Weston v. Weston

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Nebraska Court of Appeals Advance Sheets
32 Nebraska Appellate Reports
WESTON v. WESTON
Cite as 32 Neb. App. 822
Judith J. Weston, appellee, v .
Benjamin K. Weston, appellant.
___ N.W.3d ___
Filed April 23, 2024. 	No. A-23-283.
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. Judges: Words and Phrases. A judicial abuse of discretion exists if the
reasons or rulings of a trial judge are clearly untenable, unfairly depriv-
ing a litigant of a substantial right and denying just results in matters
submitted for disposition.
3. Divorce: Property Division. The ultimate test in determining the appro-
priateness of the division of property is fairness and reasonableness as
determined by the facts of each case. This is the polestar guiding an
appellate court’s analysis of the issues.
4. ____: ____. Under Neb. Rev. Stat. § 42-365 (Reissue 2016), the equi-
table division of property is a three-step process. The first step is to clas-
sify the parties’ property as marital or nonmarital, setting aside the non-
marital property to the party who brought that property to the marriage.
The second step is to value the marital assets and marital liabilities
of the parties. The third step is to calculate and divide the net marital
estate between the parties in accordance with the principles contained in
§ 42-365.
5. ____: ____. When classifying property as either marital or nonmarital,
generally, all property accumulated and acquired by either spouse during
a marriage is part of the marital estate. Exceptions include property that
a spouse acquired before the marriage, or by gift or inheritance.
6. Divorce: Property Division: Proof. The burden of proof to show that
property is nonmarital remains with the person making the claim.
Nebraska Supreme Court Online Library
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Nebraska Court of Appeals Advance Sheets
32 Nebraska Appellate Reports
WESTON v. WESTON
Cite as 32 Neb. App. 822
7. Divorce: Property Division. The manner in which property is titled or
transferred by the parties during the marriage does not restrict the trial
court’s determination of how the property will be divided in an action
for dissolution of marriage.
8. Joint Tenancy: Parol Evidence. When real estate is conveyed in joint
tenancy, any parol evidence to overcome the recorded legal title must be
clear, unequivocal, and convincing.
9. Evidence: Appeal and Error. When credible evidence is in conflict
on material issues of fact, an appellate court will consider and may
give weight to the fact that the trial court observed the witnesses and
accepted one version of the facts over another.
10. Evidence: Proof. Unless an exception applies, the burden of proof in
civil cases requires only the greater weight of the evidence.
11. Trial: Witnesses: Appeal and Error. The credibility and weight of
witness testimony are for the fact finder to determine, and witness cred-
ibility is not to be reassessed on appellate review.
12. 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.
13. Divorce: Property Division: Proof: Testimony. A nonmarital interest
in property may be established by credible testimony.
14. Property Division. With some exceptions, the marital estate does not
include property acquired by one of the parties through gift or inherit-
ance. And there is no exception where an otherwise nonmarital monetary
gift is spent on a family expense.
15. ____. Commingling of marital and nonmarital assets does not occur
when separate property remains segregated or is traceable into its
product.
16. Evidence: Proof. There is no hierarchy of evidence. There is no gen-
eral rule of evidence that a party must produce the best evidence which
the nature of the case permits. A trial court weighs the credibility of
the witnesses and the evidence and determines what evidence should
be given the greater weight in arriving at a factual determination on
the merits. In doing so, a trial court may choose what evidence merits
greater weight.
17. Divorce: Property Division. Compensation for an injury that a spouse
has or will receive for pain, suffering, disfigurement, disability, or loss
of postdivorce earning capacity should not equitably be included in the
marital estate.
18. Property Division. Compensation for past wages, medical expenses,
and other items that compensate for the diminution of the marital estate

