michelle was the primary caretaker throughout the marriage. 

Brief for appellant at 20. She also references Kyle’s history 

with alcohol and the incident when he told her on the phone 

that he had given their son an entire bottle of Tylenol.

However, Michelle also testified that Kyle had stopped 

making derogatory statements about her in the presence of 

their children. She admitted that aside from the incident with 

the Tylenol, she had no concerns about Kyle’s ability to care 

for the children’s medical needs. There was no evidence presented that Kyle was ever violent or harmful to the children 

or to Michelle when he was sober or that Kyle was ever 

intoxicated during his parenting time. She described Kyle as 

a good father. Furthermore, at the time of trial, the parties had 

been successfully sharing joint legal and physical custody and 
- 278 -

Nebraska Court of Appeals Advance Sheets

29 Nebraska Appellate Reports

CHMELKA v. CHMELKA

Cite as 29 Neb. App. 265

equal parenting time for over a year. Both Michelle and Kyle 

testified that their children were doing well and were happy 

under the current arrangement.

Upon our de novo review of the record, we cannot say that 

the district court abused its discretion in awarding the parties 

joint legal and physical custody of their children. This argument fails.

2. Division of Marital Estate

Michelle was awarded a property equalization judgment of 

$59,704.34. However, she argues that the district court abused 

its discretion in setting off $312,725 of stored grain and farm 

inputs (seed, fertilizer, and chemicals) to Kyle. Specifically, 

she alleges that Kyle did not meet his burden of proof in tracing the premarital property to any property that existed at the 

time of the divorce decree.

[8-12] In a divorce action, the purpose of a property division 

is to distribute the marital assets equitably between the parties. 

Doerr v. Doerr, 306 Neb. 350, 945 N.W.2d 137 (2020). The 

first step is to classify the parties’ property as marital or nonmarital. Id. The marital estate does not include property that a 

spouse acquired before the marriage, or by gift or inheritance. 

Id. 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. 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.

A nonmarital interest in property may be established by 

credible testimony. Burgardt v. Burgardt, 304 Neb. 356, 934 

N.W.2d 488 (2019). The Supreme Court has recognized that 

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

i.e., tracking an asset to a nonmarital source. Id. at 364, 934 
- 279 -

Nebraska Court of Appeals Advance Sheets

29 Nebraska Appellate Reports

CHMELKA v. CHMELKA

Cite as 29 Neb. App. 265

N.W.2d at 495 (quoting Brozek v. Brozek, 292 Neb. 681, 874 

N.W.2d 17 (2016)).

The Supreme Court has addressed the issue of tracing stored 

crops and farm inputs multiple times. In Brozek v. Brozek, 

supra, the Supreme Court determined the husband was not 

entitled to a set off because he was unable to give more than 

a rough estimate of the number of bushels of grain he had 

harvested and stored at the time of marriage. Further, after 20 

years of marriage, the husband could not “identify the different permutations that his premarital property underwent during 

the marriage.” Id. at 699, 874 N.W.2d at 31. Therefore, the 

Supreme Court concluded the premarital crops were inextricably mixed with the marital estate.

The Supreme Court refined its holding in Brozek in 

Osantowski v. Osantowski, 298 Neb. 339, 904 N.W.2d 251 

(2017). There, the husband had grain stored at the time of the 

marriage, and at trial, he presented evidence establishing the 

value of that grain. Applying the principles stated in Brozek, 

the trial court determined he was not entitled to a set off of 

the value of the premarital grain. However, the Supreme Court 

disagreed, writing, “We recognize the law concerning tracing, 

but we also recognize the overarching principle in the division 

of marital property is equity, ultimately guided by fairness and 

reasonableness.” Osantowski v. Osantowski, 298 Neb. at 357, 

904 N.W.2d at 266.

The Supreme Court went on to distinguish Osantowski from 

Brozek in three respects. First, in Brozek, the husband could not 

definitively identify the value of his premarital assets, whereas 

in Osantowski, the value was established and was uncontroverted. Second, in Brozek, the estimated value of the premarital 

asset was less than 10 percent of the net marital estate, whereas 

in Osantowski, it was nearly 87 percent. Finally, in Brozek, the 

parties had been married for 20 years, whereas in Osantowski, 

the marriage lasted only 21⁄2 years.

In applying the principles articulated in Brozek and 

Osantowski, we determine that the district court did not 
- 280 -

Nebraska Court of Appeals Advance Sheets

29 Nebraska Appellate Reports

CHMELKA v. CHMELKA

Cite as 29 Neb. App. 265

abuse its discretion in granting Kyle a setoff for his stored 

grain and farm inputs. Kyle testified that at the time of the 

marriage, he had invested in seed, fertilizer, and chemicals that 

he intended to use the following year. He also had stored grain 

from the previous year’s harvest. His testimony and supporting 

documentation also demonstrated the exact quantity of grain 

and supplies he owned, as well as the value of the assets at 

the time of the marriage. While Kyle could not perfectly trace 

the proceeds he derived from the stored grain, he established 

the exact value of the grain that he did have in storage as of the 

date of the marriage. At trial, Michelle offered no evidence to 

contradict Kyle’s testimony or exhibits, although she admitted 

he owned farming assets at the time they married.

Michelle argues in her brief that the fact that she and Kyle 

have two minor children and that Michelle was regularly 

employed during the marriage weigh against a similar finding 

to that in Osantowski. She also points to medical expenses she 

paid for the children which the court “refused to equitabl[y] 

divide between the parties.” Brief for appellant at 23. However, 

Michelle does not explain why those facts necessarily exclude 

consideration of Kyle’s premarital investments as applied in 

this case. Further, Michelle does not explain, nor is it clear 

from the district court’s table of assets and liabilities, just 

how the attribution of the premarital credit adversely affected 

Michelle. While the district court discussed the premarital 

credit, its calculations do not reflect that the credit was applied 

to Kyle’s net marital estate; thus, Kyle was left owing Michelle 

$59,704.34 to equalize the marital estate. We can only surmise 

from the record that the district court determined it would be 

inequitable to Michelle if the court credited Kyle with the 

entire premarital investment, as this would have left Michelle 

potentially owing an equalization judgment to Kyle. Instead, it 

appears the court found it more equitable to simply exclude the 

current value of stored grain in its calculation of Kyle’s assets, 

which the record reflects was $46,480. We find no abuse of 

discretion in the court’s doing so.
- 281 -

Nebraska Court of Appeals Advance Sheets

29 Nebraska Appellate Reports

CHMELKA v. CHMELKA

Cite as 29 Neb. App. 265

VI. CONCLUSION

Upon our de novo review, we conclude that the district court 

did not abuse its discretion in determining § 43-2932(3) did not 

apply in this case and that the court did not abuse its discretion 

in awarding joint legal and physical custody and equal parenting time. We also conclude there was no abuse of discretion by 

the district court in setting off to Kyle an amount representing 

stored grain, seed, fertilizer, and chemicals he owned prior to 

the marriage. The order of the district court is affirmed.

Affirmed.