                          IN THE NEBRASKA COURT OF APPEALS

               MEMORANDUM OPINION AND JUDGMENT ON APPEAL
                        (Memorandum Web Opinion)

                                        HIGGINS V. CURRIER


  NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION
 AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).


                               BILLY MEREDITH HIGGINS, APPELLEE,
                                                 V.

                               RASHELL RENE CURRIER, APPELLANT.


                             Filed February 11, 2020.    No. A-19-343.


       Appeal from the District Court for Douglas County: JAMES M. MASTELLER, Judge.
Affirmed.
       Corey J. Wasserburger, of Johnson, Flodman, Guenzel & Widger, for appellant.
       Richard W. Whitworth and Megan E. Shupe, of Reagan, Melton & Delaney, L.L.P., for
appellee.


       MOORE, Chief Judge, and ARTERBURN and WELCH, Judges.
       MOORE, Chief Judge.
                                         INTRODUCTION
        Rashell Rene Currier appeals from the order of the district court for Douglas County, which
dissolved her marriage to Billy Meredith Higgins. On appeal, she challenges certain aspects of the
court’s division of the marital estate. Because the court did not abuse its discretion in determining,
valuing, and dividing the marital estate, we affirm.
                                         BACKGROUND
        The parties were married May 20, 2016, in Washington. They have no children together;
Currier has a son from a previous relationship. At the time of the marriage, Currier and her son
lived in Washington, and Higgins lived in Council Bluffs, Iowa. Following the marriage, Currier
and her son moved to Council Bluffs to live with Higgins, who paid for their relocation. Higgins



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has been employed by TD Ameritrade since 1997. During the 14 months she resided with Higgins,
Currier had part-time employment between October 2016 and February 2017 and she deposited
her monthly child support of $700 “into the bank account.” In July 2017, Currier and her son
moved back to Washington, and Higgins again paid for their relocation. Shortly thereafter, Higgins
moved to Omaha, Nebraska. After July 2017, the parties continued their relationship long distance,
continued to work on their marriage, and continued to take trips to visit one another. Higgins also
continued to provide financial support to Currier. The parties were unable to reconcile, however,
and ended their relationship in March 2018.
         On April 16, 2018, Higgins filed a complaint for legal separation in the district court. On
August 20, he filed an amended complaint for dissolution of marriage, after having resided in
Nebraska for more than 1 year. Currier filed an answer and counterclaim for legal separation in
response to the initial complaint, but the record does not show that she filed an answer to the
amended complaint.
         Trial was held December 4, 2018. Higgins was represented by counsel, and Currier
appeared pro se. Both parties testified about the items of property at issue in this appeal and offered
exhibits, which were received by the district court.
         During the time the parties resided together, they lived in a house located in Council Bluffs
(the Iowa property), which Higgins testified that he purchased in 2014 for approximately
$673,000. Higgins testified that at the time of the purchase, the Iowa property was appraised at
$625,000, and that amount is reflected in a June 2014 appraisal admitted into evidence. Higgins
testified that he made a downpayment on the purchase of about $350,000. A closing statement for
the amount borrowed on the home shows that Higgins and his previous wife borrowed $315,000.
Following the parties’ marriage, Currier was never listed on any of the financing documents for
the Iowa property, and her name was never placed on the deed to it. Although Higgins was the one
who made the payments for the loan, taxes, and insurance on the Iowa property, there is nothing
in the record to suggest that the payments made by Higgins for those obligations during the
marriage were paid with anything other than marital funds. As noted above, Currier was employed
for a short period during the marriage and also received child support payments. When asked about
the mortgage payments at trial, she testified that the parties’ bills were paid with “mixed funds.”
         At Currier’s request, Higgins’ placed the Iowa property on the market because the parties
had intended to move to Omaha so that Currier’s son could attend school there. The Iowa property
sold on July 14, 2017, for $615,000, which according to Higgins’ calculations was “about $58,000”
less than he paid for its purchase in 2014. The closing statement for the 2017 sale shows that
Higgins incurred and paid closing costs of $31,593.20 and that he received net proceeds from the
sale of the Iowa property of $300,019.81. The district court received an exhibit from Higgins
showing his calculation of a loss totaling $89,953.20 on the sale of the Iowa property. Following
the sale of the Iowa property, Higgins used $25,000 of the proceeds to pay off a marital credit card
debt. He applied the balance of the proceeds to the purchase of a new residence in Omaha (the
Omaha property). Higgins asked the court to award him the Omaha property as nonmarital
property traceable to his premarital Iowa property. He testified that Currier did not “provide any
of her funds for the support of the [Omaha] household.”




