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Seitz v. Seitz3/22/2005
sult in matters submitted for disposition through a judicial system. Hosack v. Hosack, 267 Neb. 934, 678 N.W.2d 746 (2004); Gase v. Gase, 266 Neb. 975, 671 N.W.2d 223 (2003).
In a review de novo on the record, an appellate court reappraises the evidence as presented by the record and reaches its own independent conclusions with respect to the matters at issue. Tyma v. Tyma, 263 Neb. 873, 644 N.W.2d 139 (2002).
ANALYSIS
The purpose of a property division is to distribute the marital assets equitably between the parties. Neb. Rev. Stat. § 42-365 (Reissue 1998); Gangwish v. Gangwish, supra; Claborn v. Claborn, 267 Neb. 201, 673 N.W.2d 533 (2004). Under § 42-365, the equitable division of property is a three-step process. The first step is to classify the parties' property as marital or non-marital. 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 in accordance with the principles contained in § 42-365. Gangwish v. Gangwish, supra; Mathews v. Mathews, 267 Neb. 604, 676 N.W.2d 42 (2004). Although the division of property is not subject to a precise mathematical formula, the general rule is to award a spouse one-third to one-half of the marital estate, the polestar being fairness and reasonableness as determined by the facts of each case. Gibilisco v. Gibilisco, 263 Neb. 27, 637 N.W.2d 898 (2002); Meints v. Meints, 258 Neb. 1017, 608 N.W.2d 564 (2000).
Premarital Townhouse
James first argues that the district court erred in its division of the marital estate by giving Christine credit for the downpayment on the marital home, since she alleged it was made with non-marital funds from her townhouse. 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 general rule. Schuman v. Schuman, 265 Neb. 459, 658 N.W.2d 30 (2003); Heald v. Heald, 259 Neb. 604, 611 N.W.2d 598 (2000). The burden of proof is on the party seeking to have an asset declared premarital; such party must present evidence showing the source of the asset. See Frost v. Frost, 227 Neb. 414, 418 N.W.2d 220 (1988). If there is nothing in the record to show the source of an asset, and even if a party's allegation as to the source is uncontroverted, the asset should be considered part of the marital estate. See id.
In this case, the court awarded Christine a $33,000 credit "for down-payment" on the parties' marital home. At trial, Christine offered two documents in support of her contention that she was entitled to this credit. The first document is an unsigned and undated estimate from a real estate company. The estimate shows the approximate net proceeds to be realized by the unidentified seller of an unidentified property. The estimate indicates that the approximate net proceeds after mortgage payoff would be between $32,738 and $36,300. The second document is an unsigned, estimated closing statement for the parties' marital home, which statement shows the parties' intention of making a $33,115.23 downpayment. These documents do little to support Christine's contention that she used the proceeds realized from the sale of the townhouse as a downpayment on the marital home. The townhouse is not even referenced in the documents.
Further, even if Christine had presented evidence sufficient to trace the funds from the sale of the townhouse to the purchase of the marital home, the court's award of the full amount realized from the sale of the townhouse would have been in error. Although Christine purchased the townhouse in 1989, we note that she and
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