Pebley v. Pebley

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Nebraska Court of Appeals Advance Sheets
33 Nebraska Appellate Reports
PEBLEY v. PEBLEY
Cite as 33 Neb. App. 902
Shawn P. Pebley, appellant and cross-appellee, v.
Laci D. Pebley, appellee and cross-appellant.
___ N.W.3d ___
Filed January 6, 2026. 	No. A-24-844.
1. Divorce: Child Custody: 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 in his or her determi-
nations 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. Evidence: Appeal and Error. When evidence is in conflict, the appel-
late court considers and may give weight to the fact that the trial court
heard and observed the witnesses and accepted one version of the facts
rather than another.
4. Child Custody: Words and Phrases. Under the Parenting Act, the con-
cept of child custody encompasses both physical custody and legal cus-
tody, with legal custody focusing entirely on decisionmaking authority.
5. ____: ____. The term “joint legal custody” is the joint authority and
responsibility for making major decisions regarding the child’s welfare,
while the term “sole legal custody” establishes that one party will have
the final say in such decisions.
6. Child Custody. The best interests of the child are the primary consid-
eration for developing custodial plans. In considering such best inter-
ests, it is a common occurrence and a court is permitted to supply a
party with final decisionmaking authority in some areas to avoid future
impasses which could negatively affect the child while maintaining both
parents’ rights to consultation and participation in important decisions.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
10/18/2026 12:42 AM CDT

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Nebraska Court of Appeals Advance Sheets
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PEBLEY v. PEBLEY
Cite as 33 Neb. App. 902
7. Divorce: Property Division. Any given property can constitute a mix-
ture of marital and nonmarital interests; a portion of an asset can be
marital property while another portion can be separate property.
8. Divorce: Property Division: Proof. The burden of proof rests with the
party claiming that the property is nonmarital.
9. Divorce: Property Division: Equity. The equity in property at the time
of marriage is a nonmarital asset which, if established, should be set
aside as separate property.
10. Divorce: Proof. While documentary evidence is not strictly necessary
for parties to carry their burden of proof in dissolution cases, a party
opting to rely upon his or her testimony alone does so at the risk of
nonpersuasion.
11. Trial: Evidence. Evidence not directly contradicted is not necessarily
binding on the trier of fact and may be given no weight where it is
inherently improbable, unreasonable, self-contradictory, or inconsistent
with facts or circumstances in evidence.
12. Property Division. Under Neb. Rev. Stat. § 42-365 (Reissue 2016), the
court may take the economic circumstances of the parties into account
and is not limited to the assets divided as part of the marital estate.
13. Divorce: Property: Words and Phrases. Dissipation of marital assets
is 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.
14. Divorce: Property Division. The marital assets dissipated by a spouse
for purposes unrelated to the marriage should be included in the marital
estate in dissolution actions.
15. 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.
16. Divorce: Property Division: Appeal and Error. Generally, the date
upon which a marital estate is valued must be rationally related to
the property composing the marital estate and the property being
divided. The date of valuation is reviewed for an abuse of the trial
court’s discretion.
Appeal from the District Court for Lancaster County: Lori
A. Maret, Judge. Affirmed as modified.
John W. Ballew, Jr., of Ballew Hazen Byrd, P.C., L.L.O., for
appellant.

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Nebraska Court of Appeals Advance Sheets
33 Nebraska Appellate Reports
PEBLEY v. PEBLEY
Cite as 33 Neb. App. 902
Megan E. McDowell and Terrance A. Poppe, of Morrow,
Poppe, Watermeier & Lonowski, P.C., L.L.O., for appellee.
Riedmann, Chief Judge, and Moore and Welch, Judges.
Riedmann, Chief Judge.
I. INTRODUCTION
Shawn P. Pebley appeals, and Laci D. Pebley cross-appeals,
from the decree of dissolution entered by the district court for
Lancaster County dissolving their marriage. Because we find
the district court erred in classifying a certain account as mari-
tal and in ordering the equalization payment to be made within
60 days, we affirm as modified.
II. BACKGROUND
Shawn and Laci were married in May 2007. They had three
children, born in 2011, 2013, and 2017. On April 26, 2022,
Shawn filed a complaint for dissolution of marriage. Trial was
held February 7 and 8, April 15 and 16, and May 21, 2024.
The record in this case is substantial, and we summarize only
that evidence which is necessary to address the assigned errors
on appeal.
1. Custody of Children
After Shawn filed for dissolution in April 2022, the parties
continued to reside in the marital home until early September.
A temporary order entered in October provided that the parties
would have joint physical custody with a week-on-week-off
schedule. 	Both 	Shawn 	and 	Laci 	described 	difficulties 	in
coparenting, including disagreeing with decisions made by
the other party. The children appeared to be doing well aca-
demically, were involved in extracurricular activities, and had
no significant disciplinary issues. Shawn requested sole legal
custody and final decisionmaking authority. Laci requested
she be granted either sole legal custody or final decisionmak-
ing authority.

