FT - Maibaum v. Maibaum (4/10/2001)

[Riser Adkisson LLP]

Maibaum v. Maibaum,
No. A-00-182 (Neb.App. 04/10/2001)

THE COURT OF APPEALS OF THE STATE OF NEBRASKA

No. A-00-182.

2001.NE.0000137

April 10, 2001

DONNA MARY MAIBAUM, APPELLEE,

v.

ERN JOSEPH MAIBAUM, APPELLANT.

David A. Domina and James F. Cann, of Domina Law, P.C., for appellant. Mark A. Johnson, of Johnson
& Morland, P.C., for appellee.

Hannon, Carlson, and Moore, Judges.

The opinion of the court was delivered by: Moore, Judge

(not designated for permanent publication)

Appeal from the District Court for Knox County: Richard P. Garden, Judge. Affirmed as modified.

INTRODUCTION

Vern Joseph Maibaum appeals from the decree filed January 31, 2000, by the district court for Knox
County which dissolved the marriage of Vern and Donna Mary Maibaum. For the reasons stated below,
we affirm as modified.

BACKGROUND

The parties were married on September 15, 1978, and had one child together, Anthony Maibaum
(Tony), born on April 4, 1979. Donna's previous husband, Alfred Boecker, was killed in a work-
related accident in June 1975. Donna and Boecker had six children, ranging from 10 to 13 years
old, according to Donna's testimony, at the time of Vern and Donna's marriage. Between 1978 and
1988, Donna received Social Security payments totaling $95,907 and workers' compensation payments
totaling $59,908 in connection with Boecker's death. Donna testified that these funds were placed
in a checking account that the parties referred to as the "Boecker Children Account." Donna
further testified that the funds in that account were used for day-to-day household expenses,
although she did make payments out of the children's account, totaling approximately $10,000, on
Vern's first pickup truck. On cross-examination, Donna agreed that most of the family living
expenses that came out of that account were attributable to expenses for her first six children.
Donna testified that the parties did not have a joint checking account when they were first
married and that she wrote checks off of the children's account until around 1984 or 1985 when she
and Vern started a joint checking account. Donna indicated that Vern drew money from the farm
account to pay the electric bill and other house and farm expenses. Donna also owned a house in
Crofton, Nebraska, as a result of her first marriage, which house she sold following her marriage
to Vern. In January 1979, the parties moved to Vern's farm. At the time of trial, Donna was still
receiving $197.83 per month from the sale of her house and would continue receiving those payments
through May 2002. Although Donna was not employed outside of the home when she and Vern married,
she did periodically perform various bookkeeping services throughout the marriage.

With regard to household responsibilities, Donna testified that she was responsible for household
chores such as meal preparation and the laundry and that she took Tony to the doctor, attended his
parent-teacher conferences, and helped him with his homework. She testified further that Vern
never assisted Tony with homework, attended parent-teacher conferences, or shopped for Tony's
clothing.

Vern is a 50-percent owner, together with his brother, Konrad Maibaum, of the farming partnership
Maibaum Brothers, which originally included Vern and Konrad's mother. At the time of trial, Vern
received $1,800 per month from the partnership, either as lease payments for farm ground or as a
salary draw. Maibaum Brothers grows corn, beans, and alfalfa; raises hogs; and performs custom
farming work.

Donna testified that she performed bookkeeping for the partnership through approximately August
1998 when she and Vern separated, taking over this work from Konrad, who initially performed the
partnership bookkeeping. Vern testified that Donna started handling the partnership's bookkeeping
as neither he nor Konrad "care[d] to do the books." Donna's evidence at trial indicated that she
spent an average of 10 hours per month in providing this service and an additional 30 hours per
year for income tax preparation until they obtained a computer in 1990. Thereafter, Donna spent 5
hours per month on the bookkeeping and 12 hours per year for income tax preparation.

Donna testified that she and the children helped to clean up the farm when the parties were first
married, starting with a wheelbarrow and later a garden cart and Bobcat to help remove loads of
junk, clean up fallen trees, and remove old fencing and an old building. She also sought out
information regarding assistance to plant a shelterbelt, which the parties subsequently
accomplished. Donna further testified that she helped to clean out a barn and another building to
make them usable for hogs and performed general building painting and repair. Donna also testified
that she helped with hog chores such as "scoop[ing] out barns [and] crates," farrowing, "clipping
pigs' feet, docking tails, sorting hogs, [and] haul[ing] manure." Donna also testified to
preparing meals on a seasonal basis for farmhands and taking the meals out to the field. Vern
testified, however, that while Donna and the children cleaned out the barn to put hogs in it, the
actual remodeling work was done by a carpenter hired by Vern. Vern also agreed that Donna helped
"a little bit" with farrowing and cooked some meals for farmhands, although the main farm ground
is near Konrad's residence, so Donna did not do the majority of cooking for the farmhands. Konrad
testified that he had never seen Donna working on the farm, although he would not necessarily know
as he and his wife did not live near Vern and Donna.

