- 329 -

Nebraska Supreme Court Advance Sheets

310 Nebraska Reports

KAUK v. KAUK

Cite as 310 Neb. 329

Marcia A. Kauk, appellant, v. 

Randall G. Kauk, appellee.

___ N.W.2d ___

Filed November 5, 2021. No. S-20-867.

1. Divorce: Child Custody: Child Support: Property Division: 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. ____: ____. When evidence is in conflict, the 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.

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. Divorce: Property Division. In a dissolution action, the equitable division of property is a three-step process. The first step is to classify the 

parties’ property as either marital or nonmarital, setting aside the nonmarital property to the party who brought the property to the marriage. 

The second step is to value the marital assets and marital liabilities of 

the parties. And the third step is to calculate and divide the net marital 

estate equitably between the parties.

6. ____: ____. Any given property can constitute a mixture of marital and 

nonmarital interests; a portion of an asset can be marital property while 

another portion can be separate property.

Nebraska Supreme Court Online Library

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

12/03/2021 09:08 AM CST
- 330 -

Nebraska Supreme Court Advance Sheets

310 Nebraska Reports

KAUK v. KAUK

Cite as 310 Neb. 329

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

party claiming that property is nonmarital.

8. ____: ____: ____. The burden to show that a debt is nonmarital is on the 

party making that assertion.

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

property division is to distribute the marital assets equitably between 

the parties.

10. ____: ____. In a dissolution action, there is no mathematical formula 

by which property awards can be precisely determined, but 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.

11. Equity: Parties: Contracts. All persons interested in the contract or 

property involved in a suit, or whose interests therein may be affected 

by the decree in equity, are necessary parties.

12. Contracts: Statute of Frauds: Proof. In order to establish that an oral 

contract falls within the Neb. Rev. Stat. § 36-106 (Reissue 2016) exception to the statute of frauds found in Neb. Rev. Stat. § 36-103 (Reissue 

2016), the proponent of the contract must establish by clear, satisfactory, 

and unequivocal evidence the terms of the contract, that the acts done in 

the performance thereof are referable solely to that contract, and that the 

acts performed are of such a nature that nonperformance of the contract 

by the other party would amount to a fraud upon the proponent.

13. Evidence. Admissions are words and conduct of a party opponent 

offered as evidence against him or her.

14. Trial: Evidence. An extrajudicial admission is simply an item of evidence in the mass of evidence adduced during a trial, admissible in 

contradiction and impeachment of the present claim and other evidence 

of the party making the admission.

15. Circumstantial Evidence: Proof. Circumstantial evidence is not inherently less probative than direct evidence, and a fact proved by circumstantial evidence is nonetheless a proven fact.

16. Evidence: Proof. A finder of fact may draw reasonable inferences from 

the facts and circumstances proved.

Appeal from the District Court for Howard County: Karin 

L. Noakes, Judge. Affirmed.

Mark L. Eurek, of The Law Office of Eurek & Peterson, 

L.L.C., for appellant.
- 331 -

Nebraska Supreme Court Advance Sheets

310 Nebraska Reports

KAUK v. KAUK

Cite as 310 Neb. 329

John B. McDermott, of Wolf, McDermott, Depue, Sabott, 

Butz & Porto, L.L.C., for appellee.

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

Papik, and Freudenberg, JJ.

Cassel, J.

INTRODUCTION

Marcia A. Kauk appeals from a marital dissolution decree, 

arguing the court erred in its marital classification determinations and in awarding Randall G. Kauk the marital homestead 

acreage. We find no abuse of discretion. Most of the issues 

turn on credibility assessments where we give weight to the 

district court’s findings. We cannot say that the court’s ultimate division was unreasonable or unfair. Therefore, we affirm 

the decree.

