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CourtListener opinion 10466032

Citation: domestic relations order · Date unknown · US

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pending
Extracted reporter citation
domestic relations order
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pending
QDRO relevance 5/5Retirement relevance 5/5Family-law relevance 5/5gold label pending
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Machine-draft public headnote: CourtListener opinion 10466032 is included in the LexyCorpus QDRO sample set as a public CourtListener opinion with relevance to QDRO procedure / domestic relations order issues. The current annotation is conservative: it identifies source provenance, relevance signals, and evidence quotes for attorney/agent retrieval. It is not a Willie-approved legal headnote yet.

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Category: QDRO procedure / domestic relations order issues

Evidence quotes

retirement benefits

ached to the agreement listed the separate prop- erty, income, and debts of Christina, including the house in which she was living prior to the marriage; exhibit B attached to the agreement listed the separate property, income, and debts of Daniel, including "Retirement plan: Con Agra $1,000." Daniel and Christina were married in 2008 and have four children. On March 31, 2022, Christina filed a complaint for dissolution of marriage. - 884 - Nebraska Court of Appeals Advance Sheets 32 Nebraska Appellate Reports DIBUONO-GONZALEZ V. GONZALEZ Cite as 32 Neb. App. 881 1. Christina Seeks Protection Order On March 22, 2022, C

domestic relations order

ded to Christina ($54,761 + $3,250) with a subtotal amount to balance of $33,898 ($125,807 − $58,011 = $67,796 ÷ 2 = $33,898). Including the amount owed under the temporary order of $5,588.35, Daniel is ordered to transfer $39,486.35 to Christina by qualified domestic relations order. (b) Daniel's Retirement Account Daniel argues the district court erred by classifying only $1,000 of his retirement fund as nonmarital. He contends that under the terms of the premarital agreement, the entirety of his retirement account should have been classified as a nonmarital asset. We disagree. Absent the premarital agreement, Daniel's nonmarital

valuation/division

eets 32 Nebraska Appellate Reports DIBUONO-GONZALEZ V. GONZALEZ Cite as 32 Neb. App. 881 Christina Dibuono-Gonzalez, appellee, v. Daniel Gonzalez, appellant. ___ N.W.3d ___ Filed May 21, 2024. No. A-23-439. 1. Divorce: Child Custody: Child Support: Property Division: Alimony: Attorney Fees: Appeal and Error. In an action for the dissolution of marriage, an appellate court reviews de novo on the record the trial court's determinations of custody, child support, property division, alimony, and attorney fees; these determinations, however, are initially entrusted to the trial court's discretion and will normally be a

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reporter: domestic relations order
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May 14, 2026

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Clean opinion text

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
07/10/2024 06:10 PM CDT

 - 881 -
 Nebraska Court of Appeals Advance Sheets
 32 Nebraska Appellate Reports
 DIBUONO-GONZALEZ V. GONZALEZ
 Cite as 32 Neb. App. 881

 Christina Dibuono-Gonzalez, appellee,
 v. Daniel Gonzalez, appellant.
 ___ N.W.3d ___

 Filed May 21, 2024. No. A-23-439.

 1. Divorce: Child Custody: Child Support: Property Division: Alimony:
 Attorney Fees: Appeal and Error. In an action for the dissolution of
 marriage, an appellate court reviews de novo on the record the trial
 court's determinations of custody, child support, property division,
 alimony, and attorney fees; these determinations, however, are initially
 entrusted to the trial court's discretion and will normally be affirmed
 absent an abuse of discretion.
 2. Antenuptial Agreements. As a contract, an antenuptial agreement is
 governed by the same principles that are applicable to other contracts,
 but is subject to the particular statutory requirement that an antenuptial
 agreement must be based on fair disclosure.
 3. Contracts: Intent. When the terms of a contract are clear, a court may
 not resort to rules of construction, and terms are accorded their plain and
 ordinary meaning as an ordinary or reasonable person would understand
 them. In such a case, a court shall seek to ascertain the intention of the
 parties from the plain language of the contract.
 4. Divorce: Property Division. Equitable distribution of property is a
 three-step process: The district court (1) classifies the parties' property
 as marital or nonmarital, setting aside nonmarital property to the party
 who brought the property to the marriage; (2) values the marital assets
 and marital liabilities of the parties; and (3) calculates and divides the
 net marital estate between the parties in accordance with the principles
 contained in Neb. Rev. Stat § 42-365 (Reissue 2016).
 5. ____: ____. All property accumulated and acquired by either spouse
 during the marriage is part of the marital estate, unless it falls within an
 exception to this general rule.
 6. Antenuptial Agreements: Property Division. Spouses are able to con-
 tract around the general rules of equitable division by using a premari-
 tal agreement.
 - 882 -
 Nebraska Court of Appeals Advance Sheets
 32 Nebraska Appellate Reports
 DIBUONO-GONZALEZ V. GONZALEZ
 Cite as 32 Neb. App. 881

