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Category: Equity

Merrill v. Merrill – 2024 UT App 94 – Tax Rate, Expenses, Affect on Income Calculation

Merrill v. Merrill – 2024 UT App 94

THE UTAH COURT OF APPEALS

LUTISHA MERRILL, Appellee, v. JOHN RICHARD MERRILL, Appellant.

Opinion No. 20210785-CA Filed July 11, 2024

Third District Court, Silver Summit Department

The Honorable Teresa L. Welch No. 194500031

Luke A. Shaw and Jill L. Coil, Attorneys for Appellant, Julie J. Nelson, Attorney for Appellee

JUDGE JOHN D. LUTHY authored this Opinion, in which JUDGES DAVID N. MORTENSEN and RYAN D. TENNEY concurred.

LUTHY, Judge:

¶1        John Richard Merrill appeals from the district court’s final order resolving issues related to his divorce from Lutisha Merrill. John[1] challenges several of the court’s decisions related to its calculation of the parties’ incomes, its determination of Lutisha’s reasonable expenses, its alimony award, and its valuation and division of the marital estate. We affirm most of the district court’s challenged decisions. On the issues of Lutisha’s tax rate and her claimed expense for property maintenance, however, we vacate the district court’s decisions and remand the case for additional proceedings consistent with this opinion.

BACKGROUND
The Marriage

¶2        Lutisha and John were married in 2001 and had twins together in 2007. Lutisha filed for divorce in 2019.

The Parties’ Employment and Incomes

¶3        During their marriage, the parties were able to sustain a comfortable standard of living through their substantial incomes. Lutisha has significant experience in advertising and radio advertising sales. From 2011 to 2014, she worked as the vice president of sales for a large media company, earning an average of $168,730.00 annually. In 2014, she left that position and formed her own business, 360 Touch LLC (360 Touch), a “full-service advertising agency.” As part of her business practice, Lutisha paid for expenses, including advertising for her clients, on a business credit card that earned frequent flyer miles, which resulted in her earning between 1.5 million and 1.8 million miles during both 2019 and 2020. In the years leading up to the COVID-19 pandemic, 360 Touch grew significantly; however, with the onset of the pandemic in 2020, the business “experienced a 37% decline in revenue,” and Lutisha’s income “declined 42%” from the prior year.

¶4        John was employed at the time of trial as the chief financial officer of a publicly traded software company. He had a base annual salary of $225,000.00, with quarterly bonuses of up to 50% of his salary. His contract at the time of trial also provided for nearly $100,000.00 worth of restricted stock shares, a third of which was set to vest in each of May 2020, May 2021, and May 2022.

The Family Homes

¶5        The parties owned two homes that were purchased during their marriage—their primary home in Park City (the Park City property) and a vacation home in Coalville (the Coalville property). Upon separation, Lutisha remained in and maintained the Park City property while John maintained the Coalville property, although he also rented an apartment in Park City to live closer to the children. According to Lutisha, at the time John moved out of the Park City property, the parties “knew that the home desperately needed a new roof . . . , new carpet . . . , [and] new interior paint . . . and that the exterior wood was rotted and needed to be replaced.” The court found that Lutisha paid for the roof to be replaced in May 2020 at a cost of $18,380.00.

The Parties’ Financial Declarations

¶6        As the parties prepared for trial, they provided various financial declarations. Lutisha’s final amended financial declaration listed current monthly expenses totaling $26,489.57 and marital monthly expenses of $27,183.89. Relevant to this appeal, these expenses included line items for minimum credit card payments ($1,322.50), additional credit card payments ($2,000.00), personal loan payments ($970.00), real estate maintenance ($1,792.84), food and household expenses ($4,580.70), clothing expenses ($229.83), entertainment/travel expenses ($696.84), health care expenses ($1,054.67), and divorce legal fees ($5,375.20). John’s final amended financial declaration listed his current monthly expenses at $21,518.85 and marital monthly expenses of $30,973.02. His declaration included a line item for monthly legal expenses of $3,233.66.

The Divorce Trial

¶7        Trial was held remotely in May and June of 2021.[2] The parties agreed to rely on prepared declarations from Lutisha and John in place of direct examination, while still allowing for a real-time opportunity for cross-examination of each party.

Lutisha’s Testimony

¶8        Lutisha’s testimony was presented first. As to her income, she testified regarding the pandemic’s negative impact on 360 Touch and some of the steps she had taken to try to mitigate that impact. She testified, “[A]ny time that’s not taken by a client with a specific project, I now spend cold-calling and working on the business.” She estimated that at the time of trial she was “cold-calling 30 minutes to an hour every day.” She also explained that shortly before the pandemic, her full-time assistant reduced her hours to part time and that although Lutisha had intended to hire a second part-time assistant, she did not do so. Additionally, she identified the following actions she took to mitigate the impact of the pandemic on her business: “I also closed my office, which was very difficult for me. I enjoyed having an office. And I worked with my different vendors to decrease what I was paying them as far as subscription services, those types of things. I’ve done everything possible to create revenue while managing my expenses.” As to the possibility of returning to a radio sales manager position similar to the position she had before forming 360 Touch, Lutisha said that such jobs “don’t exist anymore.” She explained, “I have spoken to all of the general managers of the different radio companies in town, and their current situation is they’re actually getting rid of sales managers. They are terminating people because of the situation their companies are in due to COVID.”

¶9        Lutisha testified that she had struggled to pay her expenses during the pandemic and that her economic situation had forced her to take out a personal loan of $100,000.00 to make ends meet. She testified, “That money went to pay my personal expenses. My mortgage, my car, my food, utilities. It went to pay for everything.”

John’s Testimony

¶10 John’s testimony was presented next. Regarding his income, John testified about his employment agreement. He acknowledged his $225,000.00 base annual compensation as well as the potential for quarterly bonuses. And he said that although he considered the stock shares to be part of his compensation package, he did not “rely on those numbers in planning [his] life,” explaining, “I know that . . . whether it’s stock options or restricted shares, there is a vesting period and a holding period and you can’t sell those shares until sometime in the future.”

Lutisha’s Expert Evidence

¶11      Each party also presented the testimony of a financial expert, along with prepared financial expert reports, to help establish income amounts for the parties. Lutisha’s expert had determined Lutisha’s income from 360 Touch by calculating her average monthly incomes for both 2019 and 2020, “presenting the two calculations . . . to show the impact of the COVID-19 pandemic on [Lutisha’s] earnings.” Those calculations showed an average monthly income in 2019 of $19,555.00 and an average monthly income in 2020 of $10,316.00. Lutisha’s expert concluded:

COVID-19 has had a significant negative impact on 360 Touch and the Advertising Agencies industry. 360 Touch’s sales in 2020 decreased by 37.43 percent compared to 2019. Our analysis of 360 Touch’s 2020 sales shows that many of the Company’s clients have significantly decreased their marketing spending compared to historical expenditures. [Lutisha] informed us that this decrease is caused by decreased demand caused by uncertainty from the impacts of COVID-19. [Lutisha’s] assertion is consistent with industry data . . . .

Lutisha’s expert then quoted from a nationwide report stating that “[r]evenue for the Advertising Agencies industry is anticipated to decline 10.2 percent in 2020 due to reductions in ad spending” and that “[h]igh levels of uncertainty tend to reduce consumer and business spending.” Lutisha’s expert’s report also included calculations showing growth projections for 360 Touch. The calculations showed a 25% loss in 2021, 20% growth in 2022, and 2.4% growth thereafter.

¶12 Lutisha’s expert also calculated an average monthly income for John in both 2019 and 2020. In addition to John’s wages, this calculation relied on various company-related benefits, such as 401(k) contributions, health savings account contributions, and vested common stock. Lutisha’s expert testified that it was important to include the vested stock in John’s income “[b]ecause it’s wealth that’s generated through his work effort.” The result was an average monthly income of $25,922.00 in 2019 and $27,708.00 in 2020.

¶13      Lutisha’s expert testified generally as to the type of stock issued to John, unregistered restricted common stock shares (RSUs):

They have additional limitations on trading when the shares are held by an affiliate or an insider like [John]. So in order to sell those shares, you have to hold them for a certain period of time, but you also have to submit forms that indicate your intent to sell, and then . . . depending on what the limitations are on selling shares of a particular company that you own shares in, you may have to hold those shares for additional periods.

However, when asked, Lutisha’s expert was not able to elaborate on the specific restrictions applicable to John’s stock, responding, “Well, it really varies significantly from one company to another and one stock program to another. And so . . . there aren’t general parameters that I could give you. But RSUs that I’ve seen vary dramatically as to how the insiders can trickle shares into the stock market.”

¶14 During cross-examination, Lutisha’s expert was questioned as to whether, “based upon standard practice in [his] profession,” he counts frequent flyer miles “as a monetary value when computing income.” Lutisha’s expert responded, “I don’t, no.”

John’s Expert Evidence

¶15      John also retained a financial expert. In March 2020, John’s expert had conducted a valuation analysis of 360 Touch. This analysis had projected that for 2020, 360 Touch “would have over $2,000,000 in revenue . . . and would generate $176,000 in salary to [Lutisha], plus another $37,000 in net income to [Lutisha].” However, John’s expert acknowledged at trial that by the 2021 trial dates, actual 2020 numbers were known and instead showed that the real “results for 360 Touch in 2020 were just under $1.6 million in revenue,” a “$121,000 payroll to [Lutisha],” and “a small net loss.” He conceded that “in hindsight,” it appeared that his projection for 2020 was probably “overstated by over 43 percent.”

¶16 John’s expert provided another report in March 2021, which specifically addressed Lutisha’s earning potential. This analysis relied on an industry research report[3] of advertising agencies in 2020—a report “related to the advertising industry as a whole”—to project a “monthly net income after taxes . . . of $13,774 for 2020, and $14,466 for 2021.” Upon cross-examination, John’s expert acknowledged that his information was “not specific to 360 Touch’s customer base,” that he was not “aware of the impact political advertising had on the advertising world in 2020” (a factor with potential to have had an outsized impact on such data in an election year, like 2020), and that he did not “have any data on single-person advertising agencies in Utah and the impacts the pandemic ha[d] had on those agencies.”

¶17      Unlike Lutisha’s expert, John’s expert did include Lutisha’s frequent flyer miles in his analysis of her earnings, explaining that although frequent flyer miles may not have “an actual cash value,” they “could be turned into . . . personal spending or business spending so they actually have a value.” He also considered the level of rewards in this case to not be “typical” because he had not previously “seen this level of rewards . . . where someone is able . . . to amass this amount of $1.5 million in spending on a credit card.” However, when questioned as to the standard in his profession, he conceded that monetizing frequent flyer miles as income was “typically . . . not done.” And on cross-examination he also conceded that he usually follows this standard and does not “typically include rewards points in the valuation of income.”

The Post-trial Proceedings

¶18      After the conclusion of the trial, the district court issued its Findings of Fact and Conclusions of Law and Order. Lutisha thereafter filed a motion to reconsider and amend the findings, requesting changes to the court’s order to address alleged inconsistencies therein and requesting additional findings regarding the court’s property division. John responded to that motion and also counter-requested “correction or reconsideration” of a number of items, highlighting various “other discrepancies” in the court’s order. After holding a clarification hearing, the court entered an Amended Findings of Fact and Conclusions of Law and Order. The court then entered its Decree of Divorce.

¶19 The district court’s amended order was forty-two pages long and addressed a multitude of issues. We confine our recitation here to only those issues relevant to this appeal.

The Court’s Determination of the Parties’ Incomes

¶20 First, the court determined the gross monthly income for each party. The court reviewed the testimony presented by both experts and then found that “[Lutisha’s expert’s] analysis and opinion regarding [Lutisha’s] income [was] more credible than [was John’s expert’s].” The court explained that this was because John’s expert had relied on national projections as opposed to more localized data, had made projections based on data from an election year without knowing the impact of political advertising on such data, had relied on financial information compiled by John as opposed to the actual financial records of Lutisha and 360 Touch, and had made extrapolations predicting Lutisha’s income that ultimately significantly overstated Lutisha’s actual income  for 2020. Thus, the court adopted Lutisha’s expert’s income calculation and set Lutisha’s monthly gross income at $10,316.00.

¶21 As to John’s argument that a higher income should be imputed to Lutisha based on her historical earnings, the court determined that John had not shown that Lutisha was voluntarily underemployed or that, with reasonable effort, she could be earning more. The court found that John did not present testimony regarding what jobs were locally available to an individual with Lutisha’s background, and the court found credible Lutisha’s assertions that the type of marketing positions she had held previous to starting her own business were no longer available and that she had made reasonable efforts to maintain her income in the face of pandemic-related challenges.

¶22      As to John’s gross income, the district court again relied on Lutisha’s expert’s testimony, “which was based on [John’s] wages, bonuses, 401(k) contributions, Section 125 Benefits,[4] Health Savings Account Contributions, Group Term Life Insurance Benefit and Vested Common Stock” to determine a monthly gross income amount of $27,708.00. Although John had argued that, at least for purposes of calculating child support, the stock should not be considered as part of his gross monthly income, the court disagreed. The court reasoned that John’s “employment contract and work/payment history indicate[d] that [John] regularly receives stock options and bonuses as part of his regular income/compensation” and that “including [John’s] bonuses and regularly received stock options as part of his income is consistent with the sources of income as outlined in Utah Code § 78B-12-203(1).” See generally Utah Code § 78B-12-203(1) (defining “gross income” for purposes of the Utah Child Support Act).

The Alimony Order

¶23 Next, the district court addressed alimony. The court initially recognized that the following facts were indicative of the parties’ standard of living during the marriage: “the family traveled regularly, they maintained a second home, they enjoyed outdoor activities (and had recreational vehicles to do so), they dined out regularly, they had a nanny to care for the children, they skied at Deer Valley and Park City Mountain Resort, and they contributed to retirement savings.” As a result, the court accepted John’s marital monthly expenses figure of $30,973.02. Based on these facts, the court determined that, with the exception of the line items for monthly legal expenses, the parties’ listed expenses were “reasonable in light of the marital standard of living and in light of [the other party’s] monthly needs.” With the removal of the attorney fees expenses (and an adjustment to John’s child support expense due to a change in the ordered child support amount), Lutisha was left with a total monthly expense amount of $21,114.80, and John was left with a total monthly expense amount of $19,118.19.

¶24 The court then determined that Lutisha’s net monthly income of $7,846.00—the amount left of her gross monthly income after considering her tax rate, “[b]ased upon [her] 2020 tax return” of “19% federal and 4.95% state”—was insufficient to meet her reasonable needs and left a monthly shortfall of $13,268.80. And the court determined that John’s net monthly income after taxes of $19,409.00 was sufficient to cover his expenses, leaving a surplus of $290.81. The court then applied that surplus to Lutisha’s shortfall and, thereafter, “[e]qualizing the poverty,” split the remaining shortfall between the two parties. This resulted in a monthly alimony amount of $5,529.31, which the court ordered John to pay for five years, allowing Lutisha “to maintain the marital standard of living until the [m]inor [c]hildren reach the age of majority, and . . . allow[ing] [Lutisha] sufficient time to rehabilitate her income.”

The Property Division

¶25 The district court then moved to the task of dividing the marital estate, valuing the estate as of the time of trial. As to real property, the court awarded the Park City property to Lutisha and the Coalville property to John. Regarding the furniture in the homes, the court stated that because “credible trial evidence” showed that the Park City property and the Coalville property had “comparable items that are comparable in value,” it was “reasonable and equitable” to award Lutisha the “furniture, personal property, and the like” at the Park City property and to award John the “furniture, personal property, and the like” at the Coalville property.

¶26      The district court then awarded certain accounts and other property to Lutisha and John respectively. Relevant to this appeal, the court awarded the following to John: (1) two sets of stock options received as compensation from his employer, one valued at $99,198.00 and another valued at $99,996.75; (2) his 2021 first quarter bonus of $28,125.00; (3) a “travel credit” of $15,426.57 for a canceled trip to Bora Bora, with the court noting that although John “received a refund for the travel, the refund is not reflected anywhere else and thus should be included in the division of property”; and (4) the furniture that John had somewhat recently purchased for his Park City apartment, at a value of $26,318.86.

¶27 In dividing the marital estate, the district court declined John’s request to award him reimbursement for half of the $62,304.63 that he contended he spent on maintaining marital property and paying related expenses. The court determined that John “did not provide credible evidence that these were in fact marital expenses,” and it identified examples of listed items that “[did] not appear to be marital expenses,” such as “clothing purchases, contact lenses, Weller Recreation, and Marine Products.”

¶28 The district court did, however, determine that the $100,000.00 personal loan obtained by Lutisha was part of the marital estate because the loan was used “to pay for legitimate marital expenses.” In making this determination, the court pointed to, among other things, Lutisha’s “financial condition at that time” (when her income “had dropped significantly” and John “was under-paying his child support obligations”) and the parties’ “historical spending practices.”

¶29 The district court then divided the remaining marital property and debts. Finally, the court ordered an additional $102,243.09 equalization payment from John to Lutisha.

ISSUES AND STANDARDS OF REVIEW

¶30      John now appeals. He first challenges several components of the district court’s calculation of the parties’ incomes. “Courts have broad discretion to select an appropriate method of assessing a spouse’s income, including determinations of income imputation.” Bond v. Bond, 2018 UT App 38, ¶ 6, 420 P.3d 53 (cleaned up). When challenging an income determination, “appellants bear a heavy burden, and we can properly find abuse [of discretion] only if no reasonable person would take the view adopted by the trial court.” Pankhurst v. Pankhurst, 2022 UT App 36, ¶ 13, 508 P.3d 612 (cleaned up).

¶31      John also challenges several of Lutisha’s expenses that the district court found to be reasonable, the court’s method of calculating alimony, and the court’s division of the marital property. “In a divorce proceeding, the trial court may make such orders concerning property distribution and alimony as are equitable. The trial court has broad latitude in such matters, and orders distributing property and setting alimony will not be lightly disturbed.” Olsen v. Olsen, 2007 UT App 296, ¶ 8, 169 P.3d 765 (cleaned up). “Therefore, we review [property distribution and] alimony awards under an abuse of discretion standard.” Id.

ANALYSIS

I. The Parties’ Incomes

A.        Imputation of Income to Lutisha

¶32      John argues that the district court abused its discretion in determining Lutisha’s gross income. Specifically, he challenges the district court’s refusal to impute wages beyond the $10,316.00 monthly income calculated by Lutisha’s expert.

¶33      As an initial matter, we note that in determining Lutisha’s income, the district court referenced outdated law when it cited Busche v. Busche, 2012 UT App 16, 272 P.3d 748, cert. denied, 280 P.3d 421 (Utah 2012), for the proposition that “[t]he court must find that the spouse is voluntarily unemployed or underemployed” before it may impute income. Id. ¶ 24. While such a finding was a statutory prerequisite to imputing income prior to 2007, “the current version of the Utah Code requires only that the judge ‘enter[] findings of fact as to the evidentiary basis for the imputation.’” Pankhurst v. Pankhurst, 2022 UT App 36, ¶ 14, 508 P.3d 612 (alteration in original) (quoting Utah Code § 78B-12­203(8)(a)). “Thus, while voluntary unemployment or underemployment may be relevant when considering whether a party is concealing income or shirking in his or her efforts to earn income, a finding of voluntary unemployment or underemployment is not a prerequisite to imputing income.” Id. (cleaned up). Instead, “the focus of the imputation analysis is on the detailed findings of fact necessary to support a decision to impute income rather than the ultimate fact or legal conclusion of voluntary unemployment or underemployment.” Id. (cleaned up).

