Westwood v. Darnell, 299 Neb. 612

Jennifer Westwood and Cheryl Darnell married in 2011, separated June 2015, and divorced following a trial; no children.
Both worked for the Department of Correctional Services and had comparable salaries and premarital retirement accounts; household expenses were split.
Westwood quit in March 2015 and withdrew $75,393.04 from her retirement account; after taxes/penalties $51,999.99 was deposited into the parties’ joint account and used to pay marital debts and open a new retirement account.
The parties’ home (deed in Westwood’s name) sold in August 2015; Westwood kept sale proceeds and paid Darnell $1,250 before the decree.
District court awarded each party her personal property, automobile, and separate retirement account; ordered Westwood to pay Darnell an equalization payment of $3,755.67.

Issue	Westwood's Argument	Darnell's Argument	Held
Whether funds Westwood withdrew from her retirement account were nonmarital	Funds remained Westwood’s separate property even after withdrawal	Retirement benefits earned during marriage are marital; withdrawal and use for marital debts converts to marital property	Funds were marital; Westwood failed to prove they were nonmarital
Whether Darnell was unjustly enriched by having her vehicle loan paid with those funds	Equities require treating those proceeds as Westwood’s separate property because they paid Darnell’s car loan	Payment from marital funds does not create unjust enrichment where funds were marital	No unjust enrichment remedy; claim fails because funds were marital
Whether the court should adjust distribution for Darnell’s refusal to file joint tax returns	Refusal to file jointly caused Westwood increased tax burden on the retirement withdrawal and should be considered	No evidence of concrete tax disadvantage from joint filing was presented	Court may consider tax consequences if supported by evidence; Westwood presented insufficient evidence, so no adjustment
Burden of proof for classifying property as nonmarital	Westwood: withdrawn funds presumed separate	Darnell: burden on Westwood to prove nonmarital character	Burden remains on claimant (Westwood); she did not meet it

Osantowski v. Osantowski, 298 Neb. 339 (discussing characterization of retirement benefits earned during marriage)
Lorenzen v. Lorenzen, 294 Neb. 204 (retirement benefits analysis)
Bock v. Dalbey, 283 Neb. 994 (district court may consider tax consequences of refusal to file joint return when supported by evidence)
Gangwish v. Gangwish, 267 Neb. 901 (three-step property division under § 42-365 and marriage property presumptions)
Lisec v. Lisec, 24 Neb. App. 572 (gift used for down payment treated as marital where parties treated property as joint)