Schwensow v. Bartnicki

- 798 -
Nebraska Court of Appeals Advance Sheets
32 Nebraska Appellate Reports
SCHWENSOW v. BARTNICKI
Cite as 32 Neb. App. 798
Nicole M. Schwensow, appellee and
cross-appellant, v. Paul N. Bartnicki,
appellant and cross-appellee.
___ N.W.3d ___
Filed April 9, 2024. 	No. A-23-593.
1. Divorce: Appeal and Error. In a marital dissolution action, an appel-
late court reviews the case de novo on the record to determine whether
there has been an abuse of discretion by the trial judge.
2. Divorce: Property Division. In a divorce action, the purpose of a
property division is to distribute the marital assets equitably between
the parties.
3. Property Division. Equitable property division under Neb. Rev. Stat.
§ 42-365 (Reissue 2016) is a three-step process. The first step is to clas-
sify the parties’ property as marital or nonmarital. The second step is to
value the marital assets and determine the parties’ marital liabilities. The
third step is to calculate and divide the net marital estate between the
parties in accordance with the principles contained in § 42-365.
4. Divorce: Property Division. As a general rule, all property accumu-
lated and acquired by either spouse during the marriage is part of the
marital estate, unless it falls within an exception to the general rule.
5. Divorce: Property Division: Proof. Where there is nothing on the
record to show the source of premarital funds, they should be considered
part of the marital estate.
6. Property Division: Proof. The burden of proof rests with the party
claiming the property is nonmarital.
7. Property Division. Generally, the date on which a court values the
marital estate should be rationally related to the property composing
the marital estate.
8. Divorce: Property Division: Equity. The purpose of assigning a date
of valuation in a dissolution decree is to ensure that the marital estate is
equitably divided.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
10/14/2026 07:48 AM CDT

- 799 -
Nebraska Court of Appeals Advance Sheets
32 Nebraska Appellate Reports
SCHWENSOW v. BARTNICKI
Cite as 32 Neb. App. 798
9. Divorce: Property Division: Appeal and Error. The date of valuation
is reviewed for an abuse of discretion.
10. Divorce: Property Division: Pensions. Investment earnings accrued
during the marriage on the nonmarital portion of a retirement account
may be classified as nonmarital where the party seeking the classifica-
tion proves: (1) The growth 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 direct or indirect
effort, contribution, or fund management of either spouse.
11. Divorce: Property Division: Words and Phrases. Appreciation caused
by marital contributions is known as active appreciation, and it consti-
tutes marital property.
12. ____: ____: ____. Passive appreciation is appreciation caused by sepa-
rate contributions and nonmarital forces.
13. Divorce: Property Division. Marital assets dissipated by a spouse for
purposes unrelated to the marriage should be included in the marital
estate in dissolution actions.
14. Divorce: Attorney Fees. In awarding attorney fees in a dissolution
action, a court shall consider the nature of the case, the amount involved
in the controversy, the services performed, the results obtained, the
length of time required for preparation and presentation of the case, the
novelty and difficulty of the questions raised, and the customary charges
of the bar for similar services.
Appeal from the District Court for Hall County: Andrew
C. Butler, Judge. Affirmed in part, and in part vacated and
remanded with directions.
David V. Chipman, of Monzón, Guerra & Chipman, for
appellant.
Katheryn L. Harouff, of Harouff Law, P.C., L.L.O., and Sean
M. Reagan, of Reagan, Melton & Delaney, L.L.P., for appellee.
Pirtle, Chief Judge, and Riedmann and Welch, Judges.
Riedmann, Judge.
I. INTRODUCTION
Paul N. Bartnicki (Paul) appeals, and Nicole M. Schwensow
(Nicole) cross-appeals, the order of the district court for Hall
County, which dissolved the parties’ marriage and valued

- 800 -
Nebraska Court of Appeals Advance Sheets
32 Nebraska Appellate Reports
SCHWENSOW v. BARTNICKI
Cite as 32 Neb. App. 798
and divided the marital estate. For the reasons that follow,
we vacate the district court’s decree regarding the classifica-
tion and valuation of certain property as set forth herein and
remand the matter with directions to recalculate the marital
estate consistent with this opinion and provide an equitable
division.
II. BACKGROUND
Paul and Nicole were married on June 24, 2017. There were
no children born during the marriage. Prior to their marriage,
the parties signed a prenuptial agreement. In the agreement,
Paul listed $38,000 in premarital investments and “[g]uns”
as his separate property, and Nicole listed over $169,000 in
premarital assets as her separate property. Nicole filed a com-
plaint for dissolution of marriage in February 2022. Paul filed
a counterclaim shortly thereafter.
Trial was held in May 2023 to determine, inter alia, the
extent and value of the marital estate and whether either
party merited dissipation funds. The evidence presented will
be described in more detail as needed in the analysis sec-
tion below.
Paul and Nicole did not have any real estate, and the district
court divided their personal property aligned with their agreed
division of items of property. Paul and Nicole were awarded
their respective checking accounts, savings accounts, and life
insurance policies.
During 	the 	marriage, 	Nicole 	transferred 	her 	premarital
investment accounts to two new accounts, an Ameriprise
IRA and a Principal 401K. The district court awarded Nicole
the entirety of these two accounts, which was composed of
$179,598 in the Ameriprise IRA and $139,502 in the Principal
401K. It found that the evidence revealed $58,518 of the
Ameriprise IRA and $7,946 of the Principal 401K should
be included in the marital estate. The district court awarded
Paul all four of his retirement accounts. It allocated a total of
$36,206.72 from Paul’s accounts and $66,464 from Nicole’s
two retirement accounts to the marital estate.

