This blog post was written by a real estate agent for us.
CMA stands for Comparative Market Analysis and is a report meant to reflect the market value of a property, usually a residential home. The basic concept is that you have a Subject Property (SP), and then look for comparable properties (comps) that have already sold and therefore have purchase price amounts that can be broken down by feature in order to determine what the SP might sell for as well. A CMA is not quite as in depth as an appraisal but is usually pretty close to appraisal value.
So, how does it work?
Let’s say I want to find the value of a SP in Salt Lake County. The primary elements I want to evaluate is location, features, market at the time of sale, and condition.
Location can’t be changed, so it’s an obvious feature to consider. The exact same home in Magna and Cottonwood heights will have different values because of the location. When an appraiser evaluates a home, they have guidelines on the proximity of the comps to the SP. For a CMA, a realtor will try to find 3-5 comps as close to the SP’s location as possible. I start with half a mile, then move outward until I can find sufficient properties to have a good sample.
Features are things like how many bedrooms and bathrooms, what size the garage is, what size lot, how many square feet and what level of the home those square feet are on. Basement square footage is less valuable than main level square footage. The most important square footage is what’s above ground. Common features, such as what I’ve already listed, are relatively easy to work with. Unique features like pools, theater rooms, gardening sheds, and exotic landscaping are challenging to value because it’s hard to find properties that have the same feature and the feature themselves don’t necessarily add value. For instance, one buyer might think a pool is amazing as they imagine backyard barbeques and parties. Another buyer might see it as a safety hazard that’s expensive to maintain. Agents and appraisers are therefore cautious in evaluating the value of unique features, which is often frustrating to the homeowner. They may have spent $20,000 on a theater room that the appraiser gives $7,000 value to.
Market at the time of sale is one of the most important considerations because the market is always changing. Appraisers are limited to comps that have sold within ninety days unless they absolutely can’t find any. Interest rates, pandemics, how many similar homes were sold, and time of year are examples of the details that can have major effects on the price a home sells for. As soon as another home sells within the range of the CMA, all the data shifts which is why a CMA can be different from one week to the next in certain areas. The more recent a sale, the better a comp it is.
Condition is the fourth element that is considered. An appraiser will do most of their work from home because it’s data-dependent. However, the appraiser will typically go to the home and inspect the condition and take pictures. Updates mostly affect the value of a home for about five years, meaning if you put in the trendy countertop and top of the line appliances, that only “counts” for five years, then it’s generally considered out of date. Condition also applies to the level of repair in the home. Unkempt interiors or exteriors of the homes may require value adjustments depending on the condition of the SP in relation to the comps and some limitations can affect the type of loan that can be made on the property (FHA and VA). It can be a difficult to evaluate condition when all we have to go off of are pictures of the comps, but we do our best to give a fair analysis.
After we have investigated all these aspects, we line things up and start adding and subtracting from the comps so that the features line up with those of the SP. For instance, if our SP has three bedrooms and a comp has five bedrooms, we will minus $10,000 ($5,000/bedroom) from the sold price of the comp so that it’s priced as though it has the same number of bedrooms as the SP. We do the same with all the standard features—square footage, acreage, garage space, bathrooms, how much square footage per level of the house. If the SP has one more bathroom than the comp, we’ll add the price of that bathroom onto the comp property to balance it in that direction. We then have the option to add a certain dollar amount to any of the properties to reflect upgrades or features that weren’t the ones automatically considered—like that pesky pool or the fact that one of the comp properties had an entire kitchen remodel six months before it sold. What we get from this is an adjusted sales price of each comp based on the idea of that home now reflecting the same features as our SP. Those prices are averaged out to create an adjusted value of our SP.
The biggest problem with CMAs is that they can be manipulated. If I pull up six comps and eliminate the three lowest values, I might not get a fair determination of value. If I’m valuing a split-level home but compare it to ramblers, I again won’t get a fair value. Using a realtor you trust becomes an important consideration, as does having an open mind about your home’s value. Sellers are inclined to believe their home is worth more than the data would support because they love it and have emotional ties. Find a good realtor and ask good questions; those two things will set you up for your greatest potential success in determining the market value of your home.
Utah Family Law, LC | divorceutah.com | 801-466-9277
DUANE CROFT KNOWLES, Appellant, v. CELIA FERN KNOWLES, Appellee.
Opinion
No. 20200032
Filed April 7, 2022
Second District Court, Farmington Department
The Honorable David R. Hamilton
No. 174700123
Julie J. Nelson and Alexandra Mareschal, Attorneys for Appellant
Emily Adams and Sara Pfrommer, Attorneys for Appellee
JUDGE MICHELE M. CHRISTIANSEN FORSTER authored this Opinion, in which JUDGES RYAN M. HARRIS and DIANA HAGEN concurred.
CHRISTIANSEN FORSTER, Judge:
¶1In 2016, Duane Croft Knowles and Celia Fern Knowles separated after nearly thirty years of marriage. During their separation, the district court awarded Celia1 temporary alimony and, after a bench trial, entered a final alimony award. Duane now appeals those awards, arguing the court abused its discretion in (1) declining to award him credit for purported overages he paid in temporary alimony, (2) calculating the parties’ expenses in determining the final alimony award, and (3) selecting the date to value the retirement accounts. We affirm in part and reverse in part and remand.
