Osantowski v. Osantowski
298 Neb. 339
| Neb. | 2017Background
- Brian and Dori Osantowski married in September 2011, separated May 2014; dissolution trial held Jan–Feb 2016.
- Brian is a farmer who entered the marriage owning significant premarital assets: stored and growing crops (claimed value ≈ $1,021,503.07), several one-third interests in farms, and bank account balances (≈ $182,471).
- The parties submitted joint property statements with differing valuations; expert accountant Hershberger provided crop inventories and valuations that changed during trial.
- Trial court treated premarital crops and premarital bank funds as commingled (denying setoff), included certain crops and proceeds in the marital estate, and awarded roughly half the marital estate to each spouse with a $680,000 equalization payment from Brian to Dori.
- On appeal, Brian challenged tracing/setoff of premarital crops and bank funds, valuation date for stored crops, alleged double-counting of assets, and mathematical/assignment errors in the property division.
Issues
| Issue | Brian's Argument | Dori's Argument | Held |
|---|---|---|---|
| Whether premarital stored and growing crops and premarital bank funds should be set off from marital estate | Brian: proved value of premarital crops and accounts and is entitled to setoff; crops should be traceable (or treated like a herd) | Dori: premarital crops/proceeds were commingled and Brozek controls—no setoff | Court: reversed—Brian proved premarital crop/account values; equity and short marriage warranted setoff ($1,203,974.07) |
| Whether crops may be treated like a cattle herd for tracing | Brian: crops are biologic and can be treated like livestock as a single asset for tracing | Dori: crops are short-term, liquid commodities and not like cattle | Court: crops categorically differ from cattle; herd-tracing rule inapplicable to crops |
| Valuation date and amount for crops in storage at separation | Brian: crop quantity/value should be measured as of date of separation (May 31, 2014) yielding $444,099.68 | Dori: trial court credited March 20, 2014 balance sheet and court should be deferred to on credibility | Court: abused discretion to use March 20 figure while also using May bank balance (double count); awarded $444,099.68 for stored crops at separation |
| Other valuation/math errors, double-counting, and unassigned debts/assets | Brian: court double-counted $78,500 downpayment and made other arithmetic errors; failed to set off premarital Dodendorf debt and failed to value several assets/debts; should adjust equalization payment | Dori: trial court valuations supported by record | Court: found plain error on several items (double-counting, Roberts farm debt overstatement, failure to set off Dodendorf debt, omitted asset valuations, credit for premarital debt reduction); recalculated marital estate and ordered revised equalization payment of $260,761.15 |
Key Cases Cited
- Bergmeier v. Bergmeier, 296 Neb. 440 (sets out three-step equitable division process under § 42-365)
- Brozek v. Brozek, 292 Neb. 681 (discusses tracing, commingling, and inclusion of premarital crops/bank funds in marital estate)
- Sellers v. Sellers, 294 Neb. 346 (discusses treating a cattle herd as single asset for tracing purposes)
- Schuman v. Schuman, 265 Neb. 459 (appellate de novo review in domestic relations matters)
- Kalkowski v. Kalkowski, 258 Neb. 1035 (permits flexibility in treatment of stored/growing crops based on equities)
- Davidson v. Davidson, 254 Neb. 656 (exceptional case reducing typical one-third–one-half award where bulk of marital estate derived from premarital career earnings)