BACKGROUND

Marcia and Randall were married for 34 years. Marcia is 

a retired kindergarten teacher, and Randall is a farmer. Prior 

to separation, the parties lived on an acreage on the corner of 

a quarter section of real estate that Randall farmed. In 2018, 

Randall told Marcia that he was “done” and moved into a different house. Marcia then filed for dissolution of the marriage.

During the proceedings, the parties stipulated to the value 

and division of most of the parties’ property and debts. The 

district court conducted a trial regarding the remaining issues 

relating to division of property and debts.

Following the trial, the court entered a decree. Pertinent 

to this appeal, the court decided three issues: (1) whether a 

marital asset resulted from payments made during the marriage 

regarding a quarter section of real estate, (2) whether croprelated expenses were marital expenses because they related to 

crops grown in 2018 (2018 crops) or were nonmarital because 

they stemmed from those grown in 2019, and (3) how the 

marital homestead acreage should be allocated. Each will be 

discussed in turn.
- 332 -

Nebraska Supreme Court Advance Sheets

310 Nebraska Reports

KAUK v. KAUK

Cite as 310 Neb. 329

Real Estate of Kauk Family L.L.C.

The district court determined that Randall’s payments regarding a quarter section of real estate were rental payments and 

therefore were not marital assets. Before the divorce, Randall 

farmed this land and made yearly payments to Kauk Family 

L.L.C. (LLC), which owned the land. The LLC’s members 

consisted of Randall and his siblings. They had inherited their 

membership rights from their parents.

Marcia argued that Randall’s payments should be included 

in the marital estate, because they were made pursuant to 

a land installment contract. She did not seek the specific 

performance of the contract. Instead, Marcia sought the payments to be included in the marital estate for purposes of equitable division.

Marcia presented two unsigned contracts that she asserted 

were drafted and agreed to by the LLC and Randall—a deed of 

trust agreement from 2013 and a land installment contract from 

2015. The drafting attorney’s correspondence in 2015 noted 

that the parties preferred to structure the transaction as a land 

installment contract. The terms of the land installment contract 

stated that Randall agreed to purchase the property from the 

LLC for $612,000. It mandated that Randall pay $100,000 

as a downpayment and make yearly payments thereafter of 

$40,577.17. The contract noted that Randall had already paid 

$202,000 to the LLC (the downpayment and subsequent yearly 

payments). The contract also required Randall to pay real estate 

taxes for 2015 and subsequent years and to repay the LLC 

$16,755.32 for the 2012, 2013, and 2014 property taxes.

At trial, both Randall and his sister (a member of the LLC) 

authenticated the documents and admitted that the parties 

originally contemplated for the LLC to sell the real estate to 

Randall. Randall testified that he paid the $100,000 downpayment and made three yearly payments of $40,577.17, but 

he denied making an additional $102,000 payment that was 

reflected in the land installment contract. Randall also testified 

that he never paid the property taxes for the real estate.
- 333 -

Nebraska Supreme Court Advance Sheets

310 Nebraska Reports

KAUK v. KAUK

Cite as 310 Neb. 329

However, Randall and his sister refuted the enforceability 

of the contracts, because neither they nor their siblings ever 

signed either contract. Further, Randall’s sister explained that 

they abandoned the plan for Randall to purchase the property 

after he failed to make payments and pay the property taxes, 

which forced the LLC to pay them. At that point, Randall and 

the LLC agreed to a rental agreement, applying all of Randall’s 

payments as “rent.” Randall testified that he has paid the LLC 

$35,000 in yearly rent since 2018.

The court found that the contracts were not enforceable 

because they were barred by the statute of frauds, explaining that neither contract was signed nor was there sufficient 

evidence that the parties partly performed either contract. The 

court emphasized that Marcia failed to prove the existence 

of an oral contract whose terms were clear, satisfactory, and 

unequivocal. Further, the court found that the parties had 

abandoned any plans for a potential oral purchase agreement, 

and instead, they had allowed Randall to rent the real estate. 

Therefore, the court concluded that the payments made toward 

the real estate were not considered a marital asset.