BACKGROUND2
¶2Duane and Celia were married in December 1989. They remained married for twenty-nine years, during which time they had six children. For the duration of the marriage, Duane worked as an optometrist and supported the family financially.
¶3In 2016, Duane and Celia separated. At that time, only two of the children were minors.3 Upon the parties’ separation, Celia remained in the marital home, which was paid off. Each month Duane used his income to pay the family’s bills and any remaining funds were then divided between the parties; in the initial months following their separation, Celia received $200 more per month than Duane, after which the excess was split 50/50. After several months of this informal arrangement, both parties filed motions for temporary orders, supported by financial declarations.
¶4In Celia’s financial declaration, she reported a nominal monthly income of $103.52 from her massage therapist side business but requested the court impute the minimum wage for full-time employment to her in the amount of $1,257 per month. Celia also declared that her monthly financial needs were $8,476.91. This total included, among other things, orthodontic expenses for one of the parties’ minor children and a monthly donation for tithing to Celia’s church.
¶5In Duane’s financial declaration, he reported a net monthly income of $9,671.08 from his job as an optometrist. Duane calculated his monthly expenses as $5,054.70 and included in those expenses a line-item for a tithing donation to his church.
¶6 The competing motions for temporary orders were reviewed before a commissioner in September 2017. Duane was ordered to pay Celia $3,797 in alimony each month, beginning in July 2017. The commissioner noted that “the issue of retroactive alimony prior to July 1, 2017,” would be “reserve[d]” and that Duane “shall receive credit for amounts he has paid [Celia] or on behalf of [Celia] during this time.” In calculating temporary alimony, the commissioner adjusted the stated monthly expenses for both parties, including eliminating the claimed monthly expense for tithing. The commissioner did not exclude, however, Celia’s claimed orthodontic expenses for the parties’ minor children.
¶7 Duane objected to the commissioner’s alimony recommendations, arguing that the commissioner had improperly calculated the parties’ needs by failing to “equalize the parties[’] standards of living” and “by failing to consider the parties[’] historical standard of living.” In addition, he argued that the temporary award should cover only the actual expenses of the parties and not “projected expenses” such as possible orthodontics for the parties’ ten-year-old child who did not yet have braces.
¶8Following briefing and argument on Duane’s motion, the district court sustained the commissioner’s recommendations as to the parties’ temporary expenses and incomes. In particular, the court noted that including the orthodontic expenses in calculating Celia’s needs “was not erroneous” because “[e]ven if orthodonti[cs] is not presently involved, it could occur in the immediate future.” However, the court agreed with Duane that some of Celia’s expenses were inflated and that alimony should be adjusted accordingly. The court then reduced the temporary alimony award from $3,797 to $2,809, with payments set to begin on July 1, 2017, the same day set by the commissioner in his initial order.4
¶9In 2019, two years after Duane filed for divorce, the parties went to trial. During the course of the two-day bench trial on financial issues, both parties testified, along with their respective experts.
¶10 Duane first challenged the district court’s award of temporary alimony, arguing that Celia’s financial declarations were not adequately supported and that she had failed to prove the marital standard of living and her actual needs. In support of this argument, Duane called as an expert a forensic accountant to testify regarding the parties’ marital standard of living. The expert first testified that prior to the parties’ separation in 2016, the monthly marital expenses for both parties together were $9,338, or $4,669 each. He then explained that Celia had requested $8,476.91 in her financial declaration but had been spending only around $4,755.02 per month. He also opined that, based on the parties’ historical spending, tithing donations to their church were part of the marital standard of living.
¶11In addition to challenging the amount of alimony, Duane asked the court to credit him $64,000 for what he characterized as an “overage” he paid in temporary alimony. In essence, Duane argued that the temporary alimony figure he had paid for approximately two years had been too high and asked the court to adjust that figure retroactively and award him the difference between what he had paid and what he should have paid. He argued that Celia had “intentionally dissipated the marital estate by overspending,” “over-inflat[ing] her needs,” and “refusing to work” despite having “the ability to work full time.”
¶12 Following trial, the district court entered its findings of fact and conclusions of law. Based on its analysis of the parties’ income and needs, the court awarded Celia $2,770 in permanent alimony per month moving forward.
¶13 In reaching that amount, the court first analyzed each party’s income. It calculated Duane’s monthly net income at $9,368, after averaging the prior four years of his annual income as stated in his tax returns. The court also imputed a monthly net income of $1,874 to Celia, finding that “she is voluntarily underemployed” and “capable of employment.”
¶14 The court then analyzed the needs of each party. It first declined to “award any donations or tithing for either party.” It reasoned that the tithing payments were “a religious preference” and “not a necessary living expense.”
¶15 Next, after examining Celia’s multiple financial declarations and other relevant evidence, the district court found that her post-divorce living expenses would be $5,382 per month. To reach this amount, the court excluded some of Celia’s claims for expenses, finding the supporting evidence “lacking, remote in time[,] and remote in detail.” But the court also added additional expenses for a future mortgage and for health insurance, which had not been included in Celia’s financial declarations.