¶34 Notwithstanding the district court’s reference to the outdated rule cited in Busche, the court’s analysis was ultimately based on the correct concern—whether there was sufficient evidence to support imputation of a higher income to Lutisha. The court determined there was not because John presented no evidence “as to the current salaries or job availability in the prevailing market for persons with backgrounds similar to [Lutisha’s] or what [Lutisha’s] employment capacity and earnings potential would be in the prevailing markets in the community.”

¶35      Although John’s expert testified that Lutisha had a higher income potential than what Lutisha’s expert testified to, the court determined that John’s expert’s analysis was less credible than Lutisha’s expert’s analysis because John’s expert “relied on projections at the national level, but he had no data for single-person advertising agencies in Utah and the impacts of COVID-19 on a single-person agency.” The court also noted that the national numbers on which John’s expert relied were election-year numbers and that John’s expert “conceded that he had no knowledge of the impact of political advertising on the media industry numbers at the national level.” Additionally, the court observed that John’s expert “relied on [John’s] self-created spreadsheets for his financial analysis rather than on the actual billing and financial records for 360 Touch and [Lutisha] from 2020.” Indeed, the court found that the revenue projections John’s expert had made for 360 Touch for 2020 were “overstated by over 43% compared to the actual numbers” that were available for that year.

¶36      The court determined that the income analysis of Lutisha’s expert was more credible, as it was based on “income tax returns for [Lutisha] and 360 Touch, and on accounting records for 360 Touch.” After analyzing these records, Lutisha’s expert opined that “360 Touch has experienced a 37% decline in revenue since 2019, and that [Lutisha’s] income has declined by 42% from 2019.” The district court also found that Lutisha “credibly testified that marketing jobs (like the one she held prior to starting 360 Touch) are no longer available” and that she “provided credible testimony that she made reasonable efforts to maintain her income despite the negative impacts of the COVID-19 Pandemic on 360 Touch.”

¶37      John challenges the district court’s credibility assessments and evidentiary findings, specifically arguing that Lutisha’s testimony regarding the availability of marketing jobs “cannot be taken as credible or as a basis for an implication that no jobs exist,” that she “had not made good faith or reasonable efforts to mitigate the loss of her income,” and that she operates her business “without structure or good business practices.” But “[i]t is the province of the trier of fact to assess the credibility of witnesses, and we will not second-guess the trial court where there is a reasonable basis to support its findings.” Reed v. Reed, 806 P.2d 1182, 1184 (Utah 1991); see also Utah R. Civ. P. 52(a)(4) (“Findings of fact, whether based on oral or other evidence, must not be set aside unless clearly erroneous, and the reviewing court must give due regard to the trial court’s opportunity to judge the credibility of the witnesses.”); Stonehocker v. Stonehocker, 2008 UT App 11, ¶ 27, 176 P.3d 476 (“The trial court considered conflicting evidence on this point and rejected [the husband’s] explanation in favor of [the wife’s]. We defer to the trial court’s assessment of the credibility of this testimony.”). “If there is evidence supporting a finding, absent a legal problem—a fatal flaw—with that evidence, the finding will stand, even though there is ample record evidence that would have supported contrary findings.” Lobendahn v. Lobendahn, 2023 UT App 137, ¶ 27, 540 P.3d 727 (cleaned up). John has shown no such fatal flaw. Instead, our review of the evidence reveals a reasonable evidentiary basis supporting the district court’s factual findings on this issue, and we therefore see no abuse of discretion in the court’s refusal to impute a higher income to Lutisha.

¶38 John also argues that the district court should have considered “expected growth” of 360 Touch. However, the district court was of the opinion that the expected growth asserted by John’s expert was not sufficiently supported, which is understandable given that John’s expert projected an increase in Lutisha’s income for 2020 that ended up being 43% higher than the actual growth in Lutisha’s income for that year. And although Lutisha’s expert testified that “[i]ndustry-wide the projection is for growth,” he emphasized that this projection was, indeed, an industry-wide projection and “not specific to [Lutisha’s] company.”

¶39      John counters that even Lutisha’s expert “projected growth of 20% starting in 2022” for 360 Touch and that such growth “means that [Lutisha will] regain all her lost income by 2024.” But the projection to which John refers first shows a 25% retraction in 2021. And although the projection does predict a 20% growth in 2022, it does not support John’s assumption that a 20% growth rate would continue each year thereafter. Indeed, that projection’s predicted growth rate for the following years was only 2.4%, not a continued 20%.

¶40      In light of all this, the district court did not abuse its discretion by declining to base its income calculations on such varying and uncertain projections and instead leaving it to the parties to seek modification of the court’s orders if either of their incomes were to substantially change in the future. See Johnson v. Johnson, 855 P.2d 250, 253–54 (Utah Ct. App. 1993) (reasoning that “if a trial court knows that a party will be receiving additional future income[,] it should make findings as to whether such additional income will affect the alimony award,” but recognizing that if future income is “too speculative at the time of trial,” the court may delay that determination and a party can “bring a modification proceeding at the appropriate time”). See generally Utah Code § 30-3-5(11)(a) (“The court has continuing jurisdiction to make substantive changes and new orders regarding alimony based on a substantial material change in circumstances not expressly stated in the divorce decree or in the findings that the court entered at the time of the divorce decree.”); id. § 78B-12­210(9) (“A parent, legal guardian, or the [Office of Recovery Services] may at any time petition the court to adjust the amount of a child support order if there has been a substantial change in circumstances. . . . [A] substantial change in circumstances may include . . . material changes of 30% or more in the income of a parent . . . .”).

B.        Calculation of Lutisha’s Tax Liability

¶41      John contends that the district court’s calculation of Lutisha’s tax liability was improper, resulting in a net income for her that was lower than it should have been. The district court found that “[b]ased upon [Lutisha’s] 2020 tax return, her tax rate is 19% federal and 4.95% state.” John correctly observes, however, that calculations based on Lutisha’s 2020 tax return show that she actually paid an overall federal tax rate of approximately 13% and an overall state tax rate of approximately 4.8% in 2020. Thus, John asks for a “correction of the numbers to appropriately reflect the underlying source” and a resulting correction to “the corresponding calculations for alimony.”

¶42      Lutisha, on the other hand, defends the tax rates the district court applied to her income. In doing so, she correctly observes that when the standard federal tax rates for 2020 are applied to her current gross monthly income as found by the district court, the result is an overall federal tax rate of 19%; that Utah’s single-person tax rate for 2020 was 4.95%; and that these rates match the rates that the district court applied to her income. She also asserts that although John is correct in his calculations based on numbers derived from her 2020 tax return, the income number on that return “included more than just her earnings”—“[i]t also included $70,000 she withdrew from an IRA that year.” For these reasons, Lutisha asks us to affirm the district court’s application of a 19% overall federal tax rate and a 4.95% state tax rate to her income.

¶43      In short, Lutisha presents a plausible basis for the tax rates the district court actually applied to her income, but it is squarely at odds with the stated basis for the rates the court said it would apply to her income. And we are without a reasoned basis upon which to resolve the inconsistency in the court’s ruling. Accordingly, we vacate the court’s ruling as to the tax rates to be applied to Lutisha’s gross income, and we remand the case for the district court to clarify its ruling on this point and, if necessary, to adjust its net income and alimony calculations accordingly. See generally Wight v. Wight, 2011 UT App 424, ¶¶ 29–30, 268 P.3d 861 (remanding “for clarification” where an aspect of the trial court’s ruling on division of the marital estate “appear[ed] to be internally inconsistent” and the court of appeals was “unable to determine which result the trial court intended”), cert. denied, 280 P.3d 421 (Utah 2012).

C.        Non-inclusion of Lutisha’s Frequent Flyer Miles

¶44      John argues that the district court abused its discretion in failing to account for the large number of frequent flyer miles that Lutisha accrues each year. He argues that the court should have included the value of the miles in her income or, at the very least, used that value to reduce her expenses. We see no abuse of discretion in the court’s treatment of the frequent flyer miles.

¶45 As for not including the frequent flyer miles in its calculation of Lutisha’s income, this was consistent with the testimony of each party’s financial expert. Lutisha’s expert testified that “based upon standard practice in [his] profession,” frequent flyer miles are not counted “as a monetary value when computing income.” And while John’s expert did include the frequent flyer miles in his earnings analysis, he conceded that he does not “typically include rewards points in the valuation of income.” Although John believes that the court should have treated Lutisha’s frequent flyer miles differently due to the unusually high number of them, we decline to classify as an abuse of discretion the court’s decision to adhere to the only generally accepted accounting approach for which evidence was received, even in this somewhat unusual situation.[5]

¶46 Moreover, even if the frequent flyer miles were to be classified as a source of income, Utah “caselaw directs district courts to consider all sources of income when determining alimony[;] it does not dictate that all sources of income be counted as income received by a spouse for that purpose.” Eberhard v. Eberhard, 2019 UT App 114, ¶ 21, 449 P.3d 202. A district court retains “broad discretion to treat sources of income as the court sees fit under the circumstances.” Id. Here, as Lutisha points out, the frequent flyer miles were “not used to offset any of the expenses [she] reported on her financial declaration or that the court found to be her expenses.” The expense category for which frequent flyer miles would almost certainly have been used to offset expenses was Lutisha’s entertainment/travel expenses category, and her declared monthly expenses for that category amounted to $696.84. This amount was supported by financial statements showing that Lutisha spent $10,452.60 out of pocket over a fifteen-month period—for a monthly average of $696.84— in the entertainment/travel category. Because this expense amount accounted only for entertainment/vacation expenses that Lutisha paid for out of pocket, her frequent flyer miles were effectively used to reduce her expenses.

¶47 For both of the foregoing reasons, we determine that the district court did not abuse its discretion in its treatment of Lutisha’s frequent flyer miles.

D.        Inclusion of Stock Grants in John’s Income

¶48 John contends that the district court abused its discretion in calculating his gross income as well. The court determined John’s monthly gross income to be $27,708.00. The court again relied on Lutisha’s expert’s calculations in making this determination, which calculations included amounts for John’s vested RSUs. The court relied on Lutisha’s expert’s testimony that “even if the stock received by [John] is restricted stock, it becomes income in the year in which it vests.” The court also explained that it was including the stock in its income calculation because “[John’s] employment contract and work/payment history indicate that [he] regularly receives stock options and bonuses as part of his regular income/compensation.”

¶49 John contests the inclusion of the vested stock in the calculation of his income. He contends that this inclusion was an abuse of discretion because the example sources of “gross income” listed in Utah Code section 78B-12-203(1) all have values that “can be determined,” while the value of unliquidated stock “cannot be determined” until it is liquidated.[6] He also argues that the inclusion of the vested stock in the calculation of his income was an abuse of discretion because the stock “represents income not actually realized” since he “does not have free access to trade or liquidate the stock at the time of vesting.”

¶50      We first observe that “income” in this context is defined to include “all gain derived from . . . labor,” Utah Code § 78B-12­102(14)(b), and that “gross income” is defined to include “prospective income from any source,” id. § 78B-12-203(1). Under these definitions, the value of vested stock that a person is anticipated to receive in exchange for labor falls squarely within the statutory definition of gross income. John does not dispute this point, as he concedes that the value of vested but unliquidated stock “could fit in ‘prospective income from any source.’”

¶51      We next observe that John is mistaken in his assertion that the example sources of gross income listed in section 78B-12­203(1) all have values that can be determined, while the value of vested but unliquidated stock cannot be determined. One reason John’s assertion is not correct is that bonuses and gifts—two examples of gross income listed in section 78B-12-203(1)—might themselves take the form of vested stock. More importantly, “gross income” refers to “prospective income,” id. (emphasis added), in other words, income that a person is anticipated to receive in the future. Thus, as to every category of income— wages, commissions, bonuses, dividends, capital gains, vested stock, etc.—when a court calculates a person’s prospective income, it is making a prediction, based on current data, of the value the person will receive in the future. And as to every category, the actual future value may end up being different from the amount predicted. For this reason, the code allows for adjusted alimony orders and new child support orders when there is a substantial change between a party’s future income as anticipated and the party’s future income as it turns out to be. See id. §§ 30-3-5(11)(a), 78B-12-210(9). The fact that with stock there is uncertainty both as to what its value will be when it is received in the future and as to what its value will be when it is liquidated thereafter does not convince us to require exclusion of stock received in exchange for labor from gross income calculations.[7]

¶52 John’s other assertion is that the inclusion of the vested stock as part of his gross income was an abuse of discretion because of the stock’s nonliquidity at the time of its vesting. At one level, John’s point is well taken: because “the overarching aim of a . . . [divorce] decree . . . is to achieve a fair, just, and equitable result between the parties,” Dahl v. Dahl, 2015 UT 79, ¶ 25, 459 P.3d 276 (cleaned up), if the inclusion of a nonliquid asset as part of a party’s income makes it unduly difficult or impossible for that party to comply with a payment obligation calculated based on his or her income, equity may require the exclusion of that asset from the income calculation. But the burden of demonstrating that the inclusion of a particular form of income in the income calculation results in an inequity is on the party challenging the income calculation. See Lamb v. Lamb, 2024 UT App 16, ¶ 39, 545 P.3d 273 (stating that “the party challenging” an award “adjusting the financial and property interests of the parties” has the “heavy burden” to show “that such a serious inequity has resulted as to manifest a clear abuse of discretion” (cleaned up)). And here, John has made an insufficient showing of inequity resulting from inclusion of his RSUs as part of his gross income.

¶53      Although John points to Lutisha’s expert’s testimony that the RSUs are “restricted in trading” and that there are “additional limitations on trading when the shares are held by an affiliate or an insider like [John],” Lutisha’s expert testified only in general terms:

So in order to sell those shares, you have to hold them for a certain period of time, but you also have to submit forms that indicate your intent to sell, and then . . . depending on what the limitations are on selling shares of a particular company that you own shares in, you may have to hold those shares for additional periods.

Thus, his testimony was ultimately unhelpful to a determination of what restrictions were in place in this case. In fact, when questioned more specifically as to the restrictions generally in effect for individuals in John’s circumstances, Lutisha’s expert responded, “Well, it really varies significantly from one company to another and one stock program to another. And so . . . there aren’t general parameters that I could give you. But RSUs that I’ve seen vary dramatically as to how the insiders can trickle shares into the stock market.” To demonstrate a restriction on liquidity sufficient to render the district court’s inclusion of the RSUs in John’s income an abuse of discretion, John would need to direct us to evidence showing what particular restrictions were placed on the RSUs he received. It is not enough for John to argue, without more, that some restrictions apply. Accordingly, John has failed to show that the district court abused its discretion in relying on Lutisha’s expert’s calculation of John’s income, including the vested restricted stock.

II. Lutisha’s Expenses

¶54 John argues that several of Lutisha’s expenses “are unreasonably high, not actually incurred/or paid by other resources . . . , or not ongoing after the divorce.” We address each of the specifically challenged expenses in turn.

A.        Additional Credit Card Payments

¶55 John first challenges Lutisha’s “additional credit card payments” expense of $2,000.00. He argues that because Lutisha “inferred that all of her expenses are paid via credit card,” this “means additional payments on the card each month are going to pay for other stated monthly expenses that are charged to that card.” But that line item appears to address pre-existing credit card debt and therefore would not be duplicative of other listed expenses. John has pointed to no evidence to the contrary; therefore, he has not demonstrated an abuse of discretion in the court’s treatment of this expense.

B.        Lutisha’s Personal Loan

¶56 As we discuss more fully below, as part of its property division, the district court determined that Lutisha’s personal loan was part of the marital estate. See infra ¶ 83. John argues that because he was therefore “responsible for half the value of [Lutisha’s] personal loan,” the court should have halved Lutisha’s listed monthly expense for payment on this debt and shifted the other half to his monthly expenses. However, it appears that this issue was not preserved for our review. We do not see that the issue was raised in any of the portions of the record John cites as having preserved it—including his counter-request for reconsideration that asks for several other of Lutisha’s expenses to “be scrutinized.” See generally Utah R. App. P. 24(a)(5) (requiring an appellant to provide either “citation to the record showing that the issue was preserved for review” or “a statement of grounds for seeking review of an issue not preserved”). “Parties are required to raise and argue an issue in the district court in such a way that the court has an opportunity to rule on it.” Issertell v. Issertell, 2020 UT App 62, ¶ 21, 463 P.3d 698 (cleaned up). “When a party fails to raise and argue an issue in the district court, it has failed to preserve the issue, and an appellate court will not typically reach that issue absent a valid exception to preservation.” Id. (cleaned up). Because no such exception is argued here, we do not reach this issue.

C.        Maintenance of the Park City Property

¶57 John contests Lutisha’s monthly expense of $1,792.84 for “real estate maintenance.” He argues that this expense is “inflated” because it was calculated based, in large part, on $19,086.00 paid to a roofing company, $4,200.00 paid to a fabrication and welding company, and $2,443.61 paid to a plumbing company over a fifteen-month period—expenditures that John contends will not be “ongoing expenses that [Lutisha] will incur after the divorce.”

¶58 We agree that using expenditures for capital improvements, as opposed to costs for regularly recurring maintenance, as the basis of a monthly expense item is an abuse of discretion. “Capital improvements are betterments of a long lasting nature which add to the capital value of the property.” Bettinger v. Bettinger, 793 P.2d 389, 393 (Utah Ct. App. 1990) (cleaned up). Thus, when addressing capital improvements, the court should adjust the value of the improved property rather than use the cost of the improvement in the calculation of a party’s post-divorce expenses.

¶59      Accordingly, we vacate the district court’s ruling as to Lutisha’s expense line item for real estate maintenance and instruct the court on remand to make findings as to whether the payments to the roofing company, fabrication and welding company, and plumbing company were for capital improvements, regularly recurring maintenance, or some other purpose. The court should then adjust Lutisha’s expenses and the value of the Park City property as may be merited and, if necessary, also adjust any other calculations impacted by that change, including the alimony award and the asset equalization amount.

D.        Food, Household Expenses, Clothing, and Travel

¶60      John also contests Lutisha’s monthly expense of $4,580.70 for “food and household supplies.” He argues that the district court’s “adoption of [his] represented marital expenses doesn’t support the amounts represented by [Lutisha].” That is, he argues that because the court adopted his calculation for total monthly marital expenses, and because his calculated marital expense for this specific category was $2,945.00, Lutisha’s significantly higher asserted expense in this area is suspect and was not “properly reviewed and scrutinized by the court.”

¶61 As an initial matter, we observe that John provides no authority suggesting that one party’s listed expense for a given category is automatically suspect when it is not in line with another party’s calculated marital expense for that same category. Indeed, our case law instructs that a district court need not make a specific finding as to an overall marital expense amount, let alone precise marital expense amounts, for various expense categories. See Clarke v. Clarke, 2023 UT App 160, ¶ 57, 542 P.3d 935 (“There is usually no need for a trial court to make a separate specific finding regarding the overall ‘marital standard of living’ as measured by the total amount of money spent each month by the couple while they were married.” (cleaned up)). And although the court in this case accepted as “reasonable” John’s monthly marital expense amount of $30,973.02, the court made no such finding concerning the marital expenses listed for any of the specific expense categories. Moreover, we note that there is some variation between the expense categories that John and Lutisha employed and their decisions as to what expenditures belonged in which categories. In fact, one of the arguments John raises is precisely that—that certain amounts Lutisha categorized as household expenses should have instead been categorized as clothing and travel expenses.

