Consent Decree Fee Waivers Bind Across Bifurcated Proceedings; Tracing Burdens and Court-Ordered Farm Sales Reaffirmed — White v. White (Neb. 2025)

Introduction

In White v. White, 320 Neb. 256 (2025), the Nebraska Supreme Court addressed a multi-faceted dissolution dispute between Keith N. White (appellant-husband) and Nancy E. White (appellee-wife), complicated by a third-party intervention by J.E.M. Farms, LLC, claiming a one-half interest in one of the two marital farms. The case presented intersecting issues of:

• whether a consent decree entered in a bifurcated intervention proceeding forecloses subsequent fee-shifting efforts made in the companion dissolution action;
• the standard and sufficiency of “tracing” required to set aside property as nonmarital inherited or premarital assets;
• whether alleged marital debts (a COVID-era business loan and loans incurred to pay temporary spousal support) must be included and how dissipation is proven; and
• the trial court’s discretion to order sale of marital farmland rather than award in-kind with an equalization payment.

The district court had entered a consent decree quieting title in favor of J.E.M. as to a one-half interest in Farm 2, with all parties agreeing to bear their own fees and costs. In the dissolution decree, the court largely rejected Keith’s tracing claims (except for $260,000 of a paternal inheritance applied to Farm 1), denied fee-shifting and dissipation claims, declined to treat loans used to pay temporary spousal support as marital debt, and ordered the sale of both farms subject to an option for either spouse to purchase at appraised value. The Supreme Court affirmed in full.

Summary of the Opinion

The Nebraska Supreme Court held:

• Consent decree controls fees: The parties’ consent decree in the bifurcated intervention—explicitly requiring each side to bear its own fees and costs “with respect to [J.E.M.’s] amended complaint in intervention and any matters pertaining thereto”—bound the parties and precluded Keith’s later effort to recoup those fees through the dissolution action. Moreover, Nancy’s litigation posture was not frivolous or in bad faith.
• Tracing burden unmet (except $260,000): Keith failed to carry his burden to trace alleged nonmarital property from premarital business interests (White Grain) and most of his inheritance into current assets. The court credited only $260,000 of his $340,000 paternal inheritance as traceable to Farm 1; the balance failed for lack of credible proof and because subsequent loans and marital commingling undermined tracing.
• COVID loan and dissipation: Keith did not prove an outstanding marital debt balance or dissipation by Nancy regarding a COVID-related business loan. Testimony lacked documentary support and did not establish misuse after irretrievable breakdown.
• Loans to pay temporary support are not automatically marital debt: The theory that debt incurred to pay a temporary spousal support order must be divided as marital was neither preserved below nor supported; the appellate court declined to consider it.
• Sale of farmland within discretion: Ordering sale of Farms 1 and 2 (with a purchase option at appraised value) was reasonable under the circumstances—distinguishing the disfavor of forced sales in farm cases like Kellner—because there was no farming lifestyle dependence, valuations could have changed since 2022, and a third-party co-ownership affected Farm 2.

Result: Judgment affirmed.