- 801 -
Nebraska Court of Appeals Advance Sheets
32 Nebraska Appellate Reports
SCHWENSOW v. BARTNICKI
Cite as 32 Neb. App. 798
Nicole had three premarital debts that she paid off during
the marriage. She owed a total of $91,742.18 on two student
loans. She also had a car loan valued at $18,600 for a 2015
Audi. The district court found that Nicole “solely” paid her
debts, that Paul “desired to keep financial issues separate,”
and that Nicole made efforts to reduce these debts on her own.
The district court concluded that based on these findings,
Nicole’s debts should not be included in the marital estate.
Nicole was awarded her vehicle, a 2019 Mercedes sport
utility vehicle, which was valued at $40,550, and Paul was
awarded his vehicle, a 2019 Toyota Tacoma, which was val-
ued at $30,098. Paul also assumed the remaining car loan for
the Tacoma, which had a balance of $11,808.64 at the time of
separation, but which he had paid off at the time of trial.
At issue are three additional bank accounts owned by
Nicole: 	a 	Barclays 	savings 	account, 	a 	Discover 	savings
account, and a Wells Fargo checking account. The district
court did not include the Barclays savings account in the
marital estate because “it is a dedicated account to cover 1099
employment.” The district court valued the Discover sav-
ings account at $240.54 and included it in the marital estate.
Finally, it valued the Wells Fargo checking account at $1,750,
as “evidence shows the account having an average balance of
that value,” and included it in the marital estate.
To equalize property, the district court ordered a judgment
against Nicole, in favor of Paul, for $20,000. It found that the
evidence did not warrant a “complete equal division of the
marital estate.” It determined the value of the marital estate
was $197,061.73 and awarded approximately 41 percent to
Paul. It also found that Paul did not provide an “accurate pic-
ture” of his full financial position in the prenuptial agreement
and would not invest with Nicole until she achieved a debt-
free status. Neither party was awarded alimony.
Both parties requested attorney fees. The district court
explained that Paul “created some concerning issues by not
following the Court’s Order on the Motion to Compel, to

- 802 -
Nebraska Court of Appeals Advance Sheets
32 Nebraska Appellate Reports
SCHWENSOW v. BARTNICKI
Cite as 32 Neb. App. 798
which the Court questions whether a full and accurate picture
of his financial situation was shown.” Because of Paul’s con-
cerning issues, the district court denied his request for attor-
ney fees, but awarded Nicole $8,000 for attorney fees. Paul
appeals, and Nicole cross-appeals.
III. ASSIGNMENTS OF ERROR
Paul assigns five errors. He assigns the district court abused
its discretion (1) by not including Nicole’s student loan debt
and the 2015 Audi car loan debt in the marital estate, (2) by
excluding one of Nicole’s bank accounts from the marital
estate and incorrectly valuing two other bank accounts, (3) in
its determination of the marital value of Nicole’s retirement
accounts, (4) in its division of the marital estate, and (5) by
awarding Nicole $8,000 in attorney fees.
Nicole cross-appeals and assigns two errors. She assigns
the district court erred by finding that the parties did not meet
their burden to establish when the irretrievable breakdown of
the marriage occurred and by finding Nicole failed to prove
dissipation of marital assets.
IV. STANDARD OF REVIEW
[1] In a marital dissolution action, an appellate court reviews
the case de novo on the record to determine whether there
has been an abuse of discretion by the trial judge. Burgardt v.
Burgardt, 304 Neb. 356, 934 N.W.2d 488 (2019).
V. ANALYSIS
1. Marital Estate
Four of Paul’s five assignments of error address how the
district court classified, valued, and ultimately divided the
marital estate. He argues the district court erred in classify-
ing Nicole’s student loans, a 2015 Audi car loan, and Nicole’s
“tax savings account” as nonmarital property. He also argues
the district court erred in its valuations of Nicole’s Wells
Fargo checking account, Discover savings account, and her
retirement accounts. He argues that because the district court

- 803 -
Nebraska Court of Appeals Advance Sheets
32 Nebraska Appellate Reports
SCHWENSOW v. BARTNICKI
Cite as 32 Neb. App. 798
erred in its classification and valuation of Nicole’s property, it
also erred in its division of the marital estate.
[2,3] In a divorce action, the purpose of a property divi-
sion is to distribute the marital assets equitably between the
parties. Stanosheck v. Jeanette, 294 Neb. 138, 881 N.W.2d
599 (2016). Equitable property division under Neb. Rev. Stat.
§ 42-365 (Reissue 2016) is a three-step process. The first step
is to classify the parties’ property as marital or nonmarital.
The second step is to value the marital assets and determine
the parties’ marital liabilities. The third step is to calculate and
divide the net marital estate between the parties in accordance
with the principles contained in § 42-365. See Stephens v.
Stephens, 297 Neb. 188, 899 N.W.2d 582 (2017).
(a) Property Classification
(i) Additional Facts
Nicole entered the marriage with $91,742.18 in student
loan debt and an $18,600 car loan for a 2015 Audi. She testi-
fied at trial that during the marriage, she accepted two addi-
tional jobs in 2018 to help her pay off her student loan debt.
She explained that Paul wanted her to pay off her debt before
they had joint marital assets, so all the money from her addi-
tional jobs “was to go to pay off my school loans.” She paid
off her student loan debt in January 2021.
Nicole continued to work her extra jobs and used the money
to pay off the car loan for the 2015 Audi and traded it in on a
Mercedes in June 2021. Nicole obtained a car loan for $25,000
for the remaining balance of the Mercedes. She used some
of her income from the additional jobs to pay off the new
car loan.
At trial, Nicole testified that her Barclays savings account
was a “tax savings account.” She explained that she used the
account for her income taxes. Because her income is derived
from 1099 employment, her income taxes are not automati-
cally withdrawn from her paycheck, so she pays her income
taxes quarterly. She testified she routinely deposits 30 to 40