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Nebraska Court of Appeals Advance Sheets
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PEBLEY v. PEBLEY
Cite as 33 Neb. App. 902
2. Marital Estate
Shawn served in the U.S. Air Force, eventually moving to
the U.S. Air Force Reserve. In October 2007, Shawn received
a separation payment when he moved from active duty to
reserve duty, with the agreement that he would repay these
funds if he received military retirement benefits.
In the early 2000s, Shawn began purchasing real estate as
rental properties. At trial, Shawn utilized an April 2007 real
estate loan application to identify the real estate and bank
accounts he asserted he owned at the time of marriage. He
explained that during the marriage, some of the properties
were refinanced to purchase additional properties. Others were
sold, with the funds being placed back into the rental business.
Shawn moved funds from premarital bank accounts into differ-
ent accounts. He also provided testimony and documentation
identifying funds he received as an inheritance from his grand-
parents and funds received as a gift from his father. Due to
the difficulty in tracing the premarital property throughout the
marriage and determining its current value, Shawn requested
the district court characterize the real estate and accounts he
owned at the time of marriage as marital property and give
him a credit for the value they had on the date of marriage. In
other words, Shawn agreed that all growth in the premarital
property could be considered marital.
3. District Court Order
The district court awarded Shawn and Laci joint legal and
physical custody of their children. It declined to award either
party final decisionmaking authority. The district court found
that Shawn had failed to prove the property listed in the April
2007 loan application was premarital and that the document
was insufficient and unreliable to prove the value of the
properties listed. The district court found that Shawn failed
to trace his inherited funds to accounts existing at the time
of filing. It determined the separation pay debt was marital
and divided it evenly between Shawn and Laci. As part of the

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PEBLEY v. PEBLEY
Cite as 33 Neb. App. 902
distribution of the marital estate, Shawn was ordered to make
an equalization payment of $643,789.50 within 60 days of the
decree of dissolution. Additional facts will be discussed below
as necessary.
III. ASSIGNMENTS OF ERROR
Shawn assigns, combined, reordered, and restated, that the
district court erred by (1) failing to grant him final decision-
making authority, (2) failing to credit him for the value of his
premarital real estate and other assets and in failing to treat
his premarital rental real estate as a single collective asset, (3)
failing to find his monetary gifts and inheritance were non-
marital property, and (4) ordering him to make an equalization
payment within 60 days of the entry of the decree.
On cross-appeal, restated, reordered, and renumbered, Laci
assigns that the district court erred by (1) failing to award her
either sole legal custody or final decisionmaking authority;
(2) failing to include dissipated assets in the marital estate;
(3) using incorrect valuation dates for bank accounts, Shawn’s
military retirement benefits, and her retirement account; and
(4) finding the debt for Shawn’s separation pay was marital.
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 in his or her
determinations regarding custody, child support, division of
property, alimony, and attorney fees. Simons v. Simons, 312
Neb. 136, 978 N.W.2d 121 (2022).
[2] A judicial abuse of discretion exists if the reasons or rul-
ings of a trial judge are clearly untenable, unfairly depriving a
litigant of a substantial right and denying just results in matters
submitted for disposition. Id.
[3] When evidence is in conflict, the appellate court consid-
ers and may give weight to the fact that the trial court heard
and observed the witnesses and accepted one version of the

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PEBLEY v. PEBLEY
Cite as 33 Neb. App. 902
facts rather than another. Stava v. Stava, 318 Neb. 32, 13
N.W.3d 184 (2024).
V. ANALYSIS
1. Shawn’s Appeal
(a) Final Decisionmaking Authority
[4,5] Shawn assigns that the district court erred by failing
to grant him final decisionmaking authority. We conclude that
the district court did not abuse its discretion in this regard.
Under the Parenting Act, the concept of child custody encom-
passes both physical custody and legal custody, with legal cus-
tody focusing entirely on decisionmaking authority. Vyhlidal v.
Vyhlidal, 309 Neb. 376, 960 N.W.2d 309 (2021). See Neb. Rev.
Stat § 43-2922(7) (Cum. Supp. 2024). The term “joint legal
custody” is the joint authority and responsibility for making
major decisions regarding the child’s welfare, while the term
“sole legal custody” establishes that one party will have the
final say in such decisions. Vyhlidal, supra.
[6] The best interests of the child are the primary consid-
eration for developing custodial plans. Blank v. Blank, 303
Neb. 602, 930 N.W.2d 523 (2019). In considering such best
interests, it is a common occurrence and a court is permitted
to supply a party with final decisionmaking authority in some
areas to avoid future impasses which could negatively affect
the child while maintaining both parents’ rights to consultation
and participation in important decisions. Id.
Although a court may choose to grant a party final deci-
sionmaking authority, this is not required. The best interests of
the children are the primary consideration. Here, when declin-
ing to award either party final decisionmaking authority, the
district court acknowledged the disputes caused by the lack of
cooperation and communication between the parties. However,
it specifically stated its belief that with the finalization of the
proceedings, the parties would be able to make decisions for
the best interests of the children.

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PEBLEY v. PEBLEY
Cite as 33 Neb. App. 902
It is clear that both Shawn and Laci love their children.
It is also clear that each party has made parenting decisions
with which the other parent disagrees. Despite the difficul-
ties experienced during the pendency of the case, the district
court believed Shawn and Laci would be able to work together
in the future for the best interests of their children. Other
courts have recognized that over time, divorced parents learn
to reconfigure their relationship. See, e.g., State on behalf of
Maddox S. v. Matthew E., 23 Neb. App. 500, 513, 873 N.W.2d
208, 217 (2016) (acknowledging that “‘[u]sually, parties fall
into a pattern of conduct that works for them to raise their
child free from interference or supervision by the courts’”).
We are mindful that the district court heard and observed the
witnesses when making this determination. We cannot find
that the district court abused its discretion in declining to
award Shawn final decisionmaking authority.
(b) Credit for Premarital Assets
Shawn assigns that the district court erred in failing to
grant him credit for the value of his premarital real estate and
other assets and in failing to treat his premarital real estate
as a single collective asset. We find no abuse of discretion in
the district court’s determination that Shawn failed to prove
the value of his premarital assets; thus, the district court did
not err in failing to award him credit. Because Shawn failed to
prove the premarital value of his real estate holdings, we need
not address whether the district court erred in failing to treat
them as a single collective asset. We do find error in the dis-
trict court’s treatment of one of Shawn’s premarital accounts
and find he should be given credit for its premarital value.
(i) Additional Facts
Shawn presented an application for a real estate loan from
April 2007, in which he was required to list his assets and
liabilities. Shawn testified that he prepared the balance sheet
for the lender and confirmed that it was a “Fannie Mae or
Freddie Mac type of a situation.” The application listed his