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Nebraska Court of Appeals Advance Sheets
32 Nebraska Appellate Reports
WESTON v. WESTON
Cite as 32 Neb. App. 822
should equitably be included in the marital estate as they properly
replace losses of property created by the marital partnership.
Appeal from the District Court for Dawson County: James
E. Doyle IV, Judge. Affirmed in part, and in part reversed and
remanded with directions.
Claude E. Berreckman, Jr., of Berreckman & Bazata, P.C.,
L.L.O., for appellant.
Brennon D. Malcom, of Malcom, Nelsen & Windrum,
L.L.C., for appellee.
Pirtle, Chief Judge, and Riedmann and Welch, Judges.
Pirtle, Chief Judge.
I. INTRODUCTION
The district court for Dawson County dissolved the mar-
riage of Benjamin K. Weston and Judith J. Weston and divided
the parties’ property and debts. On appeal, Benjamin chal-
lenges the district court’s classification and division of prop-
erty. For the reasons that follow, we affirm in part, and in part
reverse and remand with directions.
II. BACKGROUND
Benjamin’s appeal takes issue only with the district court’s
order regarding the classification of certain assets as marital or
nonmarital property. Therefore, our recitation of facts encom-
passes only the facts relevant to those issues.
Benjamin and Judith were married on June 20, 2008. Judith
brought two children into the marriage whom Benjamin even-
tually adopted. Benjamin and Judith then had two children
together.
During their marriage, the family lived on rural property in
Lexington, Nebraska, that Benjamin had lived on since 1987.
Benjamin’s parents owned the property for most of the time
he lived there. However, on November 8, 2012, Benjamin’s
parents conveyed the property by warranty deed to Benjamin
and Judith as joint tenants. No money was exchanged for

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Nebraska Court of Appeals Advance Sheets
32 Nebraska Appellate Reports
WESTON v. WESTON
Cite as 32 Neb. App. 822
the conveyance of the property; instead, the warranty deed
states that the conveyance was made “in consideration of
Love and Affection.”
In 2015, Benjamin was involved in a semi-truck accident
that left him partially disabled and unable to work. Without
Benjamin’s income, the family struggled financially. Although
Benjamin was pursuing a workers’ compensation claim, it
took several years for the claim to come to fruition. Due to
their financial difficulties at this time, Judith’s mother assisted
Benjamin and Judith by paying some of their expenses.
On January 24, 2019, Benjamin received a lump-sum work-
ers’ compensation settlement of $135,811.01. Shortly after
receiving the settlement, Benjamin and Judith used $34,000
of the money to pay off a loan on their 2018 Jeep Renegade.
Additionally, in the summer of 2020, with their then-current
residence in a near dilapidated state, Benjamin and Judith used
$60,000 of the settlement money to renovate an old agricul-
tural building on their property into a new residence. As the
renovation exceeded their $60,000 budget, Judith’s mother
helped them by contributing $123,947.79 to the project. The
renovation was completed in the spring of 2021.
In July 2021, Benjamin and Judith separated after one of
Benjamin’s adopted children accused him of sexually assault-
ing her 6 years earlier. On August 10, Judith filed an action
for a dissolution of marriage. A trial was held over the course
of 2 days in October and November 2022.
1. Trial
Relevant to this appeal, the trial involved the testimony of
Helen Rempel (Helen), Loretta Weston, Judith, and Benjamin.
Helen is Judith’s mother and Loretta is Benjamin’s mother.
(a) Conveyance of Property
to Benjamin and Judith
One of the issues on appeal is whether the real estate con-
veyed to Benjamin and Judith by Benjamin’s parents was a
marital asset.