- 804 -
Nebraska Court of Appeals Advance Sheets
32 Nebraska Appellate Reports
SCHWENSOW v. BARTNICKI
Cite as 32 Neb. App. 798
percent of her paycheck into the tax savings account. The
account pays only for her taxes and accountant fees, and its
sole purpose is to offset her income tax obligations. Any
income remaining in the account after Nicole satisfies her tax
obligations is used for the following quarter of tax obligations
and accountant fees.
On January 31, 2022, Nicole had $15,087.61 in her tax sav-
ings account. At the time of trial, Nicole testified the balance
in the tax savings account was $5,400; the remainder had been
used to pay taxes.
The district court did not include the reduction in Nicole’s
student loan debts or in her car loan debt in the marital estate.
It explained that Nicole had paid her debts through her own
efforts. Evidence showed that Paul wanted to keep financial
issues separate and that Nicole made additional efforts to bal-
ance her debt. The district court also did not include Nicole’s
tax savings account in the marital estate because that account
was dedicated to covering her income tax obligations.
(ii) Discussion
Paul assigns the district court erred by classifying Nicole’s
student loan debt, 2015 Audi car loan, and tax savings account
as nonmarital property. He argues that because the debts and
the tax savings account were funded with marital income, they
should have been classified as marital property. We agree.
[4-6] As a general rule, all property accumulated and
acquired by either spouse during the marriage is part of the
marital estate, unless it falls within an exception to the gen-
eral rule. Heald v. Heald, 259 Neb. 604, 611 N.W.2d 598
(2000). Debt, like property, should be considered in dividing
marital property upon dissolution. Radmanesh v. Radmanesh,
315 Neb. 393, 996 N.W.2d 592 (2023). Where there is noth-
ing 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 the property is nonmari-
tal. Id.

- 805 -
Nebraska Court of Appeals Advance Sheets
32 Nebraska Appellate Reports
SCHWENSOW v. BARTNICKI
Cite as 32 Neb. App. 798
a. Student Loan Debt
The district court excluded Nicole’s premarital student
loans from the marital estate because they were “paid solely”
by Nicole during the marriage. However, Nicole paid these
loans with income derived from supplemental employment.
In a marriage, all income is generally considered marital
income. See Wiech v. Wiech, 23 Neb. App. 370, 871 N.W.2d
570 (2015).
In Wiech v. Wiech, 23 Neb. App. at 381, 871 N.W.2d at 578,
we held that despite the wife’s paying her premarital debt with
“‘[her] income,’” the district court abused its discretion by not
including the premarital debt in the marital estate. The wife
brought $56,400 of debt into the marriage that she paid off in
$1,200 increments from her income. Wiech v. Wiech, supra.
We reasoned that because any income accumulated during the
marriage is marital income, and the wife used income to pay
the debts, her portion of the marital estate should have been
offset by the premarital debt she brought into the marriage
which was reduced during the marriage using marital funds.
Id. The Nebraska Supreme Court has previously held that
income earmarked for a certain purpose, like a savings plan,
should still be included in the marital estate. See Sitz v. Sitz,
275 Neb. 832, 749 N.W.2d 470 (2008).
Here, the district court abused its discretion by not classi-
fying Nicole’s student loan debt as part of the marital estate.
Akin to Wiech v. Wiech, supra, Nicole paid off a premarital
debt with marital income. Earmarking income for certain pur-
poses does not make the income nonmarital; likewise, taking
additional jobs for the sole purpose of paying a debt cannot
transform marital income into nonmarital income.
The district court abused its discretion by not including the
reduction in Nicole’s premarital student loan debts in the mari-
tal estate. The debts were premarital, and Nicole used marital
income to pay them off; thus, the reduction of debts should
have been included in the marital estate.

- 806 -
Nebraska Court of Appeals Advance Sheets
32 Nebraska Appellate Reports
SCHWENSOW v. BARTNICKI
Cite as 32 Neb. App. 798
b. Car Loan
Similarly, the district court did not include the reduction
of Nicole’s 2015 Audi car loan in the marital estate because
it was paid off “solely by [Nicole].” For the reason explained
above, the district court abused its discretion in excluding the
reduction in the 2015 Audi car loan from the marital estate.
We recognize that after Nicole paid off the 2015 Audi car
loan, she traded the Audi for a 2019 Mercedes with a $25,000
car loan. Arguably, the Audi’s value reduced the amount of
loan needed for the Mercedes and Nicole may have been
entitled to the Audi’s value; however, she failed to adduce
any evidence of what the number might be. Therefore, the full
amount of the Audi car loan paid during the marriage should
have been included in the marital estate.
c. Tax Savings Account
The district court abused its discretion by not including
Nicole’s tax savings account in the marital estate. Nicole testi-
fied that she put 30 to 40 percent of her income into the tax
savings account. Income gained during the marriage is gener-
ally marital income. See Wiech v. Wiech, supra. Therefore,
the tax savings account was composed of marital income and
should have been classified as marital income. The evidence
reveals the value of the account was $15,087.61 on January
31, 2022.
Nicole testified that taxes are not automatically deducted
from her income, so she pays her income taxes quarterly.
Because Nicole’s income was marital income, the income taxes
she incurred for that income was marital debt. See Meints v.
Meints, 258 Neb. 1017, 608 N.W.2d 564 (2000) (reasoning
income tax liability should be treated as marital debt).
The evidence revealed that Nicole paid a total of $7,216
in income taxes in February 2022, after the parties separated.
This debt was marital, as it was accrued during the marriage,
and the district court should take this amount into consider-
ation in its division of the marital estate.