 7. Divorce: Property Division. Any given property can constitute a mix-
 ture of marital and nonmarital interests; a portion of an asset can be
 marital property while another portion can be separate property.
 8. Property Division: Proof. The burden of proof to show that property is
 nonmarital remains with the person making the claim.
 9. Child Custody. In determining child custody issues, the overriding con-
 sideration is the best interests of the children.

 Appeal from the District Court for Sarpy County: Stefanie
A. Martinez, Judge. Affirmed as modified.
 Ryan P. Watson, of Gross, Welch, Marks & Clare, P.C.,
L.L.O., for appellant.
 Donald A. Roberts, of Roberts Law, L.L.C., for appellee.
 Pirtle, Chief Judge, and Riedmann and Welch, Judges.
 Riedmann, Judge.
 I. INTRODUCTION
 Daniel Gonzalez (Daniel) appeals the decree of the Sarpy
County District Court that dissolved his marriage to Christina
Dibuono-Gonzalez (Christina), divided the marital estate, and
awarded custody of their minor children. We find that the
district court abused its discretion in determining the pro-
ceeds from Christina's nonmarital house remained her separate
property absent evidence that the proceeds could be traced.
Therefore, we affirm as modified.
 II. BACKGROUND
 Prior to Daniel and Christina's marriage, they signed a pre-
marital agreement. The premarital agreement defines the par-
ties' "Separate Estate" and "Marital Estate" as follows:
 3. Definition of Separate Estate. A party's "separate
 estate" shall mean any property in which such party has
 an interest and which is not expressly made a part of
 the "marital estate" as defined in paragraph 7. Without
 intending to limit the generality of the foregoing, the
 following items are specifically included in the "sepa-
 rate estate":
 - 883 -
 Nebraska Court of Appeals Advance Sheets
 32 Nebraska Appellate Reports
 DIBUONO-GONZALEZ V. GONZALEZ
 Cite as 32 Neb. App. 881

 a. The property and income now owned by the party
 and set forth in that party's disclosure denominated
 Exhibit "A" or "B";
 ....
 c. Any increase or appreciation in value, of any prop-
 erty which constitutes the party's "separate estate", by
 reason of inflation, accumulated income, reduction of
 debt, or for any other reason;
 d. Any income earned with respect to any property
 which constitutes the party's "separate estate"; and,
 e. The "proceeds" of any such separate property or
 estate assets. As used in this Agreement, "proceeds" shall
 mean the money or property, acquired as a result of a
 sale or other disposition of all or any part of the property
 which constitutes the party's "separate estate".
 ....
 7. Marital Estate. The parties agree that the "marital
 estate" shall consist of any real or personal property
 acquired during the marriage by the parties in their joint
 names with rights of survivorship. The term "marital
 estate" shall not include any property listed on Exhibits
 "A" and "B" or any proceeds there from, or any income
 from said property, any increase or appreciation in value
 thereof, any increases in equity in the separate estate of
 either party by virtue of inflation, appreciation . . . . All
 property acquired during the marriage by either party in
 his or her individual name or as tenants in common shall
 be separate property or separate estate.
Exhibit A attached to the agreement listed the separate prop-
erty, income, and debts of Christina, including the house in
which she was living prior to the marriage; exhibit B attached
to the agreement listed the separate property, income, and debts
of Daniel, including "Retirement plan: Con Agra $1,000."
 Daniel and Christina were married in 2008 and have four
children. On March 31, 2022, Christina filed a complaint for
dissolution of marriage.
 - 884 -
 Nebraska Court of Appeals Advance Sheets
 32 Nebraska Appellate Reports
 DIBUONO-GONZALEZ V. GONZALEZ
 Cite as 32 Neb. App. 881