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PEBLEY v. PEBLEY
Cite as 33 Neb. App. 902
checking accounts and saving accounts, along with their bal-
ances. There was also a list of real estate Shawn owned at the
time, with the market value of each property and the loans
associated with it. Shawn testified that he owned one addi-
tional account not listed in the document.
The application is neither signed by Shawn nor notarized,
but a signature appears in the portion of the application for
an interviewer’s signature. The district court determined that
Shawn had “failed to meet his burden of proof in showing
the premarital nature of the rental properties.” It found that
the loan application “purportedly showing the values of these
properties or in the alternative, [Shawn’s] ‘net worth’ [was]
insufficient and unreliable given the purpose for the generation
of the document and its unsigned nature” and that Shawn had
admitted it was incomplete.
(ii) Analysis
Equitable property division under Neb. Rev. Stat. § 42-365
(Reissue 2016) is a three-step process. See Stava v. Stava, 318
Neb. 32, 13 N.W.3d 184 (2024). The first step is to classify the
parties’ property as marital or nonmarital. Id. The second step
is to value the marital assets and determine the parties’ marital
liabilities. Id. The third step is to calculate and divide the net
marital estate between the parties in accordance with the prin-
ciples contained in § 42-365. Stava, supra.
[7,8] Any given property can constitute a mixture of marital
and nonmarital interests; a portion of an asset can be mari-
tal property while another portion can be separate property. Id.
The burden of proof rests with the party claiming that the prop-
erty is nonmarital. Id. The extent to which the property is mari-
tal versus nonmarital presents a mixed issue of law and fact.
Id. The manner and method of acquisition involve questions of
fact, but the classification of the property under those facts is
a legal question and not a matter of the court’s discretion. Id.
[9] Property that a party brings into the marriage is usu-
ally excluded from the marital estate. See id. The Nebraska

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Nebraska Court of Appeals Advance Sheets
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PEBLEY v. PEBLEY
Cite as 33 Neb. App. 902
Supreme Court has said that the equity in property at the time
of marriage is a nonmarital asset which, if established, should
be set aside as separate property. See id. Shawn’s assigned
error involves the first step of the division process. As the party
seeking to set aside a portion of property as nonmarital, Shawn
bore the burden of establishing what should be excluded from
the marital estate. If Shawn met this burden, but that particular
asset no longer existed, he would also need to trace the asset
through the marriage so that it could be identified and shown
to have retained its nonmarital classification. Our review of
a trial court’s determination of whether either of these steps
was met is for an abuse of discretion. We determine that, with
one exception, the district court did not abuse its discretion in
determining that Shawn failed to meet his burden to establish
certain property should be set aside as premarital.
Shawn used the loan application to show the premarital
equity he held in certain real estate properties and financial
accounts. He testified that he prepared the balance sheet for the
lender and confirmed that it was a “Fannie Mae or Freddie Mac
type of a situation.” Although he testified that he was required
to sign the application under oath that his representations were
correct, the exhibit offered and received into evidence does
not include his signature. It indicates that the application was
taken by telephone and was signed by the interviewer. The
application contained a list of the real estate Shawn claimed
that he owned at the time, along with each property’s market
value and associated outstanding loans. It also included a list
of financial accounts with their values. Shawn provided no
supporting documentation, such as purchase agreements, clos-
ing statements, mortgage statements, or account statements, to
support the loan application. He testified he failed to identify
one account on the application.
[10,11] We acknowledge that Shawn’s testimony, if believed
by the district court, could be sufficient to carry his burden of
proof. While documentary evidence is not strictly necessary
for parties to carry their burden of proof in dissolution cases,

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PEBLEY v. PEBLEY
Cite as 33 Neb. App. 902
a party opting to rely upon his or her testimony alone does so
at the risk of nonpersuasion. Montegut v. Mosby-Montegut, 31
Neb. App. 107, 977 N.W.2d 671 (2022). Evidence not directly
contradicted is not necessarily binding on the trier of fact and
may be given no weight where it is inherently improbable,
unreasonable, self-contradictory, or inconsistent with facts or
circumstances in evidence. White v. White, 320 Neb. 256, 26
N.W.3d 924 (2025).
The dissent accurately observes that Laci did not specifically
contest Shawn’s premarital ownership or its values. It argues
that Shawn’s testimony fits none of the categories above for
a trier of fact to discredit uncontroverted testimony. However,
Shawn’s testimony was inconsistent with the loan applica-
tion in that he testified that he filled it out and signed it. The
document itself reflects that the information was taken over the
telephone and was signed by only the bank representative. As
noted by the White court, we defer to the district court’s deter-
mination of the witness’ credibility.
Although Shawn attempted to use the loan application to
support his testimony, the district court found the document
insufficient, unreliable, and incomplete. We agree with the
dissent that attempting to establish the value of the proper-
ties owned 18 years prior to trial is certainly not an easy task.
But other than the loan application, Shawn did not present
any supporting documentation for the values contained within
that document. No purchase agreements, closing statements,
mortgage statements, valuations from the county assessor, or
account statements were provided. Rather, the court was to
determine the validity of the values based upon Shawn’s rep-
resentations. We consider and give weight to the fact that the
district court heard and observed Shawn as a witness and found
the document he presented was unreliable.
In his brief on appeal, Shawn provides additional details
to support the validity of the application, but this information
was not presented to the district court during trial, and we do
not consider it on appeal. Generally, it is not the function of