- 807 -
Nebraska Court of Appeals Advance Sheets
32 Nebraska Appellate Reports
SCHWENSOW v. BARTNICKI
Cite as 32 Neb. App. 798
(iii) Conclusion
The 	district 	court 	abused 	its 	discretion 	by 	classifying
Nicole’s student loans, Audi car loan, and tax savings account
as nonmarital. They were all funded with income earned dur-
ing the marriage, which makes them marital property.
On remand, the reduction of the student loans of $91,742.18
and the car loan of $18,600 should be classified as marital
property and included in the marital estate as a marital asset
that is awarded to Nicole. See Osantowski v. Osantowski, 298
Neb. 339, 904 N.W.2d 251 (2017). The tax savings account
of $15,087.61 should be classified as marital property and
included in the marital estate, with consideration of the $7,216
debt satisfaction by Nicole postseparation in the division of
the marital estate.
(b) Property Valuation
Paul assigns the district court abused its discretion in
its valuation of Nicole’s Wells Fargo checking account, her
Discover savings account, and her retirement accounts. The
district court valued the Wells Fargo checking account at
$1,750 based on its average daily balance and valued the
Discover savings account at $240.54. It used Nicole’s testi-
mony to assign value to her two retirement accounts. We hold
that the district court abused its discretion in each valuation,
which is explained below.
(i) Additional Facts
At trial, Nicole acknowledged that during her deposition,
she agreed that February 1, 2022, would be the date used for
valuing the marital estate. She testified that “the date of valua-
tion is agreed amongst us.”
Nicole had two checking accounts during the marriage.
One of the checking accounts was her Wells Fargo checking
account. She testified that this account had an average daily
balance of $1,750, because it was her “working account.”
She used this account to pay bills and for daily purchases.

- 808 -
Nebraska Court of Appeals Advance Sheets
32 Nebraska Appellate Reports
SCHWENSOW v. BARTNICKI
Cite as 32 Neb. App. 798
She later testified she estimated her average daily balance to
be $2,000.
Nicole offered multiple bank statements for her Wells Fargo
checking account into evidence in support of her position that
the account had an “average daily balance” of $1,750. In those
statements, Nicole’s overall account value grew from a begin-
ning balance of $6,703.08 on March 8, 2021, to a closing
balance of $10,670.32 on February 8, 2022. The lowest daily
balance shown was $4,475.82.
Nicole also acknowledged that exhibit 77 accurately reflected
her Discover savings account. The statement provided was
from January 31, 2022, and reflected an ending balance on that
date of $6,440.51.
In the prenuptial agreement, Nicole listed the following
premarital property: Empower retirement account ($38,000);
Vanguard retirement account ($24,000); Fidelity SCLHS 403B
($74,000); Fidelity DH+H 401A ($6,900); and Fidelity DH+H
457B ($1,600). She testified her retirement accounts totaled
approximately 	$144,000 	prior 	to 	marrying 	Paul. 	During
the marriage, Nicole had 10 different retirement accounts
that were rolled into two accounts: Ameriprise IRA and
Principal 401K.
Nicole uses a financial advisor for her Ameriprise IRA
account, but not for her Principal 401K. She affirmed that she
“can call [her] own shots.” All the selling and transferring
shown in her account records reflect the management plan she
chose, which is discussed annually. Because Ameriprise oper-
ates by the plan, they have discretion to make certain invest-
ments as well.
Nicole testified at trial that she believed she invested
“maybe around $50,000” into her retirement accounts during
the marriage. In the joint property statement she provided in
April 2022, she estimated that the Ameriprise IRA had a mari-
tal value of $95,413.42 and a premarital value of $80,612.05.
She also valued her Principal 401K at $65,774.31 as marital

- 809 -
Nebraska Court of Appeals Advance Sheets
32 Nebraska Appellate Reports
SCHWENSOW v. BARTNICKI
Cite as 32 Neb. App. 798
and $73,728.04 as premarital. At the time of trial, however,
she estimated that the Ameriprise IRA had a premarital value
of $117,507 and marital value of $58,518 for a total of
$176,025. She estimated the Principal 401K had a premarital
value of $131,556 and a marital value of $7,946 for a total
of $139,502.
To help her communicate her findings, Nicole constructed
a “cheat sheet” of her retirement accounts, which included
their premarital values, premarital appreciation, marital con-
tributions, and marital appreciation. She testified she essen-
tially traced the retirement accounts listed in the prenuptial
agreement to her present-day retirement accounts. Nicole’s
cheat sheet was admitted into evidence for demonstrative pur-
poses only.
Because the balance of Nicole’s Wells Fargo checking
account fluctuated, the district court assigned an average daily
balance of $1,750 and used that as the account’s value. The
district court valued Nicole’s Discover savings account at
$240.54 and included it in the marital estate. It determined that
Nicole showed at trial the marital value of her Ameriprise IRA
was $58,518 and the marital value of her Principal 401K was
$7,946. It awarded Paul his retirement accounts.
(ii) Discussion
[7-9] Generally, the date on which a court values the marital
estate should be rationally related to the property compos-
ing the marital estate. Brozek v. Brozek, 292 Neb. 681, 874
N.W.2d 17 (2016). The purpose of assigning a date of valua-
tion in a dissolution decree is to ensure that the marital estate
is equitably divided. Radmanesh v. Radmanesh, 315 Neb. 393,
996 N.W.2d 592 (2023). The Supreme Court has declined to
tie the hands of the district court and mandate that it must use
only one particular valuation date in equitably dividing the
marital estate. Id. The date of valuation is reviewed for an
abuse of the trial court’s discretion. Id.