¶16Finally, the court examined Duane’s financial declarations and supporting evidence and determined that his monthly post-divorce living expenses, excluding child support, would be $5,833. In so doing, the court excluded only “the expense of donations,” finding Duane’s other expenses “to be appropriate.”
¶17 After setting the amount of permanent alimony, the district court addressed both parties’ claims regarding alimony arrears and overpayments. Without addressing the merits of the parties’ arguments, the court summarily concluded that both parties had failed “to provide or to carry the weight of the evidence in their respective favor” and declined to credit Duane for any overpayments of temporary alimony.
¶18With respect to the parties’ retirement accounts, the court awarded each party “one-half of the value of the marital portion of the retirement accounts, . . . with a valuation date of August 2, 2019,” the date on which the court announced its oral ruling.
¶19 Following the district court’s oral ruling, Duane filed a document requesting further clarification on a number of issues, including, as relevant here, his taxpayer filing status and the valuation date of the retirement accounts. As to his taxpayer filing status, Duane noted that his “ability to pay should be reduced by $224/month as his taxable income will be higher” because of the change in his filing status following the divorce. As to the valuation date of the retirement accounts, Duane noted that the division date “should be the date of separation” and not the date of divorce.
¶20 In response to Duane’s request, the district court issued an order rejecting both arguments. First, it declined to change Duane’s taxpayer filing status, reasoning that Duane had not provided sufficient evidence to rebut its previous ruling. Second, it declined to change the valuation date of the retirement accounts. It acknowledged that “typically the date of division of retirement accounts is the date of divorce” but, due to the “totality of the circumstances” presented in this case, determined to use August 2, 2019 as the “date of division,” noting that the parties had not made “sufficient argument about a different division date being used.”
ISSUES AND STANDARDS OF REVIEW
¶21 Duane now appeals and raises three issues for our consideration. First, he contends that the district court erred “by failing to correct for overage paid in temporary alimony.” “District courts have considerable discretion in determining alimony and determinations of alimony will be upheld on appeal unless a clear and prejudicial abuse of discretion is demonstrated.” Burggraaf v. Burggraaf, 2019 UT App 195, ¶ 26, 455 P.3d 1071 (quotation simplified).
¶22 Second, Duane contends that the district court erred in calculating the amount of the permanent alimony award. Specifically, he argues that the court miscalculated the parties’ expenses by failing to include the tithing contribution each paid to their church, by “including an ongoing expense for orthodonti[cs],” and by “miscalculating [Duane’s] tax obligation.” We review a district court’s alimony determination for an abuse of discretion. See id. In determining alimony, a court exceeds its discretion if its alimony award “lacks a reasonable basis.” Redden v. Redden, 2020 UT App 22, ¶ 15, 461 P.3d 314.
¶23 Third, Duane contends that the district court erred by “setting an arbitrary valuation date for the retirement accounts rather than the date of separation.” “The [district] court in a divorce action is permitted considerable discretion in adjusting the financial and property interests of the parties, and its actions are entitled to a presumption of validity.” Rayner v. Rayner, 2013 UT App 269, ¶ 4, 316 P.3d 455 (quotation simplified). “Thus, we will not disturb a court’s distribution of marital property unless it is clearly unjust or a clear abuse of discretion.” Goggin v. Goggin, 2013 UT 16, ¶ 44, 299 P.3d 1079 (quotation simplified).
ANALYSIS
I. Overpayment of Temporary Alimony
¶24 Duane first contends that the district court abused its discretion by failing to credit him for what he considers to have been excess payments made to Celia pursuant to the court’s temporary alimony order. Duane argued below, and argues now on appeal, that the temporary alimony award was erroneous because Celia obtained it by submitting inflated and unjustified need claims that the district court rejected after hearing the evidence at trial. Specifically, he argues that the temporary award underestimated the amount of income to be imputed to Celia, relied on an inflated estimate of Celia’s needs, and included a triple award for the children’s medical expenses.
¶25 Celia first responds that Duane failed to preserve this issue below, with the exception of his claim regarding the triple award of medical expenses. She then asserts that Duane’s argument fails on the merits because his comparison of the temporary and final awards fails to account for changes in her circumstances during the two-year period between separation and trial. We turn first to the preservation argument and then address the merits.
A. Preservation
¶26 Celia asserts that Duane’s overpayment argument regarding her expenses and income is unpreserved because the argument Duane raised in the district court is based on an “entirely distinct legal theory” from the argument he raises on appeal. (Quotation simplified.) In the district court, Duane argued that he paid too much in temporary alimony because Celia had “dissipated the marital estate by overspending” and had refused to work. Celia asserts these arguments are distinct from the argument Duane raises here, which is that the temporary alimony award was overinflated because of adjustments to Celia’s alimony award made by the district court at the time of trial. We disagree with Celia’s characterization of the arguments and conclude that the issue was properly preserved.