Crop Expenses and Jorgensen Payment

The parties disputed the valuation of the 2018 crops. Marcia 

presented testimony from an accountant who reviewed the 

farm’s bank statements to calculate the total revenue generated 

from the 2018 crops. The court agreed with Marcia’s valuation 

of the crops, but deducted $46,158.44 from the valuation. The 

court’s deduction was for four payments that Randall made 

in the spring of 2019—two payments for seed ($3,477.23 

and $26,061.10), one for fuel ($3,736.88), and one for land 

($12,883.23) the parties referred to as the “Jorgensen farm.” 1

The court found that these payments resulted from growing the 

2018 crops and characterized the Jorgensen payment as rent.

Marcia argued that it was more reasonably inferable that 

the fuel and seed payments were for crops grown in 2019, 

1 See brief for appellee at 10.
- 334 -

Nebraska Supreme Court Advance Sheets

310 Nebraska Reports

KAUK v. KAUK

Cite as 310 Neb. 329

which were not marital assets. Further, Marcia claimed that 

the Jorgensen payment was actually for real estate that she and 

Randall were purchasing. She points to three items of real estate 

and a corresponding marital debt shown on the joint property 

statement, which were allocated by the court to Randall.

Marital Acreage

Finally, the court awarded Randall the marital acreage. The 

marital acreage is a 7-acre tract of land that Marcia and Randall 

owned, which features the marital home. While Randall presented no testimony regarding the acreage, Marcia’s counsel 

stated at the beginning of the trial that both parties sought the 

marital acreage.

The court stated that it “underst[ood Marcia’s] attachment to 

the home she has made over the last 30 years.” It summarized 

Marcia’s testimony regarding her use of the home and her 

plans for the future. Although the court noted Randall’s argument that his workshop and machinery were located nearby, the 

parties essentially conceded at oral argument that the record 

contains no direct evidence regarding the location of Randall’s 

workshop and machinery.

The court explained that it was “mindful” of an unpublished 

decision of the Nebraska Court of Appeals. 2 In the case cited 

by the court, the appellate court modified a decree which had 

awarded a tract of land, including the marital house, to the 

nonfarming spouse. 3 The district court’s decree here characterized that appellate decision as having determined that awarding 

the home property to the nonfarming spouse would needlessly 

interfere with the farming spouse’s operation, based upon the 

home property’s location near tracts of real estate used to feed 

and pasture cattle and which included a barn, outbuildings, and 

equipment used in the farming operation.

2 See Tierney v. Tierney, No. A-18-338, 2019 WL 2509047 (Neb. App. June 

18, 2019) (selected for posting to court website).

3 See id.
- 335 -

Nebraska Supreme Court Advance Sheets

310 Nebraska Reports

KAUK v. KAUK

Cite as 310 Neb. 329

Thus, “[i]n light of the [Court of Appeals’] decision, and 

after considering the evidence presented,” the court here 

awarded “the marital home and acreage” to Randall. We note 

that no precise legal description of the disputed tract appears 

in the record.

Marcia filed a timely appeal, which we moved to our docket. 4

ASSIGNMENTS OF ERROR

Marcia assigns, restated and reordered, that the district court 

abused its discretion by (1) “failing to include in the marital estate any amount for the contract or payments made by 

[Randall] with marital assets toward purchase of real estate”; 

(2) classifying four payments as payments of marital debts in 

valuing marital assets; and (3) awarding the marital acreage, 

including the home, to Randall.