- 810 -
Nebraska Court of Appeals Advance Sheets
32 Nebraska Appellate Reports
SCHWENSOW v. BARTNICKI
Cite as 32 Neb. App. 798
a. Wells Fargo Checking Account
The district court abused its discretion in determining that
the Wells Fargo checking account should be valued using an
“average daily balance” and in determining that amount to
be $1,750. Nicole has not provided any authority to support
the use of an average daily balance nor did the district court
include any in its decree. The purpose of assigning a date of
valuation in a dissolution decree is to ensure that the marital
estate is equitably divided. Radmanesh v. Radmanesh, supra.
The record before us contains documentary evidence of the
Wells Fargo checking account at intermittent dates beginning
on March 11, 2021, through February 15, 2022. The parties
agreed to use February 1, 2022, as the valuation date, and
although a court need not use the same date for all property,
the date upon which a marital estate is valued should be ratio-
nally related to the property composing the marital estate.
White v. White, 304 Neb. 945, 937 N.W.2d 838 (2020). The
evidence reveals that on February 1, the account balance was
$10,594.85, and that on February 8, the date on which Nicole
filed for divorce, the balance was $10,870.32. Either of these
two dates are rationally related to the value of the checking
account for purposes of determining its value to be included
in the marital estate.
Because all other accounts were valued on or near February
1, 2022, we find no rational reason to value this account any
differently. The district court valued this account at $1,750,
because “evidence shows the account having an average bal-
ance of that value.” However, other than Nicole’s testimony
that the average daily balance was $1,750, none of the state-
ments in our record reveal a daily balance below $4,475.82,
much less an average daily balance below that amount. Even
assuming that using an average daily balance is permissible
in some circumstances, the record before us does not support
its use here because the value is not reasonably related to the
account in question. Thus, the district court should have used
the balance of Nicole’s Wells Fargo checking account as of

- 811 -
Nebraska Court of Appeals Advance Sheets
32 Nebraska Appellate Reports
SCHWENSOW v. BARTNICKI
Cite as 32 Neb. App. 798
February 1 of $10,594.85. This amount should be included in
the marital estate.
b. Discover Savings Account
The district court abused its discretion by valuing the
Discover savings account at $240.54. At trial, Nicole acknowl-
edged that exhibit 77 was a true and accurate copy of her
account for the statement period of January 1 to 31, 2022,
which reflected a closing balance of $6,440.54. The district
court valued the account at $240.54 because it “was the value
of the account at the time the complaint was filed.” Nicole
filed her complaint for dissolution on February 8; however,
there is no evidence in the record reflecting the balance of this
account on February 8. Therefore, the district court abused its
discretion by valuing it at $240.54, instead of its January 31
value of $6,440.54.
Nicole admits the district court erred in its determination of
the value of the account, but argues the error is harmless. She
explained that “[c]onsidering the lack of information provided
by Paul and the enormous amount of dissipation alleged by
Nicole, Paul’s extra-marital spending more than offsets this
scrivener’s error.” Brief for appellee at 17. She contends that
because Paul failed to complete the discovery request, there
is no way to determine how many accounts he had; thus, the
district court’s error did not have any significant impact on the
division of property in the case. But a spouse’s behavior is not
a basis for valuing a marital asset incorrectly. Nor do we con-
sider the error harmless given the $6,000 difference between
the two numbers. We therefore reject Nicole’s argument that
the error was harmless and direct the district court on remand
to value the Discover savings account at $6,440.54.
c. Retirement Accounts
At the date of marriage, Nicole had five premarital retire-
ment accounts, which, according to the prenuptial agreement,
had a value of approximately $145,000. During the marriage,
Nicole contributed to five additional retirement accounts.

- 812 -
Nebraska Court of Appeals Advance Sheets
32 Nebraska Appellate Reports
SCHWENSOW v. BARTNICKI
Cite as 32 Neb. App. 798
Eventually, she rolled all of these accounts into two accounts
(Ameriprise IRA and Principal 401K) and continued to con-
tribute to them during the marriage. The Ameriprise IRA was
valued at $179,598 and the Principal 401K was valued at
$139,502 as of January 31, 2022. Nicole claimed that she was
able to trace the premarital value, including its appreciation,
by reviewing the various statements and that therefore, the
premarital value and its appreciation were nonmarital prop-
erty. The district court adopted her testimony and the numbers
contained on her demonstrative exhibit. Because Nicole failed
to meet the requirements of White v. White, 304 Neb. 945,
937 N.W.2d 838 (2020), we find the district court abused its
discretion in determining the premarital and marital value of
the accounts.
All property accumulated and acquired by either spouse
during a marriage is part of the marital estate, including por-
tions of pensions or retirement accounts which were earned
during marriage. See Coufal v. Coufal, 291 Neb. 378, 866
N.W.2d 74 (2015). Separate property becomes marital prop-
erty by commingling if inextricably mingled with marital
property or with the separate property of the other spouse.
Id. If separate property continues to be segregated or can be
traced into its product, commingling does not occur. Id. Any
given property can constitute a mixture of marital and non-
marital interests; a portion of an asset can be marital property
while another portion can be separate property. Stephens v.
Stephens, 297 Neb. 188, 899 N.W.2d 582 (2017).
[10] Amounts added to and interest accrued on pension or
retirement accounts that have been earned during the mar-
riage are a part of the marital estate, but contributions before
marriage or after dissolution are not, which can make them
separate property. See 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 is readily identifiable