¶62 Yet regardless of these variances between the parties’ financial declarations and how they categorized certain expenditures, we are ultimately presented with a case where (1) the court determined that the parties had enjoyed quite a comfortable standard of living during the marriage and ultimately adopted as “reasonable” the overall monthly marital expense of $30,973.02 provided by John and (2) Lutisha based her declared expenses on fifteen months of actual charges made to her accounts, and she provided the court with a document listing all those charges and how she had categorized them.[8] Against this backdrop, the court determined that after deducting the parties’ respective temporary legal expenses, their remaining expenses ($21,114.80 for Lutisha and $19,118.19 for John) were “reasonable in light of the marital standard of living.” See id. ¶ 59 (explaining that a court should “assess[] a party’s claimed line-item expenses in light of” the marital standard of living, and explaining that the “marital expenses” column on the parties’ financial declarations is “to assist with this process” (cleaned up)). All considered, we do not see a lack of supporting evidence for the district court’s decision that these challenged expenses were reasonable. Nor do we see any merit to John’s assertion that the court failed to “properly review[] and scrutinize[]” those expenses.

E.         Lutisha’s Medical Expenses

¶63      John argues that Lutisha’s “expense for health care should be scrutinized as she failed to distinguish between what amounts were for her and [what amounts were for] the children” and that this is problematic because John is already required to reimburse her for half of the children’s medical expenses. But again, similar to his objection to Lutisha’s personal loan, see supra ¶ 56, this particular objection to this line item is not referenced in his counter-request for reconsideration that addressed several expenses that he contended should “be scrutinized,” and John does not cite any other portion of the record where this argument was preserved. Accordingly, we do not reach this issue. See Issertell v. Issertell, 2020 UT App 62, ¶ 21, 463 P.3d 698.

III. Alimony Calculation

¶64      John challenges the district court’s overall alimony award as inequitable because the amounts of money left to each party after John’s alimony payment are not equal. He argues that “the court abused its discretion by awarding [Lutisha] any more than half of the disposable income of the parties on a monthly basis.” He points out that the total monthly amount available to Lutisha is $15,876.31 (including her net income of $7,846.00, the child support award of $2,501.00, and the alimony award of $5,529.31) and the amount available to him is $9,571.56 (his net income of $19,409.00 minus the amounts he must pay in child support and alimony). We do not agree that the district court abused its discretion as John contends.

¶65      A proper alimony assessment proceeds as follows:

First, the court should assess the needs of the parties, in light of their marital standard of living. . . . Next, the court should determine the extent to which the receiving spouse is able to meet [his or] her own needs with [his or] her own income. If the court determines that the receiving spouse is able to meet all [of his or] her needs with [his or] her own income, then it should not award alimony.

If the court finds, however, that the receiving spouse is not able to meet [his or] her own needs, it should then assess whether the payor spouse’s income, after meeting his [or her] needs, is sufficient to make up some or all of the shortfall between the receiving spouse’s needs and income.

Rule v. Rule, 2017 UT App 137, ¶¶ 19–20, 402 P.3d 153 (cleaned up). Should the court then encounter the common dilemma that “the parties’ combined resources do not stretch far enough to meet the legitimate needs of what are now two households rather than one,” the court must apply an “equalization of poverty” approach, ensuring “that when the parties are unable to maintain the standard of living to which they were accustomed during marriage, the shortfall is equitably shared.” Id. ¶ 20.

¶66 This is precisely the approach followed by the district court. It first addressed Lutisha’s financial condition and needs, determining that, after removing her temporary legal expenses, her remaining expenses of $21,224.80 were “reasonable in light of the marital standard of living and in light of [John’s] monthly needs.” The court then subtracted from this amount Lutisha’s net income and the ordered child support, arriving at a shortfall of $10,767.80. The court also addressed John’s financial condition, needs, and ability to pay. The court found, after also removing his temporary legal expenses, that John’s remaining expenses of $19,118.19 were “reasonable in light of the marital standard of living and in light of [Lutisha’s] monthly needs.” Then the court determined that John’s net income was sufficient to cover all his expenses with a surplus of $290.81 to go toward Lutisha’s shortfall. Finally, the court calculated the shortfall that would be remaining after applying John’s surplus of $290.81 and, “[e]qualizing the poverty,” divided that remaining shortfall by two. Thus, the court followed exactly the procedures required by Utah law and did not abuse its discretion in arriving at the resulting alimony amount.

¶67      John pushes back, arguing that “[u]nder no circumstances” can the district court’s alimony award “be viewed as equitable” because Lutisha will be left with a higher net income than he will be left with. John argues that the more equitable result would be “each party having 50% of the disposable income.” But “equalization [of the parties’ standards of living] does not require a court to award alimony so that each party is left with an equal monthly income. Rather, it requires a court to divide the shortfall of income equitably between the parties in light of each party’s demonstrated needs as well as the other relevant circumstances in the case.” Id. ¶ 21 (emphasis added) (cleaned up). Indeed, we have previously vacated alimony awards for doing exactly what John urges here—equalizing the money each party has at his or her disposal instead of equalizing the shortfall. See Vanderzon v. Vanderzon, 2017 UT App 150, ¶ 52, 402 P.3d 219 (“[B]ecause the court had already determined that the expenses of each party were reasonable, its decision to equalize income rather than shortfall—even though [the wife’s] needs were greater than [the husband’s]—appears to have left [the wife] to bear significantly more of the burden of insufficient resources than [the husband].”); Bakanowski v. Bakanowski, 2003 UT App 357, ¶ 12, 80 P.3d 153 (“Here, the trial court never determined [the wife’s] needs based on the parties’ historical standard of living. Instead, the trial court engaged in an effort to simply equalize income. In attempting to equalize the parties’ income rather than going through the traditional needs analysis, the trial court abused its discretion.”). Thus, John’s argument on this point is unavailing.

IV. Property Division

¶68      Finally, John challenges the district court’s treatment of several pieces of marital property. We address each in turn.

A.        John’s Stock Grants

¶69 John argues that because the district court included in John’s income the value of the stock he received from his employer, the court’s inclusion of that stock in the marital estate as well amounted to “double-dipping.” We are unconvinced. While the court considered the value of one year’s worth of vested stock when it calculated John’s income, the purpose of that calculation was to provide a prospective income number to serve as a basis for determining alimony and child support awards going forward. In contrast, the court included stock in the marital estate because there was an existing accrual of stock that had previously been given to John by his employer. The court including one year’s worth of anticipated future stock receipts in John’s prospective income and separately considering already-accrued stock in its division of the marital estate is no different from a court including a party’s anticipated salary in that party’s prospective income and separately including in the marital estate the already-paid salary remaining in the parties’ bank accounts when it divides the marital estate. The court did not abuse its discretion by considering the stock in both contexts.

¶70 John also argues that if any amount of already-received stock is marital property, it should only be the vested portions of stock. Yet John cites no authority indicating that it would be an abuse of discretion for the court to treat granted but unvested stock as part of the marital estate when the evidence is that the stock will vest over a moderate term as a matter of course. “An appellate court is not a depository into which parties may dump the burden of their argument and research,” and John’s inadequate briefing on this point “is by definition insufficient to discharge [his] burden to demonstrate trial court error.” Andersen v. Andersen, 2015 UT App 260, ¶ 6, 361 P.3d 698 (per curiam) (cleaned up).

¶71 John next argues that the values assigned to the stock “were arbitrary and place [an] unreasonable risk on [John].” But the values placed on the stock are the “current balance” values given to the stock by John himself in his most recent financial declaration, making those values anything but arbitrary. John’s real point in this regard seems to be that because the value of the stock will almost certainly change in the future, the court abused its discretion by assigning it a present value for purposes of summing and dividing the marital estate. However, the court’s approach was no different from the one we routinely allow courts to take with other marital assets—such as homes and vehicles— that are valued as of the time of trial and then awarded to one party as part of the division of marital property, despite the fact that their value will almost certainly change. “The valuation of marital property is necessarily a snapshot in time, and such a moment does not consider the myriad situations in which the value of the parties’ property might be positively or negatively affected in the future.” Wadsworth v. Wadsworth, 2022 UT App 28, ¶ 97, 507 P.3d 385 (cleaned up), cert. denied, 525 P.3d 1259 (Utah 2022).

¶72 John also argues that the court did not “consider the tax consequences of the asset,” if it is ever sold, when valuing the stock and awarding it to John as part of the property division. Yet it is not clear that John will ever liquidate the stock, and “we do not generally expect courts to speculate about hypothetical future tax consequences.” Id. (cleaned up).

¶73 Finally, John argues that the court should have mitigated the future uncertainty of the stock values by “adopting a different form of distribution,” such as dividing the vested stocks or ordering John to liquidate the stock as it becomes available and provide half the proceeds to Lutisha. But such an approach goes against the district court’s responsibility to “equitably distribute [marital property] with a view toward allowing each party to go forward with his or her separate life.” Marroquin v. Marroquin, 2019 UT App 38, ¶ 27, 440 P.3d 757 (cleaned up); see also Gardner v. Gardner, 748 P.2d 1076, 1079 (Utah 1988) (“The purpose of divorce is to end marriage and allow the parties to make as much of a clean break from each other as is reasonably possible. An award of deferred compensation which ties a couple together long after divorce can frustrate that objective.”). We therefore cannot say that the court’s determination to not delay the division of the stock was an abuse of its discretion.

¶74      In sum, each of John’s arguments related to the stock grants is unavailing. We see no abuse of discretion in the court’s treatment of the stock.

B.        John’s 2021 Bonus

¶75 John next argues that the district court should not have included his bonus of $28,125.00 from the first quarter of 2021 as a separate item in the marital estate. He asserts that the bonus had already been deposited into his bank accounts that were subject to equitable division and, therefore, that the bonus was essentially counted twice. But as Lutisha points out, the total value of those other accounts combined (approximately $3,400.00) was far less than the bonus amount, suggesting that John had either spent the bonus or not deposited it into those accounts as claimed. And John has not shown that, if spent, the bonus was applied to marital costs. Thus, we cannot say that it was an abuse of discretion for the court to count the bonus as a separate item in the marital estate and award it to him.[9]

C.        John’s Travel Credit

¶76 In the fall of 2020, John booked travel to Bora Bora for himself and the parties’ children for April 2021. The trip later had to be canceled when Bora Bora was closed due to the COVID-19 pandemic. The court included the resulting travel credit of $15,426.57 as part of the marital estate and awarded it to John as part of the property division. The court’s reasoning was as follows: “The [c]ourt notes that while [John] provided updated bank statements at trial showing he received a refund for the travel, the refund is not reflected anywhere else and thus should be included in the division of property.”

¶77      John contests this award, arguing that the court’s reasoning “does not make sense on its face.” He asserts that “the evidence supports this credit being to an account [that] was subject to equitable division at the time of trial”; in other words, because the travel credit served to reduce the marital debt on the credit card, the travel credit was already accounted for when the reduced credit card debt was included in the equitable property division. We disagree that this is what happened.

¶78      Although the district court could have provided a clearer explanation, we understand the court to have recognized that although John had provided an updated credit card statement at the time of trial showing travel refunds, those refunds were not reflected on the prior statements before the court, which the court used to determine the assets and debts of the parties. Thus, it was not the case that these travel refunds reduced the marital debt that was before the court when it determined the assets and debts of the parties. The numbers support this interpretation: the marital debt on the credit card that was allocated to John was $44,484.00 on the statement that the court used when determining the assets and debts of the parties, and the balance on that card as reflected on the more recent statement, provided at trial, showed an outstanding debt of only $29,202.72—a difference quite close to the amount of the travel-related refund. Because the travel refund was not reflected in the documents on which the court based its property division, and because John received the refund after the date of those documents, the court did not abuse its discretion by separately including the amount of the travel-related refund as marital property and allocating it to John.

D.        John’s Furniture

¶79 John argues that the furniture at the Park City property was worth more than the furniture at the Coalville property and, therefore, that the district court abused its discretion in not treating the $26,318.86 that John spent on new furnishings for his primary residence (an apartment in Park City) as rectifying this imbalance. Instead, the court determined that because “credible trial evidence” showed that the Park City property and the Coalville property had “comparable items that are comparable in value,” it was “reasonable and equitable” to award Lutisha the “furniture, personal property, and the like” at the Park City property and to award John the “furniture, personal property, and the like” at the Coalville property. The court thus considered the $26,318.86 value of the newer furniture as a separate item of marital property subject to division. John argues, however, that “evidence presented to the court supports an equitable finding that the property in each [party’s] possession and residences awarded to them equally offset the other,” that is, that including the value of the new furniture in John’s apartment “would be sufficient to offset the difference in value” of the furniture located at the other two properties.

¶80      “Generally, district courts have considerable discretion concerning property distribution in a divorce proceeding and their determinations enjoy a presumption of validity.” Dahl v. Dahl, 2015 UT 79, ¶ 119, 459 P.3d 276 (cleaned up). “[A]n appellate court’s role is not to reweigh the evidence presented at trial but only to determine whether the court’s decision is supported by the evidence.” Barrani v. Barrani, 2014 UT App 204, ¶ 24, 334 P.3d 994. Here, John has provided no citation or argument showing how the court’s decision was not supported by the evidence. John’s briefing simply points out that the court was provided with photographs “of both properties and the furniture therein” and then asserts that “[t]he evidence presented to the court” was sufficient to support a different finding. This bald assertion does not convince us that the court’s decision was not supported by the evidence before it. Thus, we see no abuse of discretion on this point.

¶81      Additionally, John argues that even if the new furniture is subject to division as marital property, there was no evidence that the furniture “maintains the same value as it had at the time of purchase more than eighteen months prior to trial.” Given, however, that the court was presented with evidence that this furniture was only eighteen months old and slightly used, and given that John presented no evidence of its depreciated value, we see no abuse of discretion in the court’s reliance on the purchase price amounts to assess the value of the furniture.

E.         John’s Requested Reimbursement of Marital Expenses

¶82      The district court refused to award reimbursement to John for half of $62,304.63 that he claimed to have spent “maintaining the marital property and expenses,” explaining that John “did not provide credible evidence that these were in fact marital expenses” and citing a few examples of listed expenses that were non-marital, such as “clothing purchases, contact lenses, Weller Recreation, and Marine Products.” John contests this determination, arguing, among other things, that his documentation also showed payments toward maintenance of marital property such as the mortgage, HOA fee, and insurance on the Coalville property, as well as insurance on the parties’ boat and certain ATVs. But each of John’s arguments on this point asks us to reassess credibility and reweigh the evidence, something that, again, we will not do, see Burruni v. Burruni, 2014 UT App 204, ¶ 24, 334 P.3d 994. And John’s general assertions do not demonstrate that the court’s finding that the evidence John provided was not “credible evidence” of marital expenses was not supported by the evidence. We therefore see no abuse of discretion in the court’s refusal to award the requested reimbursement.

F.         Lutisha’s Personal Loan

¶83 John contests the inclusion in the marital estate of the $100,000.00 personal loan that Lutisha obtained to pay expenses while the parties were separated. He argues that because “the majority of the debt incurred and paid off with that loan were for [Lutisha’s] attorney fees,” including the loan in the marital estate is contrary to the district court’s requirement that the parties be responsible for their own attorney fees. Although John overstates Lutisha’s admission that her monthly expenses, including her legal fees, may have been paid, in part, by the loan, the real issue here is that John overstates the district court’s ruling on attorney fees. The court’s order was as follows: “[B]oth [Lutisha] and [John] are awarded financial and property assets in the division of the marital estate in this divorce action . . . . Thus, because both [p]arties have access to financial and property resources, the [c]ourt now orders that each [p]arty shall pay for their own attorney fees and costs.” (Emphasis added.) Thus, the court’s requirement that each party bear his or her own legal fees was in relation to those fees moving forward. We therefore see no conflict in the court’s actions with regard to Lutisha’s personal loan and, thus, no abuse of discretion.

CONCLUSION

¶84 The district court enjoys broad discretion in addressing issues of income, alimony, and property distribution. And, with just two exceptions, John has not shown an abuse of that discretion. Those exceptions are the uncertainty regarding the tax rates to be applied to Lutisha’s gross income and the possible inclusion of capital improvements to the Park City property in determining Lutisha’s monthly expenses. Thus, we generally affirm the order but vacate the district court’s determinations on those two issues. We remand those issues to the district court for clarification and, if necessary, adjustment, recognizing that any adjustments to these items may also necessitate adjustments to the ultimate alimony award, child support award, and property distribution.

Utah Family Law, LC | divorceutah.com | 801-466-9277


[1] As is our practice, because the parties share the same last name, we refer to them by their first names, with no disrespect intended by the apparent informality.

[2] Prior to trial, in September 2020, the parties entered into a stipulation that “resolved the issues of child custody, parent time, number of overnights for purposes of calculating child support . . . , payment of the children’s expenses, the claiming of the children on taxes, and other more minor issues.” None of these issues are relevant to this appeal, and we therefore do not discuss them further.

[3] 3. This report was created by IBISWorld, which describes itself as a global company that “provides trusted industry research on thousands of industries worldwide.” IBISWorld’s Story, IBISWorld, https://www.ibisworld.com/company/our-story/ [https://perma.cc/N3PY-Z77A].

[4] Lutisha’s expert explained these benefits as follows: “They are generally the purchased cafeteria plan benefits. They’re just a selection of benefits that the IRS allows employers to offer to their employees on a pretax basis.”

[5] John suggests that the district court improperly “refused to allow [his expert to testify] on facts and circumstances of this case that would warrant deviating from the standard practice in [the expert’s] profession.” This statement mischaracterizes the court’s action. The court only refused to allow testimony as to other cases, not as to the circumstances of this case:

I don’t want [John’s expert] talking about other cases that are not this case. What I want him to talk about, though, is general principles that are applied in his profession, in his expertise in terms of how travel benefits would be incorporated, how they’re incorporated, and how he applied those principles to this case. So . . . I am permitting that. . . . But I’m not going to permit him to talk about other cases . . . because that is outside the scope.

Under this ruling, John’s expert was free to present general principles for the treatment of frequent flyer miles when the number of miles at issue is unusually high. Yet he provided no such principles.

[6] Specifically, section 78B-12-203(1) says that “‘gross income’ . . . may include salaries, wages, commissions, royalties, bonuses, rents, gifts from anyone, prizes, dividends, severance pay, pensions, interest, trust income, alimony from previous marriages, annuities, capital gains, Social Security benefits, workers’ compensation benefits, unemployment compensation, income replacement disability insurance benefits, and payments from ‘nonmeans-tested’ government programs.” Utah Code § 78B-12-203(1).

[7] John further argues that the stock grants in his case are only guaranteed in the current contract term and may not be included in future contracts with his employer. But here again, the fact that income (in all its sources) might change in the future does not impact the district court’s need to determine prospective income based on data available at the time of divorce, and if John’s compensation substantially changes in the future, modification may be sought to address the change.