 1. Christina Seeks Protection Order
 On March 22, 2022, Christina filed a petition and affidavit
to obtain a domestic abuse protection order. She requested the
district court grant her temporary custody of the four minor
children for 90 days. Christina detailed that from March
17 to "present," Daniel exhibited "[e]rratic behavior (anger
fits, yelling, verbal abuse) leading to Daniel drinking and
Christina [and] children having to leave home." The affidavit
noted that Daniel "threaten[ed] to kill family members, him-
self [and] coworkers through texts." Also, Daniel "[s]ent texts
telling wife [and] kids to stay away because he was unable to
cope and refused to leave home," which left Christina and the
children homeless.
 Christina also detailed events in the affidavit that occurred
"[d]uring 2022." She claimed that Daniel "destroy[ed] prop-
erty inside home (br[oke] home decor, urinat[ed] on clothing,
thr[ew] things at me)." She also claimed Daniel refused to
let her have her wheelchair and would leave it outside in the
rain or would park long distances away from handicap areas.
Christina alleged Daniel changed the passwords to their bank
accounts and did not pay their bills. The district court granted
Christina an ex parte protection order.
 On April 14, 2022, the district court held a show cause
hearing on the protection order. Christina testified that Daniel
had physically assaulted her many times, including pushing
her, hitting her in the face, and trying to choke her. Christina
testified she left the family home on March 17, because of the
events in January, including Daniel's behavior when he had
been drinking. She explained that she left the house because
she feared that Daniel was going to physically harm her or
the children. She requested that her children remain parties to
the protection order because they had witnessed much of the
violence that occurred.
 The district court temporarily continued the protection order
and, upon an oral motion by Christina's counsel, set a hearing
for temporary allowances in the dissolution case for the follow-
ing Tuesday, April 19, 2022.
 - 885 -
 Nebraska Court of Appeals Advance Sheets
 32 Nebraska Appellate Reports
 DIBUONO-GONZALEZ V. GONZALEZ
 Cite as 32 Neb. App. 881

 2. Continuation Hearing and Motion
 for Temporary Allowance
 On April 19, 2022, Christina filed a written motion for a
temporary order and notice of hearing for the same date. She
requested the district court enter temporary orders "concerning
the rights and responsibilities of the parties as it pertains to the
real and personal property of the marital estate, the ongoing
financial obligations of the parties, custody, parenting time,
and spousal support."
 A joint hearing was held on the protection order and the
motion for temporary allowances. The district court determined
that Christina had met her burden of proof for a protection
order for herself, but not for her children. The protection order
was to remain in effect for Christina for 1 year.
 Regarding temporary allowances, Christina requested tem-
porary sole legal and physical custody of the minor children
with Daniel receiving supervised parenting time twice a week.
She also requested alimony, spousal support, and continued
exclusive use of the marital residence. Christina submitted
multiple affidavits to support her requests, and her counsel
emphasized that Daniel had been exhibiting dangerous and
inappropriate behaviors, such as admitting to substance use,
threatening suicide, and posting nude photographs of Christina
in a shared family album that the children could access.
Daniel's counsel argued Christina was embellishing the details
and fabricating lies about Daniel to minimize her physical
disabilities and ensure her access to the children. The district
court took the matter under advisement.
 In a written order, the district court provided Christina with
sole legal and physical custody of the minor children subject
to Daniel's parenting time. It ordered Daniel to pay tempo-
rary child support. It also ordered that in lieu of temporary
alimony, Daniel would be responsible for all expenses associ-
ated with the marital home, Christina's car, and Christina and
the children's cell phones. Christina was awarded temporary
exclusive occupancy of the marital residence.
 - 886 -
 Nebraska Court of Appeals Advance Sheets
 32 Nebraska Appellate Reports
 DIBUONO-GONZALEZ V. GONZALEZ
 Cite as 32 Neb. App. 881

 3. Dissolution Trial
 The dissolution trial was held over 2 days in April and
May 2023. Although the trial involved multiple issues, Daniel
appeals only three of the district court's rulings. They involve
(1) Christina's premarital house, (2) Daniel's premarital
retirement account, and (3) physical custody of the children.
Accordingly, our recitation of the trial evidence is limited to
these three issues.

 (a) Marital Houses
 At trial, Christina testified to the parties' housing throughout
the marriage. Prior to marrying Daniel, Christina lived in a
home she ultimately purchased from her mother, referred to as
the "Madison house." Daniel was not listed on the deed, nor
did he ever own the house as a joint tenant. In 2009, Christina
sold the Madison house and received a check for $51,294.32.
The proceeds were issued in a check made payable to "D.J.
Gonzalez and Christina Dibuono-Gonzalez."
 The parties then bought their second marital house, the
"Monroe house." After selling the Monroe house, the parties
moved into the "Springfield house." In 2019, Christina was
hospitalized and received rehabilitative treatment for 2 months.
She testified that after her hospitalization and rehabilitative
treatment, living in the Springfield house was no longer fea-
sible for her because she needed to live somewhere that was
wheelchair accessible. The parties then moved into the current
marital house, the "Molokai house."
 Throughout the marriage, the parties had joint bank accounts.
The parties bought each house with "Veteran loans" that only
Daniel could access. Christina admitted that the Monroe,
Springfield, and Molokai houses were owned by her and
Daniel jointly. Christina acknowledged in her testimony that
she had not provided any evidence at trial regarding the sale of
the Springfield house or what was used for the downpayment
on the Molokai house.
 - 887 -
 Nebraska Court of Appeals Advance Sheets
 32 Nebraska Appellate Reports
 DIBUONO-GONZALEZ V. GONZALEZ
 Cite as 32 Neb. App. 881