Analysis

Precedents Cited and Their Role

• Standards of review:
  • Stava v. Stava, 318 Neb. 32, 13 N.W.3d 184 (2024): De novo review on the record in dissolution with abuse-of-discretion deference to determinations on property division, alimony, fees.
  • Trausch v. Hagemeier, 313 Neb. 538, 985 N.W.2d 402 (2023): Abuse-of-discretion standard for allowing/disallowing attorney fees for frivolous or bad-faith litigation.
• Consent decrees:
  • Hoshor v. Hoshor, 254 Neb. 743, 580 N.W.2d 516 (1998): A consent decree is treated as an agreement between the parties and given greater force than ordinary judgments. This anchored the holding that the consent decree in the intervention governed fee entitlement without regard to the dissolution caption where fees were later sought.
• Frivolous/bad-faith litigation:
  • SID No. 596 v. THG Development, 315 Neb. 926, 2 N.W.3d 602 (2024): “Frivolous” connotes an improper motive or a position wholly without merit; doubts resolved in favor of the litigant whose position is questioned. This supported the denial of sanctions against Nancy regarding the J.E.M. dispute.
• Marital vs. nonmarital property and tracing:
  • Seemann v. Seemann, 316 Neb. 671, 6 N.W.3d 502 (2024): The party claiming nonmarital character bears the burden; segregation or provable tracing can preserve separate character.
  • Osantowski v. Osantowski, 298 Neb. 339, 904 N.W.2d 251 (2017): General rules on marital property and transmutation through inextricable mixing.
  • Foundational principles reaffirmed: “All property accumulated and acquired by either spouse during the marriage is generally considered part of the marital estate,” except property acquired before marriage, by gift, or by inheritance—unless transmuted.
• Issue preservation and party-presentation:
  • Dycus v. Dycus, 307 Neb. 426, 949 N.W.2d 357 (2020): Appellate courts consider only errors both specifically assigned and argued.
  • United States v. Sineneng-Smith, 590 U.S. 371 (2020): Party-presentation principle—courts act as neutral arbiters of issues the parties present.
  • State v. Olbricht, 294 Neb. 974, 885 N.W.2d 699 (2016): Specific assignment-and-argument facilitate proper appellate review and avoid courts doing parties’ work.
  • Elbert v. Young, 312 Neb. 58, 977 N.W.2d 892 (2022): Appellate courts will not consider theories raised for the first time on appeal.
  • Additional authorities cited to illustrate the policy rationale (e.g., Linton v. Linton, 117 S.W.3d 198 (Mo. App. 2003); Shelton v. Shelton, 717 S.W.3d 810 (Mo. App. 2025); Rosier v. State, 276 So. 3d 403 (Fla. App. 2019); People v. Spinelli, 83 Ill. App. 2d 391, 227 N.E.2d 779 (1967)).
• Invited error:
  • D&M Roofing & Siding v. Distribution, Inc., 319 Neb. 707, 24 N.W.3d 850 (2025): A party cannot complain of error the party invited. Applied when Keith limited his claim to a $225,000 White Grain trace in posttrial briefing.
• Debt proof and dissipation:
  • Turner, Equitable Distribution of Property § 6:96 (4th ed. 2024): The party seeking division bears the burden to prove the existence of a debt.
  • Reed v. Reed, 277 Neb. 391, 763 N.W.2d 686 (2009): Dissipation = selfish use of marital property unrelated to the marriage during its irretrievable breakdown.
• Forced sale of assets in dissolution:
  • Kellner v. Kellner, 8 Neb. App. 316, 593 N.W.2d 1 (1999): Courts may order sales, but such sales, especially of farmland, are disfavored absent necessity; courts should be mindful of tax consequences and agricultural livelihoods. White distinguishes Kellner given no farming lifestyle, possible valuation changes, and third-party interest.
  • Bolduc v. Bolduc, 301 A.3d 771 (Me. 2023) (cf. n.42): Acknowledgment in White of a third-party’s one-half interest in Farm 2—illustrating the practical overlay on division.

Legal Reasoning

1) Fee-shifting after a consent decree in a bifurcated intervention

The Court treated the quiet title consent decree with J.E.M. as a binding agreement (Hoshor), expressly providing that each party would pay its own fees and costs concerning the intervention and matters “pertaining thereto.” Keith tried to recast the fee claim under the dissolution statute (§ 42-351) and, alternatively, Nebraska’s frivolous litigation statute (§ 25-824). The Court rejected both routes:

• Form does not control substance: a consent decree’s fee allocation cannot be evaded simply by switching captions (intervention vs. dissolution).
• No abuse of discretion in rejecting frivolousness: Nancy’s defense was not “ridiculous,” and any doubt is resolved in her favor (SID No. 596).

2) Tracing nonmarital property and the pitfalls of proof

The Court reaffirmed:

• The proponent bears the burden to trace and segregate nonmarital assets; otherwise, assets acquired during marriage are marital.
• Separate property can transmute into marital property when inextricably mixed with marital funds, in contrast to a demonstrably segregated or traceable product (Seemann; Osantowski).

Applying these principles:

• White Grain: Keith’s reliance on self-prepared spreadsheets and lists of unknown provenance, a deed reciting $1 consideration, and sparse testimony lacked the documentary specificity and credibility to trace $225,000 in proceeds (alleged bin site sale) into the Niobrara properties—especially given contrary testimony suggesting the Niobrara project was funded with a loan against Farm 1. The trial court was entitled to disbelieve self-interested, inconsistent testimony even if “uncontradicted” (Brozek; Burgardt; Ramsey). Further, Keith had conceded below that only the $225,000 was “clearly traceable,” inviting the court to limit its analysis accordingly (invited error).
• Inheritance from father: The Court affirmed the district court’s allowance of $260,000 as traceable nonmarital property applied to Farm 1, but not the full $340,000. A $100,000 same-day promissory note on Farm 1, Keith’s admission that “some of the inheritance money had gotten away,” and subsequent sizable loans secured by Farm 1 for other marital acquisitions undermined his claim that the entire inheritance remained traceable to Farm 1 as a segregated asset. Absence of bank records (deposits/withdrawals) further weakened the claim.
• Inheritance from uncle: Not proven at trial; a unilateral “Joint Property Statement” was not substantive evidence of existence or tracing. No error in denying set-aside.

3) Debt claims: COVID loan and loans to pay temporary support

• COVID loan: Keith failed to prove an outstanding balance or its amount. Both parties acknowledged the loan’s existence and use for business expenses, but there were no documents, and Keith’s testimony lacked detail. The Court agreed with the district court that the burden to prove a divisible debt was not met (Turner § 6:96). On dissipation, there was no showing of selfish purpose or timing after irretrievable breakdown (Reed). Nancy’s testimony that funds ran through the joint business account for ordinary expenses cut against dissipation.
• Loans to pay temporary support: Keith argued for the first time on appeal that debt incurred to comply with a temporary support order is a marital obligation. The Court declined to entertain an unpreserved theory (Elbert) and noted no authority supports treating personal borrowings to pay court-ordered support as a divisible marital debt in the property division. The district court also found insufficient evidence that Keith could not meet the temporary support obligation from income.