- 813 -
Nebraska Court of Appeals Advance Sheets
32 Nebraska Appellate Reports
SCHWENSOW v. BARTNICKI
Cite as 32 Neb. App. 798
and traceable to the nonmarital portion of the account and (2)
the growth is due solely to inflation, market forces, or guaran-
teed rate rather than the direct or indirect effort, contribution,
or fund management of either spouse. Id. This presents “a
narrow and fact-specific exception to the general rule that the
marital estate includes amounts added to and interest accrued
on pensions and retirement accounts.” Id. at 148, 881 N.W.2d
at 607. The burden of proof rests with the party claiming that
property is nonmarital. Brozek v. Brozek, 292 Neb. 681, 874
N.W.2d 17 (2016).
Nicole was able to identify the value of her retirement
accounts at the time of marriage (their premarital value); how-
ever, to exclude the amount of appreciation on those accounts
from the marital estate and therefore fit within the “narrow
and fact-specific exception,” she was required to trace the
appreciation to the nonmarital portion of the accounts and
prove the appreciation was not due to her or Paul’s active
efforts. See White v. White, supra. Nicole claimed that at the
time of marriage, she had approximately $144,000 in retire-
ment accounts, and that at the time of filing for divorce, that
amount had increased to $315,527. She claimed $117,507 of
the Ameriprise IRA account was nonmarital and $131,556 of
the Principal 401K account was nonmarital. It was her burden
to prove these amounts.
Nicole identified five retirement accounts in the prenuptial
agreement, and the supporting documentation received at trial
reveals the following values as of the date of marriage:
Empower/Infinity 	$ 47,120
Vanguard 	23,289
Fidelity 403B 	73,728
Fidelity 401A 	8,344
Fidelity 457 	1,860
TOTAL 	$ 154,341
We find the evidence sufficient to support a finding that
at the time of marriage, Nicole had $154,341 of premari-
tal retirement assets. Thereafter, but prior to September 30,

- 814 -
Nebraska Court of Appeals Advance Sheets
32 Nebraska Appellate Reports
SCHWENSOW v. BARTNICKI
Cite as 32 Neb. App. 798
2017, Nicole rolled her Empower/Infinity account over to
her Vanguard account and had not made any additional con-
tributions to the Empower/Infinity account. All of the other
accounts, except the Fidelity 403B, were rolled over to an
Ameriprise IRA account in January 2020. The Fidelity 403B
account was rolled over to the Principal 401K, which is where
Nicole’s 401K from her current employer is maintained.
At the time Nicole rolled over her Vanguard account to the
Ameriprise IRA, she had made minimal contributions to it
postmarriage ($59.58), and its value had grown to $88,823.
The Fidelity 401A was rolled over to the Ameriprise IRA with
a value of $20,149; however, after June 2017, Nicole and her
employer made multiple contributions to this account total-
ing nearly $20,000. The Fidelity 457 was rolled over to the
Ameriprise IRA with a value of $7,555; however, the state-
ment for this account shows employee contributions after the
date of marriage of approximately $4,400.
The Fidelity 403B account had a value of $73,728 as of May
31, 2017. It showed a change in market value of $57,813 from
June 1, 2017, to January 20, 2022, with no contributions from
either Nicole or her employer. From this account, $131,556
was rolled over to the Principal 401K in early 2022. Nicole
admits that the remaining $7,139 contained in the Principal
401K account is marital.
Nicole claimed at trial that she could trace the value of
her premarital accounts and that therefore, she was entitled
to those amounts and their appreciated value. Regardless of
whether Nicole traced her various premarital accounts, she
failed to prove the growth of these accounts was not the result
of active efforts. Tracing the growth of premarital assets is
but one step a party claiming appreciation of premarital prop-
erty is nonmarital must prove. The other step is to prove the
growth is not attributable to the active efforts of the parties.
The active appreciation rule sets forth the relevant test to
determine to what extent marital efforts caused any part of an

- 815 -
Nebraska Court of Appeals Advance Sheets
32 Nebraska Appellate Reports
SCHWENSOW v. BARTNICKI
Cite as 32 Neb. App. 798
asset’s appreciation or income. White v. White, 304 Neb. 945,
937 N.W.2d 838 (2020).
[11,12] Accrued investment earnings or appreciation of
nonmarital assets during the marriage are presumed marital
unless the party seeking the classification of the growth as
nonmarital proves: (1) The growth is readily identifiable and
traceable to the nonmarital portion of the account and (2)
the growth is not due to the active efforts of either spouse.
Id. Appreciation caused by marital contributions is known
as active appreciation, and it constitutes marital property. Id.
Passive appreciation is appreciation caused by separate con-
tributions and nonmarital forces. The burden is on the owning
spouse to prove the extent to which marital contributions did
not cause the appreciation or income. Id.
The act of rolling over retirement accounts itself does not
constitute active efforts. In Schnackel v. Schnackel, 27 Neb.
App. 789, 937 N.W.2d 234 (2019), the wife received an
inheritance from her mother. She initially placed the inher-
ited stocks and cash into a TD Ameritrade account, but
later decided to transfer the funds into a mutual fund. We
determined that simply depositing the inheritance into a TD
Ameritrade account and then transferring it to a mutual fund
did not constitute active efforts sufficient to turn the account
into a marital asset. We reasoned that concluding otherwise
would “lead to the question of how a spouse could ever invest
inherited funds so as to ensure that their appreciation dur-
ing the marriage would remain nonmarital.” Id. at 822, 937
N.W.2d at 259.
Although Nicole testified in general that her accounts “had
grown without me doing anything to them,” this does not
overcome the presumption that the growth is marital. In White
v. White, supra, the husband argued that the appreciation
of his nonmarital account was passive because he did not
actively manage the account. His testimony showed, he con-
tended, that after selecting the initial mutual funds, he relied