 (b) Retirement Account
 At the time of trial, Daniel's retirement account had a
balance of $86,000. He testified that in February 2023, he
withdrew $40,000 from the account; therefore, prior to the
withdrawal, the account had a balance of $126,000.
 Daniel testified that he believed all of his retirement account
should be considered nonmarital property under the premari-
tal agreement. He claimed that regardless of how the account
increased, the increase should remain separate from the mari-
tal estate.
 (c) Custody
 Christina requested full legal and physical custody of the
children in her proposed parenting plan because she did not
believe that joint custody could work between her and Daniel.
She also requested that the court require Daniel to continue
paying child support.
 Christina testified that both before and after her 2019 hos-
pitalization, she was the children's primary caregiver. She
explained she was responsible for getting them to school, mak-
ing doctor's appointments, taking them to their grandmother's
house, and overseeing their individualized education plans
with the school. She was also responsible for signing them
up for sporting events but acknowledged that Daniel did help
with the boys' baseball team.
 Christina testified she was "deathly afraid" of Daniel. She
recalled that Daniel would "throw" the children around and
threaten them as a form of discipline. Daniel would also attack
Christina, and photographs were received into evidence that
showed bruising on her body. Christina also offered pictures
of her possessions that Daniel had destroyed or on which he
had urinated.
 Christina claimed that Daniel urinated on her and the chil-
dren. She admitted this claim was not included in her affidavit
for the protection order or at any of the subsequent hearings.
She explained that she was unable to fill out the affidavit her-
self, so she dictated what happened to someone else who wrote
 - 888 -
 Nebraska Court of Appeals Advance Sheets
 32 Nebraska Appellate Reports
 DIBUONO-GONZALEZ V. GONZALEZ
 Cite as 32 Neb. App. 881

it down. She did not know how that claim was left out of the
affidavit.
 Daniel requested that the district court order joint physi-
cal custody of the minor children. He claimed it would be
in the minor children's best interests to have equal time with
their father.
 Daniel has been convicted of driving under the influence
of alcohol twice. In January 2022, he described himself as
"[v]iolent" and as a "ticking time [b]omb." Daniel also admit-
ted that the last time he "blacked out" from alcohol was in
March. He provided evidence that he has not had any noncom-
pliant tests regarding his sobriety since he last blacked out.
 Daniel admitted that he had "been physical" with Christina.
Some of Daniel's handwritings were admitted into evidence, in
which he acknowledged he has problems with alcohol abuse,
domestic abuse, and anger. However, at trial, Daniel denied
all allegations in Christina's affidavit seeking the protection
order and the allegations in her request to renew the protec-
tion order.
 Daniel acknowledged that he believes in physically disci-
plining his children; however, he denied ever "picking them up
and throwing them against [a] wall." Daniel testified that his
physical discipline was limited to giving the children "a little
upside the head or on their bottom." He denied breaking any
of Christina's possessions and denied urinating on them.
 Daniel testified that he has been seeking help for his mental
health issues and alcoholism. He attends neurofeedback treat-
ment twice a week. Daniel also started seeing a psychiatrist
and was prescribed medication. He testified that he also suf-
fers from numerous physical ailments, such as fibromyalgia,
for which he receives disability pay through the Department
of Veterans Affairs.