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        Higgins had certain TD Ameritrade accounts, although the record is not clear as to how
many; at least one account was in existence prior to the parties’ marriage. Higgins testified that
the TD Ameritrade “account ending in 3733” had been open since 1997. According to Higgins, in
an attempt to resolve the discord between them, he had Currier’s name added to the “3733”
account. He testified, however, that she was not given the right to individually access that account
and that he had no intent to make her a gift of the asset. Higgins testified that neither party made
any deposits into that brokerage account during the marriage and that he had not put any money
into it since Currier returned to Washington. He asked the court to “make an equitable
determination that all of the funds in that account should be awarded to [him] since it was all
accumulated on [a] premarital asset.” He indicated that the only other TD Ameritrade account on
which Currier’s name had appeared had been closed.
        Higgins also had a 401K account through TD Ameritrade established prior to the marriage,
which he asked the court to award to him. Higgins did not provide any other testimony or any
documentation with respect to this retirement account, but according to Currier, Higgins was
putting a total of $1,500 per month into two different 401K accounts, which Currier felt was
“money that could have been put towards school and the investment of educating [her] and
allowing [her] to get a job and contribute to the household.” The district court received an exhibit
containing pay statements for Higgins, which Currier offered to show that Higgins “claimed three
on his taxes, because we were together and he got more back for us instead and did not share it.”
In her arguments on appeal, Currier notes that this exhibit reflects contributions by Higgins to a
“401K” and a “Roth 401K” during the marriage.
        The district court also received two account statements offered by Currier for a 401K
account ending in “0510” from May 2016 and March 2018. These statements show that the “0510”
account had a value of $218,182.02 as of May 1, 2016, and a value of $359,128.29 as of March
31, 2018. The statements show that the account contains a mixture of stocks and mutual funds.
Both statements show that no funds were deposited or disbursed year-to-date (through May 2016
and through March 2018). The statements show that securities were sold and purchased within the
account and interest income was received. Currier asked the court to equitably divide that 40lK
account.
        There was also evidence about a bank account at U.S. Bank that Higgins had opened when
he was a minor. Currier’s name was placed on that account after the parties were married. Higgins
utilized this account to pay monthly car payments, car insurance, and credit card bills for the
benefit of Currier after she returned to Washington, as well as his payment for her to move to Iowa
and then back to Washington. The district court received an exhibit containing bank statements
from this account, which was closed shortly before Higgins filed the initial complaint in this case.
The balance in this account at the time it was closed was $606.
        The parties filed a joint income tax return for the tax year 2016, which resulted in a tax
refund of $11,514. The entirety of the refund was intercepted by the U.S. Department of Education
for Currier’s student loan debts, but it was subsequently returned to Higgins as “Injured Spouse
support.”
        On March 8, 2019, the district court entered a decree of dissolution, dissolving the parties’
marriage and determining and dividing the marital estate. The court found that “the equity in the