[8] John suggests that the court erred when it did not require more evidence supporting Lutisha’s expenses and “did not find that [Lutisha] met her burden to prove the marital standard of living as required via Dahl v. Dahl, [2015 UT 79, 459 P.3d 276,] but instead used [John’s] financial declaration to find [Lutisha’s] request reasonable.” But Dahl does not “automatically require[] a court to deny a request for alimony in the absence of documentation.” Wadsworth v. Wadsworth, 2022 UT App 28, ¶ 101, 507 P.3d 385, cert. denied, 525 P.3d 1259 (Utah 2022). “In fact, the [Dahl] court explicitly acknowledged that the district court could have imputed a figure to determine the wife’s financial need based either on the husband’s records of the parties’ predivorce expenses or a reasonable estimate of the wife’s needs.” Id. ¶ 102 (cleaned up). Therefore, we do not consider this argument further.

[9] John raises a separate plain error argument with regard to his bonus; however, “plain error review is not available in ordinary civil cases unless expressly authorized by rule.” Kelly v. Timber Lakes Prop. Owners Ass’n, 2022 UT App 23, ¶ 44, 507 P.3d 357; see also Duffin v. Duffin, 2022 UT App 60, ¶ 36 n.7, 511 P.3d 1240 (applying this rule in a divorce case), cert. denied, 525 P.3d 1262 (Utah 2022). We therefore do not address this argument—or any other plain error arguments—further.

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Thorup v. Thorup – 2024 UT App 93

Thorup v. Thorup – 2024 UT App 93
THE UTAH COURT OF APPEALS

MONA THORUP, Appellee, v. MARCUS THORUP, Appellant.

Opinion No. 20220583-CA Filed July 5, 2024

Third District Court, Salt Lake Department

The Honorable Amy J. Oliver

Commissioner Joanna Sagers

No. 204906416

Jonathan G. Winn, Attorney for Appellant, Jenna Hatch, Attorney for Appellee

JUDGE RYAN M. HARRIS authored this Opinion, in which JUDGES MICHELE M. CHRISTIANSEN FORSTER and JOHN D. LUTHY concurred.

HARRIS, Judge:

¶1        In this case, we are asked to consider whether the district court properly allocated—as between a divorcing couple—the equity in the house in which the couple lived during their marriage. In particular, Marcus Thorup challenges the court’s determination that substantial portions of the value of the house, which was originally his separate property, became commingled into the marital estate. We find merit in many of Marcus’s arguments, and therefore reverse the court’s equity allocation order and remand the case for further proceedings.

BACKGROUND

¶2        Marcus and Mona Thorup married in 1986.[1] Eleven years later, in 1997, they moved into a new house (the House) built—at the apparent cost of $445,000—by Marcus’s father’s construction company. For the next seven years, the House was titled in the name of Marcus’s father’s company, and Marcus and Mona lived there rent-free. During some of this time, Marcus and Mona obtained a homeowners insurance policy that listed both of them as “owners” of the House, even though that was not actually the case. And for a year or so around 1997, Mona’s mother lived in a separate apartment on the property, and she paid Marcus and Mona some $13,000 that went toward the costs associated with building the separate apartment.

¶3        In May 2004, Marcus’s father (through his company) “gifted” the House to Marcus “as an inheritance.” Thereafter, title to the House was in Marcus’s name; Mona was never placed on title. In December 2004, Marcus used the House as collateral for a $150,000 loan. Marcus later testified that the proceeds from the loan were not spent on the House but, instead, were spent on marital matters, such as medical bills, credit card bills, some other unspecified “investments,” and a payment on the couple’s “cabin lot.” Over the next ten years, the loan was fully repaid, entirely with marital funds.

¶4        Between 1997 and 2020, Marcus, Mona, and their children lived in and maintained the House. They also made some improvements to the House over that time. For purposes of this dispute, Marcus retained an expert who determined that the out-of-pocket cost of the family’s improvements had been $12,171, and that the family’s maintenance of and improvements to the House “contributed about $20,000 to its current value.”

¶5        In 2020, Mona filed this divorce action and asked (among other things) that the House and all its equity be awarded to her. Marcus responded by filing a counterclaim in which he contended that the House was an “inheritance from his father” and was his “separate property.” This dispute eventually worked its way to trial, and the parties agreed, by written stipulation, to resolve the issue by way of an “informal custody trial” before a domestic relations commissioner, a procedure usually limited to resolution of custody disputes and whose parameters are set forth in rule 4-904 of the Utah Code of Judicial Administration. Under this procedure, the parties agreed to “present[] their case[s]” to the commissioner, under oath, without questioning by attorneys. In addition to providing their own testimony, the parties agreed that they could each “present any documents they want[ed] the [c]ourt to consider” and that, “[a]fter the [c]ourt [had] heard from both parties,” only then would attorneys be allowed “to make legal argument.” In stipulating to this procedure, the parties agreed to “waive the normal question and answer manner of trial” and to “waive the rules of evidence,” and they agreed that “[t]he other party [could] tell the [c]ourt anything he or she feels is relevant.” The parties also waived their right to “challenge any of the documents or testimony that was considered” by the commissioner during the informal trial, and they agreed that “[t]he only issue on appeal [would] be whether the [c]ourt abused its discretion in reaching its findings and conclusions.”

¶6      During the course of the informal trial—which took place over parts of two trial days—the commissioner heard from Marcus and Mona, who testified (largely through proffer by counsel) about the events described above. In addition, the parties by stipulation submitted sworn declarations and other similar documents from other witnesses, which evidence the commissioner accepted and considered. And the parties’ attorneys made extensive arguments, both in written briefs filed prior to the trial and in oral arguments made during the trial.

¶7        Mona took the position that, even if the House was originally Marcus’s separate property, “the separate property converted into marital property during the marriage.” She made two specific arguments in this regard, asserting both (a) that she had contributed to the value of the House through maintenance and improvements, and had thereby acquired an equitable interest in it, and (b) that the House had been commingled into the marital estate. Marcus, on the other hand, took the position that the House was, and always had been, his separate property, and that it had not been commingled into the marital estate. He acknowledged that “Mona may have a contribution claim” regarding the House, but he pointed to evidence indicating that the family’s contributions had increased the value of the House by only $20,000, and he argued that, at most, Mona was therefore entitled to only $10,000 of the House’s total value.

¶8        At the conclusion of the trial, and after hearing the arguments, the commissioner made an oral ruling, determining that much of the House’s value—$150,000 of its original value, plus all of its appreciation—had been commingled into the marital estate. As support for this determination, the commissioner noted that the marital estate had repaid the $150,000 loan that used the House as collateral, and reasoned that the loan indicated “that the family in essence bought that mortgage and paid it back.” The commissioner also relied on the facts that, during the period before Marcus was gifted the House, the parties obtained homeowners insurance indicating that they were both owners of it and that Mona’s mother had paid $13,000 toward “the mother-in-law apartment being enhanced.” And the commissioner found relevant the fact that Mona had been “responsible for maintaining” the House and its “landscaping.” The commissioner also found—by averaging two appraisals—that the House was worth $312,500 in 2004 when it was gifted to Marcus and was worth $765,000 at the time of trial. The commissioner then concluded that Marcus should receive $162,500 ($312,500 minus $150,000) as his separate property, and that the parties would split the remaining $602,500 equally.

¶9        The commissioner’s oral ruling was later encapsulated in written findings of fact and conclusions of law and a decree of divorce, which documents were signed by the assigned district court judge.

ISSUES AND STANDARDS OF REVIEW

¶10 Marcus now appeals, and he challenges the specific portions of the commissioner’s ruling that concern allocation of the value of the House. In particular, he takes issue with the commissioner’s determination that much of the House’s value was commingled into the marital estate. And he challenges the finding that the House was worth $312,500 in 2004.

¶11      Mona asserts that, because this case comes to us from an “informal custody trial,” the applicable standard of review is deferential and the scope of appeal is “steep and constricted.” Mona is certainly correct that, when parties agree to resolve their issues through an informal trial, they waive their right to appeal certain evidentiary issues. See Utah R. Jud. Admin. 4-904(b)(7) (stating that parties may not appeal from an informal trial on “grounds that . . . rely upon the Utah Rules of Evidence”). In this case, Marcus and Mona agreed that they would “not be able to challenge any of the documents or testimony that was considered” during the proceeding, and neither party attempts to raise any evidentiary issues on appeal. But Mona is incorrect when she asserts that the appellate standards of review—on the issues that are appealable—are any different in appeals from informal trials than they are in other cases. The court’s ultimate ruling is appealable, see id. (stating that a “final order” from an informal trial “may be appealed on any grounds” other than grounds that “rely upon the Utah Rules of Evidence”), and will be reviewed under the same appellate standards of review that are applicable in appeals from formally tried cases.

¶12      Mona resists this conclusion by pointing to language in the parties’ stipulation stating that “[t]he only issue on appeal will be whether the [c]ourt abused its discretion in reaching its findings and conclusions.” She argues therefrom that all issues in this appeal—regardless of the usual standards of review—must be reviewed for abuse of discretion. We disagree. The form the parties used to encapsulate their stipulation is a form that—in keeping with the usual usage of the informal trial procedure—is designed for custody cases. We thus interpret the form’s reference to the “abuse of discretion” standard as simply indicating that the court’s ultimate ruling regarding custody will be reviewed as per usual: for abuse of discretion. See Lobendahn v. Lobendahn, 2023 UT App 137, ¶ 18, 540 P.3d 727 (“We review custody determinations under an abuse of discretion standard, giving the district court broad discretion to make custody awards.” (quotation simplified)). We do not interpret the form as indicating that—for issues that are appealable—the standards of appellate review are any different in cases coming to us after an informal trial than they are in cases coming to us in the usual manner.

¶13      Now that we have determined that the standards of review in this appeal will be the same as in an appeal from a formally tried case, we must determine what those standards of review are. Marcus contends that both of the court’s determinations that he is here challenging—regarding commingling and the House’s value in 2004—are conclusions of law properly reviewed for correctness. Mona, on the other hand, asserts that these determinations are factual and reviewed for abuse of discretion or clear error. We agree with Mona.

¶14      “[District] courts are in the best position to determine whether property is marital or separate, and we defer to their findings of fact [in this regard] unless clearly erroneous.” Thompson v. Thompson, 2009 UT App 101, ¶ 10, 208 P.3d 539; see also Lindsey v. Lindsey, 2017 UT App 38, ¶ 26, 392 P.3d 968 (“We generally defer to a [district] court’s categorization and equitable distribution of separate property and uphold its determinations in that regard unless a clear and prejudicial abuse of discretion is demonstrated.” (quotation simplified)). Thus, we review a district court’s factual findings in this regard for clear error, and we review for abuse of discretion its ultimate determination of whether a particular item is separate or marital property.

¶15      And this same standard of review also applies to the more specific question of whether the House was commingled into the marital estate. See Dahl v. Dahl, 2015 UT 79, ¶ 143, 459 P.3d 276 (reviewing a commingling ruling for abuse of discretion); Oliekan v. Oliekan, 2006 UT App 405, ¶¶ 18–19, 147 P.3d 464 (same). A court’s determination that a piece of originally separate property has been commingled into the marital estate is just a particular way of determining that the property is marital (rather than separate) property.

¶16      Finally, we also apply a deferential standard of review to Marcus’s challenge to the court’s finding regarding the value of the House in 2004. See Marroquin v. Marroquin, 2019 UT App 38, ¶ 10, 440 P.3d 757 (“We defer to [a] district court’s findings of fact related to property valuation and distribution unless they are clearly erroneous.” (quotation simplified)); see also Rothwell v. Rothwell, 2023 UT App 50, ¶ 33, 531 P.3d 225 (“A district court’s factual determinations are clearly erroneous only if they are in conflict with the clear weight of the evidence, or if this court has a definite and firm conviction that a mistake has been made.” (quotation simplified)), cert. denied, 537 P.3d 1011 (Utah 2023).

ANALYSIS

¶17 We first discuss Marcus’s challenge to the court’s ruling that much of the House’s value had been commingled into the marital estate. We then turn to Marcus’s challenge to the court’s finding that the House was worth $312,500 in 2004.

I. The House: Separate or Marital Property?

¶18      On the question of whether and to what extent the House constitutes marital property, we begin by discussing what is at issue in this appeal and—notably—what is not at issue in this appeal. Neither party challenges the court’s determination that the House was originally Marcus’s separate property when title was placed in his name in 2004. The court awarded Marcus $162,500, intended to represent the original value of the House in 2004, less the later loan amount. The basis for this award, as we understand it, was the commissioner’s (at least implicit) determinations that the House was Marcus’s separate property in 2004 and that Marcus is entitled to keep his separate property to the extent it was not commingled or subject to an equitable contribution made by Mona. No party challenges that portion of the commissioner’s ruling.

¶19 Marcus does challenge two other aspects of the commissioner’s ruling regarding the House’s status as separate or marital property. First, Marcus challenges the commissioner’s determination that $150,000 of the original value of the House— the amount of the December 2004 loan—had been commingled into the marital estate. Second, Marcus takes issue with the determination that the appreciation, over time, in the value of the House became commingled into the marital estate. We discuss these two challenges, in turn, after first setting forth applicable legal principles regarding separate property and commingling.

A. Background Legal Principles

¶20      One of the tasks courts often face in adjudicating divorce cases is making an equitable division of the marital estate between the divorcing spouses. Our supreme court has described this property-division process as follows:

Before a district court distributes marital assets, it must (1) identify the property in dispute and determine whether it is marital or separate property, (2) consider whether there are exceptional circumstances that overcome the general presumption that marital property be divided equally, (3) assign values to each item of marital property so that a distribution strategy can be implemented, and (4) distribute the marital assets consistent with the distribution strategy.

Dahl v. Dahl, 2015 UT 79, ¶ 121, 459 P.3d 276 (quotation simplified). Marcus’s first challenge concerns the first step in this process: assessing whether a particular piece of property—here, the House—is marital property that belongs to the marital estate or is instead separate property that belongs to him alone.

¶21 “Marital property ordinarily includes all property acquired during [the] marriage, whenever obtained and from whatever source derived.” Lindsey v. Lindsey, 2017 UT App 38, ¶ 31, 392 P.3d 968 (quotation simplified). Separate property, on the other hand, includes each spouse’s “premarital property”— that is, property owned by one spouse prior to the marriage—as well as “gifts[] and inheritances” received by a spouse during the marriage. See id.see also Mortensen v. Mortensen, 760 P.2d 304, 308 (Utah 1988) (stating that courts should “generally award property acquired by one spouse by gift and inheritance during the marriage . . . to that spouse”).

¶22      Property determined to be part of the marital estate will be divided equitably—and presumptively equally—between the divorcing spouses. See Lindsey, 2017 UT App 38, ¶ 32 (“The presumption is that marital property will be divided equally . . . .”). But separate property “will not be divided at all,” id., and will “generally” be awarded, “together with any appreciation or enhancement of its value,” to the spouse whose separate property it is, see Mortensen, 760 P.2d at 308; see also Lindsey, 2017 UT App 38, ¶ 32 (“Equity generally requires that each party retain the separate property he or she brought into the marriage, including any appreciation thereof.” (quotation simplified)).

¶23      In some situations, however, property that begins as one spouse’s separate property can lose its separate identity and become part of the marital estate. See Mortensen, 760 P.2d at 308; see also Lindsey, 2017 UT App 38, ¶ 33 (stating that, sometimes, “circumstances warrant an equitable override of the separate-property retention rule”). Our case law has identified three such situations: (1) where “separate property has been commingled” into the marital estate, Lindsey, 2017 UT App 38, ¶ 33; (2) where “the other spouse has by his or her efforts or expense contributed to the enhancement, maintenance, or protection of that property, thereby acquiring an equitable interest in it,” Mortensen, 760 P.2d at 308; and (3) “in extraordinary situations when equity so demands,” Lindsey, 2017 UT App 38, ¶ 33.

¶24 First, with regard to commingling, one rather obvious situation in which commingling occurs is where “one spouse has contributed all or part of the property to the marital estate with the intent that it become joint property.” See Dahl, 2015 UT 79, ¶ 143. But even short of an outright intended contribution, property that started out as separate property may be considered commingled if it becomes inextricably and untraceably intertwined with marital assets. See id. (“[P]remarital property may lose its separate character where the parties have inextricably commingled it with the marital estate . . . .”). Quite important to any commingling analysis, then, is whether the property in question has retained “its separate character.” See id. And this inquiry often turns on whether the property’s separate identity can still be traced or accounted for. See Mortensen, 760 P.2d at 307 (stating that property is commingled when it “completely loses its identity and is not traceable”); see also Pusey v. Pusey, 728 P.2d 117, 119 (Utah 1986) (upholding a district court’s determination that property was commingled because “it could not trace any assets to any source”). Indeed, in one case we phrased the relevant question as whether the property at issue “became so commingled that [it] could not be segregated” from the marital estate, and we determined that it had not, because “the marital and premarital interests were reasonably capable of being determined” and “it was still possible to trace and separately identify” the separate property. Oliekan v. Oliekan, 2006 UT App 405, ¶¶ 20–23, 147 P.3d 464. Thus, separate property will be considered commingled when it has been mixed in with marital assets to such a degree that it is no longer reasonably possible to distinguish between the separate and marital property. On the other hand, if “the marital and premarital interests” are still “reasonably capable” of being traced and identified, then the separate property retains its separate nature and will not be considered commingled. See id.

¶25 Second, “under the contribution exception, a spouse’s separate property may be subject to equitable distribution when the other spouse has by his or her efforts or expense contributed to the enhancement, maintenance, or protection of that property, thereby acquiring an equitable interest in it.” Lindsey, 2017 UT App 38, ¶ 35 (quotation simplified). “This exception may be satisfied when one spouse brings assets into the marriage and the other spouse’s prudent investment of those assets substantially increases their value, or when marital funds are expended or marital debt is incurred for the benefit of one spouse’s separate property.” Id. (quotation simplified). “Under such circumstances, one spouse’s effort or investment may render the other spouse’s underlying asset, its appreciated value, or some portion thereof subject to equitable distribution.” Id.

¶26      Third, there exists a catch-all exception for situations—not covered by either of the first two exceptions—in which “extraordinary circumstances . . . warrant a departure from the presumptive rule.” Henshaw v. Henshaw, 2012 UT App 56, ¶ 15, 271 P.3d 837. This exception is rarely applied; we have stated that the “bar for establishing an extraordinary situation is high, traditionally requiring that invasion of a spouse’s separate property is the only way to achieve equity.” Lindsey, 2017 UT App 38, ¶ 46 (quotation simplified).

¶27 During the informal trial, Mona made arguments under the first two of these exceptions, arguing that—even if the House was Marcus’s separate property in 2004 when it was gifted to him—at least part of the House’s value became part of the marital estate due to commingling or due to the family’s equitable contribution. The commissioner accepted Mona’s commingling argument, and therefore opted not to consider whether, or to what extent, Mona had acquired an equitable interest in the House through contributions.

B. The $150,000 Loan

¶28      The first part of the commissioner’s commingling analysis with which Marcus takes issue is the ruling that $150,000 of the House’s original value became commingled into the marital estate. In December 2004, some seven months after the House was gifted to Marcus, he used the House as collateral for a $150,000 loan, and that loan was fully repaid, over the next ten years, with marital funds. The commissioner determined that, given these facts, “the marital estate paid for that portion of the [H]ouse directly by paying off the mortgage,” and ruled that the amount of the House’s original value collateralized by the loan ($150,000) was marital property rather than Marcus’s separate property.