 4. District Court's Decree of Dissolution
 As to the three issues on appeal, the district court made
the following determinations. First, it found that the proceeds
 - 889 -
 Nebraska Court of Appeals Advance Sheets
 32 Nebraska Appellate Reports
 DIBUONO-GONZALEZ V. GONZALEZ
 Cite as 32 Neb. App. 881

Christina received from the sale of the Madison house were
part of her separate estate and subtracted them from the equity
in the Molokai house. Second, it found that only $1,000 of
Daniel's retirement account was part of his separate estate and
determined $125,807 of the account belonged to the marital
estate. Third, it awarded Christina sole legal and physical cus-
tody of the minor children, subject to Daniel's parenting time.
 Daniel appeals.
 III. ASSIGNMENTS OF ERROR
 Daniel assigns that the district court erred in (1) classifying
the proceeds Christina received from the sale of the Madison
house as nonmarital and (2) classifying Daniel's retirement
fund as a marital asset aside from the $1,000 provided in the
premarital agreement. Daniel also assigns the district court
erred in determining it was in the children's best interests to
award Christina sole physical custody.
 IV. STANDARD OF REVIEW
 [1] In an action for the dissolution of marriage, an appellate
court reviews de novo on the record the trial court's determi-
nations of custody, child support, property division, alimony,
and attorney fees; these determinations, however, are initially
entrusted to the trial court's discretion and will normally be
affirmed absent an abuse of that discretion. Mamot v. Mamot,
283 Neb. 659, 813 N.W.2d 440 (2012).
 [2] As a contract, an antenuptial agreement is governed by
the same principles that are applicable to other contracts, but
is subject to the particular statutory requirement that an ante-
nuptial agreement must be based on fair disclosure. Simons v.
Simons, 312 Neb. 136, 978 N.W.2d 121 (2022).
 [3] When the terms of a contract are clear, a court may not
resort to rules of construction, and terms are accorded their
plain and ordinary meaning as an ordinary or reasonable person
would understand them. Id. In such a case, a court shall seek
to ascertain the intention of the parties from the plain language
of the contract. Id.
 - 890 -
 Nebraska Court of Appeals Advance Sheets
 32 Nebraska Appellate Reports
 DIBUONO-GONZALEZ V. GONZALEZ
 Cite as 32 Neb. App. 881

 V. ANALYSIS
 1. Property Classification
 [4] Under Nebraska's dissolution statutes, "The purpose of
a property division is to distribute the marital assets equita-
bly between the parties." Neb. Rev. Stat. § 42-365 (Reissue
2016). Equitable distribution of property is a three-step proc­
ess: The district court (1) classifies the parties' property as
marital or nonmarital, setting aside nonmarital property to the
party who brought that property to the marriage; (2) values
the marital assets and marital liabilities of the parties; and (3)
calculates and divides the net marital estate between the par-
ties in accordance with the principles contained in § 42-365.
See Osantowski v. Osantowski, 298 Neb. 339, 904 N.W.2d
251 (2017).
 [5,6] All property accumulated and acquired by either spouse
during the marriage is part of the marital estate, unless it falls
within an exception to this general rule. Stephens v. Stephens,
297 Neb. 188, 899 N.W.2d 582 (2017). However, spouses are
able to contract around the general rules of equitable division
by using a premarital agreement. Simons v. Simons, supra.
 Neb. Rev. Stat. § 42-1004 (Reissue 2016) permits parties
to a premarital agreement to contract with respect to, among
other things, "[t]he rights and obligations of each of the par-
ties in any of the property of either or both of them when-
ever and wherever acquired or located" and "[t]he disposition
of property upon separation, marital dissolution, death, or
the occurrence or nonoccurrence of any other event." Under
Nebraska's Uniform Premarital Agreement Act (the Act), Neb.
Rev. Stat. § 42-1001 et seq. (Reissue 2016), property is defined
as "an interest, present or future, legal or equitable, vested
or contingent, in real or personal property, including income
and earnings." § 42-1002(2). The parties stated in their pre-
marital agreement that they desired to utilize Neb. Rev. Stat.
§ 42-1001 et seq. (Reissue 2016) to "limit and determine the
interest and rights in the property or income of the other,
which is owned now by the other and which may be acquired
 - 891 -
 Nebraska Court of Appeals Advance Sheets
 32 Nebraska Appellate Reports
 DIBUONO-GONZALEZ V. GONZALEZ
 Cite as 32 Neb. App. 881

through purchase, gift or inheritance in the future." In this
appeal, neither party disputes the validity of the premarital
agreement; thus, the question before us is whether the district
court properly interpreted the premarital agreement in classify-
ing the parties' property.
 Exhibit A attached to the premarital agreement identified
the Madison house as Christina's separate asset. Exhibit B
attached to the premarital agreement identified "Retirement
plan: Con Agra $1,000" as Daniel's separate asset. Paragraph
3.e. of the agreement, included in its definition of a party's
"separate estate" the term "proceeds," which included money
"acquired as a result of a sale . . . of . . . property which
constitutes the party's ‘separate estate.'" And paragraph 3.c.
included in its definition of separate estate "[a]ny increase or
appreciation in value, of any property which constitutes the
party's ‘separate estate', by reason of inflation, accumulated
income . . . or for any other reason."
 On the other hand, "Marital Estate" in paragraph 7 of the
premarital agreement was defined to "consist of any real or
personal property acquired during the marriage by the parties
in their joint names with rights of survivorship." The property
listed in exhibits A and B and the proceeds, income, or appre-
ciation in value made from that property were excluded from
the marital estate. Also excluded from the marital estate, as
stated in paragraph 7, was "[a]ll property acquired during the
marriage by either party in his or her individual name or as
tenants in common."
 Pertinent to Daniel's appeal, both the Madison house and
his retirement account were separate property of the respec-
tive party at the time of marriage. We will separately address
whether the district court erred in determining whether each
remained so.