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Nebraska Court of Appeals Advance Sheets
32 Nebraska Appellate Reports
WESTON v. WESTON
Cite as 32 Neb. App. 822
Benjamin testified that the real estate was a gift to him from
his parents. He claimed that prior to his parents’ conveying
the real estate to him and Judith on November 8, 2012, they
conveyed it to him individually. He stated they only added
Judith’s name to the deed because both their names had to be
on it for Benjamin to receive a grant to build a greenhouse on
the property. He went on to indicate that Judith knew the gift
was intended solely for him and that she knew she was only
included in the deed so they could receive the grant.
Loretta corroborated Benjamin’s version of events. She
stated that she and her husband did not plan to give Benjamin
the property until their death, but he needed ownership to get
a grant to build a greenhouse. She stated that they initially
conveyed the property only to Benjamin, but later added
Judith’s name because it was required to receive the grant.
Loretta claimed to still have the documents that conveyed the
property to Benjamin individually but was not able to produce
them. She then indicated that her and her husband’s intent
was to deed the property “for the benefit of [Benjamin].”
Judith contested Benjamin’s and Loretta’s assertions. She
explained that Benjamin’s parents gave the land to both her
and Benjamin because they knew she was a good person and
spouse. Judith also took issue with Benjamin and Loretta’s
timelines. She stated that there were no discussions regarding
the grant until a year after the property was already conveyed
in both their names. Notably, the record is unclear if Benjamin
and Judith ever applied for the grant, but it does reflect that
the greenhouse was never built.
The district court found that the evidence presented by
Benjamin and his mother did not clearly and unequivocally
overcome the presumption that the real estate was marital prop-
erty. In its findings, the court stated:
The evidence established the transfer of the real estate
. . . was part of a pattern of assistance Benjamin’s
parents provided to the couple. Such assistance was
provided to both Benjamin and Judith and was part of

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Nebraska Court of Appeals Advance Sheets
32 Nebraska Appellate Reports
WESTON v. WESTON
Cite as 32 Neb. App. 822
Benjamin’s parents’ expressed intention to help the cou-
ple maintain and further their marriage and to help the
couple support and care for their children. The evidence
established the transfer of the property was a gift to both
Benjamin and Judith.
Accordingly, the court found that the entire value of the prop-
erty was included in the marital estate.
(b) Helen’s Contributions to Renovation
An issue in this appeal is whether Helen’s $123,947.79 con-
tribution to the renovation was a gift to Judith, as an advance
of her inheritance, or a gift given for the joint benefit of
the marriage.
After Benjamin’s accident, Benjamin and Judith decided
the family needed a new place to live because the house they
occupied was decaying. Because Benjamin and Judith were
unable to afford the costs of renovating the agricultural build-
ing on their property, Helen provided them with financial
assistance. Helen testified that she tracked the amount she
contributed to the renovation on a weekly basis and calculated
the total to be $123,947.79 after the work was completed.
Helen and Judith testified that prior to Helen’s providing
the financial assistance, there was an understanding between
her, Judith, and Benjamin that the amount Helen was pay-
ing to help renovate the building was an advance on Judith’s
inheritance. Helen explained that she discussed the issue with
her other children and made it clear to Judith that whatever
amount she contributed to the project “would be taken out of
whatever [Judith] received” when Helen and her husband died.
Judith’s testimony similarly stated there was an agreement that
the amount Helen contributed to the renovation “was going to
be taken away [from the] inheritance money that [she] was to
receive once [her] parents were both gone.”
Helen also described prior occasions where she and her
husband 	assisted 	Benjamin 	and 	Judith 	financially. 	Helen
explained that following the marriage in 2008, she helped

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Nebraska Court of Appeals Advance Sheets
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WESTON v. WESTON
Cite as 32 Neb. App. 822
them with large, unexpected expenditures. More so, Helen
stated that after Benjamin’s accident, she and her husband
assisted them financially on a regular basis. This assistance
involved helping with vehicle payments, taxes, licensing a
vehicle, and other miscellaneous costs.
In contrast, Benjamin asserted that Helen and her husband
told him and Judith that their contributions to the renovation
were gifts to their entire family. He testified that Helen “said
it was a gift to us and the kids because we couldn’t live in that
little house any further.”
The district court found that the $123,947.79 Helen contrib-
uted to the renovation project was not marital property. The
court described the money as “Judith’s inheritance advance”
and stated that because the full amount was traceable to the
remodeling project, Judith was entitled to a credit for her
contributions to the property’s value in the full amount of
$123,947.79.
(c) Purchase of 2018 Jeep Renegade
An issue in this appeal is whether Benjamin was entitled
to credit for the value of the 2018 Jeep Renegade because
he purchased it with money from his workers’ compensation
settlement.
Benjamin testified that while his workers’ compensation
claim was pending, he wanted to buy Judith a new vehicle
because she never had one. Judith stated that Benjamin told
her she deserved a new vehicle and that he wanted to buy
one for her. Benjamin’s account did not differentiate from this
sentiment. He testified that buying the new vehicle was “[o]ne
hundred percent” his idea and that he desired to purchase the
2018 Jeep Renegade because Judith wanted it. Although they
initially financed the purchase, once Benjamin received his
settlement, they paid off the loan. Accounting for licensing
and registration costs, they spent $34,000 of the settlement
money on the vehicle. The only evidence presented at trial
regarding the vehicle’s then-current value was that it was
worth $20,000.