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PEBLEY v. PEBLEY
Cite as 33 Neb. App. 902
an appellate court to review evidence that was not presented
to the trial court. Timothy L. Ashford, PC LLO v. Roses, 313
Neb. 302, 984 N.W.2d 596 (2023). A bill of exceptions is the
only vehicle for bringing evidence before an appellate court;
evidence which is not made a part of the bill of exceptions may
not be considered. Id.
Although we recognize that a contrary finding by the dis-
trict court also would not likely be an abuse of discretion,
based on this record and giving deference to the district court’s
determination of credibility, we cannot say that it erred in its
determination that Shawn failed to prove the value of his pre-
marital assets.
Because Shawn failed to establish the value of his premarital
assets, we need not determine whether he can properly trace
his premarital interests. Without knowing the extent and value
of his assets at the time of marriage, it would be impossible to
determine whether, and to what extent, they remained.
Shawn also argues that the district court erred in failing
to treat his real estate holdings as a collective asset, similar
to a “cattle herd.” Brief for appellant at 35. Because Shawn
failed to establish the value of his premarital interests in the
properties, we need not address this argument. The district
court rejected Shawn’s argument that the loan application
credibly established the value of his premarital assets; there-
fore, whether viewed as individual assets that morphed over
time or as a conglomeration resulting in a single asset, the
premarital value was not established. An appellate court is
not obligated to engage in an analysis that is not necessary to
adjudicate the case and controversy before it. State on behalf
of Jaide Y. & Demee Y. v. Hope N., 33 Neb. App. 489, 18
N.W.3d 129 (2025).
There is one exception to our determination regarding
Shawn’s premarital property. We find that Shawn established
his premarital interest in funds he held in one account that
existed prior to the marriage. An April 1 to June 30, 2007,
statement for a Roth individual retirement account (IRA) was

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PEBLEY v. PEBLEY
Cite as 33 Neb. App. 902
offered and received into evidence. It showed a balance of
$19,866.25. Shawn provided account statements from which
we can deduce that in 2009, these funds were transferred to a
different Roth IRA, with the account number ending in 1373.
Shawn provided a January to March 2022 statement for this
same account, showing a balance of $73,871.52. In its dis-
solution decree, the district court identified this account as
Shawn’s Roth IRA and valued it at $73,872.
In its order, the district court specifically stated the loan
application setting forth the premarital value of Shawn’s real
estate prior to marriage was insufficient and unreliable “given
the purpose for the generation of the document and its unsigned
nature.” But unlike the rental properties and their values,
Shawn presented supporting documentation of the existence
and value of the Roth IRA at the time of marriage and at the
time of separation.
The district court did not address the premarital value of the
Roth IRA, and unlike Shawn’s inherited funds that the court
found Shawn failed to properly trace, the court’s order is silent
as to traceable moneys in the Roth IRA. Because uncontested
documentary evidence was received and there was no finding
by the district court that the premarital Roth IRA money was
not traceable, we find the evidence presented establishes that
Shawn’s premarital interest in the Roth IRA, with the account
number ending in 1373, was $19,866.25, making the marital
portion of this account $54,005.75. We modify the district
court’s dissolution decree to reflect this change. This results
in a change to the equalization payment.
In its decree, the district court calculated the equaliza-
tion payment by totaling the net value of assets awarded
to each party and dividing the number in half to determine
that each party should be awarded net assets with a total
value of $792,499.50. Laci had been awarded assets with
a net value of $128,710, so to equalize the estate, account-
ing for a previously agreed upon $20,000 credit, Shawn was
ordered to pay Laci an equalization payment of $643,789.50.

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PEBLEY v. PEBLEY
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Removing $19,866.25 of Shawn’s premarital funds from the
marital estate and dividing this number in half, each party
should receive net assets with a total value of approximately
$782,566.38. Accounting for the net assets awarded to Laci,
and for Shawn’s previously agreed upon credit, Shawn now
owes Laci an equalization payment of $633,856.38. We mod-
ify the district court’s order to reflect this.
(c) Gifts and Inheritance
Shawn assigns that the district court erred by failing to
find his monetary gifts and inheritance were nonmarital prop-
erty. Although Shawn established that he received gifts and
inheritance money and that they were initially deposited into
one account and then transferred to another, he failed to show
the balance of the latter account was composed solely of
those funds. Therefore, we find no error by the district court.
(i) Additional Facts
In 2017, Shawn received $61,648.70 from his grandparents’
trust. Shawn testified that he used these inherited funds to
establish a checking account ending in 3296 (account 3296).
The canceled check in the amount of $61,648.70 was received
into evidence and reflects “For Deposit Only,” with account
3296 listed. Shawn testified he also opened a money market
account (account 7050). An account statement reflects that
in April 2022, $30,000 was transferred from account 3296 to
account 7050. The district court found Shawn failed to meet his
burden of proof to establish that at the time of separation, these
accounts were traceable to inherited moneys because there was
no documentation to show that the balance in account 7050
came from account 3296. The district court valued account
7050 at $62,426.
(ii) Analysis
The documentation provided is sufficient to establish that
in 2017, Shawn received $61,648.70 in inherited funds and