 (a) Madison House
 Daniel argues the district court erred in crediting the pro-
ceeds from the Madison house as Christina's nonmarital
 - 892 -
 Nebraska Court of Appeals Advance Sheets
 32 Nebraska Appellate Reports
 DIBUONO-GONZALEZ V. GONZALEZ
 Cite as 32 Neb. App. 881

property. He argues that despite the premarital agreement, it
was still Christina's responsibility to trace the proceeds of the
Madison house because those proceeds were spent elsewhere,
including roughly $26,000 on the Monroe house, which was
eventually sold, and the parties bought two other houses after
that. There is no dispute that the Madison house and its subse-
quent proceeds were nonmarital property.
 [7,8] Any given property can constitute a mixture of marital
and nonmarital interests; a portion of an asset can be marital
property while another portion can be separate property. White
v. White, 304 Neb. 945, 937 N.W.2d 838 (2020). The burden of
proof to show that property is nonmarital remains with the per-
son making the claim. Gangwish v. Gangwish, 267 Neb. 901,
678 N.W.2d 503 (2004).
 In Gangwish, the Nebraska Supreme Court found no abuse
of discretion by the trial court in denying a husband premarital
credit for the downpayment on a home when the proceeds were
allegedly used for subsequent real estate purchases without
evidence that the original proceeds could be traced. The court
held that normally, a party would be entitled to credit for the
amount of premarital funds used for the purchase of a marital
residence when that residence is sold. See id. But where those
proceeds were used to purchase a second residence, which was
then sold and the proceeds loaned to a third-party entity that
then paid for the construction of a third home, it was incum-
bent upon the party seeking premarital credit to produce evi-
dence tracing those proceeds. The court explained:
 [The husband], however, did not present evidence
 that his premarital contribution retained its status as
 separate property after the parties sold their first home.
 More significantly, even if we were to assume [the
 husband] could trace his personal, premarital interest
 from the parties' first home to their second, [he] pre-
 sented no evidence to document how his separate inter-
 est in the proceeds from the second home were in fact
 loaned to [the third-party entity]. In fact, outside of [the
 - 893 -
 Nebraska Court of Appeals Advance Sheets
 32 Nebraska Appellate Reports
 DIBUONO-GONZALEZ V. GONZALEZ
 Cite as 32 Neb. App. 881

 husband's] testimony, the record is devoid of evidence
 which establishes that any of the proceeds from the sale
 of the parties' second home were in fact loaned to [the
 third-party entity].
Id. at 908, 678 N.W.2d at 511 (emphasis in original).
 Here, the district court abused its discretion by crediting
Christina with the proceeds from the Madison house sale
because Christina did not meet her burden in tracing the funds.
Under the terms of the premarital agreement, the proceeds
from the Madison house sale, $51,294.32, were a nonmarital
asset. Although Daniel argues in his brief that $26,121.05 of
those proceeds were applied to the Monroe house, he relies
upon the first page of exhibit 10, which was specifically
excluded when exhibit 10 was offered and received into evi-
dence. Christina testified that she received $51,294.32 from
the sale of the Madison house but did not testify how those
proceeds were applied. The third page of exhibit 10 reflects a
payment of $25,173.27 to "Daniel J. Gonzalez and Christina
M. DiBuono-Gonzalez" from a title company with the nota-
tion that it was a "[r]efund of overpayment." Even if we were
to surmise that the remaining $26,121.05 was applied toward
the purchase of the Monroe house, there is no evidence that
this amount was later applied to the Springfield house and
then the Molokai house, nor is there evidence of where the
proceeds of the $25,173.27 check went. The check was made
payable to both parties, and the evidence indicates they had a
joint checking account.
 In awarding Christina a credit of $51,294.32 against the
equity of the Molokai house, the district court impliedly found
that the Madison house proceeds were used to build equity in
the Molokai house; however, the record is devoid of eviden-
tiary support. Under Gangwish v. Gangwish, supra, nonmarital
property must be traced back to its origin. It was Christina's
burden, as the party claiming the proceeds of the Madison
house, to prove that equity in the Molokai house was traceable
to the proceeds from the Madison house. This she failed to do,
 - 894 -
 Nebraska Court of Appeals Advance Sheets
 32 Nebraska Appellate Reports
 DIBUONO-GONZALEZ V. GONZALEZ
 Cite as 32 Neb. App. 881