- 816 -
Nebraska Court of Appeals Advance Sheets
32 Nebraska Appellate Reports
SCHWENSOW v. BARTNICKI
Cite as 32 Neb. App. 798
on professional money managers to manage the funds. The
Supreme Court rejected his argument, stating:
[The husband] presented no evidence to establish that
this growth was attributable solely to passive market
forces or separate contributions, even in part. [He] did
not present evidence of some recognized benchmark of
general market growth, which might have been very per-
suasive evidence of the effect of market forces. Nor did
he present evidence that the annual rate of return, or some
portion of it, was guaranteed or statutorily prescribed.
He failed to show that he relied on the recommendations
or management of his account by a third party.
Id. at 961, 937 N.W.2d at 851.
Here, there was no testimony regarding benchmarks of mar-
ket growth or whether Nicole relied upon recommendations
or management of these accounts by a third party. She testi-
fied as to the existence or nonexistence of a fund manager for
the Ameriprise and Principal accounts, but provided no such
testimony as to the other 10 funds that were rolled into these
accounts. The transaction history for her Infinity account and
her Fidelity 403B statements reflects numerous exchanges in
and exchanges out among the various funds during the mar-
riage. The record does not contain any information about who
directed this activity, and we can only assume it was done to
increase the performance of Nicole’s investments.
Having failed to present evidence to prove the appreciation
was not the result of active efforts, Nicole failed to rebut the
presumption that the appreciation of her retirement accounts
was marital property. The district court abused its discretion
in finding otherwise. The nonmarital value of the premarital
retirement accounts should be calculated based upon their value
at the time of marriage, $154,341, and the remaining $161,186
($315,527 - $154,341) should be added to the marital estate.
(iii) Conclusion
The district court abused its discretion in its valuation
of Nicole’s Wells Fargo checking account, Discover savings

- 817 -
Nebraska Court of Appeals Advance Sheets
32 Nebraska Appellate Reports
SCHWENSOW v. BARTNICKI
Cite as 32 Neb. App. 798
account, and her retirement accounts. The evidence presented
at trial does not support using an average daily value for the
Wells Fargo checking account, nor does it support such value
at $1,750. This account should be valued at $10,594.85, its
balance as of February 1, 2022.
The Discover savings account reflects a balance of $6,440.54
on February 1, 2022; there is no evidence of a $240.54 balance,
as found by the district court. Accordingly, this account should
be valued at $6,440.54.
Lastly, Nicole failed to rebut the presumption that the growth
of her retirement accounts was marital. Thus, the premarital
retirement accounts should be valued as of the date of mar-
riage at $154,341, with the remaining $161,186 ($315,527 -
$154,341) added to the marital estate.
(c) Property Division
Paul argues that because of the errors outlined above, the
district court abused its discretion when dividing the marital
estate. He asserts that when the errors are corrected, the court’s
division of property results in an award of the marital estate
to Nicole of 81.45 percent. This runs afoul of the general rule
that 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. Dooling v. Dooling,
303 Neb. 494, 930 N.W.2d 481 (2019).
We agree with Paul that the erroneous categorization and
valuation of the property resulted in an inequitable distribu-
tion of the marital estate. We therefore vacate the court’s
division of the marital estate and remand the matter with
directions to determine an equitable division based upon the
categorization and valuation set forth in this opinion.
2. Dissipation
(a) Additional Facts
At trial, both parties claimed dissipation of assets by the
other. Numerous exhibits were admitted into evidence detail-
ing financial transactions between Paul and different people.

- 818 -
Nebraska Court of Appeals Advance Sheets
32 Nebraska Appellate Reports
SCHWENSOW v. BARTNICKI
Cite as 32 Neb. App. 798
Paul admitted that he spent marital funds on two extramarital
affairs, but denied that he spent the amount Nicole claimed
the documentary evidence supported. Instead, he testified that
most of those transactions were for rent, lodging for his
employment, security deposits, and massages. Paul estimated
he spent roughly $1,000 on his extramarital affairs. Nicole
admitted that she was unaware of Paul’s extramarital affairs
until days prior to filing the dissolution petition. She was
unaware of the money he spent on the extramarital affairs until
discovery began.
The district court held that neither party established the
burden for dissipation of marital assets; thus, their requests
were denied. It reasoned that neither party established a time-
line for when the marriage was “‘undergoing an irretrievable
breakdown.’” Although Paul had two brief affairs, “such rela-
tionships are not enough in and of themselves to conclude that
an irretrievable breakdown of the marriage was occurring.”
Furthermore, there was no testimony that either party contem-
plated divorce prior to January 25, 2022.
(b) Discussion
Nicole’s cross-appeal is twofold. First, she assigns the dis-
trict court erred by finding the parties did not meet their bur-
den for establishing when the irretrievable breakdown of their
marriage began. Second, she argues that based on the district
court’s error in not recognizing the date of the irretrievable
breakdown, it erred by not finding that Paul dissipated marital
assets. The basis of Nicole’s argument is the marriage began
undergoing irretrievable breakdown when Paul started send-
ing other women money, which she estimates began in early
2018; thus, any use of marital funds for selfish purposes after
that should be considered dissipation.
[13] Dissipation of marital assets is generally defined as
one spouse’s use of marital property for a selfish purpose
unrelated to the marriage at the time when the marriage is
undergoing an irretrievable breakdown. Harris v. Harris, 261
Neb. 75, 621 N.W.2d 491 (2001). As a remedy, the marital