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placed them in account 3296. In 2022, Shawn transferred
$30,000 from account 3296 to account 7050, which created
a balance in account 7050 of $62,425.79. The documentary
evidence supports this. However, the record includes no state-
ment of transactions from account 3296 supporting Shawn’s
testimony that it was composed solely of inherited funds, nor
does it include statements from account 7050 to explain where
the remaining funds came from. Therefore, Shawn failed to
trace the existence of his inherited funds and the district court
did not abuse its discretion in determining that he failed in his
burden of proof.
Although not assigned as error, Shawn raises an issue regard-
ing an incorrect account name and number being listed on the
district court’s division of assets and debts. The district court
incorrectly listed account 7050, the money market account,
as a savings account (account 5833). We modify the district
court’s order to change the account named “Capital One 360
Performance Savings X5833” to “Capital One 360 Money
Market X7050.”
(d) Equalization Payment
Shawn assigns that the district court erred by ordering him
to make an equalization payment to Laci within 60 days of
the entry of the decree. Shawn argues that without awarding
him value for his premarital assets, “a liquidation of numerous
rental properties and the triggering of capital gains and recap-
ture of depreciation is all but assured, particularly given the 60
days” that is allowed for the payment. Brief for appellant at 47.
We find the district court abused its discretion in the manner in
which it ordered the equalization payment.
[12] Under § 42-365, the court may take the economic cir-
cumstances of the parties into account and is not limited to
the assets divided as part of the marital estate. Karas v. Karas,
314 Neb. 857, 993 N.W.2d 473 (2023). A dissolution court is
not required to award liquid assets sufficient to cover the cost
of an equalization payment. See id. A party alleging error in

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an equalization payment award has the burden to show that he
or she is unable to make the payment. See id.
Although Shawn was awarded the bulk of the assets in the
marital estate, the vast majority of these assets were in the form
of real estate. We acknowledge that a dissolution court is not
required to award liquid assets sufficient to cover the cost of an
equalization payment. See Karas, supra. However, even when
taking into consideration the economic circumstances of the
parties outside of the marital estate, we fail to see how Shawn
can realistically obtain funds for such a large payment within
60 days. We determine the district court abused its discretion
in ordering the entire equalization payment be made within 60
days. We modify the district court’s order to reflect that the
equalization payment, as modified above, of $633,856.38, is
payable in five equal yearly installments plus interest at the
current judgment interest rate, with the first payment due 90
days after the issuance of the mandate in this case.
2. Cross-Appeal
(a) Legal Custody and Final
Decisionmaking Authority
Laci assigns that the district court erred by not awarding
her either sole legal custody of the children or final decision-
making authority. We find the district court did not abuse its
discretion.
In support of her assigned error, Laci advances the same
argument regarding final decisionmaking authority as Shawn
presented in his appeal. For the same reasons we found no
abuse of discretion in the district court’s refusal to grant Shawn
final decisionmaking authority, we find no abuse of discretion
in the district court’s failure to award Laci either sole legal
custody or final decisionmaking authority.
(b) Dissipation
[13,14] Laci assigns that the district court erred by failing
to include dissipated assets in the marital estate. We find that

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Laci failed to meet her burden of proof to show that Shawn
dissipated assets. Dissipation of marital assets is 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. White v. White, 320
Neb. 256, 26 N.W.3d 924 (2025); Schwensow v. Bartnicki, 32
Neb. App. 798, 6 N.W.3d 549 (2024). As a remedy, the mari-
tal assets dissipated by a spouse for purposes unrelated to the
marriage should be included in the marital estate in dissolu-
tion actions. Schwensow, supra. The party alleging dissipation
of marital property has the initial burden of production and
persuasion. Id. Although Nebraska case law does not precisely
define when a marriage is undergoing an irretrievable break-
down, this court has previously declined to conclude that such
breakdown can be found only when the parties are estranged
or have separated. Id.
Laci argues that Shawn did not provide explanations show-
ing that the money in their joint account was used for mari-
tal purposes. But as the party claiming dissipation of marital
assets, Laci had the initial burden of production and persua-
sion. At trial, Laci testified that Shawn stopped contributing
funds to the parties’ joint bank account in June 2022 but still
utilized funds in the joint account for things like car repairs.
Shawn testified that he gave Laci credit for her paycheck
and took credit for an amount that had been agreed to during
their joint budgeting process. Although Laci stated Shawn
did not properly credit her for funds in the joint account,
Shawn testified he did. We are mindful that the district court
heard and observed the witnesses and believed one version of
events over another. We cannot find the district court abused
its discretion.
(c) Valuation Dates
[15,16] Laci assigns that the district court erred by using
incorrect valuation dates for bank accounts, Shawn’s military
retirement benefits, and her retirement account. The purpose