¶29 We acknowledge the facial appeal of the commissioner’s ruling: the fact that the marital estate paid the loan back certainly makes it look like the estate might have acquired an interest in the House. But our supreme court has made clear that a separate asset does not necessarily become marital property simply because a marital estate pays back a loan drawn from that asset. See Dahl v. Dahl, 2015 UT 79, ¶¶ 142–145, 459 P.3d 276. At a minimum, more analysis is required in order to reach that conclusion.

¶30 In Dahl, a husband had possessed certain retirement accounts (IRAs) “prior to his marriage” that were his “separate property.” Id. ¶ 142. During the marriage, the husband “withdrew funds from the IRA[s] to pay off a home equity loan secured by the marital home and then replenished the funds using a marital bank account.” Id. The wife contended that, by this action, the husband had “commingled” the IRAs with marital assets and thereby “converted [them] to marital property.” Id. ¶¶ 142, 144.

¶31      Our supreme court rejected the wife’s argument, holding that the husband’s actions did not cause the IRAs to lose “their separate identity.” Id. ¶ 144. In the court’s view, the transaction was “best characterized as a loan from [the husband] to the marital estate, which was in turn repaid with marital funds.” Id. On the facts presented in Dahl, there was “nothing . . . suggesting that [the husband] intended to commingle his IRA funds with the marital estate.” Id. And the court held that the IRAs “did not become so inextricably commingled into the marital estate that the district court was incapable of tracing [them].” Id. (quotation simplified). In summary, the court noted that the IRAs did not lose their “separate identity simply because [the husband] made a loan from [the IRAs] to pay off a home equity loan.” Id. ¶ 145.

¶32 The lesson of Dahl, as relevant here, is that when one spouse uses his or her separate property to facilitate a loan to the marital estate, the proceeds from that loan are used to benefit the marital estate, and the marital estate pays the loan back with marital funds, the separate property used to facilitate the loan does not, simply by virtue of the loan, become commingled into the marital estate.

¶33 Marcus asserts that Dahl is materially indistinguishable from this case. As he sees it, he facilitated a loan to the marital estate using his own separate property—the House—as collateral, and the marital estate was obligated to pay that loan back just like it would have needed to pay off a loan collateralized in any other way. He asserts that—just like the transaction in Dahl—nothing about this transaction indicates any intent on his part to commingle the House with the marital estate. And he notes— correctly—that this loan did not render a factfinder incapable of tracing his separate property. We find Marcus’s arguments at least potentially persuasive, and we note that Mona (in her appellate brief) did not cite Dahl and made no effort to rebut Marcus’s argument that Dahl is controlling here.

¶34      We agree with Marcus that the commissioner’s analysis is at odds with Dahl.[2] The commissioner’s analysis on this point was quite brief, and simply assumed that, because the marital estate repaid the $150,000 loan amount, it had “paid for that portion of the [H]ouse directly.” As noted, it does not necessarily follow, simply from the fact that the marital estate repaid the loan, that the asset that facilitated the loan—here, the House—became commingled into the marital estate. See id. ¶ 144.

¶35 The question of whether repayment of the loan by the marital estate resulted in commingling turns on whether the proceeds of the loan were used for marital-estate purposes unrelated to the House or were, instead, used to increase the value of the House. If the proceeds were used—as they were in Dahl— entirely for marital-estate purposes unrelated to the asset leveraged for the loan, then Marcus is correct that the situation here would be materially indistinguishable from Dahl, and the transaction would be “best characterized as a loan . . . to the marital estate” facilitated by Marcus’s separate property. See id. On the other hand, if the loan proceeds were used to improve the House, the marital estate’s repayment of that loan might accurately be said to have resulted in the marital estate “[paying] for that portion of the [H]ouse directly,” a situation that might support a determination that commingling (or, alternatively, acquisition of an equitable interest) had occurred.

¶36      On the question of what the loan proceeds were used for, the commissioner made no findings. Marcus testified that the loan proceeds were spent not on the House (or on any other personal endeavors of Marcus) but on marital things, such as medical and credit card bills, other unspecified “investments,” and a payment on the couple’s “cabin lot.” But neither in the oral ruling made at the conclusion of the informal trial nor in the written ruling issued thereafter did the commissioner make any specific findings about either the credibility of Marcus’s testimony on this point or about whether any of the loan proceeds were spent on the House.[3]

¶37 In the end, we view the commissioner’s analysis as incomplete. Because the reason the commissioner gave for determining that the loan amount had been commingled does not necessarily support that conclusion, and because the commissioner did not make certain factual findings necessary to complete the analysis, we must reverse the commissioner’s determination that $150,000 of the House’s original value was commingled into the marital estate, and we remand the matter to the district court for further proceedings on this point.

C. The House’s Appreciation

¶38 The second part of the commissioner’s commingling analysis with which Marcus takes issue is the ruling that all of the House’s appreciation since 2004—an amount the commissioner determined to be $452,500 ($765,000 minus $312,500)—was no longer Marcus’s separate property because it had been commingled into the marital estate. As support for this ruling, the commissioner cited (a) the homeowners insurance policies acquired before Marcus owned the House that listed both Marcus and Mona as “owners,” (b) Mona’s testimony that she was responsible for maintaining the House and its landscaping, and (c) the fact that Mona’s mother had paid $13,000 toward “a mother-in-law apartment” in the late 1990s. Even applying a deferential standard of review, we agree with Marcus that the commissioner committed an abuse of discretion in so ruling.

¶39 We begin our analysis by repeating the long-established legal principle that, ordinarily, appreciation on separate property belongs not to the marital estate but, rather, to the spouse whose separate property it is. Mortensen v. Mortensen, 760 P.2d 304, 308 (Utah 1988) (stating that separate property, “together with any appreciation or enhancement of its value,” belongs to the separate spouse); Keyes v. Keyes, 2015 UT App 114, ¶ 28, 351 P.3d 90 (“In most cases, equity requires that each party retain the separate property that he or she brought into the marriage, including any appreciation of the separate property.” (quotation simplified)); Thompson v. Thompson, 2009 UT App 101, ¶ 12, 208 P.3d 539 (“An award of separate property includes its appreciation during the marriage.”); Burt v. Burt, 799 P.2d 1166, 1169 (Utah Ct. App. 1990) (“Inherited or donated property, as well as its appreciated value, is generally regarded as separate from the marital estate and hence is left with the receiving spouse in a property division incident to divorce.”).

¶40      This general rule—that a spouse should receive his or her separate property, together with any appreciation—may be varied on the basis of commingling, but only when it is clear that the spouse intended to contribute the property to the marital estate, or when it becomes functionally impossible to trace or account for the separateness of the spouse’s property. See Oliekan v. Oliekan, 2006 UT App 405, ¶¶ 20–23, 147 P.3d 464 (stating that the question in commingling cases is whether the property “became so commingled that [it] could not be segregated” from the marital estate, and determining that commingling was not present because “the marital and premarital interests were reasonably capable of being determined” and because “it was still possible to trace and separately identify” the separate property); see also Dahl, 2015 UT 79, ¶ 143 (“[P]remarital property may lose its separate character where the parties have inextricably commingled it with the marital estate, or where one spouse has contributed all or part of the property to the marital estate with the intent that it become joint property.”).

¶41 Commingling occurs most commonly with money, because dollars are fungible and, when separate money is deposited into the same account as marital money, it can become difficult to tell which dollar is which. See, e.g.Pusey v. Pusey, 728 P.2d 117, 119 (Utah 1986) (affirming a district court’s finding “that throughout the marriage [the husband] had commingled corporate and personal funds so that [the court] could not trace any assets to any source”). Yet even money will not be considered commingled if the separate property funds can be identified and traced. See, e.g.Oliekan, 2006 UT App 405, ¶ 23 (affirming a district court’s determination that no commingling had occurred because “it was still possible to trace and separately identify the funds” at issue); accord Arnason v. Arnason, 2002 UT App 243U, para. 2.

¶42 Real property is easier to trace than money, and it is therefore perhaps not as common for commingling to occur with regard to real property as it is with money. Cf. Dahl, 2015 UT 79, ¶ 146 (“A spouse can maintain the separate identity of premarital [real] property by utilizing section 1031 exchanges to avoid commingling separate property with marital property.”). But it is at least conceivable that separate real property—or at least the proceeds therefrom—can become commingled into a marital estate. For instance, in one case we concluded that, where proceeds from the sale of separate property (including real property) had been “deposit[ed] into the parties’ joint accounts” and thereby lost its separate identity, commingling had occurred. Dunn v. Dunn, 802 P.2d 1314, 1321 (Utah Ct. App. 1990). And in other cases, we have observed that, where significant or substantial marital assets are invested to support, maintain, or improve separate real property, commingling may have taken place. Keiter v. Keiter, 2010 UT App 169, ¶ 23, 235 P.3d 782 (stating that “expending marital funds toward otherwise separate real estate supports a determination of commingling that may convert separate property into marital property”); Schaumberg v. Schaumberg, 875 P.2d 598, 603 (Utah Ct. App. 1994) (affirming a district court’s determination that commingling of the “appreciated portion” of a husband’s separate real property had occurred where the parties had “used substantial marital funds to maintain and augment” the property).

¶43 In this case, however, the House was never sold, and therefore no proceeds from any sale were ever deposited into a marital account. And there was no evidence presented that the parties invested significant sums of marital money into supporting, maintaining, or otherwise improving the House. Here, tracing the separate nature of the House, including the appreciation in its value, is fairly obvious, and we see no evidence indicating that the House ever lost its separate identity.

¶44 In particular, we find the evidence upon which the commissioner relied unpersuasive and entirely unsupportive of a determination that all appreciation of the House after 2004 was commingled into the marital estate. Two of the three items upon which the commissioner relied—that both Marcus and Mona appeared as “owners” on homeowners insurance policies, and that Mona’s mother paid $13,000—occurred prior to 2004, before Marcus even owned the House. These items therefore have extremely limited value in the analysis, and they simply do not point to any commingling of post-2004 appreciation.

¶45      The other item upon which the commissioner relied—the fact that Mona had been involved in some of the maintenance of the House, especially the landscaping—is likewise insufficient to support a determination that the entirety of the House’s appreciation was commingled into the marital estate. As noted above, the investment of substantial marital assets into separate real property can support a determination that the separate property was commingled. See Keiter, 2010 UT App 169, ¶ 23; Schaumberg, 875 P.2d at 603. But here, no such evidence was presented; Mona did not offer evidence of any specific monetary contributions, nor did she attempt to provide many particulars about the nature of her landscaping and other contributions.[4] One spouse’s residence at, and assistance with the day-to-day maintenance of, the other spouse’s separate real property will not usually be enough to render the entirety of that property’s appreciation commingled into the marital estate. Under the circumstances presented here, we conclude that Mona’s rather non-specific contributions to maintenance and landscaping are insufficient to support a determination that the entirety of the House’s appreciation was commingled into the marital estate.

¶46      That is not to say that such contributions are irrelevant to the ultimate separate-or-marital-property analysis. As noted, Mona also made an argument, at the informal trial, that she had made an equitable contribution to the value of the House that should be recognized under the contribution exception to the general rule that separate property goes to the individual spouse. While Mona’s evidence is insufficient to support a determination that the entirety of the House’s appreciation was commingled into the marital estate, such evidence might be sufficient to support a determination that Mona made an equitable contribution to the House that ought to be quantified and recognized in the distribution of marital property.

¶47 Accordingly, we conclude that the commissioner committed an abuse of discretion in determining, on this record, that the entirety of the House’s appreciation had been commingled into the marital estate, and we therefore reverse that determination. We remand the matter, however, so that the district court might have an opportunity to consider Mona’s alternative argument—not reached by the commissioner—that she made an equitable contribution to the value of the House that should be considered in the distribution of the marital estate.

II. The House’s 2004 Value

¶48      Marcus also challenges the court’s finding that the value of the House, when it was gifted to him in 2004, was $312,500. Marcus argues that the House’s value was actually $445,000—the amount his father’s construction company spent to build it. On this record, however, we conclude that the court’s finding is supported by competent evidence and that the commissioner therefore did not commit clear error in making it.

¶49      When a court is asked to value real property, it may do so in any one of several ways, depending on the evidence presented. Certainly, one way to value a house is to assess how much it cost to build it. See Carter v. Sorenson, 2004 UT 33, ¶ 2, 90 P.3d 637 (referring to the “traditional appraisal methods” as “the cost approach, the income approach, and the sales comparison approach”). But more commonly, appraisers value residential real property using a “comparable sales” approach, in which they attempt to “locate and analyze sales of ‘comparable’ properties . . . between a willing buyer and a willing seller in which the sale price is determined by market forces.” See Utah Dep’t of Transp. v. Admiral Beverage Corp., 2011 UT 62, ¶ 40, 275 P.3d 208.

¶50      During the informal trial, Marcus presented evidence that his father’s construction company spent $445,000 to build the House in the 1990s. Had that been the only evidence presented at trial, Marcus may have a credible argument that the court committed clear error by not adopting that methodology in assessing the House’s 2004 value. But that was not the only evidence presented at trial. Marcus also presented an appraisal of the House, as of May 2004, that applied a comparable-sales methodology; the first draft of that appraisal valued the House at $285,000, and an “amended draft” valued it at $340,000. The court found, based on this evidence, that the best indication of the value of the House in 2004 was an “averag[e] of the two values proposed by” Marcus’s appraiser, which is $312,500.

¶51      This finding is amply supported by evidence in the record and is therefore not clearly erroneous. See Kimball v. Kimball, 2009 UT App 233, ¶ 20 n.5, 217 P.3d 733 (“The pill that is hard for many appellants to swallow is that if there is evidence supporting a finding, absent a legal problem—a fatal flaw—with that evidence, the finding will stand, even though there is ample record evidence that would have supported contrary findings.” (quotation simplified)). We therefore reject Marcus’s challenge to the court’s finding that the House was worth $312,500 when it was gifted to him in 2004.

CONCLUSION

¶52      We reject Marcus’s challenge to the court’s factual finding regarding the value of the House in 2004. But we sustain Marcus’s challenges to the court’s commingling determination, and specifically to its rulings that (a) $150,000 of the House’s original value was commingled and (b) the entirety of the House’s post-2004 appreciation was commingled. We therefore reverse the court’s equity allocation order, and we remand the case to the district court for further proceedings, consistent with this opinion, regarding the use to which the parties put the 2004 loan proceeds and regarding Mona’s claim to an equitable interest in the appreciation of the House under the contribution exception.

Utah Family Law, LC | divorceutah.com | 801-466-9277


[1] Because the parties share the same last name, we use their first names for clarity, with no disrespect intended by the apparent informality.

[2] In fairness to the commissioner, Marcus did not cite Dahl during the informal trial. But this does not present a preservation problem, because litigants are permitted to cite new authority for the first time on appeal to support arguments regarding issues properly raised below. See Patterson v. Patterson, 2011 UT 68, ¶ 18, 266 P.3d 828 (“[W]e routinely consider new authority relevant to issues that have properly been preserved . . . .”). In this instance, the parties raised the relevant issue at the informal trial—whether $150,000 of the House’s original value was commingled into the marital estate—and are therefore entitled to bring new authority to our attention on appeal bearing on this preserved issue.

[3] At the conclusion of the informal trial, the commissioner stated that some of the loan proceeds were “used to pay some medical bills for” Mona. It is unclear from the record whether this statement constituted an oral factual finding or merely a musing on the part of the commissioner, and no such finding appears in the written ruling. In any event, we are unaware of any statements or findings, written or oral, made by the commissioner about whether any of the loan proceeds were used on the House.

[4] The best evidence of Mona’s contributions appears to be found in her answer to a written interrogatory from Marcus that asked her to “detail” all her contributions to the House. In that answer, she stated generally that she “maintained and upkept” the House and “was in charge of maintaining the yard.” She also described other remodeling and maintenance activities, such as helping to repaint, retile, and redecorate various rooms in the House. But she made no effort—whether in that interrogatory response or otherwise—to quantify her efforts in dollars, and she did not hire an appraisal expert to assess any increase in value to the House that her efforts might have brought about or to rebut Marcus’s appraisal expert’s conclusions in that regard.

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I Have a Court Date Coming Up, but I Don’t Speak English (Or Don’t Speak or Understand It Well). What Can I Do?

Did you know that if you are not fluent in English and have a court date coming up, the court will provide you with an interpreter IF you make the request timely and through the proper procedure?

To ensure you get an interpreter on time, you must request a court interpreter on time, meaning at least 3 days before the proceeding, or the proceeding may have to be postponed. You can request a court interpreter either by calling the clerk of the court that is assigned your case or by filing a “Request a Court Interpreter” form with that court. You can obtain the form through this website:  Request a Court Interpreter (utcourts.gov)

Utah Family Law, LC | divorceutah.com | 801-466-9277

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How to Fill Out Your Financial Declaration, Paragraph One. By Braxton Mounteer, Legal Assistant

If you find yourself involved in a Utah divorce action (whether child support will be an issue or not) or an action over the support of minor children in Utah (such as a child support action or action for parentage/paternity), you will need to exchange with your spouse or with the other parent an official court form known as the “Financial Declaration” (see Utah Rules of Civil Procedure 26.1). This blog series will concisely walk you through the process of preparing your financial declaration correctly.

As a general matter: you want to ensure your financial declaration is as accurate and complete as you can make it.

There are twelve total paragraphs in the Financial Declaration form.

Paragraph one of your financial declaration is easy to complete. It consists of checking a box declaring whether you are filing your financial declaration with the court.

When do you file your financial declaration with the court?:

  • In the event that you have a hearing regarding an issue of child support, spousal support, marital property, marital debts, attorney fees, court fees, or the court has specifically requested that a financial declaration be filed with the court.

Even if you are not required to file your financial declaration with the court, you are still required by the Rules of Civil Procedure to serve a copy of it (along with supporting documents for the claims and statements you make in your financial declaration) on the opposing party.

Please follow the rest of our posts on preparing your financial declaration, so that you understand better what is required of your financial declaration and why (and why it’s so important to ensure your financial declaration is as accurate and complete as you can make it).

Utah Family Law, LC | divorceutah.com | 801-466-9277

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If I Agreed to Sign up a Prenup With My Billionaire Husband Does That Mean I Would Not Get Anything Not Even a Dollar?

I can’t speak to what the law governing prenuptial agreements is in any jurisdiction other than the one in which I practice divorce and family law (Utah), but as to how your question could be answered in Utah, I’ll give you my opinion (this is not legal advice, but my opinion):

While it is possible that a Utah court could—in determining whether a prenuptial agreement that was intended to ensure you get nothing from your billionaire husband in the event of a divorce—rule that such a provision of the prenuptial agreement is enforceable, it is by no means guaranteed. Why?