- 819 -
Nebraska Court of Appeals Advance Sheets
32 Nebraska Appellate Reports
SCHWENSOW v. BARTNICKI
Cite as 32 Neb. App. 798
assets dissipated by a spouse for purposes unrelated to the
marriage should be included in the marital estate in dissolu-
tion actions. Reed v. Reed, 277 Neb. 391, 763 N.W.2d 686
(2009). The party alleging dissipation of marital property has
the initial burden of production and persuasion. Schnackel
v. Schnackel, 27 Neb. App. 789, 937 N.W.2d 234 (2019).
Although Nebraska case law does not precisely define when a
marriage is undergoing an irretrievable breakdown, this court
has previously declined to conclude that such breakdown
can be found only when the parties are estranged or have
separated. See Malin v. Loynachan, 15 Neb. App. 706, 736
N.W.2d 390 (2007).
In Malin v. Loynachan, supra, we held that a husband spend-
ing money on a third party was not sufficient, in and of itself,
to conclude that an irretrievable breakdown of the parties’
marriage was occurring. The husband admitted the charges in
question of $12,526.67 for trips, jewelry, and lingerie were
for someone who was not his wife. Id. The charges spanned
almost 3 years prior to the wife’s filing for divorce. Id.
Here, Nicole failed to establish when the marriage began to
undergo an irretrievable breakdown; thus, she failed to meet
her burden in establishing the dissipation of marital funds.
Akin to Malin v. Loynachan, supra, the only evidence Nicole
presented of the irretrievable breakdown of the marriage was
Paul’s spending money on third parties. Furthermore, Nicole
admits that she did not know about Paul’s spending until the
discovery phase of the divorce. There is no additional evi-
dence to show that the marriage was undergoing an irretriev-
able breakdown when Paul was allegedly dissipating marital
assets. Therefore, we find that the district court did not abuse
its discretion in finding that Nicole did not provide sufficient
facts to meet her burden of establishing the date on which the
marriage began an irretrievable breakdown.
Nicole likens her case to In re Marriage of Morrical, 216
Ill. App. 3d 643, 576 N.E.2d 465, 159 Ill. Dec. 796 (1991).
She explained that just like her case, in In re Marriage of

- 820 -
Nebraska Court of Appeals Advance Sheets
32 Nebraska Appellate Reports
SCHWENSOW v. BARTNICKI
Cite as 32 Neb. App. 798
Morrical, “the evidence demonstrated that the husband had
sold stocks worth $32,000 at a time when the marriage was
undergoing difficulty.” Brief for appellee on cross-appeal at 30
(emphasis omitted). But the “difficulty” that the parties were
undergoing in In re Marriage of Morrical is distinct from the
present facts. In In re Marriage of Morrical, the dissipation
occurred after the parties admitted their marriage was under-
going serious problems. Here, there was no similar admission,
and there is nothing in the record to indicate either Paul or
Nicole believed their marriage was undergoing difficulties
prior to Nicole’s filing for divorce. Despite Nicole’s conten-
tion, In re Marriage of Morrical is distinguishable from the
present facts.
Because we hold the district court did not abuse its discre-
tion in finding that Nicole did not meet her burden in establish-
ing a date when the marriage was irretrievably broken, we do
not need to address her second assignment of error regarding
the amount of dissipation of marital funds.
3. Attorney Fees
Paul’s final assignment of error is that the district court
abused its discretion by awarding Nicole $8,000 in attorney
fees. He argues that despite the district court’s reference to a
motion to compel as justification for the award, no motion to
compel was ever granted against Paul.
[14] It has been held that in awarding attorney fees in a
dissolution action, a court shall consider the nature of the
case, the amount involved in the controversy, the services
performed, the results obtained, the length of time required
for preparation and presentation of the case, the novelty and
difficulty of the questions raised, and the customary charges
of the bar for similar services. Garza v. Garza, 288 Neb.
213, 846 N.W.2d 626 (2014). The award of attorney fees is
discretionary with the trial court, is reviewed de novo on the
record, and will be affirmed in the absence of an abuse of
discretion. Id.

- 821 -
Nebraska Court of Appeals Advance Sheets
32 Nebraska Appellate Reports
SCHWENSOW v. BARTNICKI
Cite as 32 Neb. App. 798
The district court stated that Paul “created some concern-
ing issues by not following the Court’s Order on the Motion
to Compel, to which the Court questions whether a full and
accurate picture of his financial situation was shown.” But
the district court reasoned that Paul’s failure to provide a full
accounting of his finances caused Nicole to “proceed forward
with the trial with what information was known at the time,
including the questionable number of exhibits amounting to
thousands of pages.” Paul’s testimony exhibited a lack of
awareness as to his finances, because he admitted he was
unaware of what he spent various charges on, totaling over
thousands of dollars.
Furthermore, Nicole originally testified that her attorney
fees amounted to $21,465. The district court exercised its
discretion in considering the requisite factors to order only
$8,000 of attorney fees for Nicole, which order reflects the
district court’s concern about the thousands of pages of exhib-
its Nicole’s counsel had to put together in piecing together
Paul’s finances. Altogether, despite no motion to compel
in the record regarding Paul’s finances, the evidence of his
finances at trial show the district court did not abuse its dis-
cretion in awarding Nicole attorney fees.
VI. CONCLUSION
We vacate that portion of the district court’s decree classify-
ing and valuing Nicole’s student loan debt, auto loan, Barclays
account, Discover savings account, Wells Fargo checking
account, and retirement accounts and remand the matter for
recalculation of the marital estate and division thereof. We
otherwise affirm the district court’s decree.
Affirmed in part, and in part vacated
and remanded with directions.