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of assigning a date of valuation 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). It is
well settled that, generally, the date upon which a marital
estate is valued must be rationally related to the property
composing the marital estate and the property being divided.
Id. The date of valuation is reviewed for an abuse of the trial
court’s discretion. Id.
(i) Bank Accounts
Laci argues it was error to value a joint bank account as
of the date Shawn filed for dissolution, as there was evidence
the parties utilized the joint account after that date. Shawn
testified that he disbursed the funds in a manner agreed upon
by the parties. Although Laci argues the parties used the joint
account after the date of filing, Shawn’s testimony was that
the spending that occurred during that time was accounted
for in his distribution of account funds. The district court
heard and observed the witnesses and found Shawn’s testi-
mony credible. We cannot say the district court abused its
discretion.
Laci argues the district court erred in valuing Shawn’s post-
separation account. She argues that to assume this account
contained no marital funds ignores Shawn’s misappropriation
of money from their joint account. We have already found the
district court did not abuse its discretion in determining that
Shawn did not dissipate marital assets. Based on the district
court’s decision, it did not believe that any of the funds in
Shawn’s postseparation bank account were marital. We cannot
say that this was an abuse of discretion.
(ii) Shawn’s Military Retirement
Laci argues the district court erred in finding the end date
for her portion of Shawn’s military retirement benefits was the
month of filing of the complaint for dissolution, rather than
the date the decree of dissolution was entered. The district

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court awarded Laci credit for one-half of the points Shawn
accumulated through the marriage until April 2022, the month
the complaint for dissolution was filed. We find no abuse of
discretion in the district court’s distribution of Shawn’s mili-
tary retirement benefits.
The Supreme Court has previously addressed the proper
interpretation of a divorce decree awarding a former spouse a
portion of her ex-husband’s military retirement benefits. See
Weiland v. Weiland, 307 Neb. 882, 951 N.W.2d 519 (2020).
In Weiland, the Supreme Court explained that when Congress
passed the Uniformed Services Former Spouses’ Protection Act
in 1982, it removed federal preemption and permitted states
to apply their own laws when determining the proper distribu-
tion of military pensions. The Supreme Court noted that prior
to a 2016 amendment to a federal statute regarding the award
of military retirement pay, a state could determine the marital
share of military retirement based on the length of service
either to the date of retirement or to the date of divorce. See
Weiland, supra, citing Starr v. Starr, 70 Va. App. 486, 828
S.E.2d 257 (2019).
The statute now provides in part that when there is a
division of property as part of a final decree of divorce,
dissolution, 	annulment, 	or 	legal 	separation 	that 	becomes
final prior to the date of a member’s retirement, the retired
pay shall be determined based “on the date of the decree
of divorce, dissolution, annulment, or legal separation.” 10
U.S.C. § 1408(a)(4)(B) (2018). However, recent changes to
the Department of Defense’s financial management regula-
tions have provided clarification on the language used in the
statute. The regulations explain that the statute limitation is
“no later than the date of the final decree of divorce, dissolu-
tion, annulment, or legal separation.” Department of Defense
Financial Management Regulation 7000.14-R, vol. 7B, ch. 29,
¶ 8.2.1 (May 2025). Thus, the regulation explains, if parties
were divorced on October 1, 2024, but the court order uti-
lized the date the parties separated rather than the date of the

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decree to determine the proper division of retirement benefits,
this would be acceptable. See id.
In Nebraska, valuation dates are assigned to ensure a mari-
tal estate is equitably divided. See Radmanesh v. Radmanesh,
315 Neb. 393, 996 N.W.2d 592 (2023). The trial court has
discretion to value the marital estate in a manner that is ratio-
nally related to the property composing the marital estate
and the property being divided. See id. Viewing the district
court’s division of Shawn’s military retirement benefits in
light of the philosophy of equitable division of marital estates
in Nebraska, in connection with the federal statutes and regu-
lations, we see no abuse of discretion here. The valuation of
Shawn’s military retirement benefits as of the date of filing
aligns with the valuation of many other assets and is rationally
related to the property composing the estate and the property
being divided. Based on the valuation of the other marital
assets and the distribution of the marital estate, we cannot
say the district court abused its discretion in valuing Shawn’s
military retirement benefits as of the date of filing.
(iii) Laci’s Retirement Account
Laci 	assigns 	that 	the 	district 	court 	erred 	in 	choosing
the valuation date for her retirement account. She argues
the district court valued the account as of December 23, 2023,
when a date closer to the date of the parties’ separation was
available.
a. Additional Facts
At trial, Laci was asked if at the time of the filing of the
case she had approximately $73,000 to $74,000 in her retire-
ment account, and she responded that this was “[c]orrect.”
The documents Laci provided showed a balance of $71,077.75
in the account in August 2022. Laci’s January 2024 answers
to interrogatories were included as part of an exhibit, and
she listed her retirement account as having a balance of
$74,916.56. The district court valued the account at $74,916.

