Tercero v. Gallardo

- 742 -
Nebraska Court of Appeals Advance Sheets
32 Nebraska Appellate Reports
TERCERO v. GALLARDO
Cite as 32 Neb. App. 742
Ana M. Pilarte Tercero, appellee, v.
Adalberto Mejia Gallardo, appellant.
___ N.W.3d ___
Filed March 26, 2024. 	No. A-23-386.
1. Appeal and Error. Plain error is error plainly evident from the record
and of such a nature that to leave it uncorrected would result in damage
to the integrity, reputation, or fairness of the judicial process.
2. Rules of the Supreme Court: Appeal and Error. Depending on the
particulars of each case, failure to comply with the mandates of Neb.
Ct. R. App. P. § 2-109(D) (rev. 2023) may result in an appellate court
waiving the error, proceeding on a plain error review only, or declining
to conduct any review at all.
3. Divorce: Property Division: Equity. Neb. Rev. Stat. § 42-365 (Reissue
2016) authorizes a trial court to equitably distribute the marital estate
according to what is fair and reasonable under the circumstances.
4. Divorce: Property Division. In a marital dissolution action, the pur-
pose of a property division is to distribute the marital assets equitably
between the parties.
5. ____: ____. In a marital dissolution action, there is no mathematical
formula by which property awards can be precisely determined, but as
a general rule, a spouse should be awarded one-third to one-half of the
marital estate, the polestar being fairness and reasonableness as deter-
mined by the facts of each case.
Appeal from the District Court for Dawson County: James
E. Doyle IV, Judge. Affirmed in part, and in part vacated and
remanded with directions.
Adalberto Mejia Gallardo, pro se.
Brian W. Copley, of Heldt, McKeone & Copley, for appellee.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
10/14/2026 07:48 AM CDT

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Nebraska Court of Appeals Advance Sheets
32 Nebraska Appellate Reports
TERCERO v. GALLARDO
Cite as 32 Neb. App. 742
Pirtle, Chief Judge, and Riedmann and Welch, Judges.
Riedmann, Judge.
INTRODUCTION
Adalberto Mejia Gallardo appeals from the order of the dis-
trict court for Dawson County dissolving his marriage to Ana
M. Pilarte Tercero and dividing the marital estate. Proceeding
under a plain error review, we vacate that portion of the decree
valuing and dividing the marital estate and remand the matter
to the district court with directions for recalculation.
BACKGROUND
Mejia Gallardo and Pilarte Tercero were married in October
2002. The parties separated in February 2022. The parties
prepared a joint property statement, which was received into
evidence. We note that Mejia Gallardo did not list the value for
numerous items and that the parties did not agree on the value
of any item at issue. As relevant to this appeal, the property
statement reflected three debts totaling $80,000.
Following a trial, where Mejia Gallardo represented him-
self, the district court issued an order dissolving the marriage
and dividing the marital estate. The dissolution order assigned
all property listed on the joint property statement to either
Mejia Gallardo or Pilarte Tercero, which was consistent with
the allocation requested by Pilarte Tercero at trial. The court
calculated the value of the assets assigned to Pilarte Tercero
at $167,018 and corresponding debt at $129,166.60. It cal-
culated the value of the assets assigned to Mejia Gallardo
at $45,550, with no debt assigned to him. Overall, the dis-
trict court determined Pilarte Tercero would receive approxi-
mately 45 percent of the marital estate, and Mejia Gallardo
would receive approximately 55 percent of the marital estate.
Pilarte Tercero filed a motion to alter or amend the judgment
because a car that belonged to her daughter was included
in the marital estate and awarded to Mejia Gallardo. After
a hearing, the district court amended the order to award the
car to Pilarte Tercero, but because the court had assigned no