¶27“Our preservation requirement is well-settled: we require parties to have raised and argued before the district court the issue that they raise and argue before us on appeal, and if a party does not, it has failed to preserve the issue.” True v. Utah Dep’t of Transportation, 2018 UT App 86, ¶ 23, 427 P.3d 338 (quotation simplified). “An issue is preserved for appeal when it has been presented to the district court in such a way that the court has an opportunity to rule on it.” State v. Rogers, 2020 UT App 78, ¶ 20, 467 P.3d 880 (quotation simplified). A party asserting error on appeal must have raised the issue before the district court “specifically, in a timely manner, and with support by evidence and relevant legal authority.” True, 2018 UT App 86, ¶ 24. “New arguments, when brought under a properly preserved issue or theory,” may be properly considered on appeal. Id. ¶ 32 (quotation simplified). “Such arguments include citing new authority or cases supporting an issue that was properly preserved.” State v. Johnson, 2017 UT 76, ¶ 14 n.2, 416 P.3d 443.
¶28 The arguments Duane raised repeatedly in the district court are, in fact, based on the same facts and legal theories as those he raises here. In the proceedings on temporary orders, Celia filed a financial declaration stating that her monthly need was $8,476.91, which was only $1,000 short of Duane’s entire net income. At that time, Celia was working a de minimis amount and had no expenses for health insurance or housing since she was residing in the paid-off marital home and receiving health insurance through Duane’s employment. The commissioner reduced some of Celia’s claimed expenses and imputed income to her based on full-time work at a minimum wage income and then recommended that Duane pay temporary alimony in the amount of $3,797 per month.
¶29 Duane objected to the commissioner’s recommendation, arguing that Celia’s requested amount far exceeded the marital standard of living. Duane requested that the district court immediately correct the inflated temporary alimony because he was concerned that the court would decline to correct it retroactively. The court agreed that some of Celia’s expenses were inflated and reduced the temporary award to $2,809. Dissatisfied with the court’s resolution of the issue, Duane filed a petition for interlocutory appeal with this court, again making the argument that the temporary alimony award was excessive because Celia’s claimed expenses were excessive. His petition was denied.
¶30 Having been only partially successful in urging the district court to reduce the temporary award before trial, Duane again challenged the temporary award at trial. Indeed, Duane maintains that much of his motivation to take the case to trial— rather than to settle out of court—was to have the temporary alimony award corrected. Duane filed a trial brief in which he argued that he should be credited for any overage he had paid in temporary alimony and that temporary alimony should be “reduced retroactively as it was incorrectly applied.” Specifically, Duane argued that Celia had “over-inflated her needs” and “misled the [c]ourt with her financial declaration.” After the district court announced its preliminary oral ruling, Duane argued in post-trial briefing that the court should award him a judgment for “alimony that was over-paid during the temporary orders.” And at oral argument on the post-trial issues, Duane again argued that “[t]he temporary order created a substantial inequity between the parties” and that he should be given a judgment for the amounts he overpaid. The court noted Duane’s argument but declined to analyze the merits of his arguments or credit him for any overpayment.
¶31 In short, Duane repeatedly argued below that the temporary alimony award was wrong for two broad reasons. First, he claimed that it was wrong due to Celia’s allegedly overstated expenses. Second, he claimed that it was wrong due to Celia’s allegedly understated earning capacity. Duane sought credit for these overages based on his argument that the evidence presented at trial failed to support the temporary award. This is the same argument that Duane advances here. The fact that Duane now illustrates the issue by pointing to the discrepancies between the temporary alimony order and the final alimony award (and noting the adjustments made to the final award to account for Celia’s increased expenses for housing and health insurance) does not change the essence of Duane’s argument. We therefore conclude that Duane adequately preserved the issue for our consideration.
B. Temporary Awards
¶32 Utah Code section 30-3-3(3) authorizes an award of temporary alimony “to provide money, during the pendency of the action, for the separate support and maintenance of the other party and of any children in the custody of the other party.” Utah Code Ann. § 30-3-3(3) (LexisNexis Supp. 2021). Although orders providing for temporary support are operative during the pendency of the divorce proceeding, they are not final orders from which an appeal of right may be taken. Rather, as interlocutory orders, they are subject to continuing review and modification by the district court until the issuance of a final judgment. See IHC Health Services, Inc. v. D & K Mgmt., Inc., 2008 UT 73, ¶ 27, 196 P.3d 588 (recognizing the broad discretion of district courts to reconsider and modify interlocutory rulings before final judgment).
¶33 Although district courts have discretion in fashioning temporary orders, temporary alimony is subject to the same requirements as a regular alimony award. See Dahl v. Dahl, 2015 UT 79, ¶¶ 85–98, 459 P.3d 276 (describing factors applied to temporary alimony and concluding the district court did not abuse its discretion in denying temporary alimony when wife failed to provide documentation of her needs). As is the case with awards of permanent alimony, temporary alimony awards must “follow[] logically from, and [be] supported by, the evidence.” Bakanowski v. Bakanowski, 2003 UT App 357, ¶ 13, 80 P.3d 153 (quotation simplified).