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Nebraska Court of Appeals Advance Sheets
32 Nebraska Appellate Reports
WESTON v. WESTON
Cite as 32 Neb. App. 822
The district court found that the money spent to purchase
the 2018 Jeep Renegade was traceable to Benjamin’s work-
ers’ compensation settlement, a nonmarital asset. However, the
court concluded that the vehicle was marital property because
it was “acquired during the marriage for the joint benefit of
the parties using Benjamin’s non-marital funds.” In a later
order on Benjamin’s motion for a new trial, the court further
clarified its ruling as it pertained to the 2018 Jeep Renegade:
“While Benjamin was able to trace $34,000 of his workers[’]
compensation settlement to the purchase of the 2018 Jeep, the
evidence established that at the time the Jeep was purchased
Benjamin clearly and unequivocally intended it as and made it
a gift to Judith.” As such, the court found that Benjamin was
not entitled to credit for the Jeep’s $20,000 value from the
marital estate.
2. Motion for New Trial
On December 1, 2022, Benjamin motioned for a new trial,
citing several purported errors made by the district court. On
March 13, 2023, the district court issued an order that over-
ruled portions of its prior order as an order nunc pro tunc.
In this order, the district court essentially provided further
reasoning on several issues and corrected erroneous values for
the credits given to Judith as a result of Helen’s gift to her. In
all other respects, the district court overruled the motion for
new trial and affirmed its prior order.
III. ASSIGNMENTS OF ERROR
Benjamin assigns, restated and reordered, that the district
court erred by (1) failing to treat the gift of real estate by
his parents as a nonmarital transfer, (2) finding that Helen’s
contributions to the renovation were gifts solely made to
Judith, (3) determining Helen’s contributions to the renovation
amounted to $123,947.79, and (4) failing to provide Benjamin
with a credit for the value of the 2018 Jeep Renegade.

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Nebraska Court of Appeals Advance Sheets
32 Nebraska Appellate Reports
WESTON v. WESTON
Cite as 32 Neb. App. 822
IV. 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.
Novotny v. Novotny, 32 Neb. App. 142, 995 N.W.2d 64 (2023).
This standard of review applies to the trial court’s determina-
tions regarding custody, child support, division of property,
alimony, and attorney fees. Id. 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 disposi-
tion. Id.
V. ANALYSIS
[3] The ultimate test in determining the appropriateness of
the division of property is fairness and reasonableness as deter-
mined by the facts of each case. Rohde v. Rohde, 303 Neb. 85,
927 N.W.2d 37 (2019). This is the polestar guiding our analysis
of the issues. Id.
[4] Under Neb. Rev. Stat. § 42-365 (Reissue 2016), the
equitable division of property is a three-step process. Rohde
v. Rohde, supra. The first step is to classify the parties’ prop-
erty as marital or nonmarital, setting aside the nonmarital
property to the party who brought that property to the mar-
riage. Id. The second step is to value the marital assets and
marital liabilities of the parties. Id. The third step is to cal-
culate and divide the net marital estate between the parties in
accordance with the principles contained in § 42-365. Rohde
v. Rohde, supra.
[5,6] When classifying property as either marital or non-
marital, generally, all property accumulated and acquired by
either spouse during a marriage is part of the marital estate.
See id. Exceptions include property that a spouse acquired
before the marriage, or by gift or inheritance. Id. The burden
of proof to show that property is nonmarital remains with the
person making the claim. Plog v. Plog, 20 Neb. App. 383, 824
N.W.2d 749 (2012).