STANDARD OF REVIEW

[1,2] 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. 5 This 

standard of review applies to the trial court’s determinations 

regarding custody, child support, division of property, alimony, and attorney fees. 6 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. 7

[3] When evidence is in conflict, the 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. 8

4 See Neb. Rev. Stat. § 24-1106(3) (Cum. Supp. 2020).

5 Tierney v. Tierney, 309 Neb. 310, 959 N.W.2d 556 (2021).

6 Id.

7 Id.

8 Onstot v. Onstot, 298 Neb. 897, 906 N.W.2d 300 (2018).
- 336 -

Nebraska Supreme Court Advance Sheets

310 Nebraska Reports

KAUK v. KAUK

Cite as 310 Neb. 329

[4] 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. 9

ANALYSIS

[5] In a dissolution action, the equitable division of property 

is a three-step process. 10 The first step is to classify the parties’ 

property as either marital or nonmarital, setting aside the nonmarital property to the party who brought the property to the 

marriage. 11 The second step is to value the marital assets and 

marital liabilities of the parties. 12 And the third step is to calculate and divide the net marital estate equitably between the 

parties. 13 Here, the parties address three discrete issues within 

the three-step process.

[6-8] The first two issues contest the district court’s determinations regarding the extent to which assets and debts were 

marital or nonmarital. Any given property can constitute a mixture of marital and nonmarital interests; a portion of an asset 

can be marital property while another portion can be separate 

property. 14 The burden of proof rests with the party claiming 

that property is nonmarital. 15 Likewise, the burden to show that 

a debt is nonmarital is on the party making that assertion. 16

[9,10] The last issue addresses the division of specific 

assets. In a divorce action, the purpose of a property division is 

to distribute the marital assets equitably between the parties. 17

9 Tierney v. Tierney, supra note 5.

10 Vanderveer v. Vanderveer, ante p. 196, 964 N.W.2d 694 (2021).

11 Id.

12 Id.

13 Id.

14 Higgins v. Currier, 307 Neb. 748, 950 N.W.2d 631 (2020).

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

16 Vanderveer v. Vanderveer, supra note 10.

17 Doerr v. Doerr, supra note 15.
- 337 -

Nebraska Supreme Court Advance Sheets

310 Nebraska Reports

KAUK v. KAUK

Cite as 310 Neb. 329

There is no mathematical formula by which property awards 

can be precisely determined, but 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. 18

Real Estate of LLC

Marcia first assigns that the court abused its discretion in 

finding that because the contracts were unenforceable, Randall’s 

payments regarding a quarter section of real estate were rental 

payments. Marcia argues that parties partly performed the land 

installment contract, making it enforceable under the statute 

of frauds.

[11] This argument addresses part of the first of the three 

steps in the property division process. Marcia was not seeking 

a decree to enforce a purported contract between Randall and 

the LLC. The court here would not have had jurisdiction to do 

so. All persons interested in the contract or property involved 

in a suit, or whose interests therein may be affected by the 

decree in equity, are necessary parties. 19 The LLC was not a 

party to the dissolution action. Thus, the court could not have 

enforced the purported contract. Rather, we understand Marcia 

to be attacking the district court’s determination that payments 

made during the marriage were not part of the marital estate 

because they were properly viewed as rental payments rather 

than purchase payments. Because the district court’s reasoning 

rested on the requirements of the statute of frauds, we summarize that law.

[12] Neb. Rev. Stat. §§ 36-103 and 36-105 (Reissue 2016) 

require that contracts for the sale of real estate must be in 

writing to be enforceable. However, pursuant to Neb. Rev. 

Stat. § 36-106 (Reissue 2016), an oral real estate purchase 

agreement is within the statute of frauds if the parties partly 

18 Vanderveer v. Vanderveer, supra note 10.

19 Reed v. Reed, 277 Neb. 391, 763 N.W.2d 686 (2009).
- 338 -

Nebraska Supreme Court Advance Sheets

310 Nebraska Reports

KAUK v. KAUK

Cite as 310 Neb. 329

perform the contract. 20 In order to establish that an oral contract falls within the § 36-106 exception to the statute of frauds 

found in § 36-103, the proponent of the contract must establish 

by clear, satisfactory, and unequivocal evidence the terms of 

the contract, that the acts done in the performance thereof are 

referable solely to that contract, and that the acts performed 

are of such a nature that nonperformance of the contract by 

the other party would amount to a fraud upon the proponent. 21

Here, in effect, Marcia is the proponent of the contract.