¶34 Because of their nature, however, temporary awards are often based on limited evidence. Typically recommended by a domestic relations commissioner after a brief proffer hearing based largely on the financial declarations submitted by the parties, see Utah R. Jud. Admin. 6-401(2)(H), such temporary orders may result in awards that are not supported by the more substantial evidence presented at a later trial. For this reason, district courts have the authority to revisit temporary orders and, if warranted, retroactively modify them in the final divorce decree. See Utah Code Ann. § 30-3-3(4); id. § 30-3-5(4); id. § 78B12-112(4) (2018); Miner v. Miner, 2021 UT App 77, ¶ 101, 496 P.3d 242; McPherson v. McPherson, 2011 UT App 382, ¶¶ 12, 17, 23, 265 P.3d 839.
¶35 This court’s opinion in McPherson illustrates this point and is instructive here. There, husband appealed the district court’s denial of his request for a retroactive modification of his temporary alimony obligation. McPherson, 2011 UT App 382, ¶ 10. The court had based its initial temporary award on the recommendation of the domestic relations commissioner who, in turn, had based it on husband’s salary at the time of the initial support hearing. Id. ¶¶ 3, 5. When the court entered the temporary award, it was unaware that husband had since been fired from his job. Id. ¶ 5. Husband thereafter moved to amend the temporary order to recalculate his child support and alimony obligations in accordance with his then-decreased salary. Id. ¶ 7. The court denied the motion, reasoning that husband’s decreased salary was likely the result of his voluntary underemployment. Id. Following a bench trial, however, the court reversed course, finding that husband was not voluntarily underemployed. Id. ¶ 19. It therefore reduced husband’s future support obligations. Id. But it nevertheless denied husband’s request for a retroactive modification of his temporary support obligations, reasoning there was “no basis in law, fact, or equity to retroactively reduce the amounts.” Id. (quotation simplified).
¶36 On appeal, this court reversed and remanded with instructions for the district court to modify the temporary alimony award retroactively. Id. ¶ 24. While recognizing the considerable discretion district courts possess in determining alimony, we emphasized that such awards must be supported by an explanation based on the evidence. Id. ¶ 23. Because the temporary alimony award was based on the erroneous assumption (later rejected by the district court) that husband was voluntarily underemployed, there was no justification for the higher award. Id. ¶ 21. This court held that the district court abused its discretion by failing to retroactively modify husband’s temporary support obligations, reasoning that “[e]ven if the commissioner’s recommendations seemed well founded at the time of the hearings, once the premise of that decision was proved inaccurate, there was no reasoned basis to impose temporary support obligations that were mathematically impossible for [h]usband to pay.” Id. ¶ 23.
¶37Like the husband in McPherson, Duane argues the district court abused its discretion when it failed to credit him for temporary alimony payments that were higher than the amount the court determined was appropriate after hearing the evidence at trial. We therefore consider whether the district court’s refusal to modify the temporary alimony award was supported by its factual findings and rulings at trial.
¶38Duane identifies $62,627 in alleged discrepancies between the district court’s award of permanent alimony based on the trial evidence and its award of temporary alimony based on the proceedings before the commissioner. These consist of discrepancies between (1) Celia’s imputed income ($16,255 in overage); (2) Celia’s needs ($38,250 in overage); and (3) the amount awarded for medical expenses ($8,152 in overage). While Celia argues that these discrepancies are readily explainable, the district court offered no such explanation. Despite Duane’s request for reimbursement of what he argued was excessive temporary alimony, the court summarily declined to reconcile the differences, stating only that “neither party submitted sufficient evidence for arrears or overages.” But the district court’s summary refusal to consider the merits of the issue on the basis of insufficient evidence does not suffice, because the evidence supporting Duane’s request for reimbursement of asserted overages was the very same evidence that supported the court’s award of permanent alimony.5 Indeed, the court’s explanation for its refusal to address the discrepancies between the temporary and final award is no more sufficient than the McPherson court’s conclusory statement that there was “no basis in law, fact, or equity to retroactively reduce the amounts.” See 2011 UT App 382, ¶ 19 (quotation simplified). We therefore turn to the alleged discrepancies Duane identifies.
Celia’s Imputed Income
¶39 An alimony award must account for the ability of the recipient spouse to support themselves. See Utah Code Ann. § 30-3-5(9)(a)(ii) (LexisNexis Supp. 2021). At the temporary stage, the court imputed $1,225 in net income to Celia. But at trial, the court agreed with Duane and found that Celia was “voluntarily underemployed” and “capable of employment.” Based on the testimony presented at trial, the court imputed to Celia $1,874 per month in net income, which represented an increase of $649 per month over the amount imputed in the temporary award. And the court made no finding suggesting that Celia could not have earned that amount during the pendency of the proceedings, or otherwise justifying the discrepancy between the temporary order and its findings at trial. The court should have considered whether Celia had the same earning capacity during the separation.
Celia’s Needs
¶40 An alimony award also must account for the financial condition and needs of the recipient spouse. See id. § 30-3-5(9)(a)(i). At the temporary stage, when Celia was residing in the paid-off marital home and receiving health insurance through Duane’s employment, the court found that Celia had monthly expenses (needs) of $5,370. After imputing a monthly net minimum wage of $1,225 to Celia and giving Duane credit for $1,336 in monthly child support payments, the court entered a temporary alimony award of $2,809 per month.