Konrad's son Jeff Maibaum testified that he and his brothers (the nephews) do most of the labor
for Maibaum Brothers and that for the first few years, he did not receive a wage from the
partnership, which later started paying the nephews each $5,000 per year. In approximately 1986 or
1987, this payment was increased to $7,000 per year. Jeff testified further that at some point,
the nephews decided that they could not make a living on that kind of money, so they began buying
their own equipment and doing custom work. Jeff testified, in essence, that they performed work
for the partnership without compensation in order to eventually receive the land and the farming
operation from Maibaum Brothers. Jeff indicated that the nephews understood that when Vern
retired, the operation would "pass down" and that they hoped to then continue the farming
operation. Jeff testified that the bulk of Maibaum Brothers' farrowing, of as many as 80 sows at
times, was performed by the nephews at the main hog farrowing site on the farm, but that during a
period of 3 to 5 years out of the 20-year marriage, extra hogs were taken to a building at Vern
and Donna's homesite where approximately 12 hog crates were used. Jeff indicated that the nephews
did not bring hogs to Vern and Donna's place for farrowing unless they had to because the building
at Vern and Donna's site was uninsulated and had a limited number of farrowing crates. Jeff also
testified that he did see Donna working with the hogs.

The various pieces of real estate involved in this appeal, currently held by Vern and/or Vern and
Donna, in whole or in part, will be referred to as follows, without legal descriptions, consistent
with the manner in which the parties referred to them throughout the proceedings: the "Ruden
Place," Vern's mother's house in Crofton (the "Crofton House"), the "Anderson Place," the "Meyer
Place," the "North Place," and the "Home Quarter."

The Ruden Place is approximately 480 acres and is primarily used as tillable farmland and pasture.
The Ruden Place was purchased on contract by Vern and Konrad prior to Vern and Donna's marriage.
In 1985 when the contract on the Ruden Place was due, to prevent foreclosure by the Production
Credit Association, Vern, Konrad, and their spouses borrowed money to pay off the loan contract.
At that time, three promissory notes were taken out with the Farmers & Merchants State Bank in
Crofton, only one of which was signed by Donna. Donna also signed a guaranty on the notes on
behalf of Konrad; Darlene Maibaum, Konrad's spouse; and Vern, doing business as Maibaum Brothers.
At the time of trial, Donna had not been released from the guaranty she signed on the farm debt.
Also at that time in 1985, a deed to the Ruden Place was issued listing "Konrad Maibaum and
Darlene Maibaum, his wife," and "Vern Maibaum and Donna Maibaum, his wife." as grantees and
deeding an undivided one-half interest in the property as "joint tenants and not as tenants in
common" to each married couple. Vern testified regarding the preparation of this deed that he did
not really know that the deed was going to be prepared with all four grantees names, that he just
knew the bank said they had to sign certain papers, that he did not read the deed that closely,
that Konrad and Donna handled most of the transaction, that he trusted them, and that whatever
they did was fine with Vern. The Ruden Place deed was executed and delivered to the parties
November 4, 1985, and filed with the Knox County register of deeds' office on November 13, 1985. A
loan officer at Farmers & Merchants State Bank in Crofton testified that as a routine matter, the
bank takes signatures from spouses of all debtors and that Maibaum Brothers' assets were
sufficient to secure its indebtedness.

The property in Crofton was originally purchased by Vern and Donna shortly after they were
married. Subsequently, when Vern and Konrad's mother decided to move off of the farm, Vern and
Konrad built her a house on the property. On September 5, 1979, Vern and Donna signed a deed,
quitclaiming the property to his mother. The Crofton House cost $34,000 to build. After their
mother's death in 1990, Vern and Konrad received the Crofton House from her estate and took title
as tenants in common. The deed received by the brothers from the estate, executed on July 2, 1990,
was filed March 14, 1991, with the Knox County register of deeds office. The Anderson Place was
also received by Vern and Konrad as tenants in common from their mother's estate. The Anderson
Place is approximately 169 acres and is primarily used in the hog-cattle operation.

The parties do not dispute that Vern and Konrad purchased the Meyer Place and the North Place
prior to Vern and Donna's marriage. The Meyer Place is approximately 167.66 acres and is primarily
used as tillable ground. The North Place is approximately 440 acres and is primarily used as
pasture and hay land.

Vern's mother deeded a life interest in the Home Quarter to Vern on October 22, 1979, with the
remainder interest going to Tony. Vern and Donna lived on the Home Quarter from the time that
Vern's mother moved to the Crofton House. The deed from his mother was not filed with the Knox
County register of deeds' office until July 31, 1981, 21 months after the deed was signed. Vern
and Donna deeded the Home Quarter out to Crofton State Bank in October 1985, receiving a
corporation quitclaim deed back from Crofton State Bank dated October 18, 1985, and filed on
November 9, 1988, and from the Federal Deposit Insurance Corporation dated November 2, 1988, and
filed on February 15, 1996. The deeds from the bank and the Federal Deposit Insurance Corporation
were to Vern and Donna Maibaum, husband and wife, as grantees. The Home Quarter is approximately
160 acres and is primarily used as tillable land and a homesite.

Vern had a heart attack on March 4, 1997, and was taken to an emergency room in Yankton, South
Dakota. The admission history from the intensive care unit and physical examination notes indicate
that upon physical examination, Vern "appear[ed] in no apparent distress, with good color. The
patient jok[ed] and laugh[ed] a lot, but [was] somewhat uneasy about this situation." A cardiac
catheterization study was conducted on March 6, at which time, Vern was "alert and oriented." The
study demonstrated "multivessel coronary artery disease with critical life threatening left main
coronary artery stenosis." Following the cardiac catheterization study, Vern was lifted by air
flight to Sioux Valley Hospital in Sioux Falls, South Dakota, where he underwent a five-way heart
bypass surgery. The surgery was originally scheduled for March 10, but due to scheduling
difficulties, was not performed until the following day. The operative note indicates that it was
an "[u]rgent, five-vessel coronary artery bypass." A consultation note from March 9, 2 days prior
to the surgery, indicates that a physical examination revealed "a well-developed, well-nourished,
white male in no acute distress. [H]e is alert, oriented and cooperative." Vern is also a
diabetic, and he had a cancerous tumor partially removed from his colon in 1999, followed by
chemotherapy and radiation treatments.