Marcia analogizes her claim to Herbstreith v. Walls.

 22 There, 

this court affirmed a district court’s decree granting specific 

performance, where the parties had an unsigned written contract and the buyer made payments on the contract and took 

possession of the property. 23 Marcia asserts that the unsigned 

land installment contract, Randall’s payment history, and his 

possession of the property provided sufficient evidence that the 

parties partly performed the contract.

But there is a fundamental difference between our decision 

in Herbstreith v. Walls and the situation here. There, the district 

court determined that the proponent satisfied his burden of 

proof. Here, the district court concluded the opposite.

In the dissolution decree, the district court made extensive findings of fact regarding witness testimony. The court 

explained that Marcia did not satisfy her burden to prove 

that the terms of the oral contract were clear, satisfactory, 

and unequivocal. The court credited Randall’s and his sister’s 

testimony that he and the LLC never came to complete and 

final terms on an agreement to purchase the property. Further, 

the court accepted the testimony that the LLC abandoned its 

plans for Randall to purchase the real estate after Randall 

missed payments.

20 See Halsted v. Halsted, 169 Neb. 325, 99 N.W.2d 384 (1959).

21 Johnson v. NM Farms Bartlett, 226 Neb. 680, 414 N.W.2d 256 (1987).

22 Herbstreith v. Walls, 147 Neb. 805, 25 N.W.2d 409 (1946).

23 See id.
- 339 -

Nebraska Supreme Court Advance Sheets

310 Nebraska Reports

KAUK v. KAUK

Cite as 310 Neb. 329

We give weight to the fact that the trial judge heard and 

observed the witnesses and accepted one version of the facts 

rather than another. The district court did not abuse its discretion in finding no marital value in the LLC’s real estate.

Crop Expenses and Jorgensen Payment

In another part of the first step of the property division 

process, Marcia next contends that the district court abused 

its discretion by crediting Randall for four payments he made 

on marital debt. Marcia presents two arguments. Each will be 

addressed in turn.

First, she argues that the court should not have credited seed 

and fuel payments Randall made in 2019 as an adjustment to 

the value of the 2018 crops. The parties agree that the 2018 

crops were marital and that the 2019 crops were not. Thus, 

if the seed and fuel payments were incurred in producing the 

2018 crops, the adjustment was proper. If they were payments 

toward expenses for crops grown in 2019, no adjustment 

should have been allowed.

As we noted above, a party claiming that a debt is nonmarital bears the burden of proving so. Here, Marcia sought to 

establish that the seed and fuel payments were made for crops 

grown in 2019—that is, that the debts paid were nonmarital. 

Thus, she had the burden of proving so.

Marcia relied solely upon her accountant’s opinion to 

argue that those payments were not related to the 2018 crops. 

However, the accountant admitted on cross-examination that 

she did not conduct any research to determine whether the payments were made for debts resulting from the 2018 crops or 

crops grown in 2019. Instead, the accountant based her opinion 

solely on the payments’ timing and “figured” Randall was paying for expenses related to the crops grown in 2019 rather than 

paying past due bills.

The district court did not find the accountant’s assumptions 

credible. The court concluded that Marcia failed to prove the 

fuel and seed payments were nonmarital. We give weight to 
- 340 -

Nebraska Supreme Court Advance Sheets

310 Nebraska Reports

KAUK v. KAUK

Cite as 310 Neb. 329

the court’s credibility assessments. We cannot find that the 

court abused its discretion in making this finding.