¶41 At trial, however, the court found that evidentiary support for Celia’s expenses was “lacking, remote in time,” “remote in detail,” and “artificial.” It therefore disallowed many of her claimed expenses. It then added a monthly mortgage expense of $1,015 to account for the fact that Celia would be required to refinance the marital home to cash out Duane’s equity. It also added a monthly health insurance expense of $503 because Celia would no longer be eligible for insurance through Duane’s employer after the divorce. Following these adjustments, the court made a finding that Celia’s monthly post-divorce expenses were $5,382. Excluding the post-divorce adjustments for housing and health insurance, the permanent award based on the trial evidence was $1,530 per month less than the temporary award or a total of $38,250 over the twenty-five months that Duane paid support pursuant to the temporary order. Duane argues that the district court erred in failing to award him this overage.
¶42 Celia argues that this court should reject Duane’s argument because he failed to marshal the evidence supporting the district court’s permanent award. She argues that Duane disregarded the evidence supporting her need for support after “the collapse of her 27-year marriage where she was largely a stay-at-home parent.” But marshalling is not required, because Duane has not raised a sufficiency argument or challenged the district court’s factual findings. And Celia has not explained why the length of the marriage or her status as a stay-at-home parent justifies the discrepancies in the amount of the temporary and final awards, since these issues are properly considered in determining the length of the alimony award and the level of income to impute to the receiving spouse. See id. § 30-3-5(9)(a)(ii), (iv).
¶43 Celia next argues that Duane is committing a logical fallacy of false equivalence by comparing the temporary and final alimony awards because there are significant differences between the two kinds of awards. She posits that a spouse’s needs, ability to produce income, and support of minor children may change from the time a court orders temporary alimony to the time of the final award and suggests that this is the explanation for the discrepancies here. She asserts that she was able to earn more income as time went on because her children were growing and their medical needs had decreased. She therefore suggests the district court determined she could earn more after the divorce was final than during its pendency. A court could conceivably find that a party is able to earn more at the time of trial than at the time of temporary orders. But the court made no such finding here, and we note that at no point during the temporary proceedings did Celia argue that the children’s medical needs prevented her from working. Indeed, the commissioner imputed her minimum wage for full-time work, and the district court found that Celia was voluntarily underemployed and flatly rejected her argument that she could not work because of the children’s medical needs.
¶44Finally, Celia argues that Duane’s line-by-line comparison
of the temporary and permanent awards is misleading because an alimony award is based on a more generalized determination of the amount necessary for both parties to maintain the standard of living that they enjoyed prior to the divorce. Because the temporary award ($2,809) was only $39 higher than the final award ($2,770), Celia maintains that the court’s failure to make an adjustment could not have been an abuse of discretion. But this argument ignores the adjustment made to the temporary award to account for mortgage and health insurance expenses.6 And more importantly, it is at odds with the district court’s express finding that evidentiary support for Celia’s claimed expenses was “lacking, remote in time,” “remote in detail,” and “artificial.” The court should have considered the merits of Duane’s arguments regarding these discrepancies to determine whether a modification of the temporary alimony award was in order.
Medical Expenses
¶45 Duane also argues that the temporary alimony award erroneously included a triple award of medical expenses. The temporary orders awarded Celia approximately $400 per month for medical expenses for the parties’ children, as well as half the funds in the parties’ health savings account (HSA). In addition, the temporary orders required that Duane pay for half the children’s medical costs. Duane reasons that Celia should not have been awarded the $400 per month for medical expenses and half of the HSA account, because he was already required to pay for half of the children’s medical costs. And he argues this inequity was exacerbated at trial when the court awarded Celia an additional lump sum for orthodontic expenses and miscellaneous out-of-pocket medical expenses. Duane seeks a credit in the total amount of $8,152.
¶46 Celia disputes Duane’s claim, arguing that Duane has failed to demonstrate that the money she was awarded for medical expenses exceeded the actual needs of the family. She also points to the district court’s finding that she had established the amount of the medical expenses with receipts and testimony not refuted by Duane, and that the award was to be paid from the HSA, not in addition to it.
¶47Duane responds that Celia is confusing the district court’s award for medical expense arrearages with the ongoing expenses included in calculating Celia’s need. He explains the court included approximately $400 per month in medical expenses in calculating Celia’s expenses, awarded Celia half the HSA account, and then duplicatively ordered Duane to pay for half the children’s medical expenses during the temporary orders period. After trial, Celia was awarded $150 per month in health care expenses and Duane was awarded the entire HSA amount. As was the case with Duane’s claim to recover overages associated with Celia’s allegedly inflated expenses and underemployment, the district court did not engage with Duane’s arguments that the temporary alimony award was $541 too high, stating only that it “had previously ruled that [Celia] is entitled to an award of medical expenses” and that it would “not modify its previous ruling.” There was no legal justification for the court’s refusal to examine the merits of Duane’s claim.
Remand
¶48Temporary support orders are interlocutory in nature and therefore subject to continuing modification by the district court through the date of the final decree. Because they are often based on proffers that may differ from the actual evidence presented at trial, such temporary orders may result in awards that are not supported by the evidence presented at a later trial. For this reason, district courts have not only the authority, but the obligation, to revisit temporary orders when requested and, if warranted, to “true-up” or retroactively modify them to comport with the evidence.