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real property can be traced from the sole asset of [Higgins]” to the Omaha property, which the
court found to be a nonmarital asset. Accordingly, the court awarded the Omaha property to
Higgins as his nonmarital property. The court found that the TD Ameritrade account ending in
“0733” (presumably the “3733” account referenced in Higgins’ testimony) was Higgins’
premarital asset and that “all accumulations to [that] account were from that premarital asset.” The
court awarded Higgins the TD Ameritrade brokerage accounts, which belonged to him prior to the
marriage, as his premarital assets and ordered that Currier’s name be removed from the “0733”
account. With respect to Higgins’s premarital 401K account, the court determined that the $1,500
monthly deposit during the marriage was made with marital funds, but the court noted that neither
party presented testimony concerning how to trace the interest on the marital contributions to that
account. The court found that for purposes of dividing the marital portion of the 401K account, the
relevant period was from May 20, 2016, to July 31, 2017, during which time Higgins deposited
$21,000 into the account. The court awarded Currier $10,500, representing half of the amount
deposited during the parties’ marriage and ordered that it be transferred to her through a Qualified
Domestic Relations Order. The court awarded the parties any other retirement plans that either
might have. The court awarded Currier $303, half of the balance in the U.S. Bank account at the
time the complaint was filed. The court also awarded her $3,570, a sum representing “50% of the
[2016 income tax] refund that accumulated from May 20, 2016 to December 31, 2016.” The court
also made determinations with respect to tangible personal property, debt, and other matters not
relevant to the present appeal.
                                  ASSIGNMENTS OF ERROR
        Currier asserts that the district court abused its discretion by (1) classifying the sale
proceeds from the marital residence in Iowa as a nonmarital asset and failing to award her one-half
of those proceeds, (2) determining the marital value of Higgins’ 401K and failing to award Currier
one-half of the increase in value that occurred during the marriage, (3) failing to award Currier
one-half of the refund from the parties’ 2016 income tax return, and (4) failing to identify Higgins’
accumulated paid time off as a marital asset and to award one-half of that value to Currier.
                                    STANDARD OF REVIEW
        In an action for the dissolution of marriage, an appellate court reviews de novo on the
record the trial court’s determinations of custody, child support, property division, alimony, and
attorney fees; these determinations, however, are initially entrusted to the trial court’s discretion
and will normally be affirmed absent an abuse of that discretion. Blank v. Blank, 303 Neb. 602,
930 N.W.2d 523 (2019). A judicial abuse of discretion exists when 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. Id. When evidence is in conflict, 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. Id.




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                                              ANALYSIS
        Under Neb. Rev. Stat. § 42-365 (Reissue 2016), the equitable division of property is a
three-step process. Dooling v. Dooling, 303 Neb. 494, 930 N.W.2d 481 (2019). 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. Id. The second step is to value the marital assets
and marital liabilities of the parties. Id. The third step is to calculate and divide the net marital
estate between the parties in accordance with the principles contained in § 42-365. Dooling v.
Dooling, supra. The ultimate test in determining the appropriateness of the division of property is
fairness and reasonableness as determined by the facts of each case. Id. Currier presents arguments
relating to all three steps in this process.
        Generally, all property accumulated and acquired by either spouse during a marriage is part
of the marital estate. Rohde v. Rohde, 303 Neb. 85, 927 N.W.2d 37 (2019). Exceptions include
property that a spouse acquired before the marriage, or by gift or inheritance. Id. Where there is
nothing on the record to show the source of premarital funds, they should be considered part of the
marital estate. Stanosheck v. Jeanette, 294 Neb. 138, 881 N.W.2d 599 (2016). The burden of proof
rests with the party claiming that property is nonmarital. Dooling v. Dooling, supra.
Sale Proceeds from Iowa Property.
        First, Currier asserts that the district court abused its discretion by classifying the sale
proceeds from the marital residence in Iowa as a nonmarital asset and failing to award her half of
those proceeds. Currier argues that the sale proceeds of the Iowa property should have been
characterized as a marital asset because Higgins failed to produce evidence of the amount of equity
he had in the property at the time of marriage and because “whatever premarital interest he may
have held in the [Iowa property] was inextricably commingled with the parties’ marital funds
through the mortgage payments that were made during the parties’ marriage.” Brief for appellant
at 16.
        In support of her first argument, Currier relies on Burgardt v. Burgardt, 27 Neb. App. 57,
926 N.W.2d 452 (2019) (Burgardt I), which was reversed and remanded with directions
subsequent to the filing of the brief in the present case. See Burgardt v. Burgardt, 304 Neb. 356,
934 N.W.2d 488 (2019) (Burgardt II). In Burgardt I, this court found that the husband did not
meet his burden of proving that his 401K plan had a value of $130,000 at the time of the marriage
and did not prove the amount he inherited from his father (husband testified that his inheritance
was $60,000). On further review by the Nebraska Supreme Court, the husband asserted that this
court erred in determining that because he offered no documentary evidence at trial, he failed to
meet his burden to prove the premarital values of his 401K and of the inheritance he received
during the marriage.
        The Nebraska Supreme Court first addressed the necessity of documentary evidence,
noting that a nonmarital interest in property may be established by credible testimony. Burgardt
II, supra. The court noted further that triers of fact have the right to test the credibility of witnesses
by their self-interest and to weigh it against the evidence, or the lack thereof. Id. The court stated,
“While documentary evidence may be more persuasive, it is not absolutely required. . . . Of course,