Exhibit 12, a joint tenancy warranty deed conveying from "Vern Maibaum, also known as Vern J.
Maibaum, and Donna Maibaum, husband and wife, GRANTORS" to "GRANTEES, Vern Maibaum and Donna
Maibaum, husband and wife . . . as joint tenants and not as tenants in common . . . Grantor's
undivided one-half interest" in the Anderson Place, the Meyer Place, the Crofton House, and the
North Place, was admitted at trial. The deed, executed on March 10, 1997, the day before Vern's
heart surgery, and filed December 2, 1999, was signed by both Vern and Donna and was notarized as
well. On cross-examination, Donna confirmed that although the deed indicated the grantors as "Vern
and Donna," prior to this March 10 deed, her name was not on the deeds for any of these
properties. The second document, a durable power of attorney, appointing Donna to act in Vern's
stead, apparently was never implemented, but was admitted as an exhibit at trial. Donna testified
that she initiated putting together the original of exhibit 12 while Vern was hospitalized in
Sioux Falls awaiting heart surgery because they had discussed jointly holding that real property.

The deed was prepared by an attorney. Donna also testified that besides herself and Vern; Amy
Riesberg, Donna's daughter; the notary public who notarized and signed the deed and the power of
attorney; and the two nurses who witnessed the power of attorney were all present when Vern signed
the documents. Donna testified that Vern told her at the time that that was the way he wanted it.
Donna testified further that Vern also indicated at the time that if something happened to him, he
did want to be able to give some of his property to his nephews, although he was not specific as
to which property. When asked why the deed was not filed until December 1999, Donna indicated that
it "got put on the back burner," that it was a stressful time, that she simply sent the papers
back to the attorney who prepared them, and that she rediscovered exhibit 12 when her trial
attorney brought the matter to her attention. Donna's attorney also asked whether "[p]rior to the
filing date of December 2, 1999, [Donna knew] that [she] did not own any of that property?" Donna
responded, "Well, it was ." On cross-examination, Donna indicated that while she did not think
that Vern would probably pass away at the time she had him sign the deed, she took it to the
hospital for him to sign "[b]ecause nothing is ever certain." Donna also indicated on cross-
examination that they had previously talked about the land and had talked about a will; that at
the time of Vern's heart surgery, she had the deed drawn up because Vern's "affairs were not in
order;" and that Vern knew what she had done and agreed to it. Seemingly inconsistent with her
testimony on direct, Donna denied that Vern had told her that he wanted to leave the land to his
nephews because they were farming the land.

Amy testified that she was also present with Vern and Donna prior to the signing, that she saw
Vern sign, and that she heard Vern say "[t]his is what he wanted also." Amy also testified that
Vern did not appear groggy, that there was nothing unusual about Vern's speech, that Vern was
having conversations with the people in the room, and that she believed Vern understood what he
was signing. Amy indicated further that Donna asked Amy, in Vern's presence, to take the signed
deed back to the attorney and that Vern never said not to file the deed. On cross-examination, Amy
indicated that they did not expect Vern to die in the hospital, but the papers were brought for
Vern to sign because "[s]ome things need to be taken care of, and this came up to be taken care of
at this time." Amy also agreed that Vern wanted to give something to his nephews, but she did not
know if it was the exact land transferred in the March 10, 1997, deed.

Vern testified that long before his heart attack, he and Donna had discussed getting his affairs
in order and preparing a will, but that he never told her he wanted to deed to her half of his
interest in the land. Vern testified further that he was surprised when his attorney indicated to
him that there was a deed on file and that he "[n]ever knew anything about that part." When asked
about the previous testimony from Donna and Amy that the deed was "what [he] wanted" and that he
"knew what [he was] doing," Vern responded that Donna told him "here's a paper for you to sign
yet, Vern," that he signed it, and that he never read it. Vern testified further that he did not
have his glasses with him in the hospital, that he would have to have his glasses to read, and
that he never attempted to read the papers given to him to sign. Vern also indicated that he "just
trusted her that it's another sheet of paper to sign." Vern indicated that he planned on leaving
his interest in the land to his nephews, who at that time performed the majority of the Maibaum
Brothers farming and custom work. On cross-examination, Vern affirmed that he did not read the
deed; that he did not discuss it with Donna, who told him the documents were papers he had to
sign; and that he did not know what they were for. Vern did acknowledge that his signature does
appear on the deed and the power of attorney. Vern also revealed on cross-examination that he
normally did not read his contracts, that Konrad "took it over," and that he always trusted
Konrad. When asked if he was concerned about dying and having his affairs in order on March 10,
1997, Vern indicated that after discussing his chances with his doctor, he was not concerned about
dying, although he was worried about his surgery.

After the parties separated on August 8, 1998, Donna had a "mental breakdown" in September 1998
and was hospitalized for 5 days. At the time of trial, she was still taking prescription drugs and
in counseling. Donna was advised by her counselor to maintain part-time employment at a maximum of
20 hours per week, rather than working full time. Donna filed a petition for dissolution of
marriage on February 8, 1999. During the pendency of this matter, Donna received $600 per month
from Vern as well as payment of $197 per month on the contract from the sale of her premarital
house.