4) Ordering sale of Farms 1 and 2

While forced sales are generally disfavored in dissolution—especially farmland—the Court emphasized trial courts’ discretion to order sales when reasonable under the circumstances (§ 42-365; Kellner). It distinguished Kellner:

• No ongoing farming lifestyle: Neither spouse nor their children farmed the land; both farms were rented for income. The core Kellner concern of upending an agricultural way of life was not present.
• Valuation dynamics: Although 2022 appraisals were uncontested at trial, values could have materially changed by the 2024 decree; the court reasonably opted for a market-validated process (three appraisals, average price) with either party free to buy.
• Third-party co-ownership: J.E.M. held a one-half interest in Farm 2; while only half was part of the marital estate, the presence of a non-party owner complicated in-kind division. Notably, J.E.M. did not object to sale and did not appeal.

The decree’s sale mechanism preserved fairness and flexibility: either spouse could purchase at the averaged appraised value, no family member could earn fees on the transaction, and proceeds would be split after crediting Keith the $260,000 nonmarital set-aside.

Impact and Practical Significance

• Consent decree finality across bifurcated tracks: Parties should expect that fee allocations in a consent decree resolving an intervention (e.g., quiet title) will bind them if they later attempt to shift those fees in the companion dissolution. Practitioners must draft and negotiate such fee clauses with full awareness of their preclusive force.
• Tracing demands documentary rigor: Self-prepared summaries, spreadsheets, or “chronological lists,” without corroborating bank records or third-party documentation, are unlikely to carry a tracing burden—especially where subsequent loans, transfers, or commingling occurred. Testimonial inconsistencies will be fatal to tracing credibility.
• Debt and dissipation claims require evidence: To allocate marital debt, parties must prove the existence, balance, and marital purpose. Dissipation requires proof of selfish spending during the breakdown period, not mere uncertainty about use. COVID-era loans are no exception: documentation matters.
• Temporary support borrowings are not per se “marital”: Absent clear authority and preservation below, courts will not convert a payor’s choice to borrow for support into divisible marital debt. If such a theory is pursued, it must be expressly raised and supported in the trial court.
• Sales of farmland can be equitable: While disfavored, forced sales are permissible where agricultural lifestyle is not at stake, valuations are dated, equalization would require significant financing, or third-party interests complicate in-kind division. Sale orders coupled with a buy-out option via updated appraisals provide a measured path that balances fairness and market reality.

Complex Concepts Simplified

• Consent Decree: A court order reflecting the parties’ agreement; it functions like a contract. Here, it included a mutual promise that each side pays its own fees in the intervention, which the court enforced.
• Tracing: Showing, with credible proof, that present property stems from a separate (nonmarital) source. Good tracing keeps separate property from being divided. Commingling or inconsistent use can “transmute” it into marital property unless thoroughly documented.
• Transmutation: When separate property is inextricably mixed with marital property (or the other spouse’s separate property), it becomes marital unless still clearly traceable.
• Dissipation: One spouse’s waste or selfish use of marital assets during the relationship’s breakdown—for example, transferring funds to a paramour after separation.
• Party-Presentation Principle: Appellate courts decide issues that parties properly raised and argued. New theories on appeal usually won’t be considered.
• Equalization Payment: A cash payment used to balance out the value when one spouse receives more property in kind.
• Forced Sale vs. In-Kind Division: Courts often try to give each spouse property without requiring a sale, but may order a sale if that’s more equitable or practical.

Conclusion

White v. White delivers three durable messages for Nebraska family law:

1. Agreed fee dispositions bind. A consent decree in a bifurcated intervention governs fee rights; parties cannot sidestep it through the dissolution docket, and sanctions won’t issue absent truly frivolous conduct.
2. Tracing is exacting. The Court reinforced a disciplined tracing paradigm: documentary corroboration, consistent testimony, and attention to commingling and subsequent borrowings are essential. The district court’s partial set-aside of $260,000—despite weak records—was “generous” given the flaws.
3. Sales are available when equitable. Although farm sales remain disfavored in general, a court may order them when circumstances (no farm operation, stale valuations, third-party co-ownership) make sale with a purchase option the fairest route.

For litigants and counsel, the case is a cautionary guide: memorialize fee obligations with care; come to trial prepared with bank records, deeds, notes, and third-party corroboration; preserve debt allocation theories in the trial court; and be realistic about remedies—particularly where agricultural land serves primarily as an investment rather than a way of life. White does not break new doctrinal ground so much as it synthesizes and applies Nebraska’s established principles to modern dissolution realities—particularly the interweaving of third-party property interests and pandemic-era lending—in a clear, pragmatic manner.