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a party opting to rely upon his or her testimony alone does so at the risk of nonpersuasion.” Id.,
304 Neb at 365, 934 N.W.2d at 495.
        The Supreme Court in Burgardt II noted Onstot v. Onstot, 298 Neb. 897, 906 N.W.2d 300
(2018), in which it affirmed a trial court’s decision not to grant credit for the premarital value of a
residence where the husband neither testified nor provided documentation as to whether, or to what
extent, the property was encumbered at the time of the marriage. The court also noted Brozek v.
Brozek, 292 Neb. 681, 874 N.W.2d 17 (2016), where it affirmed the trial court’s decision not to
set off a premarital portion of the husband’s checking accounts, crops from a particular harvest,
and machinery owned at the time of the marriage. The Burgardt II court observed, “A party seeking
recognition of nonmarital property may find it easier to meet his or her burden of persuasion with
documentary support. But its absence does not automatically defeat the claim.” 304 Neb. at 366,
934 N.W.2d at 496. The Burgardt II court concluded by stating:
        It is axiomatic that an item must be identified in order to be set off as nonmarital. But its
        value need not be definitively or conclusively proved; the greater weight of the evidence is
        sufficient. In other words, the value of the nonmarital portion of an asset must be
        established by the greater weight of the evidence.

Burgardt II, 304 Neb. at 366-67, 934 N.W.2d at 496. The court reviewed the testimony about the
values of the two assets at issue and found no abuse of discretion by the trial court setting off to
the husband the values identified in his testimony, which the trial court evidently found to be
credible.
        In the present case, the district court apparently found Higgins’ testimony to be credible
regarding the purchase price of the Iowa property, his down payment, the mortgage indebtedness,
the sale price, and the loss realized from the sale. We also note that Higgins did provide some
documentary proof to corroborate his testimony. In our de novo review of the record, we find no
abuse of discretion by the trial court in setting aside the Omaha property, purchased with proceeds
from Higgins’ premarital Iowa property, to Higgins as nonmarital property.
Valuation and Division of Marital Portion of 401K.
        Next, Currier asserts that the district court abused its discretion by determining the marital
value of Higgins’ 401K and failing to award Currier one-half of the increase in value that occurred
during the marriage. The court noted that the parties did not provide evidence about how to trace
the interest on the contributions to Higgins’ 401K during the marriage, but it determined that
Higgins’ contributions of $1,500 per month were made with marital funds and that between May
20, 2016, and July 31, 2017, Higgins deposited $21,000. The court awarded Currier $10,500,
which is half of that amount.
        Under Neb. Rev. Stat. § 42-366(8) (Reissue 2016), the general rule is that amounts added
to and interest accrued on pension or retirement accounts which have been earned during the
marriage are part of the marital estate, but contributions before marriage or after dissolution are
not assets of the marital estate. Stanosheck v. Jeanette, 294 Neb. 138, 881 N.W.2d 599 (2016).
Investment earnings accrued during the marriage on the nonmarital portion of a retirement account
may be classified as nonmarital where the party seeking the classification proves: (1) The growth