Trial was held from January 25 through 27, 2000, and the court issued a decree, filed on January
31, dissolving the marriage of the parties. In the decree, the court found that Vern's share of
the partnership's increase in value over the course of the marriage was marital property and that
Donna had contributed labor and money to the partnership during the marriage. With regard to the
inclusion of the disputed real property as a part of the marital estate, the court noted that
during the marriage, Vern and Donna acquired a one-half interest in the Ruden Place, and that Vern
had executed and delivered to Donna a deed to himself and Donna, as joint tenants and not as
tenants in common, of Vern's undivided one-half interest in the Anderson Place, the Meyer Place,
the Crofton House, and the North Place. The court then stated that Gerard-Ley v. Ley, 5 Neb. App.
229, 558 N.W.2d 63 (1996), appeared to settle the dispute in Donna's favor, citing the following
two syllabus points from Gerard-Ley, as follows, in support of its conclusion:

"1. Marriage: Joint Tenancy: Consideration: Gifts: Presumptions. When a husband and wife take
title to a property as joint tenants, even though one pays all the consideration therefor, a gift
is presumed to be made by the spouse furnishing the consideration to the other.

"2. Divorce: Property Division: Gifts. When distributing property in a dissolution proceeding,
property acquired by one of the parties through either gift or inheritance should ordinarily be
set off to the individual who received the gift or inheritance and not be considered a part of the
marital estate; this general rule does not apply, however, if both of the spouses have contributed
to the improvement or operation of the property."

The court determined that Vern had not rebutted the gift presumption that arose in taking title as
joint tenants and in deeding property as joint tenants to himself and Donna, and found that the
one-half interest in the Ruden Place, the Anderson Place, the Meyer Place, the North Place, and
the Crofton House was marital property. The court determined the value of the one-half interest in
each property as follows: the Ruden Place, $177,210.50; the Anderson Place, $73,300; the Meyer
Place, $86,000; the North Place, $102,029.50; and the Crofton House, $20,000. The court found one-
half of the land debt to be $52,674. The court valued the total marital estate for distribution at
$509,945, with the breakdown as follows: net partnership appreciation, $92,793; net land value,
$405,866; and personal property, $11,286. The court divided the marital estate equally between the
parties, reasoning that the parties had been married for 20 years and that the accumulation of the
marital estate was aided by the labor and monetary contributions of both parties. The court
determined that Vern's life estate in the Home Quarter, a gift from his mother, was Vern's sole
property and not a part of the marital estate. The court found that the total marital debt of the
parties was intertwined with that of the partnership and land and that Donna had personally
guarantied all of the debt. The court allocated the debt in the property distribution and
determined that since there was an equal distribution of the marital estate, each party should pay
his or her own fees and costs. The court did not award alimony to either party. The court awarded
Donna personal property valued at $5,546, and as an additional property settlement, the court
ordered Vern to pay Donna the sum of $249,426.50. Vern was awarded as his sole and separate
property the parties' one-half interest in the remaining real estate, subject to any indebtedness
thereon, and was directed to remove Donna's name from all debt instruments and personal guaranties
at the parties' bank. Vern was to pay all the marital debt except certain debts that the court
allocated to Donna. Subsequently, Vern perfected his appeal to this court.

ASSIGNMENTS OF ERROR

Vern asserts that the district court erred in (1) finding that a presumption of an intended gift
arose from a challenged deed, which was recorded close to 33 months after it was signed and only
1½ months before trial; (2) finding that Vern had not rebutted the gift presumption arising from
the deed; and (3) finding that Vern's real property should be included in the marital estate and
divided between the parties.

STANDARD OF REVIEW

In actions for dissolution of marriage, 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. This standard of
review applies to the trial court's determinations regarding division of property, alimony, and
attorney fees. Heald v. Heald, 259 Neb. 604, 611 N.W.2d 598 (2000).

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. However,
where the credible evidence is in conflict on a material issue of fact, the appellate court
considers and may give weight to the circumstances that the trial judge heard and observed the
witnesses and accepted one version of the facts rather than another. Id.

A judicial abuse of discretion exists when a judge, within the effective limits of authorized
judicial power, elects to act or refrain from acting, but the selected option results in a
decision which is untenable and unfairly deprives a litigant of a substantial right or a just
result in matters submitted for disposition through a judicial system. Sears v. Larson, 259 Neb.
760, 612 N.W.2d 474 (2000).

ANALYSIS

Did Gift Presumption Arise From March 10, 1997, Deed?

Vern first asserts that the district court erred in finding that a presumption of an intended gift
arose from the deed signed on March 10, 1997. Vern notes in his reply brief that he is not
appealing the trial court's disposition of the Ruden Place and the Home Quarter. Accordingly, our
analysis will focus only on the issues pertaining to the transfer of the Crofton House, the
Anderson Place, the Meyer Place, and the North Place by virtue of the March 10 deed.

When a husband and wife take title to a property as joint tenants, even though one pays all the
consideration therefor, a gift is presumed to be made by the spouse furnishing the consideration
to the other. Gerard-Ley v. Ley, 5 Neb. App. 229, 558 N.W.2d 63 (1996). In Gerard-Ley, the husband
asserted that the trial court erred in including certain real property in the marital estate,
arguing that as this property was readily identifiable and traceable to the proceeds from the sale
of his inherited bank stock, it should be set aside and considered non-marital property. The
parties stipulated during the course of the trial that they took title to the property as joint
tenants, but disputed the meaning and effect of a clause in a trust agreement that created a
family trust with part of the proceeds from the sale of the husband's inherited bank stock. The
trust agreement provided that "'[i]n the event of the dissolution of marriage of Jon and Renet
Ley, each of them shall have and enjoy an equal one-half interest in the equity in their current
residence.'" Id. at 235, 558 N.W.2d at 67. This court ruled that although the husband utilized the
proceeds from the sale of his inherited stock to pay off the debt on the disputed property,
because he took title with his wife as joint tenants, it was appropriate to presume that he
intended a gift to his wife of a one-half interest in the property. This court found no testimony
or evidence in the record to rebut the presumption, noting that while the husband's testimony
reflected that he did not intend to make a gift of the property through the language in the trust
deed, he never addressed the fact that the title to the property had already been taken in joint
tenancy. Accordingly, this court held that the trial court in Gerard-Ley did not abuse its
discretion in including the property in the marital estate.

