THE BURDEN OF PROOF ESTABLISHING NONMARITAL CHARACTER OF ASSETS IN NEBRASKA BY BRYAN P. ROBERTSON IN AN OPINION1 RELEASED IN LATE APRIL, THE NEBRASKA Court of Appeals reviewed the burden of proof2 necessary to establish whether assets are nonmarital for Nebraska marital dissolution purposes. The court held that the “greater weight” burden applies generally but that a higher “clear, unequivocal, and convincing” burden applies when the asset in question is sought to be treated in a manner inconsistent with its recorded legal title. Facts Benjamin and Judith Weston were married on June 20, 2008. On Nov. 8, 2012, Benjamin’s parents deeded property they owned, and in which Benjamin had resided since 1987, to Benjamin and Judith as joint tenants. Beginning in the summer of 2020, the Westons renovated an agricultural structure on the jointly titled property for their residential use. Judith’s mother contributed approximately $124,000 to the renovation project. Opinion Citing a 2019 Nebraska Supreme Court opinion, the appeals court noted that equitable division of property in Nebraska is the result of a three-step process. “The first step is to classify the parties’ property as marital or nonmarital, setting aside the nonmarital property to the party who brought that property to the marriage … The second step is to value the marital assets and marital liabilities of the parties … The third step is to calculate and divide the net marital estate between the parties.”3 The court turned to the first of those steps and Benjamin’s argument4 that, despite its joint titling, the real property transfer was a gift to him individually. The court noted that the burden of proof to show that property is nonmarital resides with the party making that claim. The court also noted that although the manner in which property is titled or transferred is not determinative for Nebraska marital dissolution purposes, “[w]hen real estate is conveyed in joint tenancy, any parol evidence to overcome the recorded legal title must be clear, unequivocal, and convincing.”5 Agreeing with the trial court, the appellate court concluded that the contested evidence offered by Benjamin was insufficient to overcome the recitals in the deed that the property was jointly gifted. “[W]e do not believe [that the evidence offered by Benjamin] rises to the clear, unequivocal, and convincing standard. This is particularly true when we give weight to the district court’s decision to accept Judith’s version of the facts over Benjamin’s and his mother’s.”6 Looking at the property classification issue in a second context, the court addressed Judith’s argument7 that the renovation funding provided by her mother was nonmarital property. The court first outlined its disagreement with the trial court and the litigants relative to their use of the “clear, unequivocal, and convincing” burden of proof with respect to the renovation funding item. The appellate court noted that, unless an exception8 applies, “the burden of proof in civil cases requires only the greater weight of the evidence.”9 In concluding10 that Judith satisfied her burden to establish, by the greater weight of evidence, that the renovation contributions were gifts, the appellate court acknowledged the credibility determinations documented by the trial court 30 Nebraska CPA
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