First, there is this provision of the Utah Code governing prenuptial (premarital) agreements:

  • 30-8-4. Content

(1) Parties to a premarital agreement may contract with respect to:

(a) the rights and obligations of each of the parties in any of the property of either or both of them whenever and wherever acquired or located;

(b) the right to buy, sell, use, transfer, exchange, abandon, lease, consume, expend, assign, create a security interest in, mortgage, encumber, dispose of, or otherwise manage and control property;

(c) the disposition of property upon separation, marital dissolution, death, or the occurrence or nonoccurrence of any other event;

(d) the modification or elimination of spousal support;

(e) the ownership rights in and disposition of the death benefit from a life insurance policy;

(f) the choice of law governing the construction of the agreement, except that a court of competent jurisdiction may apply the law of the legal domicile of either party, if it is fair and equitable; and

(g) any other matter, including their personal rights and obligations, not in violation of public policy or a statute imposing a criminal penalty.

(2) The right of a child to support, health and medical provider expenses, medical insurance, and child care coverage may not be affected by a premarital agreement.

As you can see, § 30-8-4 provides that parties to a premarital agreement may contract with respect to 1) the rights and obligations of each of the parties in any of the property of either or both of them whenever and wherever acquired or located; 2) the disposition of property upon separation, marital dissolution, death, or the occurrence or nonoccurrence of any other event; and 3) the modification or elimination of spousal support.

But § 30-8-6 provides:

  • 30-8-6. Enforcement.

(1) A premarital agreement is not enforceable if the party against whom enforcement is sought proves that:

(a) that party did not execute the agreement voluntarily; or

(b) the agreement was fraudulent when it was executed and, before execution of the agreement, that party:

(i) was not provided a reasonable disclosure of the property or financial obligations of the other party insofar as was possible;

(ii) did not voluntarily and expressly waive, in writing, any right to disclosure of the property or financial obligations of the other party beyond the disclosure provided; and

(iii) did not have, or reasonably could not have had, an adequate knowledge of the property or financial obligations of the other party.

(2) If a provision of a premarital agreement modifies or eliminates spousal support and that modification or elimination causes one party to the agreement to be eligible for support under a program of public assistance at the time of separation or marital dissolution, a court, notwithstanding the terms of the agreement, may require the other party to provide support to the extent necessary to avoid that eligibility.

(3) An issue of fraud of a premarital agreement shall be decided by the court as a matter of law.

So, while an otherwise duly prepared premarital agreement in which you agreed to waive any claim to any of your husband’s premarital property or even any future marital property might be (and in my opinion, likely would be) enforceable against you, if the agreement provided that you waived spousal support, but would result in you becoming eligible to be a public charge (i.e., a government welfare (“public assistance”) recipient), the court, notwithstanding the terms of the agreement, could (not shall, but could) require your spouse “to provide support to the extent necessary to avoid that eligibility.”

Utah Family Law, LC | divorceutah.com | 801-466-9277

Eric Johnson’s answer to If I agreed to sign up a prenup with my billionaire husband does that mean I would not get anything not even a dollar? – Quora

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Taking Your Divorce Case to Trial Requires Just as Much from You as It Does of Your Lawyer, By Braxton Mounteer, Legal Assistant

Taking your divorce case to trial is almost always a long, complicated, and emotionally exhausting process. You may be tempted to believe you can leave all of the work to your lawyer and show up the day of trial to sit on the sidelines while your lawyer does all the work. It might be nice if this were the way it could be, but it can’t.

Your trial is the final round; you need to work harder at your trial than you did in the months (perhaps even the years) leading up to the trial. You should be ready to testify—knowledgeably and shrewdly[1] on any issue in your case at your trial, and if your lawyer is good, he or she will have prepared you to testify that way.

If you leave all of the work to your lawyer, he or she cannot be as effective as he or she otherwise can be.

Failing or refusing to tell your attorney the truth, to give your attorney the documentation and other information needed to have a clear picture of the case. The strengths and the weaknesses of your case. Hiding this information from your attorney, lying to your attorney, or hoping that nobody will find out the weaknesses in your history, your character, and your case can be fatal (but almost certainly damaging) to your case. Failing or refusing to read what your attorney needs you to read and to provide the documents your lawyer needs to prepare for your case will risk leaving holes in your case that the opposition and/or the court can exploit to your detriment.

Your trial will likely be both a physically and emotionally exhausting experience in the best of situations, so you need to prepare for trial as best you reasonably can. Do the needed work. A prepared litigant is a confident one. You need to have your exhibits, witnesses, and your testimony prepared for trial as best you reasonably can. A prepared attorney is a confident one as well.

Utah Family Law, LC | divorceutah.com | 801-466-9277


[1] shrewdly doesn’t mean “dishonestly”; it means that you testify truthfully without testifying in a manner that can inaccurately, misleadingly, deceptively, and unfairly be twisted and used against you.

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People Who Are Getting an Extremely-Contested Divorce W/O Paying for Lawyers, Need Step-By-Step Directions in Their State! If There Were Uncontested Divorces, There Would Be No Divorces at All, Because Both Partners Would Be Getting Along Perfectly?

Sure, they need that. It is a great idea.

Where there is a demand to be filled, markets arise to fill them.

It would be a great benefit to people going through an highly contested divorce to have free step-by-step directions, so that they would not have to pay for a lawyer’s help and representation as they navigate the divorce process, but for such things to exist requires someone to do an incredible amount of work (more than you’d think), and few people can or want to do that much work free of charge. Which is why such a thing does not really exist.

Cheesy/sleazy divorce lawyers will put this quotation attributed to Willie Nelson on their office walls and websites, but that makes it no less true for most people: “You know why divorces are so expensive? They are worth it.”

There are many self-help resources for people who want to go through the divorce process pro se (that means unrepresented by an attorney; also known as pro per), but none of them (at least none that I know of) can produce results of the same accuracy, completeness, and high quality that a good (a good) lawyer can. That is the hard truth.

Frankly, some people can file for and obtain a fair decree of divorce without an attorney’s help, but few have that ability (few have the guts, the time, the smarts, the physical, mental, and emotional stamina, and the patience to represent themselves successfully), and the more complex the case is, the harder it is for one to process such a case to a successful completion.  That is the hard truth too.

It is not that getting a divorce is all that hard procedurally, it is just that to those who do not know what they are doing, it can be intimidating at best and prone to committing ignorant errors that can be irreparable. If one has time on one’s hands and a cooperative spouse, they could pull off a reasonable and fair DIY divorce, but such circumstances in divorce are extraordinarily rare.

Utah Family Law, LC | divorceutah.com | 801-466-9277

https://www.quora.com/People-who-are-getting-an-extremely-contested-divorce-w-o-paying-for-lawyers-need-step-by-step-directions-in-their-state-If-there-were-uncontested-divorces-there-would-be-no-divorces-at-all-because-both-partners/answer/Eric-Johnson-311

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Do You Lose Parental Rights Automatically When You Get Divorced if You Do Not File for Visitation or Custody?

Make sure you understand the terms you and others may be using in asking and discussing this question.

If you are a parent of minor children, and you are involved in a divorce action, and you do not petition the court for an award of a child custody and parent time schedule, then at least in the jurisdiction where I practice divorce and family law (Utah), you would not have your parental rights terminated (meaning that you no longer have any legal status, rights, or obligations as a parent). But if your spouse sought an award of custody that resulted in him or her having the children in his slash her care and custody at all times, leaving you with no visitation or parent time periods to spend with the children, then it is possible that a court could make such an award to your spouse. If a parent does not bother to seek shared custody or at least an award of visitation or parent time with his/her children in a divorce or child custody case, A court may reason that this parent does not want shared custody or does not want to exercise any visitation or parent time, in which case the court would not award it.

It is possible, though not likely, in my opinion, that even if a parent did not make a request in his/her divorce or child custody action for shared custody or for a visitation or parent time award, the court might still order a minimal visitation or parent time schedule for that parent to exercise, so that if the parent is so inclined, he or she can do so. Such an award might be grounded in the courts belief that children should have contact with both of their parents, and to order that the parent cannot have any visitation or parent time with his/her children would be contrary to and fail to subserve the best interest of the children. Any parent, however, who counts on a court doing this for him or her, and then not making a request for a specific custody award or parent time award as a result of this expectation, would be taking a needless risk of ending up with nothing.

Utah Family Law, LC | divorceutah.com | 801-466-9277

Eric Johnson’s answer to Do you lose parental rights automatically when you get divorced if you do not file for visitation or custody? – Quora

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Are You Fighting for Your Kids or Are You Protecting Your Financial Future? By Braxton Mounteer, Legal Assistant

An accusation that gets thrown around a lot in a divorce action is that a parent doesn’t actually want to spend time with his or her children. Usually it’s an accusation from a mother against a father. She accuses him of motivated to seek more custodial time by the fact that the more time he has with the children the less child support he pays. But if a mother makes more money than the father, Dad could accuse Mom the same way.

Making the “he’s just trying to save money–he doesn’t want to be with the kids” accusation costs the accuser nothing and usually forces the accused in a posture he should never have placed in.

Consider this scenario. You love and adore your children, but your spouse is spiteful and vindictive. Your spouse thus wants to take you to the cleaners financially and so he or she petitions for sole custody. In pursuit of sole custody, your spouse accuses you of being an abusive spouse and/or parent, getting you arrested and/or made the respondent in a protective order matter, resulting in you getting forcibly removed from your home by court order during the pendency of the divorce proceedings.

You are then stuck, during the pendency of the case, with temporary orders to pay child support (perhaps also temporary alimony) while trying to find (and pay for) a separate residence while paying an attorney in the fight to spend minimal time with your children. All the while, with the exception of a few clothing items the court may let you gather up, your former spouse has all of your belongings in the house, and primary custody of your children.

How do you prove that your desire for joint custody is out of love and responsibility for your kids and that you aren’t “just trying to avoid paying support”?

You will need to fight hard, (much harder than you’d imagine, and even harder if you are a father) to prove that, for the sake of the children’s benefit, there is no good reason that you cannot and should not exercise equal custody. Courts are shamefully not generally inclined to give fathers the benefit of the doubt in this regard.

On the flip side of this issue, what if the accusations against you are true? If you are an absentee parent historically and/or you don’t really want to spend that much time with your children, then you have made your own bed and should lie in it. Your children deserve to be with the parent who actually cares for them. If you foist the bulk of the burden of child care on your spouse, then your spouse deserves the funds needed to bear that burden. You should not be left homeless and starving by crushing child and alimony obligations, but you have no right to leave your children destitute either.

While courts are slowly moving toward embracing the idea that “the best parent” is both parents, there is still a surprising amount of resistance to the idea in the legal system. If you are seeking joint custody of your children, don’t expect the court to give you the benefit of the doubt, and be prepared for to fight much harder than you expected.

Utah Family Law, LC | divorceutah.com | 801-466-9277

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What Can Be Done if a Prenuptial Agreement Does Not Meet the Requirements for Validity in Your State? What Are the Available Options for Handling This Situation?

While I am a divorce and family lawyer (licensed in Utah), I do not claim to be an expert on the subject of prenuptial agreements. That stated (and acknowledging that specific questions about specific prenuptial agreements need to be taken to your own attorney and not to Quora for a definitive answer), even if a court finds a prenuptial agreement to be invalid, it may have some value as evidence of the parties’ intent as to what should happen in the event of divorce. An invalid prenuptial agreement may still provide the court with an idea of who makes claims to what property (and why) and how well a soon to be ex-spouse can support himself/herself (and why).

Utah Family Law, LC | divorceutah.com | 801-466-9277

Eric Johnson’s answer to What can be done if a prenuptial agreement does not meet the requirements for validity in your state? What are the available options for handling this situation? – Quora

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When Is It Appropriate to Leave a Marriage if Your Spouse Does Not Contribute Financially or Emotionally and Has No Intention of Doing So Due to a Sense of Entitlement From Their Upbringing?

This is a very hard question to answer honestly and sincerely, though at first blush, it may not appear that way.

There are very good reasons to divorce in certain situations. There are also many convenient excuses people who just don’t want to be in a marriage anymore can give for seeking a divorce.

I am a divorce lawyer, and I hate divorce. I do not want to see people divorce unless they must. And far, far too many people divorce who need not have divorced and should not have divorced.

If we examine this kind of marriage through the lens of a business partnership (i.e., “we’re 50/50 partners”), then one partner is wholly justified in ending and leaving the partnership if the other partner does not do his/her fair share (50%) of the work and make his/her share of the sacrifices necessary to keep the venture afloat and to make it successful.

But marriage is not purely a partnership or quid pro quo but a solemn vow “to have and to hold from this day forward, for better for worse, for richer for poorer, in sickness and in health, to love and to cherish, until we are parted by death . . . bound to each other through Jesus Christ our Lord, what’s mine is yours”.

The church of which I am a member (Church of Jesus Christ of Latter-day Saints) has this statement on divorce on its website:

When men and women marry, they make solemn covenants with each other and with God. Every effort should be made to keep these covenants and preserve marriage. When divorce occurs, individuals have the obligation to forgive, lift, and help rather than to condemn.

This got me to thinking, “If that is true (and I accept it as true), wouldn’t it also be true that we don’t limit forgiveness, support, aid, and not condemning to ex-spouses? Indeed, a marriage in which spouses don’t forgive, lift, help, and not condemn is a marriage that is doomed to failure (whether it ends in divorce, or the couple just stays miserable for life).

The only teaching we have from Jesus himself about divorce is in Matthew 19, and the only ground for divorce he taught there was adultery. I’m no scholar of the scriptures, but I have to believe that adultery cannot be the only ground for divorce. Surely, for example, God does not expect one to stay married to a spouse who physically or sexually abuses him/her and/or the couple’s children, right?

In researching this question, I found this article from catholic.com enlightening and clarifying on the subject (note: the bold portions are my emphasis, not that of the author):

[From the Catechism] “If civil divorce remains the only possible way of ensuring certain legal rights, the care of the children, or the protection of inheritance, [then] it can be tolerated and does not constitute a moral offense.”

This is the first mention of civil law. Civil law is the recourse that citizens have from their government to secure certain legal protections. As we see from the Catechismthose protections can be accessed via civil divorce if they are the “only possible way” of ensuring very specific legal rights. It helps to think of civil divorce as a “protective legal maneuver” rather than an actual severing of marriage. Why? Because Catholics may never use civil divorce with the intent to end their marriage (which, as we’ve seen, is neither moral nor possible).

If a Catholic approaches a civil court for civil divorce with the intent of ending his marriage, then he commits a grave offense. To claim to break the marital contract, either in civil court or otherwise, is precisely what Christ forbade. Again, to use the words of the Catechism, it is immoral, it is gravely harmful, and it is traumatizing to the abandoned spouse and children. It is the very thing that “introduces disorder into the family and into society.”

We must remember that those who complete a civil divorce—whether for licit or illicit reasons—are still very much, in reality, married.

Here’s an example of how this distinction plays out in real life:

A dear friend of mine saw no other possible option but to file for civil divorce from her husband of many years, specifically to get physical and financial protection for herself and her children in a dire situation. There was simply no other mechanism in the civil law that could be used to secure those protections. My friend, whom I accompanied to court, would be the first to tell you that she was in no way claiming to break the marriage contract by approaching for a civil divorce.

Nor was she in any way thinking of “moving on” from her marriage, which in her mind (rightly) could never be “ended” by a civil court. She still prays for her husband’s redemption (matrimony is one of two sacraments ordered toward the salvation of the other [CCC 1534]) and the eventual restoration of her family.

Why is it necessary to be so clear about the distinction between divorce (a grave sin) and “civil divorce” (as a tolerable legal maneuver)? Because confusion surrounding this issue leads countless well-meaning but misguided Catholics to advise their hurting friends that it’s okay to civilly divorce when they are unhappy in their marriages—even absent the narrow conditions the Church requires for civil divorce to be tolerable, and quite often with the intent that the unhappy friend should “move on.”

But with even Catholic families shattering all around us, we must never be afraid to say that the act of approaching the civil court with the intent to break the marriage contract and “end the marriage” is always gravely immoral. Such civil divorces are not tolerable nor permissible, yet even otherwise faithful Catholics are routinely obtaining them. By contrast, accessing civil courts when there is no other possible way to get very specific legal protections is “tolerable” and permitted — but with hope for the repentance and healing necessary for potential resumption of the conjugal life, even if that possibility seems remote.

So, if you read this far and still, in your own mind, don’t have an answer to your question, my answer to it, in my opinion, is this: If your husband is shamelessly exploiting your labor and your goodwill, then he’s not a spouse, he’s a parasite. Worse, he’s a deplorable example to your own impressionable children of what a husband and spouse should be. It’s one thing if a spouse cannot work to support the family, but choosing to mooch off of one’s spouse is indefensible. If, after giving your husband the opportunity to take real, substantial steps toward cleaning up his act, he will not commit to breaking his bad habits, will not commit to being equally yoked with you to support the family (this does not mean each you must work precisely the same number of hours and do the same number of dishes, obviously, but that each of you does his/her best as a spouse), you are justified in divorcing him.

Utah Family Law, LC | divorceutah.com | 801-466-9277

(12) When is it appropriate to leave a marriage if your spouse does not contribute financially or emotionally and has no intention of doing so due to a sense of entitlement from their upbringing? – Mother-in-Law Mysteries and Conflicts – Quora

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I Live in Indianapolis, Indiana, I Have a Son at 17 Years Old. I Have Visitation Legal Custody. He Has Him Run Away. What Do I Do?

I am not licensed as an attorney in Indiana, but I will give you my personal opinion (it’s not legal advice) as it applies to the law in the jurisdiction where I practice divorce and family law (Utah):

In my opinion, it’s the “you can lead a horse to water, but you cannot make it drink” principle at work when children reach that age. Once a child is old enough to “take Mom in a fight,” (or Dad, for that matter), it’s hard for a court to do anything realistic and practicable to enforce the child custody and parent-time orders pertaining to that child. Trying to force a child (who can run away) to live with a parent by bringing the powers of the court to bear upon a child is awkward and tends to cast the courts in a bullying and unflattering light.

The court could order the child “grounded” unless and until the child follows the court’s child custody and parent-time orders. It doesn’t work well. I experienced this in a case of my own where the court ordered that if the child refused to comply with the child custody and parent-time orders—and reside with her father—then if the child did not come straight home to her mother’s home after school (and not hang out with friends), if she tried to go to driver’s education, and if she tried to go to her dance classes after school then her mother would be held in contempt of court.

The court figured that the child would capitulate and move back in with Dad quickly, if living with Mom meant that the child could not hang out with friends, could not learn to drive, and could not participate in her dance classes that she loved. The court figured wrong. The child preferred to be deprived of hanging out with friends, driver’s ed, and dance class to residing with Dad. Eventually, the court realized it was doing the child more harm than good and the court (to its humble credit) blinked first and removed the restrictions on the child.

It’s a weird legal scenario: the snubbed parent is essentially powerless to do anything coercive to make a child live where that child refuses to live. Why? One, the parent can’t use force, or he/she risks being charged with child abuse. Two, a child can easily refuse to live with (or visit) with a parent as court ordered by simply living with his/her other parent, if that parent welcomes the child (and that parent usually will, either out of spite for the other parent or out of concern for the child (i.e., “better that the child lives with me than runs away where neither parent knows where the child is and with whom the child may be associating).

Utah Family Law, LC | divorceutah.com | 801-466-9277

Eric Johnson’s answer to I live in Indianapolis, Indiana, I have a son at 17 years old. I have visitation legal custody. He has him run away. What do I do? – Quora

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Can My Spouse Take out a Loan Using Our House as Collateral After I File for a Divorce?