Vern attempts to distinguish Gerard-Ley from the present case and places a great deal of emphasis
on the phrase "take title as joint tenants." Vern argues first that he and Donna did not "take
title" to the property in question, and second, that they did not do so "as joint tenants." Vern
points out that to make a valid and effective gift inter vivos, there must be an intention to
transfer title to the property, a delivery by the donor, and acceptance by the donee. See In re
Estate of Saathoff, 206 Neb. 793, 295 N.W.2d 290 (1980). Vern asserts that in Gerard-Ley, the
disputed property was truly one to which the husband and wife "took title," with all indicia,
including the trust agreement language, pointing to joint tenancy. Vern notes that in the present
case, the March 10, 1997, deed listed both Vern and Donna as grantors, although Donna then held
only an inchoate interest in the property, and that the March 10 deed purported to create a joint
tenancy only with respect to Vern's undivided one-half interest in the property, the other
undivided one-half interest being held by Konrad. Vern asserts that the phrase "to take title"
surely does not mean to reconvey from husband to husband and wife or from husband and wife to
husband and wife, arguing that "taking title" instead implies an original acquisition and that
there was no such acquisition here. We find Vern's argument in this regard to be without merit.
Unless the March 10 deed is void because of lack of mental capacity on Vern's part or undue
influence, fraud, or misrepresentation on Donna's part, which we will discuss below, Donna
acquired an interest in the property which she did not have previously. Likewise, the March 10
deed altered Vern's interest in the property as well, and unless there is some other reason to
cancel the deed, thereby avoiding the gift presumption, Vern and Donna "took title as joint
tenants" by virtue of the March 10 deed.

Vern next asserts that in the present case, where a deed was signed but not read by the husband
while in the hospital prior to surgery and that same deed was not recorded by the grantee until
shortly before trial, then those circumstances "give rise to at least as much inference of
chicanery as to an inference of a gift." Brief for appellant at 14. Vern further asserts that
"hospital-bed conveyances" have frequently been attacked and struck down in Nebraska
jurisprudence. Id. Vern then cites a series of supposed "hospital-bed deed" cases. See, Hohneke v.
Ferguson, 196 Neb. 505, 244 N.W.2d 70 (1976) (considering whether certain gift deed containing
erroneous description could be reformed at grantee's request after grantor's death when disputed
deed was executed approximately 7 months before grantor's death and on way to hospital where she
died and grantor indicated to ambulance driver that she did not want to see her son, who was
grantee); Conry v. Langdon, 181 Neb. 53, 146 N.W.2d 782 (1966) (declining to set aside deed on
basis of undue influence and finding evidence supported finding of competency on part of grantor,
who had executed and delivered quitclaim deed conveying all of her interest in subject property
while confined in nursing home); Johns v. Carr, 167 Neb. 545, 93 N.W.2d 831 (1958) (finding
genuine issues of fact concerning delivery or non-delivery of deed thereby precluding summary
judgment where grantees did not learn of preparation and filing of deed until after death of one
of grantors and where other grantor signed deed following verbal misrepresentation as to its
contents and upon returning home from jail mentally confused and under influence of intoxicating
beverages and drugs); Simonsen v. House, 98 Neb. 653, 154 N.W. 211 (1915) (affirming district
court's decision to set aside deeds where grantor, who was insane at time of property transfer and
later committed to mental hospital, exchanged his stock of goods and certain real estate for tract
of land encumbered by mortgage and of grossly disproportionate value compared to property with
which he parted); Aldrich v. Steen, 71 Neb. 33, 98 N.W. 445 (1904), modified on rehearing, 71 Neb.
57, 100 N.W. 311 (finding evidence sufficient to avoid, for undue influence, deeds conveying all
of grantor's property to his housekeeper without consideration, where grantor was frail elderly
man showing signs of dementia, who was removed to mental hospital subsequent to executing deeds in
question). A review of the above cases shows that none of these cases concern "hospital-bed deeds"
in the sense implied in Vern's brief, and we find all of these cases factually distinguishable
from the present case. There is no evidence in the record to suggest that Vern was incapacitated
mentally, other than by his understandable concern regarding a major surgery, nor is there any
suggestion in the record that the March 10, 1997, deed was obtained by undue influence.

Vern also asserts that the trial court erroneously determined that a presumption arises in any
dissolution case where there is evidence of a conveyance by one spouse to the other of an interest
in land. Vern argues that Gerard-Ley v. Ley, 5 Neb. App. 229, 558 N.W.2d 63 (1996), cannot be read
so broadly and that Gerard-Ley borrowed the pivotal rule of a gift presumption when husband and
wife take title to property as joint tenants from Brown v. Borlund, 230 Neb. 391, 432 N.W.2d 13
(1988), arguing further that the rule "borrowed" from Brown was a presumption of a fraudulent
transfer and not a presumption of a spousal gift. Contrary to Vern's assertion, Brown discusses
both a presumption of a fraudulent transfer and a presumption of a gift when husband and wife take
title as joint tenants. The court in Brown first recognized that a presumption arises when
property is transferred from one spouse to another that the conveyance was fraudulent as to
existing creditors. Once that presumption is established, the burden of proving that the transfer
was made for fair consideration shifts to the defendant. Id.