and the district court abused its discretion in finding otherwise.
We vacate that portion of the decree crediting Christina with a
$51,294 credit in the Molokai house and add that amount to the
marital equity in the Molokai house for a total marital equity
in the Molokai house of $54,761. We award that amount to
Christina and adjust the equalization payment accordingly. This
results in a subtotal of $58,011 awarded to Christina ($54,761
+ $3,250) with a subtotal amount to balance of $33,898
($125,807 − $58,011 = $67,796 ÷ 2 = $33,898). Including the
amount owed under the temporary order of $5,588.35, Daniel
is ordered to transfer $39,486.35 to Christina by qualified
domestic relations order.

 (b) Daniel's Retirement Account
 Daniel argues the district court erred by classifying only
$1,000 of his retirement fund as nonmarital. He contends that
under the terms of the premarital agreement, the entirety of his
retirement account should have been classified as a nonmarital
asset. We disagree.
 Absent the premarital agreement, Daniel's nonmarital inter-
est would be limited to his initial investment and any pas-
sive growth he could prove; however, spouses are able to
contract around the general rules of equitable division by
using a premarital agreement. See Simons v. Simons, 312
Neb. 136, 978 N.W.2d 121 (2022). The premarital agreement
classified Daniel's retirement account as part of his separate
estate because it was listed in exhibit B. Furthermore, the
premarital agreement included in its definition of separate
estate "[a]ny increase or appreciation in value, of any property
which constitutes the party's ‘separate estate.'" However, the
premarital agreement does not specifically address how contri-
butions from earnings made to a party's separate estate should
be classified.
 In rejecting a husband's claim that because the Act defined
property to include income and earnings, all increases in the
value of his savings plan should not be considered marital
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property, the Supreme Court in Sitz v. Sitz, 275 Neb. 832,
837-38, 749 N.W.2d 470, 475 (2008) explained:
 [The husband] asserts that the intent of the premarital
 agreement was that [the wife] would not share in the
 benefits of his . . . savings plan. He argues that because
 the savings plan was described in the premarital agree-
 ment and because the Uniform Premarital Agreement
 Act describes "property" as an interest, present or future
 in real or personal property, including income and earn-
 ings, all increases in value of the . . . savings plan should
 not be considered marital property. See Unif. Premarital
 Agreement Act, 9C U.L.A. 39 (2001). We disagree.
 The definition of "property" in the Uniform Premarital
 Agreement Act is simply a definition of the term as it is
 used in the act. However, that definition was not incorpo-
 rated into the parties' premarital agreement. The premari-
 tal agreement stated that the parties agreed to disclaim
 any right to or interest in property accumulated "prior to"
 the marriage. The agreement said nothing about property
 acquired during the marriage, and the record reflects that
 the parties combined their incomes in a joint account and
 acted as if both parties had a right to the money.
 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. Davidson v. Davidson, 254 Neb. 656,
 578 N.W.2d 848 (1998). [The husband's] contributions
 to the savings plan were made with deductions from his
 . . . paycheck, which was marital property. Accordingly,
 the contributions to the savings plan made during the
 marriage and the returns earned during the marriage were
 subject to division by the trial court. Thus, because the
 court merely awarded [the wife] one-half of the benefits
 earned during the parties' marriage, we find no abuse
 of discretion.
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 DIBUONO-GONZALEZ V. GONZALEZ
 Cite as 32 Neb. App. 881