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Nebraska Court of Appeals Advance Sheets
32 Nebraska Appellate Reports
WESTON v. WESTON
Cite as 32 Neb. App. 822
1. Real Estate Conveyed
by Benjamin’s Parents
Benjamin first assigns the district court abused its discre-
tion by classifying the real estate conveyed by his parents as
marital property. Although the property was deeded to both
Benjamin and Judith as joint tenants, Benjamin asserts the real
estate was gifted only to him.
[7,8] We determine that Benjamin fails to meet his burden
to show the real estate was nonmarital property. The manner
in which property is titled or transferred by the parties during
the marriage does not restrict the trial court’s determination of
how the property will be divided in an action for dissolution
of marriage. See Sellers v. Sellers, 294 Neb. 346, 882 N.W.2d
705 (2016). When real estate is conveyed in joint tenancy,
any parol evidence to overcome the recorded legal title must
be clear, unequivocal, and convincing. See Salmon v. Salmon,
219 Neb. 899, 367 N.W.2d 142 (1985).
In Salmon v. Salmon, supra, a mother deeded property to
her daughter and son-in-law in exchange for $10,000. The
mother essentially provided a private mortgage to her daugh-
ter and son-in-law where they would pay off the balance over
a 10-year period. Id. Later in their divorce proceedings, the
daughter claimed the property was a gift from her mother
to her. The only evidence the daughter presented to counter
the recitals in the deed was her mother’s testimony. Id. The
Nebraska Supreme Court found that in the absence of any
other evidence, the mother’s testimony “was not so clear,
unequivocal, and convincing as to overcome the recitals in the
deed which conveyed the property to the parties as joint ten-
ants.” Id. at 901, 367 N.W.2d at 144.
Benjamin asserts this matter is distinguishable from Salmon
because there was no exchange of money for the property.
In terms of classifying whether property is marital, we do
not see why property that was jointly conveyed to a married
couple should be treated differently based on whether it was
given in exchange for value or at no cost at all. The only

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Nebraska Court of Appeals Advance Sheets
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WESTON v. WESTON
Cite as 32 Neb. App. 822
difference in analyzing those situations would be the calcula-
tion of the value of the gift, whether it was for the full value
of the property or just a portion. That does not change the
initial inquiry of deciding for whose benefit the gift was origi-
nally intended. For that reason, we conclude that the “clear,
unequivocal, and convincing” standard from Salmon applies to
this matter. See 219 Neb. at 901, 367 N.W.2d at 144.
[9] We determine the evidence presented by Benjamin was
not clear, unequivocal, and convincing to the extent that it
overcame the recitals in the deed that the property was jointly
gifted to both him and Judith. The only evidence presented by
Benjamin to overcome the requisite presumption was his and
his mother’s testimony that was countered by Judith’s testi-
mony. While this is slightly more evidence than the evidence
presented in Salmon, we do not believe it rises to the clear,
unequivocal, and convincing standard. This is particularly true
when we give weight to the district court’s decision to accept
Judith’s version of the facts over Benjamin’s and his mother’s.
See Malousek v. Meyer, 309 Neb. 803, 962 N.W.2d 676 (2021)
(when credible evidence is in conflict on material issues of
fact, appellate court will consider and may give weight to fact
that trial court observed witnesses and accepted one version
of facts over another). Accordingly, we conclude the district
court did not abuse its discretion in determining the convey-
ance of real estate by Benjamin’s parents was a gift to both
Benjamin and Judith and, therefore, was marital property.
2. Helen’s Contributions
to Renovation
Benjamin next assigns the district court abused its discre-
tion by finding that Helen’s contributions to the renovation
project were solely gifts to Judith. Benjamin argues that
Helen contributed to the renovation with the intent to ben-
efit their whole family, including himself. He continues to
assert that Helen’s intent did not change until July 2021, after
Benjamin was accused of sexually assaulting his daughter. He