Second, in determining whether the transfer was made for fair consideration, the court referred to
the rebuttable "joint tenant gift presumption" rule that we are considering in the present case,
cited other Nebraska Supreme Court cases setting forth this rule, and determined that because of
the gift presumption, the downpayment and monthly payments made by the wife on the property were
in part gifts to the husband and could not be viewed as consideration for the deed in question. We
disagree with Vern's interpretation of Gerard-Ley and find that it appropriately sets forth the
spousal gift presumption.

Vern's final argument with regard to whether the gift presumption arose in the present case deals
with Vern's alleged inability to read and comprehend the instrument that he signed and his
purported lack of knowledge as to the document's contents at the time when he signed. In the
absence of fraud, one who signs an instrument without reading it, when one can read and has had
the opportunity to do so, cannot avoid the effect of one's signature merely because one was not
informed of the contents of the instrument. Wrede v. Exchange Bank of Gibbon, 247 Neb. 907, 531
N.W.2d 523 (1995). The Nebraska Supreme Court has also stated:

"[T]he rule is otherwise where the execution is obtained by fraud, and in such case the instrument
is not binding on the party executing it though he did not read it or request that it be read to
him. The same is true where he is prevented from reading it or having it read by some fraud or
device on the part of the other party. Nor does the general rule apply where there is a relation
of trust and confidence between the parties." Case Co. v. Hrubesky, 125 Neb. 588, 592, 251 N.W.
169, 171 (1933). See, also, Cole Brothers v. Williams, 12 Neb. 440, 11 N.W. 875 (1882) (finding
that defendant, who had no spectacles on hand and could not easily read without them, signed note
as maker after payee's agent read it to him, fraudulently misstating amount thereof, could not
take advantage of his negligence in not procuring disinterested parties standing nearby to read it
to him).

Silence, by failing to speak when there is a duty to explain the contents of the instrument, can
amount to a misrepresentation of what a person is being asked to sign. 17A Am. Jur. 2d Contracts §
233 (1991). The Nebraska Supreme Court has held:

[S]ilence constitutes a misrepresentation sufficient to support rescission of a contract where
the "facts were within the knowledge of the person charged, that a duty to speak existed, that
such information was material, and that the suppression of the information tended to induce action
which the other party would not otherwise have taken." Grone v. Lincoln Mut. Life Ins. Co., 230
Neb. 144, 151, 430 N.W.2d 507, 512 (1988).

Similarly, where one has a duty to speak, but deliberately remains silent, his or her silence is
equivalent to a false representation. Streeks v. Diamond Hill Farms, 258 Neb. 581, 605 N.W.2d 110
(2000). In nondisclosure cases, the law does not attempt to define occasions when the duty to
speak arises, but, instead, has adopted the proposition that whether a duty to speak exists is
determined by all the circumstances of the case. Id.

In the present case, Vern cannot rely on the fact that he did not have his eyeglasses with him to
avoid the effect of his signature on the March 10, 1997, deed. He could have easily found a
disinterested person there in the hospital to read the documents to him before signing, and there
is no evidence in the record to suggest that he was prevented from doing so. Furthermore, there is
no evidence to suggest that Donna or anyone present at the time he signed affirmatively misled
Vern as to the contents of the document. While Donna's and Amy's testimony suggest that Vern was
fully aware of the contents of the documents he signed on March 10, Vern's testimony simply
suggests that Donna presented the papers for him to sign without telling him what they were.
Vern's testimony further suggests that he trusted Donna, tended not to involve himself directly in
business matters, and never read his contracts. Given the conflicting testimony and the deference
we must afford the trial court on matters of credibility, we decline to find that Donna's actions
or inactions amounted to fraud or misrepresentation. Nor do we find the evidence of the "trust
relationship" between Vern and Donna with respect to business matters sufficient to prevent the
gift presumption from arising in the present case. Accordingly, we find no error in the trial
court's determination that a gift presumption arose from the deed conveying the property in
question to Vern and Donna as joint tenants.

Was Gift Presumption Rebutted?

Vern next asserts that, in the event that a presumption of a gift did arise from the March 10,
1997, deed, the district court abused its discretion in finding that Vern had not rebutted the
gift presumption arising from the deed. The Nebraska Supreme Court has held that parol evidence
must be clear, unequivocal, and convincing to overcome recorded legal title and the recitals in a
deed that purports to convey title to both of the parties. Blaser v. Blaser, 225 Neb. 104, 402
N.W.2d 875 (1987).

However, the Nebraska Supreme Court has also held that in some instances, it will look behind the
legal title and decree according to the equities of the situation. See, Tavlin v. Tavlin, 194 Neb.
98, 230 N.W.2d 108 (1975); Fotinos v. Fotinos, 184 Neb. 486, 168 N.W.2d 698 (1969). In Blaser,
supra, the husband's parents gifted real property to the husband and wife as joint tenants, which,
when the parties divorced, the husband contended was meant to be a gift to him alone. The
husband's father testified at trial that he intended the property to remain in the family, that he
did not like the wife, and that he meant the land to be a gift to the husband. However, the
husband's father also admitted that he knew at the time that the conveyance created a joint
tenancy and that he understood what that meant since he and his wife held their property as joint
tenants. The court found that this evidence was "not of the clear, unequivocal, and convincing
type required . . . to overcome recorded legal title and the recitals in the deed that purport to
convey title to both of the parties." Blaser, 225 Neb. at 106, 402 N.W.2d at 877. See, also,
Grummert v. Grummert, 195 Neb. 148, 237 N.W.2d 126 (1975) (refusing to look behind recorded legal
title where husband contended conveyance of real estate from husband's father constituted gift to
husband alone, despite recorded legal title which conveyed property to husband and wife jointly);
Anania v. Anania, 6 Neb. App. 572, 576 N.W.2d 830 (1998) (finding no evidence to rebut presumption
that ex-husband intended that real property be other than in joint tenancy).