¶49While district courts retain broad discretion in fashioning support orders in divorce proceedings, they are obligated to analyze a timely claim by a party seeking to true-up a temporary support order with the evidence received at trial. This true-up process consists of a two-part exercise. If a true-up is timely requested, the court should first make factual findings relevant to the temporary award to determine whether it was supported by the evidence. If the court finds, after hearing all the evidence presented at trial, that the temporary order was inappropriate, then the court should proceed to the second step: determining whether a true-up is warranted in the case at hand. In many cases, a party who has demonstrated that a temporary order was inappropriate and unsupported by the more comprehensive evidence presented at trial will be entitled to a retroactive modification of that order. See McPherson v. McPherson, 2011 UT App 382, ¶¶ 21–24, 265 P.3d 839. But in some cases, a court may find that such retroactive modification is inappropriate or inequitable, notwithstanding an inaccuracy or error in the temporary order. In making the determination whether to order a true-up, a court should identify the considerations bearing on its decision and should enter careful findings explaining the basis for that determination.
¶50Here, Duane was entitled to have the district court engage on the merits in determining whether he was entitled to a true-up. As we have discussed, Duane repeatedly asked the district court to consider his contention that the temporary alimony award was too high and timely sought an offset based on the evidence presented at trial. At trial, the court concluded that Celia should be imputed more income than was included in calculating the temporary alimony. It also found that Celia’s claimed expenses were lacking in evidentiary support. But it failed to analyze, explain, or reconcile the discrepancies between the numbers used to calculate the temporary and final alimony orders. It similarly failed to engage in or analyze Duane’s claim that both the temporary and final alimony orders had duplicated the award for the children’s medical expenses. This was an abuse of its discretion. We therefore remand the matter to the district court to complete the first step of the true-up process by making appropriate factual findings relevant to the temporary award to determine whether it was supported by the evidence. If the court finds the temporary order was overinflated, it must then determine whether a true-up is warranted. And it should also consider Duane’s claim that both the temporary and final alimony awards included a triple award of the children’s medical expenses.
II. Calculation of the Final Alimony Award
¶51Duane next contends that the district court erred, in three ways, in calculating the final alimony award: (1) it did not consider tithing paid to the parties’ church as consistent with the marital standard of living, (2) it failed to consider Duane’s post-divorce tax bracket, and (3) it included orthodontics as a permanent expense. We address each argument in turn.
A. Tithing
¶52 Duane argues that the district court miscalculated his ability to pay alimony by excluding expenses that it deemed unnecessary. According to Duane, the court analyzed whether the parties’ claimed expenses were “necessary,” rather than whether they were consistent with the “marital standard of living.” (Quotation simplified.) After doing so, it determined that tithing paid to the parties’ church was not a necessary obligation and therefore excluded it from Duane’s list of expenses, thus inaccurately increasing his ability to pay.
¶53 When setting an alimony award, the district court must consider a number of statutory factors, including “the financial condition and needs of the recipient spouse,” “the recipient’s earning capacity or ability to produce income,” and “the ability of the payor spouse to provide support.” Utah Code Ann. § 30-35(9) (LexisNexis Supp. 2021). “Furthermore, the award should advance, as much as possible, the purposes of alimony by assisting the parties in achieving the same standard of living they enjoyed during the marriage, equalizing the parties’ respective standards of living, and preventing either spouse from becoming a public charge.” Hansen v. Hansen, 2014 UT App 96, ¶ 6, 325 P.3d 864 (quotation simplified).
¶54 In adhering to these principles, this court has described the proper process to be followed by courts when awarding alimony:
First, the court must assess the needs of the parties, in light of their marital standard of living. Next, the court must determine whether the receiving spouse is able to meet [their] own needs with [their] own income. If the court finds that the receiving spouse is unable to meet [their] own needs with [their] own income, the court must then assess whether the payor spouse’s income, after meeting [their own] needs, is sufficient to make up some or all of the shortfall between the receiving spouse’s needs and income.
Redden v. Redden, 2020 UT App 22, ¶ 21, 461 P.3d 314 (quotation simplified). If the court determines after conducting this analysis “that there are insufficient resources to meet the baseline needs established by the marital living standard, the court should then equitably allocate the burden of the shortfall between the parties.” Rule v. Rule, 2017 UT App 137, ¶ 22, 402 P.3d 153.
¶55As an initial matter, the court must assess the needs of the parties not by applying its own sense of which expenses are truly necessary but, instead, by examining whether their claimed expenses are consistent with the standard of living the parties established during the marriage. See id. ¶ 15. This assessment is fact-sensitive and individualized and must be limited to a determination of whether the claimed needs are “based on the parties’ historical standard of living.” See Bakanowski v. Bakanowski, 2003 UT App 357, ¶ 12, 80 P.3d 153; see also Anderson v. Anderson, 2018 UT App 19, ¶ 31, 414 P.3d 1069 (defining “standard of living as a minimum of necessities, comforts, or luxuries that is essential to maintaining a person in customary or proper status or circumstances” and “disavow[ing] the notion that standard of living is determined by actual expenses alone” (quotation simplified)). Indeed, it is not the job of the district court to “appl[y] its own sense of what was reasonable under the circumstances.” See Dobson v. Dobson, 2012 UT App 373, ¶ 29, 294 P.3d 591.