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WESTON v. WESTON
Cite as 32 Neb. App. 822
then generally argues that Judith’s documentary evidence was
all produced after Helen had already made the payments and
after her intent had changed.
We begin by addressing apparent confusion regarding the
requisite burden of proof on this issue. In their briefs, both
parties cite the “clear, unequivocal[,] and convincing” stan-
dard used in the prior section for the transfer of the real estate
by Benjamin’s parents. Brief for appellant at 15; brief for
appellee at 11. The district court also referenced this stan-
dard in its order on Benjamin’s motion for new trial. In that
order, the court stated: “The evidence from Judith’s mother
was clear, unequivocal, and convincing that she gave Judith
money for the construction and remodeling of Benjamin
and Judith’s home as gifts intended as an offset or advance
upon the inheritance she intended to make to Judith upon her
death.” The reliance on this standard for the ordinary classifi-
cation of property as marital or nonmarital is incorrect.
[10] Unless an exception applies, the burden of proof in
civil cases requires only the greater weight of the evidence.
Burgardt v. Burgardt, 304 Neb. 356, 934 N.W.2d 488 (2019)
(applying this burden to dissolution of marriage case where
division of property was at issue). Accordingly, the correct
burden of proof in classifying the parties’ property as marital
or nonmarital requires only the greater weight of the evidence.
The prior section concerning the conveyance of real estate
by Benjamin’s parents utilized the “clear, unequivocal, and
convincing” burden of proof because it fell under an excep-
tion used by the Supreme Court in Salmon v. Salmon, 219
Neb. 899, 901, 367 N.W.2d 142, 144 (1985). Because there
is no similar exception raised for the classification of assets
relevant to this assignment, the burden of proof is the same as
any other civil matter. Accordingly, Judith, as the party mak-
ing the claim that the property is nonmarital, only needs to
prove the contributions from her mother were gifts to her by
the greater weight of the evidence. See, id.; Plog v. Plog, 20
Neb. App. 383, 824 N.W.2d 749 (2012).

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WESTON v. WESTON
Cite as 32 Neb. App. 822
[11,12] Imperative to our analysis is the district court’s
determination on credibility. The credibility and weight of
witness testimony are for the fact finder to determine, and
witness credibility is not to be reassessed on appellate review.
See State v. Davis, 310 Neb. 865, 969 N.W.2d 861 (2022). In
its order on Benjamin’s motion for new trial, the district court
dismissed Benjamin’s evidence as not credible:
Benjamin offered no credible or convincing evidence
to show the transfer of money from Judith’s mother to
Judith for the purchase of construction materials and ser-
vices was intended to be a gift to him as well as Judith.
Benjamin offered no convincing evidence to negate the
testimony of Judith’s mother that the money she gave
to Judith was intended as an offset to the money Judith
would 	otherwise 	receive 	upon 	the 	death 	of 	Judith’s
mother. All the payments by Judith’s mother were traced
to the home remodeling project and Benjamin’s evi-
dence did not negate or undermine the tracing of the
gifted funds.
Although we do not reassess the district court’s findings as
to credibility on appeal, the court’s ruling that Benjamin’s
evidence was not credible does not automatically mean that
Judith carried her burden of proof. Evidence not directly con-
tradicted 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, supra.
Therefore, we must still analyze whether Judith presented suf-
ficient evidence to meet her burden.
[13] We find that Judith met her burden to demonstrate that
Helen’s contributions were gifts to her. A nonmarital inter-
est in property may be established by credible testimony. Id.
Judith presented evidence in the form of testimony and docu-
ments. Helen and Judith both testified that there was a mutual
understanding between Helen, her husband, Judith, Benjamin,
and Helen’s other children that any amount given to Judith