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b. Analysis
Considering the size of the marital estate, the difference
between the district court’s valuation of Laci’s retirement
account and her suggested value on appeal is not a significant
amount. Laci’s trial testimony was that near the time of filing,
she had approximately $73,000 to $74,000 in her retirement
account, though there are some records that dispute whether
this was the correct amount. Under the circumstances of this
case, we cannot say this valuation unfairly deprives Laci of a
substantial right or denies her a just result. As such, we do not
find this to be an abuse of discretion.
(iv) Rental Properties
To the extent that Laci also assigns and argues that the
district court erred in valuing the rental properties, we do not
find an abuse of discretion. To value the real estate encom-
passed in the marital estate, the district court averaged the
values of the rental properties between the date of filing and
March 21, 2023. This valuation appears rationally related to
the property and the marital estate. Although Laci argues the
proper valuation date was May 2024 and the district court
erred in refusing to accept the 2024 appraisals into evidence,
she has not assigned this as error. As such, only the 2022 and
2023 appraisals were before the district court. Considering the
facts of this case, the method chosen by the district court was
an appropriate way to value the properties. We cannot find this
to be an abuse of discretion.
(d) Separation Pay Debt
Laci assigns that the district court erred in classifying
Shawn’s voluntary separation pay debt as marital debt. We find
that the district court did not err in this regard.
(i) Additional Facts
In 2006, Shawn signed an agreement with the armed ser-
vices that provided he would receive a separation pay bonus
for leaving active duty but would repay the funds if he went

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back into the armed services or accepted retirement. Shawn
was released from active duty in September 2007, and in
October, he received $83,756.40. Shawn testified the money
was used to fund the retirement accounts for both parties, pay
some personal bills, and purchase a car for Laci. Laci had no
evidence the separation pay was dissipated but was concerned
that it had been.
Because Shawn had over 20 years of service and was retire-
ment eligible, he had no option but to pay back the funds
out of his retirement paycheck. The district court noted that
Shawn signed the agreement in 2006 but did not receive the
money until October 2007. It found that the money was used
for family purchases and was a marital debt. It allocated half
of the debt to each party.
(ii) Analysis
Laci argues the separation pay agreement was entered
into prior to the marriage, that Shawn was in control of
the account into which the funds were deposited, and that
there was a lack of evidence that the money was spent on
marital purposes. Marital debt includes only those obliga-
tions incurred during the marriage for the joint benefit of
the parties. Karas v. Karas, 314 Neb. 857, 993 N.W.2d 473
(2023). The burden of proof rests with the party claiming that
property is nonmarital. Id. Although Shawn signed the agree-
ment prior to the marriage, he received the funds during the
marriage and spent it for the benefit of the marriage. Because
Shawn was retirement eligible, he would have to repay the
funds out of his retirement. Laci failed to meet her burden
of proof to show that this was not a marital debt. The district
court did not abuse its discretion.
VI. CONCLUSION
We find Shawn established that $19,866.25 in retirement
funds was nonmarital and modify the district court’s order to
reflect that the Roth IRA, with the account ending in 1373, has
a marital value of $54,005.75. We modify the district court’s

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order to reflect that Shawn owes an equalization payment of
$633,856.38, to be paid in five equal yearly installments, with
the first payment being due 90 days from the issuance of the
mandate in this case. We modify the district court’s order to
change the account named “Capital One 360 Performance
Savings X5833” to “Capital One 360 Money Market X7050.”
We otherwise affirm the district court’s order.
Affirmed as modified.
Welch, J., concurring in part, and in part dissenting.
I respectfully disagree with the majority’s affirmance of the
trial court’s decision not to credit Shawn with the premarital
value of his real estate portfolio. It is clear from this record
that prior to the parties’ marriage, Shawn had acquired a rental
real estate portfolio consisting of six properties. By the time of
trial, Shawn had grown that portfolio and provided testimony
and significant documentation as to how he had done so. And
although there is a complexity to that structure, including, but
not limited to, the creation of limited liability companies, a
like-kind exchange, and numerous refinances to effectuate that
growth, he provided a comprehensive analysis demonstrat-
ing how those premarital assets could be traced to his current
portfolio, while only requesting credit for the value of the six
properties he brought into the marriage.
Without going into explicit detail, Shawn established that,
of the six properties for which he was requesting premarital
credit, as of the time of trial, he still owned four of them, one
had been exchanged utilizing I.R.C. § 1031 (2018) into another
property, and the one remaining property had been refinanced
to acquire other rental properties and land on Mill Road before
eventually being sold.
Notwithstanding Shawn’s comprehensive attempt to trace
those assets utilizing exhibits 30 through 33 and his testimony,
which included testimony on how those rental properties were
actively managed by him, how the money was recirculated
to grow the business, and how the rental real estate portfolio

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was continuously managed as a separate group of properties
from other marital assets, the trial court provided no premarital
credit for the value of the six rental properties brought into the
marriage and found:
It is incumbent upon the party seeking to identify the
property as premarital, to carry the burden of doing so.
[Shawn] failed to meet this burden by a preponderance
of the evidence. The Court has spent a considerable
amount of time, energy and effort, without the aid of
expert forensic testimony and analysis, reviewing the
evidence and trying to follow the “tracing” alleged by
[Shawn] of his premarital holdings. The Court concludes
that much like its awarding of all the rental properties to
[Shawn], because of the financial gymnastics that would
be required to parse out the interlocking loans and cross
collateral agreements with banks, again without the aid
of any forensic analysis, all the rental properties and
interest in them is deemed to be marital. The Court also
finds that the exhibit purportedly showing the values
of these properties or in the alternative, [Shawn’s] “net
worth” is insufficient and unreliable given the purpose for
the generation of the document and its unsigned nature.
Also, by his own admission, [Shawn] testified that the
document was not complete.
Insofar as the majority affirms the trial court’s conclusion
that Shawn failed to properly trace his six premarital rental
properties into his modern portfolio, I disagree with that con-
clusion. As I mentioned above, the evidence established that
Shawn continued to own four of the properties as of the date
of trial, exchanged one of them, and produced a comprehensive
analysis of how the other property was refinanced to produce
more properties before eventually being sold. I also note that
Laci did not dispute any of the specific relevant testimony as
it related to the origin of these assets—that Shawn brought
six properties into the marriage and that Shawn separately