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Nebraska Court of Appeals Advance Sheets
32 Nebraska Appellate Reports
TERCERO v. GALLARDO
Cite as 32 Neb. App. 742
value to the car, its calculations remained unchanged. Mejia
Gallardo appeals.
ASSIGNMENT OF ERROR
Mejia Gallardo assigned no errors in his brief on appeal.
STANDARD OF REVIEW
[1] Plain error is error plainly evident from the record and
of such a nature that to leave it uncorrected would result in
damage to the integrity, reputation, or fairness of the judicial
process. County of Lancaster v. County of Custer, 313 Neb.
622, 985 N.W.2d 612 (2023).
ANALYSIS
[2] Mejia Gallardo failed to assign errors or to comply
with numerous other rules required of appellants when filing
a brief before this court. See Neb. Ct. R. App. P. § 2-109(D)
(rev. 2023). Depending on the particulars of each case, failure
to comply with the mandates of § 2-109(D) may result in an
appellate court waiving the error, proceeding on a plain error
review only, or declining to conduct any review at all. County
of Lancaster v. County of Custer, supra. Here, we elect to
proceed under a plain error review.
[3-5] Neb. Rev. Stat. § 42-365 (Reissue 2016) authorizes a
trial court to equitably distribute the marital estate according
to what is fair and reasonable under the circumstances. Parde
v. Parde, 313 Neb. 779, 986 N.W.2d 504 (2023). In a marital
dissolution action, the purpose of a property division is to
distribute the marital assets equitably between the parties. Id.
There is no mathematical formula by which property awards
can be precisely determined, but as a general rule, a spouse
should be awarded one-third to one-half of the marital estate,
the polestar being fairness and reasonableness as determined
by the facts of each case. Id.
Proceeding under a plain error review, we find plain error
in the district court’s valuation of the marital estate, spe-
cifically in its determination of the debt held by the parties.

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Nebraska Court of Appeals Advance Sheets
32 Nebraska Appellate Reports
TERCERO v. GALLARDO
Cite as 32 Neb. App. 742
The total value of the marital assets, as determined by the
district court, was $212,568. As previously noted, the joint
property statement reflected three debts totaling $80,000;
there was no other evidence presented that showed the parties
held any debt not included in the joint property statement.
However, the district court’s order awarded $0 in debt to
Mejia Gallardo and $129,166.60 in debt to Pilarte Tercero.
The difference between the debt utilized by the district court
in its order and the debt reflected in the joint property state-
ment is $49,166.60.
The district court distributed 54.6 percent of the marital
estate to Mejia Gallardo and 45.4 percent of the marital estate
to Pilarte Tercero. However, utilizing the amount of debt that
was supported by the evidence in the record significantly
changes the distribution of the marital estate: Mejia Gallardo
would receive approximately 35 percent, while Pilarte Tercero
would receive approximately 65 percent. This is a substantial
departure from the district court’s distribution in the dissolu-
tion order.
Pilarte Tercero concedes that the amount of debt the district
court included in its calculation of the marital estate exceeded
the evidence of debt presented at trial. However, she argues
that the distribution, when using the amount of debt sup-
ported by the evidence, is technically still within the general
rule that a spouse should receive between one-third and one-
half of the marital estate; thus, she argues there is no plain
error. Although Pilarte Tercero is correct that substituting the
$80,000 amount of debt would result in a distribution of the
marital estate within the general rule, it is also a substantial
departure from the distribution percentage the district court
determined to be fair and reasonable in its order. As discussed
above, we find this to be plain error.
The debt assigned to Pilarte Tercero is composed of a
house mortgage, a loan on her retirement account, and a loan
associated with a vehicle awarded to her. Because each of
these assets was awarded to her, it was appropriate to assign

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Nebraska Court of Appeals Advance Sheets
32 Nebraska Appellate Reports
TERCERO v. GALLARDO
Cite as 32 Neb. App. 742
the corresponding debts to her as well. However, as stated
above, the district court miscalculated the total of these debts.
It assigned specific marital assets of $167,018 to Pilarte
Tercero but erroneously calculated the amount of debt as
$129,166.60, which resulted in a net marital estate to her of
$37,851.40. Correcting the court’s mathematical error results
in a net marital estate to Pilarte Tercero of $87,018 and a net
marital estate to Mejia Gallardo of $45,550. To reach the dis-
tribution percentage of the estate utilized by the district court,
Pilarte Tercero would be required to make an equalization
payment of $26,832.13 to Mejia Gallardo.
We are unable to determine from the record whether the
court intended a specific distribution percentage or simply
intended a distribution of assets and corresponding debt. We
therefore vacate that portion of the decree valuing and dividing
the marital estate and remand the matter to the district court
for recalculation.
CONCLUSION
We find the district court committed plain error in its
valuation of the marital estate. We vacate that portion of the
decree valuing and dividing the marital estate. We remand the
matter to the district court with directions to value the marital
estate in accordance with this opinion and to equitably divide
the marital estate between the parties. We otherwise affirm
the district court’s decree.
Affirmed in part, and in part vacated
and remanded with directions.