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WESTON v. WESTON
Cite as 32 Neb. App. 822
was an advance on her inheritance. Helen explained that she
kept track of weekly expenses to account for necessary deduc-
tions from Judith’s inheritance and submitted a list of these
expenses into evidence. We conclude this is sufficient to prove
by the greater weight of the evidence that Helen’s contribu-
tions to the renovation were gifts to Judith.
[14] We next determine that the gifts maintained their sta-
tus as gifts although they were spent on the renovation that
benefited both Benjamin and Judith. In Becher v. Becher, 299
Neb. 206, 908 N.W.2d 12 (2018), the Supreme Court found
that a gift by the wife’s father used to pay off the mortgage on
the marital home did not change the gift to marital property.
In its reasoning, the court stated:
With some exceptions, the marital estate does not
include property acquired by one of the parties through
gift or inheritance. And there is no exception where an
otherwise nonmarital monetary gift is spent on a family
expense. Therefore, the referee’s finding that the portion
of the gift spent on the mortgage payoff lost its gift status
because it was applied to a marital expense was contrary
to the law and against the weight of the evidence.
Id. at 220, 908 N.W.2d at 26. Accordingly, Helen’s gifts to
Judith did not lose their nonmarital status because they were
spent on a renovation that benefited the entire family, includ-
ing Benjamin.
We conclude the district court did not abuse its discretion
in finding that Helen’s contributions to the renovation were
nonmarital property.
3. Value of Helen’s Contributions
to Renovation
Benjamin next assigns the district court abused its dis-
cretion in valuing the amount of Helen’s gifts to Judith at
$123,947.79. Benjamin essentially argues the evidence used
to arrive at this figure is inconsistent with other evidence and
includes expenses not attributed to the renovation. His brief

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WESTON v. WESTON
Cite as 32 Neb. App. 822
proceeds to dissect and compare the invoices in the record
with Helen’s handwritten list of expenditures that provided the
$123,947.79 figure.
[15] We begin by noting that even if some of the expen-
ditures included in the $123,947.79 figure were not spent on
the renovation, they were still gifts to Judith. See Becher v.
Becher, supra. But Judith cannot receive credit for the gifts
that were not spent on the renovation because those expenses
are not traceable into their product. See Marshall v. Marshall,
298 Neb. 1, 902 N.W.2d 223 (2017) (finding that commin-
gling of marital and nonmarital assets does not occur when
separate property remains segregated or is traceable into its
product). Helen testified that she tracked the amount of money
she gave Judith on a weekly basis, so Helen knew how much
to deduct from Judith’s inheritance. Helen stated that she used
these tracked expenditures to create her handwritten list of
expenses once the renovation was complete. The handwritten
list of expenses was the list that the court received as evidence
and used to calculate its total of $123,947.79.
[16] In relying solely on Helen’s handwritten list to come
up with the $123,947.79 figure, the district court appears to
have disregarded certain parts of the parties’ testimony and
the invoices submitted to support the expenditures. As the
Supreme Court has stated, “there is no hierarchy of evidence.”
Burgardt v. Burgardt, 304 Neb. 356, 362, 934 N.W.2d 488,
494 (2019). There is no general rule of evidence that a party
must produce the best evidence which the nature of the case
permits. Id. A trial court weighs the credibility of the witnesses
and the evidence and determines what evidence should be
given the greater weight in arriving at a factual determination
on the merits. Id. In doing so, a trial court may choose what
evidence merits greater weight. See id.
However, several of these tracked expenses did not directly
pertain to the renovation. Looking at Helen’s list in conjunc-
tion with the corresponding invoices, Helen spent $892.59
to pay Benjamin and Judith’s propane bills, $781.76 to pay