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is readily identifiable and traceable to the nonmarital portion of the account and (2) the growth is
due solely to inflation, market forces, or guaranteed rate rather than the direct or indirect effort,
contribution, or fund management of either spouse. Stephens v. Stephens, 297 Neb. 188, 899
N.W.2d 582 (2017). The active appreciation rule sets forth the relevant test to determine to what
extent marital efforts caused any part of the appreciation or income. Id. Appreciation caused by
marital contributions is known as active appreciation, and it constitutes marital property. Id.
Passive appreciation is appreciation caused by separate contributions and nonmarital forces. Id.
The burden is on the owning spouse to prove the extent to which marital contributions did not
cause the appreciation or income. Id. Appreciation or income of a nonmarital asset during the
marriage is marital insofar as it was caused by the efforts of either spouse or both spouses. Id.
        Currier argues that Higgins failed to meet his burden of proving that the 401K account’s
increase in value beyond Higgins’ contributions during the marriage was from a nonmarital source,
and therefore this increase should be considered part of the marital estate. In support of her
argument, she points to exhibit 13 offered by her at trial, which was the account statements
showing that the “0510” account had a value of $218,182.02 as of May 1, 2016, and a value of
$359,128.29 as of March 31, 2018. She also relies on exhibit 12 offered by her at trial, which was
the pay statements showing that Higgins made contributions to two 401K accounts from his wages,
and her own testimony that he made contributions totaling $1,500 per month to two accounts.
Currier argues that under the rules cited above, the district court was obligated to treat the entirety
of the increase in value of the “0510” account that occurred during the marriage as marital because
Higgins failed to prove that the growth was readily identifiable and traceable to the nonmarital
portion of the account and was due solely to inflation, market forces, or guaranteed rate rather than
the direct or indirect effort, contribution, or fund management of either spouse.
        One problem with Currier’s arguments is that it is difficult to tell from the record exactly
how many 401K accounts Higgins has and whether the “0510” account represented in exhibit 13
is one of the accounts represented in exhibit 12 and Currier’s testimony. Higgins simply testified
that he had a 401K prior to the marriage, and it is not possible to discern whether the account he
was testifying about was one of the accounts represented in Currier’s evidence. The record
supports a conclusion that Higgins contributed to one or more 401K accounts, shown as deductions
from his earnings on his pay stub, during the marriage. The district court credited Currier’s
testimony that $1,500 per month was contributed by Higgins, and it determined the total marital
contribution to be $21,000 and awarded Currier $10,500.
        With regard to the 401K account ending in “0510,” however, the exhibit offered regarding
this account does not show any funds deposited during the relevant time periods; rather the
statements show stocks and mutual funds being sold and purchased within the account as well as
interest income. The March 31, 2018, statement shows over a $20,000 loss for the month. Thus,
the limited evidence adduced regarding this account does not indicate that active appreciation is
the cause of the increase in value during the marriage; rather, it indicates that the account
fluctuates, presumably depending on market forces. Again, the district court apparently credited
Higgins’ testimony that his 401K account was premarital property, and although the “0510”
account increased in value during the parties’ short marriage, under the circumstances of this case,




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we cannot say that the court abused its discretion in declining to include in the marital estate any
increase in value realized during the marriage on this 401K account owned by Higgins.
Division of Income Tax Refund.
        Next, Currier asserts that the district court abused its discretion by failing to award her
one-half of the refund from the parties’ 2016 income tax return. The parties received a refund of
$11,514 that was initially intercepted for payment of Currier’s student loan debts but was later
returned to Higgins as an injured spouse. The court awarded Currier $3,570 of the refund, intended
to represent “50% of the refund that accumulated from May 20, 2016 [the date of the marriage] to
December 31, 2016.” Currier argues that it was arbitrary and speculative for the court to prorate
the division of the refund in this way, given that the parties filed a joint income tax return that
produced a refund, and since Higgins benefitted from claiming Currier and her son as dependents.
The record shows that Higgins has been employed at Ameritrade since 1997 and there is nothing
to indicate that he did not work for the entire year in 2016. Currier was employed for a few months
at the end of the year. The parties were married for a little over half of 2016. Under the
circumstances of this case, we find no abuse of discretion in the court’s division of the income tax
refund.
Higgins’ Accumulated Paid Time Off.
        Finally, Currier asserts that the district court abused its discretion by failing to identify
Higgins’ accumulated paid time off as a marital asset and to award her one-half of that value. She
points to pay statements she offered at trial, showing that Higgins had 200 hours of accumulated
paid time off as of June 2, 2017. She cites to Dooling v. Dooling, 303 Neb. 494, 930 N.W.2d 481
(2019), where the Nebraska Supreme Court held that to the extent that employment benefits such
as unused sick time, vacation time, and compensatory time have been earned during the marriage,
they constitute deferred compensation benefits under § 42-366(8) and are considered part of the
marital estate subject to equitable division. In Dooling, the trial court awarded the wife a portion
of the husband’s vacation and comp time earned during the marriage, and the husband assigned
error to the calculation and division of that marital asset. In the present case, Currier did not raise
this issue before the trial court. The exhibit in question was offered in connection with her
arguments about Higgins’ 401K account or accounts, and Currier specifically offered the exhibit
to show that Higgins “claimed three on his taxes, because we were together and he got more back
for us instead and did not share it.” Because the issue of the valuation and division of any accrued
paid time off earned by Higgins during the marriage was not presented to or passed upon by the
trial court, we do not address it further. An appellate court will not consider an issue on appeal that
was not presented to or passed upon by the administrative agency. In re Application No. OP-0003,
303 Neb. 872, 932 N.W.2d 653 (2019).
                                          CONCLUSION
        The district court did not abuse its discretion in determining, valuing, and dividing the
marital estate.
                                                                                      AFFIRMED.




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