Next, Marcia asserts that Randall should not receive a credit 

for the Jorgensen payment, because the payment was to purchase a marital asset. Marcia claims that she and Randall were 

purchasing the Jorgensen farm and that it was included in the 

parties’ stipulated property statement as real estate that Randall 

was receiving. Marcia argues crediting Randall for the payment 

was improper as “[Randall] would receive double the benefit 

because th[e] debt has already been used to reduce the value of 

the real estate he is receiving.” 24

The joint property statement does not describe any of the 

real estate using the word “Jorgensen.” Nor do any of the other 

exhibits set forth legal descriptions (even cryptic ones) that 

would enable us to identify particular items in the joint property statement as “Jorgensen” land.

Whether the payment was for the purchase or rental of the 

Jorgensen farm was disputed. Marcia primarily relies upon a 

colloquy between the court and the respective attorneys, during 

Randall’s testimony, which alternatively characterized the payment as a “land payment” and a “[r]ental payment.” During the 

course of the colloquy, Marcia, who was not then testifying, 

interjected, “That’s the land we own.” But when she actually 

testified, both in her case in chief and again in rebuttal, no testimony was elicited regarding the Jorgensen payment.

Marcia also relies on a document that Randall provided 

to his bank, where Randall listed “Jorgensen Ground” under 

“Other Real Estate.” But in another document provided to the 

same bank, Randall’s projected income and expense schedules 

listed the Jorgensen payment under the “Rent - Land / Animals” 

category, along with his $35,000 rent payment on the real estate 

owned by the LLC.

[13,14] While both documents were included in the evidence, neither was conclusive. Admissions are words and 

24 Brief for appellant at 13.
- 341 -

Nebraska Supreme Court Advance Sheets

310 Nebraska Reports

KAUK v. KAUK

Cite as 310 Neb. 329

conduct of a party opponent offered as evidence against him 

or her. 25 But unlike judicial admissions, extrajudicial admissions are not conclusive. An extrajudicial admission is simply 

an item of evidence in the mass of evidence adduced during a 

trial, admissible in contradiction and impeachment of the present claim and other evidence of the party making the admission. 26 The statements given to the bank were simply items of 

evidence in the trial of this matter. They were not binding on 

the trial court.

Once again, our standard of review permits us to give 

weight to the district court’s resolution of disputed evidence. 27

Doing so, we find the court did not abuse its discretion finding 

that the Jorgensen payment was a rental payment.

Marital Acreage

Marcia finally assigns that the court abused its discretion by 

awarding Randall the marital acreage. Marcia argues that the 

court incorrectly inferred that an unpublished Court of Appeals 

decision 28 precluded it from awarding a marital acreage to 

a nonfarming spouse where the farming spouse maintains a 

nearby farming operation. Marcia also argues that there was 

no evidence on the record to support the court’s reasoning 

that Randall should receive the marital acreage because of the 

home’s close proximity to Randall’s farming operation.

Without commenting upon the merits of the Court of 

Appeals’ unpublished decision, we believe that Marcia reads 

both too much and too little into the district court’s statements 

regarding the allocation of the marital acreage to Randall.

The district court did not state that it was bound by the 

Court of Appeals’ unpublished decision. A statute authorizes 

25 Anson v. Fletcher, 192 Neb. 317, 220 N.W.2d 371 (1974).

26 Federal Nat. Mortgage Assn. v. Marcuzzo, 289 Neb. 301, 854 N.W.2d 774 

(2014).

27 See Onstot v. Onstot, supra note 8.

28 See Tierney v. Tierney, supra note 2.
- 342 -

Nebraska Supreme Court Advance Sheets

310 Nebraska Reports

KAUK v. KAUK

Cite as 310 Neb. 329

the Court of Appeals to designate a particular opinion for publication. 29 And the rules of the Nebraska Supreme Court dictate 

that opinions of the Court of Appeals “which the deciding 

panel has designated as ‘For Permanent Publication’ shall be 

followed as precedent by the courts and tribunals inferior to the 

Court of Appeals until such opinion is modified or overruled 

by the Nebraska Supreme Court.” 30 But the decision cited by 

the court here was not designated for permanent publication 

and was not related to these parties. Consequently, the district 

court was not obligated to follow the unpublished opinion, 

and we do not read its decree as doing so. Marcia argues 

that the district court “ruled that [the unpublished decision] 

required that the [c]ourt award the marital home and acreage 

to [Marcia].” 31 In this respect, Marcia reads too much into the 

district court’s decree.