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their electric bills, and $1,868.69 to pay their homeowners
insurance. In total, this amounts to $3,543.04 that was not
spent on the renovation but was credited to Judith by the dis-
trict court. Because these expenses are not traceable into their
product, whereas the expenses for the renovation are traceable
into the improved value of the real estate, Judith should not
have been granted credit for them.
We conclude the district court did not abuse its discre-
tion in relying on Helen’s handwritten list to account for the
amount she gifted Judith for the renovation, but it did abuse
its discretion by including in that amount expenses that were
not traceable to the improvements on the property. Therefore,
the district court awarded Judith an excessive credit in the
amount of $3,543.04. As the money from the sale of the par-
ties’ home is currently held in trust by the court, we direct the
district court to deduct the amount of Judith’s credit held in
trust by $3,543.04, thereby increasing Benjamin’s share by the
same amount.
4. Credit for 2018 Jeep Renegade
Benjamin next assigns the district court abused its discretion
by not granting him a $20,000 credit for the value of the 2018
Jeep Renegade he purchased with funds from his workers’
compensation settlement.
[17,18] The parties do not contest that the $34,000 used to
purchase the vehicle came from Benjamin’s workers’ compen-
sation settlement. They also do not contest that these funds
were nonmarital property. However, for the sake of complete-
ness, we first determine that the district court correctly found
that the workers’ compensation settlement was Benjamin’s
nonmarital property. In Parde v. Parde, 258 Neb. 101, 602
N.W.2d 657 (1999), the Supreme Court held that proceeds
from personal injury awards can be marital or nonmarital
assets depending on what damages the settlement was intended
to compensate. In that case, the court held:

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[C]ompensation for an injury that a spouse has or will
receive for pain, suffering, disfigurement, disability, or
loss of postdivorce earning capacity should not equita-
bly be included in the marital estate. On the other hand,
compensation for past wages, medical expenses, and other
items that compensate for the diminution of the marital
estate should equitably be included in the marital estate
as they properly replace losses of property created by the
marital partnership.
Id. at 109-10, 602 N.W.2d at 663. Benjamin’s workers’ com-
pensation settlement falls within the category that should not
equitably be included in the marital estate. As such, the settle-
ment was Benjamin’s nonmarital property.
We now address whether the district court should have
granted Benjamin a $20,000 credit for the purchase of the
2018 Jeep Renegade. Benjamin contends he should receive
the credit because the funds used to purchase the vehicle
were traceable to his workers’ compensation settlement. In
contrast, Judith argues that the funds used to purchase the
vehicle became marital property when Benjamin gifted her
the vehicle.
We conclude that the district court did not abuse its dis-
cretion in refusing to give Benjamin the $20,000 credit.
Benjamin’s and Judith’s uncontradicted testimony indicates
that it was Benjamin’s idea to purchase the vehicle and that
he wanted to purchase it for Judith. The district court found
that although the funds were traceable to Benjamin’s work-
ers’ compensation settlement, there was no evidence that
Benjamin intended to maintain the separate character of the
settlement proceeds. Put differently, the district court essen-
tially found that Benjamin failed to meet his burden of proof
to show those funds were not marital property. The burden of
proof to show that property is nonmarital remains with the
person making the claim. Plog v. Plog, 20 Neb. App. 383,
824 N.W.2d 749 (2012). As there was no evidence adduced to
contradict Benjamin’s and Judith’s testimony that the vehicle

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Cite as 32 Neb. App. 822
was bought for Judith or to affirmatively show the vehicle’s
value was not marital property, we do not believe the district
court’s conclusion was clearly untenable or unreasonable.
Accordingly, we determine the district court did not abuse its
discretion in not granting Benjamin a credit for the value of
the 2018 Jeep Renegade.
VI. CONCLUSION
We conclude the district court did not abuse its discretion in
finding that the real estate conveyed to Benjamin and Judith
by Benjamin’s parents was marital property and that Benjamin
was not entitled to a credit for the value of the 2018 Jeep
Renegade. However, we determine the district court abused
its discretion in awarding Judith credit for the $3,543.04 that
Helen spent to pay expenses unrelated to the renovation.
Accordingly, we reverse the district court’s decision with
directions to deduct the amount of Judith’s credit held in trust
by $3,543.04, thereby increasing Benjamin’s share by the
same amount.
Affirmed in part, and in part reversed
and remanded with directions.