This is a good question and one that often comes up in divorce cases.

I cannot speak for the law in all jurisdictions, but as this question applies in the jurisdiction where I practice law (Utah), these are my observations (my discussion of a general question on Quora does not constitute legal advice, so anyone who has this particular question needs to consult with an attorney personally):

In Utah, can a spouse take out a loan using the marital home as collateral after the other spouse files for a divorce?

First, we need to know what “marital home” means in this context. Even if the house is in your spouse’s name alone, if the house was purchased by one spouse during the marriage, it is (unless the spouses contracted otherwise) still considered marital property because it was purchased by your spouse while he/she was married to you.

So, is it possible for your spouse to borrow against the marital home after a divorce action has been filed in Utah? Yes, but not likely, and even if the loan/credit was made, a Utah court would almost surely void the loan/credit contract.

Yes, if by “possible” we mean that your spouse was able to find a lender who is willing to contract with your spouse to borrow against the marital home’s value without your consent. This does not mean that the loan/credit contract is necessarily enforceable. This does not mean that the loan/credit contract could not be set aside by the divorce court as a fraudulent conveyance under the right circumstances (see below).

Not likely because 1) I don’t know of an institutional lender who would agree to accept as collateral all or a portion of a marital home without obtaining the consent of both spouses first; 2) such unilateral action on the part of your spouse to encumber marital property without your consent could be set aside as a fraudulent conveyance (See Bradford v. Bradford, 993 P.2d 887, 1999 UT App 37 (Court of Appeals of Utah 1999)); and 3) Utah Rules of Civil Procedure 109 provides, in pertinent part:

Rule 109. Injunction in certain domestic relations cases. Effective: 1/1/0021

(a) Actions in which a domestic injunction enters. Unless the court orders otherwise, in an action for divorce, annulment, temporary separation, custody, parent time, support, or paternity, the court will enter an injunction when the initial petition is filed. Only the injunction’s applicable provisions will govern the parties to the action.

(b) General provisions.

(1) If the action concerns the division of property then neither party may transfer, encumber, conceal, or dispose of any property of either party without the written consent of the other party or an order of the court, except in the usual course of business or to provide for the necessities of life.

And so, if your spouse attempted, after a divorce action was filed, to encumber marital property without your written consent, the court would likely void the transaction as fraudulent and/or penalize your spouse for violating the Rule 109(b) prohibition against a spouse encumbering marital property without his/her spouse’s written consent.

Utah Family Law, LC | divorceutah.com | 801-466-9277

(61) Can my spouse take out a loan using our house as collateral after I file for a divorce? – Mother-in-Law Mysteries and Conflicts – Quora

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Holding Marital Property Hostage During a Divorce Just Makes You Look Petty By Braxton Mounteer, Legal Assistant

You may have the idea that you can leverage his or her favorite or most valued things to get a more favorable outcome in your divorce. Holding property that rightfully belongs to the other party (like her jewelry or his tools) makes you look bad any way that you spin it. You may see the situation as a delicate hostage negotiation in order to get what you believe that you deserve, but in reality, if you behave this way, it reveals you as the petty and vengeful spouse you are.
During your divorce, you will be required to divide the marital property between your spouse and yourself and it cannot be avoided. Property division is a major and often, though not always, contentious issue between divorcing parties, getting only more complex the longer the marriage has lasted and the more affluent parties are the. Purposely delaying the division of marital property only makes you look bad and drags out your already expensive divorce.
Every time that you do something just to “get a jab in” on your former spouse, you only look petty and childish. You and your spouse end up making more work (and more profit) for your attorneys and slow the irritating, painful, and angst-inducing process of divorce down.
Be as equitable as possible. Do you really need that specific item of personal property, or are you just trying to be spiteful? If you cannot agree on who should get an item of significant value, or there are not enough items of or there are not enough items (such as a house or a car), or if there are not enough items of property to divide value equally, then sell the item(s) and split the profit.
Take a cool headed and business like approach to the division of property.
Utah Family Law, LC | divorceutah.com | 801-466-9277
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What Should I Do if My Divorce Is Not Getting Solved Quickly?

This is a great question.

Go find a good (a good, not just any) retired divorce attorney (a divorce attorney, not some other kind of attorney who has no idea how a divorce case works), or, if you are fortunate to know a good (a good) divorce attorney as a personal friend (whether active or retired), go to that divorce attorney friend and recount for this attorney how long your case has been pending from the day it was filed to the present.

In your consultation answer—honestly and forthrightly and with as few adjective and adverbs as possible the questions the attorney you’re consulting with asks you; just the facts (if you are responsible—either in whole or in part—for delays, be honest about that too). The consulting attorney will ask you these questions to help him/her determine both 1) whether your attorney, the opposing party’s attorney, and the court is unreasonably or outright maliciously delaying the resolution of your case; and 2) what options you may have for getting your case moving and progressing expeditiously.

If the attorney you consulted tells you that your case is not progressing at an unduly slow pace, then consider yourself fortunate (even if you’re surprised to learn your case isn’t moving as slowly as you might have expected). Ask the consulting attorney what he/she sees in the handling of your case to this point that you and your attorney can and should do going forward to ensure the case does not lose momentum.

If the attorney you consulted tells you that your case is moving sluggishly, ask the consulting attorney 1) what the problems are; 2) why they are problems and 3) what to do to solve them. Take notes! Ensure that you cover all three subjects with the consulting attorney, so that you can 1) truly identify and understand the problems, 2) confront your attorney with them, 3) what can be done, and 4) why you expect it to be done going forward, if your attorney wants to continue representing you and being paid well to do it. When you do confront your attorney, don’t be a jerk about it. Don’t be a boob, but don’t be a jerk, either. Be businesslike and discuss the matter in a manner most likely to expose the problems, identify the solutions, and start implementing them.

Utah Family Law, LC | divorceutah.com | 801-466-9277

https://www.quora.com/What-should-I-do-if-my-divorce-is-not-getting-solved-quickly/answer/Eric-Johnson-311?prompt_topic_bio=1

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On What Basis Should the Couple Share Half of Property in Divorce if One Contributes Significantly More Than the Other? How Is It Fair?

It’s fair. It’s not fair. Frankly, reasonable minds can differ on this question.

The governing principle in the USA is still (though it’s subtly and slowly changing) in most jurisdictions in the USA that I know of (if not all jurisdictions in the USA) is that property acquired during the marriage by the couple should be divided equally is because a marriage is an “e pluribus unum”-style principle: out of two, one. A married couple is considered to be one when it comes to the ownership of property the couple acquired during the marriage, even if that means that each spouse did not contribute an equal amount of money or effort to the purchase/acquisition of the property.

If the property was purchased with money earned or otherwise acquired by one or primarily by one of the spouses or in exchange for “sweat equity” that one spouse contributed more than the other, the idea is that “what’s mine is yours and what’s yours is mine—it’s all ours.”

Equitable distribution and community property are two different approaches to dividing marital property between spouses in divorce.

Community property states treat all property acquired during the marriage to be owned equally owned by the spouses, and so they, unless exceptional circumstances dictate otherwise, divide the marital property equally between the spouses. Equitable distribution states generally presume that an equal division of marital property is equitable, but an equitable division of property is not necessarily an equal division. In Utah (where I practice divorce and family law), for example the rule of equitable distribution is articulated this way:

Labon v. Labon, 517 P.3d 407, 2022 UT App 103, ¶¶25 – 27 (Utah Court of Appeals 2022; I removed the references to caselaw for the sake of making it easier to read and understand the principles articulated):

In making this division [i.e., and equitable division of property and debts and obligations] the court should engage in a four-step process: (1) distinguish between separate and marital property, (2) consider whether there are exceptional circumstances that overcome the general presumption that marital property should be divided equally between the parties, (3) assign values to each item of marital property, and (4) distribute the property in a manner consistent with its findings and with a view toward allowing each party to go forward with his or her separate life.

And in making the equitable distribution, the court should generally consider the amount and kind of property to be divided. As concerns the type of property, in situations where the marital estate consists primarily of a single large asset, such as a business or stock, a common acceptable approach for the court to take is to award the asset to one party and make a cash award to the other party. Doing so avoids the obviously undesirable situation that forces former spouses to be in a close economic relationship which has every potential for further contention, friction, and litigation, especially when third parties having nothing to do with the divorce will also necessarily be involved.

Moreover, a court should consider the tax consequences associated with the division of marital property if one of the parties will be required to liquidate assets to pay marital debts. But the court is under no obligation to speculate about hypothetical future tax consequences. Thus, when settling property matters, the trial court may decline to consider the speculative future effect of tax consequences associated with sale, transfer, or disbursement of marital property. In other words, there is no abuse of discretion if a court refuses to speculate about hypothetical future tax consequences of a property division made pursuant to a divorce.

Utah Family Law, LC | divorceutah.com | 801-466-9277

https://www.quora.com/On-what-basis-should-the-couple-share-half-of-property-in-divorce-if-one-contributes-significantly-more-than-the-other-How-is-it-fair/answer/Eric-Johnson-311?prompt_topic_bio=1

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What Do We Do When Equal (50/50) Physical Custody Is Awarded but One Parent Isn’t Bearing the Responsibilities Equal Custody Requires of That Parent?

Recently a Quora.com reader commented on my answer to this question: Is there a primary parent in joint custody in Utah which is also known as “equal” or “50/50” custody?

They were good comments that reflect the frustrations of many parents in equal custody situations. To summarize them:

  • Equal physical custody should not be awarded unless each parent exercises equal parental responsibility
    • Or at the very least, if one equal custodial parent does more of the work of caring for the children during his/her time when the children are in his/her care, award that parent some (or more) child support for his/her trouble.
  • Equal custody should not be awarded or exercised if an equal custodial parent who is ordered to pay child support does not pay it.

It is absolutely and indisputably correct that for a parent to merit an award to him or her of equal physical child custody that parent must bear parental responsibility equally as well.

The question, then, is: what is equal parental responsibility?

While bearing parental responsibility equally could mean that the parents perform each and every parental task equally and in equal amounts (“if I take the child to the doctor this time, you have to take the child to the doctor the next time”), it does not necessarily require it. Pulling equal weight doesn’t mean pulling the same particular weight at the same particular time. If one parent is happier helping with homework than with athletics or club activities, then it may not be a bad idea for that parent to help with most of the homework and for the other parent to take care of getting the kids to and from soccer practices and games. You get the idea.

You mentioned that your ex-husband can pay but chooses not to pay the $40 he is court-ordered to pay each month for homeschooling costs. That’s inexcusable, if you were awarded sole custody, that wouldn’t magically cause Dad to pay you $40 every month either. So not paying money isn’t a reason not to award equal custody. THAT STATED, I know that some parents who were awarded equal custody want all the benefits of equal custody without meeting any of the associated responsibilities. The only way to keep some (some, not all) of these types honest is to hit them in the pocketbook.

We all know that if spending time with the children were conditioned on paying child support in full and on time (when able, of course), we’d see a lot more child support being paid. Not always, but a lot more. We also all know that if receiving child support were conditioned on ensuring that you showed up for every custody and parent-time exchange on time (when able, of course), we’d see a lot more child support being paid as well.

Unfortunately*, Utah’s law is “If a parent fails to comply with a provision of the parenting plan [i.e., the physical custody and parent-time awards] or a child support order, the other parent’s obligations under the parenting plan or the child support order are not affected.” (Utah Code § 30–3–10.9(9)) and “A parent may not withhold parent-time or child support due to the other parent’s failure to comply with a court-ordered parent-time schedule.” (Utah Code § 30–3–33(9))

You also referred to the situation in which Dad never attends health care appointments. This is a hard question to analyze, but here’s my reasoning:

  • If Dad can take the kids to these appointments without placing his job in jeopardy, he should. That way, neither parent is burdened too much with appointments and each parent stays apprised of their children’s health and health care.
  • But if Dad works a 9 to 5 job, and if the appointments take place during the 9 to 5 work day and you’re a stay-at-home parent who homeschools the kids, doesn’t it make more sense for you to take the kids to these appointments? Why make Dad do it just to make him do it? Why make Dad do it when you can do it easier and without placing Dad’s job in jeopardy?
  • On the other hand, if Dad could bear the health care appointments burdens with you equally, but refuses to do so, resulting in you spending all the time and making all the effort required to take care of this important custodial responsibility, that may justify awarding you sole physical custody of the children.

Utah Family Law, LC | divorceutah.com | 801-466-9277

https://utahdivorceandfamilylaw.quora.com/Is-there-a-primary-parent-in-joint-custody-in-Utah-which-is-also-known-as-equal-or-50-50-custody-Utah-like-many-s?__nsrc__=4&__snid3__=70639966822&comment_id=98421161&comment_type=3


*Again, and in fairness (and while I don’t have any data to support this), I’d bet that conditioning custody and parent-time on paying child support and conditioning the payment of child support on the child support recipient complying with custody and parent-time exchanges causes more problems than it solves. Maybe it doesn’t. If there is no data, I think it’s worth experimenting with to find out.

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Elder v. Elder – 2024 UT App 68 – enforcement vs. modification

Elder v. Elder – 2024 UT App 68

THE UTAH COURT OF APPEALS

BRITTANY LEE ELDER, Appellee, v. MATT BLAKE ELDER, Appellant.

Opinion No. 20210902-CA Filed May 9, 2024

Second District Court, Farmington Department

The Honorable David M. Connors No. 154700355

Julie J. Nelson and Jaclyn Robertson, Attorneys for Appellant Steven C. Tycksen, Attorney for Appellee

JUDGE RYAN D. TENNEY authored this Opinion, in which JUDGES RYAN M. HARRIS and AMY J. OLIVER concurred.

TENNEY, Judge:

¶1 The district court issued an order requiring Matt Blake Elder to reimburse his ex-wife, Brittany Lee Elder, for the amount she had paid to satisfy a loan on a townhouse that she had been awarded in the divorce.[1] Matt challenges this ruling on appeal, arguing that it was a procedurally improper modification of the couple’s divorce decree. For the reasons set forth below, we affirm.

BACKGROUND

¶2 Brittany and Matt were married in 2008. In early 2015, Brittany filed a petition for divorce. Later that year, Brittany and Matt entered into a stipulated agreement that the district court subsequently adopted in a Decree of Divorce (the Decree). Under a “Division of Property” heading, the Decree divided the couple’s real property, vehicles, and other personal property. Matt received the “marital home along with any accompanying debts and/or equity.” Of note here, Brittany was awarded a townhouse “as an equalization of the distribution of the assets.” The Decree specified that “Matt will be responsible for any loans associated with the townhouse and have them paid off within 120 days of signing this Stipulation.”

¶3        A separate provision in the Decree was captioned “Remedies on Default.” It stated that in “the event that either party defaults in her or his obligations, or must seek relief from the Court in the enforcement of the Decree of Divorce, the nonprevailing party shall be liable to the other party for all reasonable expenses, including attorneys’ fees and court costs actually incurred.”

¶4        Matt failed to remove the loan on the townhouse within 120 days. After that 120-day period expired, Brittany filed a motion for an order to show cause. In this motion, Brittany asked the court to hold Matt in contempt for failing to comply with several terms of the Decree—including, of note here, his obligation to pay off the loan associated with the townhouse. The district court later issued an order in which it refused to find Matt in contempt on the townhouse issue, but it did order Matt to “remove all liens on the townhouse” within 30 days. Matt failed to comply with this order.

¶5        In 2017, Matt filed for bankruptcy. Later that year, Brittany sold the townhouse. “[P]ursuant to a short sale agreement she made with the bank,” she paid off a discounted loan balance of $143,165.

¶6        In April 2019, Brittany filed another motion for an order to show cause relating to the townhouse. In this motion, Brittany requested a judgment in excess of $180,000, a figure that included the final loan balance, realtor’s commissions, closing costs, and repairs that she alleged were necessary to make the townhouse habitable.

¶7        During a hearing in July 2020, the district court noted that a domestic relations commissioner had certified for hearing the issue of “the amount [Matt] should pay [Brittany] due to his failure to have the liens removed from the townhouse.” At that point, Brittany’s counsel expressed the desire to conduct discovery on the issue. In response, Matt’s counsel suggested that she wasn’t sure if discovery was warranted because there was “no petition to modify pending,” after which she asked the court to “clarif[y]” whether it would “allow[] there to be discovery between the parties.” The court responded that it was allowing “discovery” on “what amounts, if any,” it should order Matt to pay Brittany for his “failure to have the liens removed from the townhouse,” and the court specifically ruled that the parties could depose each other on this if they wished.

¶8        Brittany subsequently submitted interrogatories, a request for production of documents, and requests for admission to Matt. For his part, Matt issued several subpoenas duces tecum to financial institutions. At a pretrial hearing in November 2020, Brittany argued that Matt’s responses to her requests for admission had been inadequate. Over the protest of Matt’s counsel, the court agreed that Matt’s responses had been inadequate and ordered Matt to submit more detailed responses. In the course of that hearing, Matt never argued that he was being deprived of the opportunity to conduct discovery of his own.

¶9        A few weeks later, the court held an evidentiary hearing on the question of “potential damages connected with the failure to deliver the title” to the townhouse “free and clear of liens.” At that hearing, both parties presented extensive arguments about their positions.

¶10      After almost a year of additional litigation, the court issued a written ruling on Brittany’s motion for an order to show cause. There, the court first noted that the provision in the Decree that made Matt “responsible” for any loans associated with the townhouse had “never been modified.” The court also ruled that Matt’s bankruptcy had not discharged his obligations relating to the townhouse.

¶11      The court then found that Matt had “failed to satisfy, pay off or remove the liens related to the loans associated with” the townhouse and that Matt’s failure had “forced” Brittany to sell the townhouse in order to pay off the discounted loan balance. The court also found that the “actual amount paid by” Brittany to the bank “to remove the lien” on the townhouse “that was associated with the loan was $143,165.00.” And it further found that the “required payment of this amount” by Brittany “was a direct result of [Matt’s] failure to comply with the provisions of the Decree of Divorce.” The court accordingly awarded Brittany “the actual amount she paid the bank, $143,165,” plus post-judgment interest, though it then determined that she was not entitled to any additional amounts related to the renovation and sale of the townhouse. Finally, the court awarded Brittany her “reasonable expenses, including attorney fees and court costs actually incurred, related to the issue of [Matt’s] failure to comply with his obligations” under the Decree.

ISSUE AND STANDARD OF REVIEW

¶12 Matt challenges the district court’s ruling granting Brittany’s motion for an order to show cause. In Matt’s view, the ruling was not a valid enforcement of the Decree but instead improperly modified it. “We review procedural issues for correctness and afford no deference to the lower court’s ruling.” Berman v. Yarbrough, 2011 UT 79, ¶ 12, 267 P.3d 905.[2]

ANALYSIS

¶13 Matt argues that when the district court ordered him to reimburse Brittany for what she had paid to satisfy the loan on the townhouse, the court modified the Decree. In Matt’s view, because Brittany had only filed an enforcement action, not a modification action, this ruling was procedurally improper. We disagree with Matt’s assessment of the nature of the ruling.