Marcia also reads too much into the part of the explanation 

summarizing Randall’s closing arguments, which are not in 

our record. “[Randall] argue[d],” the district court stated, that 

“his workshop and machinery are located on the home site, the 

home site borders farm ground that he rents from the . . . LLC, 

and the home site is in close proximity to the other ground he 

farms.” The court also noted his argument that “it would be 

easier for [Marcia] to relocate than for him to find or build a 

new work site for his farming operation.” However, the court 

did not characterize these arguments as evidence.

[15,16] Marcia also reads too little into the district court’s 

explanation. While Marcia is correct that the record does not 

show the location of Randall’s workshop and machinery, it does 

include circumstantial evidence of the relationship between 

the acreage and Randall’s farming operation. Circumstantial 

evidence is not inherently less probative than direct evidence, 

and a fact proved by circumstantial evidence is nonetheless a 

29 See Neb. Rev. Stat. § 24-1104 (Reissue 2016).

30 Neb. Ct. R. App. P. § 2-102(E)(5) (rev. 2021).

31 Brief for appellant at 17.
- 343 -

Nebraska Supreme Court Advance Sheets

310 Nebraska Reports

KAUK v. KAUK

Cite as 310 Neb. 329

proven fact. 32 A finder of fact may draw reasonable inferences 

from the facts and circumstances proved. 33 The parties’ stipulated property statement identified the location of the marital 

acreage by an imprecise legal description. The statement also 

set forth cryptic legal descriptions of real estate that Randall 

farms. The statement described the former as 7 acres in the 

“SW1/4SW1/4 of 31-15-11” and two of the latter as “SW 1/4 

31-15-11” and “NW 1/4 32-15-11.” These are obvious references to section, township, and range. From these descriptions, 

the court could draw inferences of the proximity of the acreage 

to the farmed tracts and thus to their relationship to Randall’s 

farming operation. Marcia’s testimony at trial did not include 

any suggestion that there was no relationship between the acreage and the farming operation. The district court, in reaching 

its conclusion, stated that it did so “[i]n light of the [unpublished] decision, and after considering the evidence presented 

. . . .” Marcia’s argument reads too much into the first part of 

the court’s statement and too little into the latter part.

Ultimately, this court reviews the division of property, 

including the allocation of specific assets, de novo on the 

record for an abuse of discretion. Marcia does not argue that 

the overall division of property falls outside of the one-third to 

one-half range. While we do not minimize Marcia’s attachment 

to or personal feeling about the marital acreage, we cannot 

say that the district court abused its discretion in awarding the 

marital acreage, including the house, to Randall.

In passing, we observe that the court’s decree included a 

provision under Neb. Rev. Stat. § 25-1304 (Reissue 2016) 

giving the decree the effect of a conveyance of real estate. In 

addition, Neb. Rev. Stat. § 42-372.02 (Cum. Supp. 2020) provides a method for recording of a “Certificate of Dissolution 

of Marriage” with the register of deeds in the appropriate 

32 Jacobs Engr. Group v. ConAgra Foods, 301 Neb. 38, 917 N.W.2d 435 

(2018).

33 Id.
- 344 -

Nebraska Supreme Court Advance Sheets

310 Nebraska Reports

KAUK v. KAUK

Cite as 310 Neb. 329

county or counties. The provisions of both statutes may be 

frustrated by the failure to include a complete and proper legal 

description in the evidence and ultimately in the decree.

CONCLUSION

The district court did not abuse its discretion in its marital 

asset determinations and in awarding Randall the marital acreage. We affirm the court’s divorce decree.

Affirmed.