 Here, the parties stated in their agreement that they desired
to use the Act to determine the interest and rights in the
property or income of the other, but only to the extent it was
"owned now by the other and which may be acquired through
purchase, gift or inheritance in the future." They did not ref-
erence the Act's application to income acquired in the future
through earnings, nor did they specifically adopt the Act's defi-
nition of property. The parties also did not specifically identify
property acquired through their earnings or employment as
separate property in their agreement. Cf. Cook v. Cook, 26 Neb.
App. 137, 140, 918 N.W.2d 1, 5 (2018) (upholding provision
that kept separate "‘all property which shall come into their
possession as the result of each party's work and labor, invest-
ments, inheritance or otherwise'").
 Paragraph 7 of the premarital agreement excluded from
the marital estate "[a]ll property acquired during the marriage
by either party in his or her individual name or as tenants in
common." Arguably, this would include income that the par-
ties earned through their employment; however, as in Sitz v.
Sitz, supra, the evidence reflects that the parties shared joint
checking and savings accounts, as evidenced by Christina's
testimony that she was "shut out of the [checking and savings]
account[s]" when she left. The parties' joint checking account
statement reflects that Daniel's paychecks were deposited by
his employer into this account. The parties agreed that the
marital estate would include property acquired during the mar-
riage in their joint names with rights of survivorship. Daniel
cannot shield his earnings, which would otherwise be marital
property, by funneling them into his retirement account held
solely in his name.
 Accordingly, Daniel's contributions to his retirement plan
made during the marriage and the returns earned during the
marriage were subject to division by the district court. And
because Daniel presented no evidence reflecting to what extent
the premarital value of the retirement account grew due to
passive growth, the district court did not abuse its discretion
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 DIBUONO-GONZALEZ V. GONZALEZ
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in finding that only $1,000 of the retirement account was
Daniel's separate property.
 2. Custody
 Daniel argues the district court abused its discretion in
awarding Christina sole physical custody of the minor chil-
dren because it is not in the children's best interests. He con-
tends that "[w]hile the facts regarding Daniel's behavior may
be in great dispute, the lack of credibility demonstrated on the
record by Christina should render the [district] court's reliance
on her testimony as untenable and depriving Daniel of a just
result." Brief for appellant at 18. He points out that Christina's
lack of credibility is demonstrated by her testimony that
Daniel urinated on her and the children, yet that claim was
not in either protection order request or made at the previ-
ous hearings. He concludes that because Christina first made
this claim at trial, either Christina was "ambivalent that [she]
did not report this matter to authorities" or she fabricated the
claim. Id.
 [9] In determining child custody issues, the overriding con-
sideration is the best interests of the children. See Donald v.
Donald, 296 Neb. 123, 892 N.W.2d 100 (2017). In evaluating
the children's best interests, courts are directed to consider
what parenting arrangement will best provide for children's
safety, emotional and physical health, and stability. See Neb.
Rev. Stat. § 43-2923(1) (Reissue 2016).
 To determine the best interests of a child, a court must con-
sider, at a minimum: (1) the relationship of the minor child to
each parent prior to the commencement of the action or any
subsequent hearing; (2) the desires and wishes of the minor
child, if of an age of comprehension but regardless of chrono-
logical age, when such desires and wishes are based on sound
reasoning; (3) the general health, welfare, and social behavior
of the minor child; (4) credible evidence of abuse inflicted on
any family or household member; and (5) credible evidence
of child abuse or neglect or domestic partner abuse. See
§ 43-2923(6). Other pertinent factors a court may consider in
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determining the best interests of a child include the moral fit-
ness of the child's parents; respective environments offered by
each parent; the age, sex, and health of the child and parents;
the effect on the child as a result of continuing or disrupting
an existing relationship; the attitude and stability of each par-
ent's character; and the parental capacity to provide physical
care and satisfy educational needs of the child. See Robb v.
Robb, 268 Neb. 694, 687 N.W.2d 195 (2004).
 Christina explained in her testimony why she first made
the urination claim at trial rather than in the previous hearings
or requests for protection orders. She detailed that she cannot
write, so when she was trying to get the protection order, she
had to have another person fill out the affidavit for her while
she dictated. She did not know how her claim that Daniel uri-
nated on her and the children was left out of the affidavits for
the protection orders.
 Even without considering the credibility of Christina's claim
that Daniel urinated on her and the children, there is ample
evidence to support the district court's conclusion. The district
court did not rely on Christina's statements about Daniel's
urinating on the children in reaching its conclusion. Rather, it
relied on Daniel's own admissions in his handwritten notes,
text messages he sent, and other protection orders issued
against Daniel based on his conduct. Furthermore, there was
sufficient evidence to support a protection order against Daniel
on behalf of three people, which, as the district court noted,
shows a troubling, continuing course of conduct. Daniel's
argument is without merit; thus, we hold the district court did
not abuse its discretion in awarding Christina sole legal and
physical custody of the minor children.
 VI. CONCLUSION
 For the foregoing reasons, we affirm as modified and order
Daniel to transfer the sum of $39,486.35 to Christina by quali-
fied domestic relations order. We affirm the district court's
custody determination of the minor children.
 Affirmed as modified.