As discussed in the preceding section, this court, in Gerard-Ley v. Ley, 5 Neb. App. 229, 558
N.W.2d 63 (1996), found that the trust deed language argued by the husband did not provide
rebuttal of the presumption that the husband intended to gift an equal share of the disputed
property to his wife when they took title to that property as joint tenants. Conversely, the
husband in Connealy v. Connealy, 7 Neb. App. 117, 578 N.W.2d 912 (1998), did adduce sufficient
evidence to rebut the presumption of a gift arising from a joint tenancy deed. In Connealy, the
record reflected that the husband signed a deed titling a house to himself and his wife as joint
tenants. At trial, the husband testified that he did not intend to give the wife an interest in
the equity of the house, and he introduced an unsigned nuptial agreement, prepared after the
property was deeded to himself and his wife as joint tenants, indicating that the husband was to
receive the entire equity in the house upon the parties' divorce. This court found that while the
nuptial agreement was not signed by the parties, it was evidence upon which the trial court could
rely in concluding that the husband had rebutted the presumption of a gift.

In LaBenz v. LaBenz, 6 Neb. App. 491, 575 N.W.2d 161 (1998), the husband placed the proceeds from
the sale of a home he purchased prior to the marriage in a joint account with his wife. The
husband testified that he did not intend to make a gift to his wife through the account. There was
no evidence that the husband placed the house in joint tenancy before it was sold, nor was there
evidence to indicate that the wife contributed any money to the account. This court did not apply
the gift presumption and consider whether it was rebutted, but, rather, noted that LaBenz dealt
with non-marital cash placed into a joint account instead of the effect of title to real estate.
This court concluded that the wife was not entitled to an interest in the proceeds of the sale of
the house, ruling that during the lifetime of all parties, an account belongs to the parties in
proportion to the net contribution of each to the sums on deposit, unless there is clear and
convincing evidence of a different intent. Id. This court relied further on Neb. Rev. Stat. § 30-
2722(b) (Reissue 1995), stating that under that provision, the placing of non-marital funds in
joint tenancy by the spouse owning such funds would not create a presumption of a gift. Judge
Irwin, in a separate concurrence to LaBenz, supra, reasoned that there was no distinction as to
why jointly titled real property and personal property should be treated differently and concluded
that a rebuttable presumption arose that the husband intended to gift an equitable interest in the
proceeds from the sale of his non-marital residence to his wife when he placed them in a joint
account with her. Judge Irwin concluded further that the husband's testimony that he did not
intend to make a gift to his wife by titling the account in both names was sufficient to rebut the
presumption that the wife was entitled to an interest in the proceeds.

Finally, Vern directs us to Superior Hybrids Co. v. Carmichael, 214 Neb. 384, 333 N.W.2d 911
(1983), which involved the imposition of a resulting trust on certain real estate purchased by the
corporation and titled in the names of the corporation's president and his wife for use in
connection with the corporate business. The court found that even though a family-held corporation
was involved, the evidence did not indicate that a gift was intended and that the presumption had
been rebutted. The court reasoned that all indicia of ownership rested with the corporation, which
managed the property, collected rents, paid taxes and insurance, paid for repairs and
improvements, or otherwise asserted ownership.

In the present case, Vern testified that he never told Donna that he wanted to deed to her half of
his interest in the land, that he and Donna had discussed his preparing a will prior to his heart
attack, that he was surprised when he learned there was a deed on file, that he trusted Donna when
she handed him papers to sign which they did not discuss, and that he planned to leave his
interest in the land to his nephews who performed the majority of the Maibaum Brothers' farming
and custom work. Vern's testimony also reflected that after discussion with his doctor, he was not
overly concerned with dying as a result of the heart surgery. Vern's nephew Jeff testified that
the nephews worked for the partnership for meager wages based on the understanding that they would
some day receive the land and the farming operation from Maibaum Brothers.

Donna's and Amy's testimony also confirmed that Vern at least wanted to leave some land to his
nephews. However, their testimony also suggests that Vern was aware and approved of the contents
of the documents that he signed on March 10, 1997. While the deed was not recorded for more than 2
years following its execution, Donna testified that it had been placed "on the back burner" during
a stressful time. The record also reflects other deeds that were not filed promptly upon their
execution. Following the March 10 deed, other indicia of ownership still rested with Vern rather
than Donna. Vern drew money from the farm account with which to pay the electric bill and other
house and farm expenses. Donna's efforts and assistance with hog chores and cleanup around the
farm appear to have been exerted on the Home Quarter, rather than on the disputed property, and
cannot be said to be indicia of ownership.