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managed and grew the real estate portfolio, including how he
specifically grew it.
And as it relates to the value of the six rental properties
originally brought into the marriage in 2007, Shawn produced
exhibits 30 and 32 to accompany his testimony that these
exhibits reflected the value and current debt position on those
six rental properties as of the date of the parties’ marriage.
Notably, exhibit 30 was a real estate loan application submit-
ted to a bank in 2007 in an effort to buy another property
that was successfully purchased after the parties’ marriage.
Exhibit 30 provided written evidence of what Shawn repre-
sented to be the value of his assets and debts just prior to the
parties’ marriage. Again, Laci provided no testimony refuting
the values Shawn ascribed to these assets at that time. This
real-time document, together with Shawn’s testimony as to
the properties’ premarital value, provided uncontroverted evi-
dence of the value of the properties Shawn brought into the
marriage. In short, there was no dispute that Shawn brought
the six rental properties into the marriage, that they had a pre-
marital value, that he still owned four of the properties by the
time of trial, that he separated the rental real estate portfolio
and actively managed it, that he did not request any premari-
tal value for the appreciation of these assets during the mar-
riage, and that Laci did not dispute any of Shawn’s testimony
or documentation regarding the value of all six rental real
estate properties.
Attempting to establish the value of the six properties owned
18 years prior to trial is certainly not an easy task. That con-
cept is recognized in the Nebraska Supreme Court’s holding
in Burgardt v. Burgardt, 304 Neb. 356, 364-66, 934 N.W.2d
488, 495-96 (2019), wherein the Nebraska Supreme Court, in
reversing this court’s rejection of a party’s attempt to establish
the premarital value of property without documentary evi-
dence, held:
A nonmarital interest in property may be established by
credible testimony. In Brozek v. Brozek, [292 Neb. 681,

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874 N.W.2d. 17 (2016),] we recognized that a spouse’s
own 	testimony 	can 	establish 	a 	“‘tracing 	link,’” 	i.e.,
tracking an asset to a nonmarital source. Of course, triers
of fact have the right to test the credibility of witnesses
by their self-interest and to weigh it against the evidence,
or the lack thereof. 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. We acknowledged in
Brozek that the trial court was “entitled to discount [the
husband’s] testimony about [an alleged premarital asset]
because of his admitted uncertainty.”
While documentary evidence may be more persuasive,
it is not absolutely required. In a case where the husband
did not produce bank statements proving the premarital
balance of his bank accounts but the wife did not contest
the 	values 	he 	listed 	on 	a 	joint 	property 	statement,
we found an abuse of discretion by the trial court in
failing to set off the value of premarital bank accounts.
In Onstot v. Onstot, [298 Neb 897, 906 N.W.2d 300
(2018),] we affirmed the trial court’s decision to not
grant the husband credit for the value of a premarital
house at the time of marriage, stating that “assuming
[the husband’s] testimony established the value of the
residence at $100,000 at the time of the marriage, he did
not testify or supply any documentation as to whether
the residence was either encumbered or unencumbered
at that time and, if encumbered, to what extent.” This
statement 	implies 	that 	premarital 	equity 	could 	have
been established by testimony alone. In a case where
undisputed testimony established items as premarital, the
Court of Appeals determined that the trial court erred in
classifying the items as marital property.
Of course, a party opting to rely upon his or her
testimony alone does so at the risk of nonpersuasion. In

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a case where the trial court set aside the total amount
of premarital funds that the husband claimed he used
to purchase property, we reduced the amount of the
set aside—even though the husband’s testimony was
uncontradicted—because there was nothing in the record
to show the source of certain funds. In Brozek, we affirmed
the trial court’s decision declining to set off any amount
to the husband for the premarital portion of two checking
accounts (he testified one account had about $79,000 at
the time of marriage), crops from a 1993 harvest, and
machinery owned at the time of marriage (but later sold
or traded). A party seeking recognition of nonmarital
property may find it easier to meet his or her burden of
persuasion with documentary support. But its absence
does not automatically defeat the claim.
Here, Shawn provided documentary evidence of the pre-
marital value of the six properties in addition to his own
testimony that the document represented the value of those
six properties at the time of the parties’ marriage. And as
he testified, that document constituted a loan application to
a bank where he was representing the then-current values in
order to procure a loan to purchase another rental property,
which he did purchase shortly after the parties’ marriage. As I
mentioned before, Laci did not specifically contest any of this.
As the Nebraska Supreme Court stated, 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. Burgardt v. Burgardt, 304 Neb.
356, 934 N.W.2d 488 (2019). Shawn’s documentary and testi-
monial evidence fits none of those categories.
In a review de novo on the record, an appellate court is
required to make independent factual determinations based
upon the record, and the court reaches its own independent
conclusions with respect to the matters at issue. Stava v.
Stava, 318 Neb. 32, 13 N.W.3d 184 (2024). Applying that

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standard, I believe, on this record, Shawn provided sufficient
proof of the value of his premarital rental real estate portfo-
lio, and I would find that the trial court abused its discretion
in not crediting Shawn with the value of those six premarital
rental properties he brought into the marriage. See Ramsey v.
Ramsey, 29 Neb. App. 688, 958 N.W.2d 447 (2021) (finding
that value of traceable premarital interest in home where it
was not disputed by wife should have been set aside as hus-
band’s premarital interest).