¶14 District courts enjoy “inherent” authority, “when properly invoked,” to “enforce a final judgment.” Little Cottonwood Tanner Ditch Co. v. Sandy City, 2016 UT 45, ¶¶ 23–24, 387 P.3d 978 (quotation simplified); see also id. ¶ 33 (explaining that district courts may “make such orders as may be necessary to carry out and give effect to their decrees” (quotation simplified)). “If a party fails to comply with a specific directive of a judgment, another party to the judgment may move to enforce this directive.” Id. ¶ 24. However, a “court’s power to enforce a judgment is confined to the four corners of the judgment itself.” PacifiCorp v. Cardon, 2016 UT App 20, ¶ 6, 366 P.3d 1226 (quotation simplified). And a “motion to enforce cannot be used to take up matters beyond the contours of the judgment and thereby short-circuit the usual adjudicative processes.” Berman v. Yarbrough, 2011 UT 79, ¶ 15, 267 P.3d 905 (quotation simplified). A motion to enforce is thus “procedurally improper” where a judgment contains neither an “unequivocal mandate” nor a “clear directive” enjoining “the respondent to undertake some action.” Id. (quotation simplified). This is so because, “without a directive or unequivocal mandate, there is nothing for the court to enforce.” Id.[3]

¶15 Separate from the enforcement power, courts in some instances have power to modify a final judgment that has already been entered. And we’ve previously recognized that a key difference between the power to modify and the power to enforce is that the latter does “not generally extend to modifying the substantive rights of parties that have previously been agreed to or adjudicated.” Robertson v. Stevens, 2020 UT App 29, ¶ 8, 461 P.3d 323. In the family law context, “proceedings to modify a divorce decree . . . must be commenced by filing a petition to modify.” Utah R. Civ. P. 106(a). And a petition to modify allows courts to “revisit many of the provisions contained in a typical divorce decree, including provisions pertaining to child custody, child support, alimony, property distribution, and debts,” under the terms set forth by certain statutes. Robertson, 2020 UT App 29, ¶ 7.

¶16      Here, Brittany filed a motion for an order to show cause, which, as noted, was the procedural mechanism at the time for filing an enforcement action. But Brittany did not file a petition to modify the Decree. The question before us, then, is whether the district court moved beyond its enforcement powers when it ordered Matt to reimburse Brittany for what she had paid to satisfy the loan on the townhouse. Put differently, the question is whether this ruling was authorized from within “the four corners of the judgment,” Little Cottonwood, 2016 UT 45, ¶ 24 (quotation simplified), or whether it instead “modif[ied] the substantive rights of [the] parties,” Robertson, 2020 UT App 29, ¶ 8. In our view, this was indeed an enforcement ruling, as opposed to a modification, because it was grounded in the four corners of the Decree itself and did not alter the parties’ substantive rights.

¶17 “We interpret a divorce decree according to established rules of contract interpretation.” Osborne v. Osborne, 2011 UT App 150, ¶ 6, 260 P.3d 202 (quotation simplified). “When interpreting a contract, a court first looks to the contract’s four corners to determine the parties’ intentions, which are controlling.” Bakowski v. Mountain States Steel, Inc., 2002 UT 62, ¶ 16, 52 P.3d 1179. “If the language within the four corners of the contract is unambiguous, then a court does not resort to extrinsic evidence of the contract’s meaning, and a court determines the parties’ intentions from the plain meaning of the contractual language as a matter of law.” Id. Finally, in “interpreting a contract, we determine what the parties intended by examining the entire contract and all of its parts in relation to each other, giving an objective and reasonable construction to the contract as a whole.” G.G.A., Inc. v. Leventis, 773 P.2d 841, 845 (Utah Ct. App. 1989).

¶18 The Decree in question stated that “Matt [would] be responsible for any loans associated with the townhouse and have them paid off within 120 days of signing this Stipulation.” And it further explained that the townhouse was being awarded to Brittany “as an equalization of the distribution of the assets.” In this sense, the Decree plainly contemplated that Brittany would receive the townhouse free and clear. But she didn’t. As indicated, Matt failed to pay off the loan within 120 days. And when the court subsequently issued another order requiring Matt to remove the liens within an additional 30-day period, Matt failed to comply with that order too.

¶19 In the ruling at issue, the court found that Brittany was ultimately “forced to sell” the townhouse and “pay the discounted bank loan balance in the amount of $143,165,” and it further found that the “required payment of this amount” by Brittany “was a direct result of [Matt’s] failure to comply with the provisions of the Decree.” Matt has not challenged these findings on appeal.

¶20 In light of these findings, the order requiring Matt to reimburse Brittany was a proper exercise of the court’s enforcement power. The language of the Decree didn’t narrowly require Matt to pay a particular amount to a particular bank. Rather, the provision in question was worded more broadly, requiring Matt to “be responsible for any loans associated with the townhouse” and requiring him to “have them paid off within 120 days.” (Emphasis added.) As a result, when Brittany was subsequently “forced” to pay the loan off herself due to Matt’s failure to comply with his obligations, the court’s decision to place that financial burden back onto Matt’s shoulders did nothing more than “carry out and give effect” to the Decree’s own terms. Little Cottonwood, 2016 UT 45, ¶ 33 (quotation simplified).

¶21      Matt responds on several fronts, but we find none of them availing.

¶22      First, Matt argues that under the principles set forth in Gullickson v. Gullickson, 2013 UT App 83, 301 P.3d 1011, the court’s order could only have been accomplished through a modification action. We disagree. In Gullickson, the divorce decree had set forth a specific arrangement for how to deal with the marital home after the divorce: namely, the wife was permitted to live in it for a period of five years, during which period she was responsible for making the mortgage payments; at the end of the five years, the husband would be required to either buy out the wife’s share of the equity in the home or instead sell it and give her half of the proceeds. Id. ¶ 2. Of some note, the arrangement under which the wife could remain in the home for five years was “prompted at least in significant part” by the “ongoing special needs” of the parties’ son. Id. ¶ 22. When the wife subsequently faced a changed financial situation, however, she decided to move from the home earlier than planned. Id. ¶ 4. To facilitate this, she “filed a petition to modify the divorce decree,” asking the court to require the husband to either buy her out sooner than was required by the decree (thus changing the time-period set forth in that decree), or to instead agree that she could move from the home and rent it out in order to help her pay the mortgage. Id. ¶ 4. The district court granted the wife’s request and directed the husband to make that choice. Id. ¶¶ 6–7, 13.

¶23 On appeal, we considered various questions relating to whether the district court had properly followed the modification procedures. Id. ¶¶ 21–25. Drawing on aspects of that discussion, Matt now suggests that Brittany’s request in this case could only have been brought as a modification petition. But unlike the wife in Gullickson, Brittany did not file a petition to modify her divorce decree; rather, she filed a motion for an order to show cause, so she chose an entirely different procedural tack all along. Moreover, unlike the wife in Gullickson, Brittany did not ask the court to change any particular term of her divorce decree. Rather, when Brittany asked the court to order Matt to reimburse her for the pay-off amount on a loan that Matt was supposed to have paid from the beginning, Brittany was asking for Matt to be held “responsible” for that loan, which is what her divorce decree already required. Thus, Gullickson involved a modification because the order changed that divorce decree’s terms; by contrast, this case involved an enforcement action because it sought to effectuate the divorce decree’s terms. Gullickson therefore doesn’t mean that Brittany could only proceed through a modification action.

¶24      Second, Matt argues that because the Decree required him to pay off any loans within 120 days, and because the amount at issue had been paid by Brittany much later than those 120 days, the court’s order effectively changed the Decree’s essential terms, thus constituting a modification. If the Decree had only said that Matt was required to pay off a particular loan to a particular bank within 120 days, Matt’s argument might have a little more force (although we might still have some skepticism). But as noted, the Decree wasn’t worded that narrowly. In addition to the language Matt relies on, the Decree said that “Matt will be responsible for any loans associated with the townhouse,” and it further noted that Brittany was being awarded the townhouse “as an equalization of the distribution of the assets.” (Emphasis added.)

¶25 As indicated, when reading contracts or divorce decrees, we interpret surrounding provisions in harmony with each other. The unmistakable intent of the Decree was to require Matt to assume the financial obligations associated with the townhouse. When Matt repeatedly failed to do so in a timely manner, the court had authority to “make such orders as may be necessary to carry out and give effect” to these provisions. Little Cottonwood, 2016 UT 45, ¶ 33 (quotation simplified). Since it’s uncontested on appeal that Matt’s failure to timely pay off the loan “forced” Brittany to sell the townhouse, the order in question placed the financial cost of that sale back onto Matt, thereby making him “responsible” for the loan, which is what the Decree always required.

¶26 Third, Matt complains of the alleged unfairness that resulted from the court treating this as an enforcement action, as opposed to requiring Brittany to proceed through a petition to modify. According to Matt, if this had been filed as a modification petition, the rules would have provided him with delineated discovery powers. In Matt’s view, these discovery powers would have allowed him to obtain evidence to support various defenses, such as “whether Brittany could have (or even did) take mitigating action,” whether Brittany received any benefit from living in the townhouse between the time of the Decree and when Brittany sold it, and whether “the marital estate was smaller than the parties thought when they stipulated to its division.”

¶27      Matt’s concerns seem grounded in the fact that, both before and after the 2021 amendments, the rules don’t provide for formalized discovery relating to an enforcement action (whether filed as an old motion for an order to show cause or instead through a current motion to enforce). But the question of whether a party should automatically be entitled to discovery in an enforcement action is a question best left to those tasked with drafting the rules. Here, however, Brittany filed a motion for an order to show cause, and as explained above, that motion was warranted to enforce the terms of the Decree. We see no basis for overturning the district court’s ruling simply because the rule drafters have not provided for automatic discovery in such cases.

¶28    In any event, even if it’s possible that the absence of automatic discovery might result in some unfairness in some other enforcement action, Matt is not in a position to complain about any such unfairness here. As noted, the district court specifically allowed the parties to conduct discovery—including taking depositions, if the parties desired—on “what amounts, if any,” the court “should order [Matt] to pay [Brittany] due to the failure to have the liens removed from the townhouse.” In reliance on that, Matt issued several subpoenas duces tecum to financial institutions. And Matt never argued below that he was being deprived of the opportunity to conduct any additional discovery.

¶29      Moreover, Matt also has not persuaded us that any of the proposed evidence would have constituted a valid defense to Brittany’s request for relief. Under the Decree, Brittany was entitled to receive the townhouse without any loans as of 120 days after the stipulation was signed. Nothing in the Decree obligated her to take any mitigation efforts if Matt failed to comply with his obligations to pay off the loans, and any benefits that she received from living in the townhouse in the ensuing years were benefits that she was always entitled to receive. As for Matt’s claim that the parties underestimated the marital estate’s size, we note that Matt stipulated to the terms of the Decree. If he later thought that some error had infected that stipulation or the ensuing Decree, he could have made his own request to somehow alter or modify it. But what Matt wasn’t entitled to do was simply not comply with its terms. And in the meantime, Brittany was entitled to ask the court to enforce the Decree as written, which is what she did.

¶30      In short, we conclude that the district court’s order appropriately “carr[ied] out and [gave] effect to” the terms of the Decree. Little Cottonwood, 2016 UT 45, ¶ 33 (quotation simplified). Because of this, the district court did not err in granting Brittany’s motion for an order to show cause.

¶31 As a final matter, Brittany has requested an award of attorney fees and costs that she incurred in this appeal, and she has done so pursuant to the same provision from the Decree that authorized the fee award she received below. That provision stated that in “the event that either party defaults in her or his obligations, or must seek relief from the Court in the enforcement of the Decree of Divorce, the nonprevailing party shall be liable to the other party for all reasonable expenses, including attorneys’ fees and court costs actually incurred.”

¶32      “If the legal right to attorney fees is established by contract, Utah law clearly requires the court to apply the contractual attorney fee provision and to do so strictly in accordance with the contract’s terms.” Vierig v. Therriault, 2023 UT App 67, ¶ 13, 532 P.3d 568 (quotation simplified), cert. denied, 537 P.3d 1013 (Utah 2023). And as a general matter, “when a party who received attorney fees below prevails on appeal, the party is also entitled to fees reasonably incurred on appeal.” Tronson v. Eagar, 2019 UT App 212, ¶ 39, 457 P.3d 407 (quotation simplified). Because Brittany has prevailed on appeal, she is entitled to her fees reasonably incurred on appeal. We therefore remand this case to the district court for determination of those fees and an entry of that award.

CONCLUSION

¶33      The ruling in question was a valid exercise of the district court’s power to enforce the Decree. As a result, we affirm the court’s decision and remand for an award of attorney fees reasonably incurred on appeal.

Utah Family Law, LC | divorceutah.com | 801-466-9277


[1] Because the parties share a last name, we’ll refer to them by their first names moving forward, with no disrespect intended by the apparent informality.

[2] In his opening brief, Matt surmised that the district court’s ruling might be read as a contempt ruling, and he then argued that the ruling was not justified under the court’s contempt powers. In her responsive brief, Brittany declined to defend the ruling on this basis, instead insisting that it was a valid enforcement action. We accordingly address the ruling solely on those terms.

[3] The rule in effect at the time that Brittany filed the motion at issue allowed her to file an order to show cause, and it further stated that such a motion could be granted for the “enforcement of an existing order.” Utah R. Civ. P. 7(q) (2019). The cases we’ve discussed above referred to a court’s enforcement power.

Under a rule that became effective in May 2021 and that remains in place, a motion for an order to show cause in a “domestic relations action[]” is now referred to as a “motion to enforce.” See Utah R. Civ. P. 7B(a), (i), (j) (2023). (The same is true in civil cases more generally under rule 7A of the Utah Rules of Civil Procedure.) Rule 7B further provides that its process “replaces and supersedes the prior order to show cause procedure.” Id. R. 7B(j). As with the old regime, however, the new one turns on the court’s enforcement power. See id. R. 7B(a) (allowing a party to file a motion to “enforce a court order or to obtain a sanctions order for violation of an order”).

Neither party in this case has argued that this new rule was intended to alter the substantive scope of a court’s enforcement power, much less that the new rule did so in a manner that would change the outcome of this case. Having surveyed the matter ourselves, we see no authority suggesting that such a change was intended.

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Second-Hand Testimony Is and Never Will Be Better Than the Witness’s Own Testimony in His/Her Own Voice

For lawyers and parents (and perhaps even commissioners and judges) who hate child custody determinations (temporary or otherwise) based upon proffer, I share this with you:

This court has previously expressed concern about determining custody based upon proffers given the seriousness and magnitude of child custody decisions.

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In Fullmer v. Fullmer, 761 P.2d 942 (Utah.Ct.App.1988), this court reviewed a permanent custody award entered based upon a proffer of witness testimony and the stipulated receipt of two child custody reports. In a footnote, we observed:

Although the parties stipulated that the testimony could be presented by proffer, and appellant does not argue that she was entitled to an evidentiary hearing, we note that an evidentiary hearing with all witnesses testifying would have been preferable. In a child custody case, we are convinced that witness demeanor and credibility are critical in ascertaining whether there has been a change of circumstances and what is in the best interests of the child. Any award of physical custody based solely upon what an attorney states a witness would have said and documentary evidence not subject to cross-examination is tenuous at best and subject to close scrutiny on appeal. Such deficiencies undermine the vitality of the trial court’s determinations.

Id. at 945 n. 1 (citations omitted); see also Hamby v. Jacobson, 769 P.2d 273, 278 (Utah.Ct.App.1989) (“[I]n cases involving the best interests of a child and competing claims by parents of the child, demeanor and credibility of witnesses is particularly critical, and use of proffers should be discouraged.”).

*****

[W]e reiterate that the use of proffers as a basis for child custody determinations, whether permanent or temporary, is discouraged.

(Montano v. Third Dist. Court for County of Salt Lake, 934 P.2d 1156, 1157-1158 (Utah Ct.App.1997).

The presumption that second-hand testimony “from” a child through someone other than the witness is generally better than hearing from the witness himself/herself is rationally and factually bankrupt. The idea that a judge (a former lawyer) charged with adjudicating a child custody dispute shouldn’t interview a child who is the subject of a custody dispute but should appoint a lawyer to do it (and in secret) instead is rationally and factually bankrupt as well.

In light of the sentiments expressed in the Montano decision, I ask you: why appoint PGALs and/or custody evaluators who (a) refuse to record their interviews of the children and of collateral sources for the record and (b) refuse to allow children to testify and/or refuse to interview children on and for the record in child custody dispute cases; and (c) continue to insist that second-hand testimony is better than the witness’s own testimony in his/her own voice?

Utah Family Law, LC | divorceutah.com | 801-466-9277

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Is It Common for Ex-spouses to Continue Supporting Each Other Financially and Emotionally After a Divorce? What Are Some Potential Solutions for This Situation?

See parent question. I am a divorce lawyer, and after a divorce case ends (meaning a decree of divorce has been issued and case essentially closed), I literally never know how the divorced couple interacts afterward unless their interactions result in the violation of provisions of the decree, or circumstances change so substantially and materially from what they were at the time the decree of divorce was entered that modifying the decree becomes either necessary or warranted.

If a court orders an ex-spouse to pay child support and/or alimony, then clearly that ex-spouse will be supporting the other financially, but this is due to a court order, not out of the goodness of that ex-spouse’s heart (in fairness, most people have no objection to supporting their own minor children and would do so whether they were “court-ordered” to do so).

That stated, it is my impression that post-divorce, most (most, not all) couples interact with each other very little, and only as much as necessary. Obviously, divorced parents of minor children almost always find themselves interacting with each other more than a couple without children or whose children are grown adults and not living with either parent because these divorced parents of minor children need to sign documents pertaining to the children, attend health care appointments and parent teacher conferences, performances and athletic events in which the children participate, etc.

Some ex-spouses end up voluntarily supporting an ex-spouse financially and/or emotionally because they didn’t want the divorce and still care for their ex-spouses and genuinely want to help them. Some provide support over and above what the court orders because it’s easier to provide the support than it is to ignore the ex-spouse’s constant wheedling and complaining, threats, and overall nuisance-causing.

Some people divorce in such an amicable way that they can truly care for each other yet conclude (often mutually) that they are better off friends than spouses. In those situations, they can and do care about and support each other as friends. I don’t know about you, but I am not in the habit of supporting my friends financially (with friends like those . . . ). Of course I’ll help in a time of emergency or need, I’ll buy a friend a birthday gift, pick up the tab for a meal, and things like that, but I don’t consider it part of a friendship to be paying a friend’s expenses with any degree of regularity. So a “friendly ex-spouse” who expects your friendship with him/her to include regular financial support of any amount is probably exploiting your good will.

For the most part, it is my experience that most ex-spouses do not voluntarily continue to support each other financially and emotionally after a divorce; it’s part of the divorce process to cut those ties.

A divorced person who feels “cheated” or “deprived” of an ex-spouse’s financial and/or emotional support after divorce because of divorce is someone who either does not understand divorce or its purpose.

If one is an innocent spouse who was nothing but loving and supporting and faithful and devoted during the married and his/her spouse divorced him/her due to no fault of the innocent spouse, well, honey, unless your ex comes to his/her senses and sincerely begs your forgiveness (and it is known to happen in rare, rare circumstances—not frequently enough to justify believing or even hoping it is likely to happen), then if your ex wants nothing more to do with you, you’re much better off finding love, affection, and support elsewhere.

Utah Family Law, LC | divorceutah.com | 801-466-9277

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