Based upon our de novo review, we find that the evidence presented by Vern was sufficient to rebut
the gift presumption. Vern's testimony reveals not only that he did not intend to give Donna an
interest in the property by virtue of signing the deed, but also that he did not intend to sign a
deed at all. Vern was not aware that a deed had been signed until it was recorded shortly before
trial, more than 2 years following its execution. Both parties continued to treat the property in
question as they did before the deed was signed. While Vern is not excused from the effect of
signing the deed without reading it, he has presented sufficient evidence to convince us that he
did not intend to relinquish any part of his interest in the property by giving Donna an
undivided, one-half interest in his ownership share of the real estate in question. Accordingly,
we find that the trial court abused its discretion in determining that Vern did not rebut the gift
presumption that arose in taking title as joint tenants and in deeding property as joint tenants
to himself and Donna.

Does Van Newkirk Exception Apply?

Finally, Vern asserts that the exception in Van NewKirk v. Van Newkirk, 212 Neb. 730, 325 N.W.2d
832 (1982), should not be applied to convert the property transferred in the March 10, 1997, deed
into marital property. When awarding property in a dissolution of marriage, the property acquired
by one of the parties through gift or inheritance ordinarily is set off to the individual
receiving the inheritance or gift and is not considered a part of the marital estate. Tyler v.
Tyler, 253 Neb. 209, 570 N.W.2d 317 (1997). An exception to the rule applies where both of the
spouses have contributed to the improvement or operation of the property which one of the parties
owned prior to the marriage or received by way of gift or inheritance, or the spouse not owning
the property prior to the marriage or not receiving the inheritance or gift has significantly
cared for the property during the marriage. Id. In Tyler, the Nebraska Supreme Court noted that
whenever the Van Newkirk exception had been applied, the court had required evidence of the value
of the contributions, as well as evidence that the contributions were significant. Additionally,
all pertinent facts must be considered in reaching a just and equitable award of property in a
dissolution proceeding. Gerard-Ley v. Ley, 5 Neb. App. 229, 558 N.W.2d 63 (1996). How property,
inherited by a party before or during the marriage, will be considered in determining division of
property must depend upon the facts of the particular case and the equities involved. Id.

Our de novo review indicates the Van Newkirk exception does not apply in this case. While the
evidence shows that Donna contributed bookkeeping services to the partnership and spent a certain
amount of time cleaning up the farm and performing farm-related chores on the property where the
parties lived, there is nothing on the record to suggest that Donna contributed directly or
significantly to the improvement or operation of or significantly cared for the Crofton House, the
Anderson Place, the Meyer Place, or the North Place during the parties' marriage. Donna's summary
of her contributions, admitted at trial as exhibit 48, reflects that she calculated that she
contributed 18 years of bookkeeping services, which Donna valued at $17,900, and she calculated
that she contributed 210 hours of hog chores per year for 14 years, which Donna valued at $14,700.
Donna did not present any evidence as to the value of her contributions in cleaning up and
performing similar work on the Home Quarter. Donna also used the workers' compensation and Social
Security awards and her pay from various part-time employments to contribute to the day-to-day
living expenses of the family, a large part of which went toward the care and upbringing of
Donna's first six children. We agree with the trial court's conclusion that Donna contributed
labor and money to the partnership, and we conclude that she made contributions of labor and money
to the marriage as well. However, this history of Donna's contributions to the marriage is not
evidence of contributions to the improvement or operation of otherwise non-marital property, nor
does it indicate that Donna has significantly cared for the property in question. Accordingly, we
modify the lower court's decree to reflect that the Anderson Place, the Meyer Place, the North
Place, and the Crofton House are non-marital property. Donna will still receive approximately
$140,644.75, or one-half of $281,289.50, which is the total of the net partnership appreciation
value of $92,793, the Ruden Place value of $177,210.50, and the personal property value of
$11,286.

CONCLUSION

We conclude the trial court did not err in determining that a gift presumption arose from the
March 10, 1997, conveyance of the property in question to Vern and Donna as joint tenants.
However, we find that the trial court abused its discretion in determining that Vern did not rebut
the gift presumption that arose when he took title with Donna as joint tenants in the disputed
property. We modify the trial court's decree, as indicated above, to reflect that the Anderson
Place, the Meyer Place, the North Place, and the Crofton House are Vern's non-marital property,
and we instruct the trial court to modify the monetary judgment accordingly.

Affirmed as modified.

Hannon, Judge, dissenting.

I must respectfully dissent from that portion of the opinion which finds that the evidence
presented by Vern was sufficient to rebut the presumption that the March 10, 1997, deed was a gift
of the disputed property to Donna. Donna's evidence, if believed, would support the trial court's
determination that the presumption was not rebutted.

I believe we are obligated to follow the lead of the recent case of Heald v. Heald, 259 Neb. 604,
611 N.W.2d 598 (2000). In Heald, the husband had the burden to show certain stock was non-marital.
The husband and his mother testified that the stock was a gift to him from the mother, and the
wife's testimony "suggested" otherwise. The trial court found that the stock presumption was not
rebutted and that the stock was marital property. In reviewing that issue, the Nebraska Supreme
Court held that the husband had failed to meet his burden and explained:

Upon our de novo review, where the credible evidence is in conflict on a material issue of fact,
we consider and give weight to the circumstances that the trial judge heard and observed the
witnesses and accepted the wife's testimony and the related inferences from the evidence. See
Elstun v. Elstun, supra. We therefore conclude that the district court did not err in including
the Heald & Son stock in the marital estate. Id. at 611-12, 611 N.W.2d at 604.

The majority's opinion gives no consideration to the deference required to be accorded the trial
court's finding, and I think we are obligated to accord such deference. At the very least, I think
the majority is obligated to explain why it did not give the usual deference to the trial court.
In addition, on the cold record, I can find no reason for disputing the trial court's specific
finding that the presumption was not rebutted. For that reason, I would affirm without
modification.