¶56 In comporting with this principle, this court has upheld alimony awards that included unique expenses—even expenses some observers might deem frivolous or unnecessary—where such expenses were consistent with the marital standard of living. See, e.g., Miner v. Miner, 2021 UT App 77, ¶¶ 22, 26, 44, 496 P.3d 242 (awarding receiving spouse, among other things, $1,000 per month for “tennis-related expenses,” $625 per month for “entertainment,” and $5,000 per month for horse care and maintenance where each expense was a historical marital expense supported by the evidence). Moreover, courts may infer that “the parties’ current expenses were based on the marital standard of living when the majority of the expenses in the [payor spouse’s] current financial declaration are identical in amount to those identified as marital expenses in the [receiving spouse’s] current financial declaration.” Eberhard v. Eberhard, 2019 UT App 114, ¶ 48, 449 P.3d 202 (quotation simplified); see id. (finding that receiving spouse’s request for $300 per month for donations and gifts was reasonable “[i]n light of the fact that the court allocated the same amount for each party to spend on donations and gifts”). Accordingly, as long as a party’s claimed expenses are consistent with the marital standard of living, are based on sufficient factual findings, and advance, as much as possible, the purposes of alimony, such expenses should be included in the “needs” calculation.
¶57 The district court did not follow this process here, however. In setting the alimony award, the court did not analyze whether the parties’ tithing payments were an expenditure consistent with the marital standard of living. Instead, the court declined to “award any donations or tithing for either party” based on its finding that “tithing is a donation and . . . not a necessary living expense.” We agree with Duane that in so doing, the court eliminated the expense based on a subjective needs judgment that ignored the requirement that it assess the expense based on how the parties chose to spend and allocate their money while married. See Bakanowski, 2003 UT App 357, ¶ 12. And here, the parties presented evidence that their historical standard of living consistently included paying tithing to their church.7 By failing to assess whether the parties’ expenditures were consistent with the marital standard of living, the court abused its discretion. Accordingly, we reverse the court’s determination on this point and remand for the court to reassess the tithing expense following the process detailed above. The court should make a finding as to whether tithing was included in the parties’ marital standard of living and, if it was, should account for that expense in calculating alimony.8 If inclusion of tithing in the calculation results in a shortfall, the shortfall should be equitably allocated between the parties.
B. Tax Status
¶58Duane next argues that the district court miscalculated his ability to pay because it failed to consider his post-divorce tax obligation. When awarding alimony, the district court must consider “the ability of the payor spouse to provide support,” Utah Code Ann. § 30-3-5(9)(a)(iii) (LexisNexis Supp. 2021), which “includes consideration of the payor spouse’s tax obligations,” McPherson v. McPherson, 2011 UT App 382, ¶ 13, 265 P.3d 839.
¶59The court calculated Duane’s ability to pay by averaging “the last four years” of his net income as listed in his historical tax returns. Based on those returns, the court determined that Duane’s tax obligation would be $24,335.77. In making this determination, the court failed to consider that during each of those years the parties’ filing status was married filing jointly, but that after the divorce Duane’s filing status would—at least for a time—be single or head of household, which would increase his tax obligation. Because the court failed to properly consider Duane’s tax obligation, we reverse and remand for it to recalculate Duane’s post-divorce tax obligations.
C. Orthodontics
¶60 Duane next argues that the district court “mistakenly included $112 per month for orthodonti[cs] in the alimony award.” He contends that this award is improper because (1) no evidence supported an orthodontics expense “that will endure for the entire . . . length of the alimony,” (2) he already pre-paid orthodontics as part of temporary alimony, and (3) he was already ordered to pay half the children’s medical expenses. As previously discussed, the temporary alimony award included $167 per month for orthodontic expenses for the parties’ ten-year-old child who was not yet wearing braces. Duane sought an offset for this amount against the final alimony award and further argued that the alimony award for orthodontic expenses was duplicative in light of the court’s separate order that Duane pay half of the children’s medical expenses. But the district court declined to address Duane’s arguments. Because we have remanded these issues for further consideration, we need not resolve at this juncture Duane’s claims regarding the orthodontics expenses. Rather, we direct the district court to reexamine the issue and articulate the factual and legal basis for its decision.9
III. Valuation Date for the Retirement Accounts
¶61 Finally, Duane argues that the district court abused its discretion by assigning a valuation date to the parties’ retirement accounts that was “long after the date of separation, yet not the date of divorce.”
¶62“Generally, the marital estate is valued at the time of the
divorce decree or trial.” Jacobsen v. Jacobsen, 2011 UT App 161, ¶ 39, 257 P.3d 478 (quotation simplified). However, “a court has broad discretion to value the parties’ marital assets at a different time, such as that of separation, if it determines that the circumstances so warrant.” Petrzelka v. Goodwin, 2020 UT App 34, ¶ 47, 461 P.3d 1134. “[A]ny deviation from the general rule must be supported by sufficiently detailed findings of fact that explain the [district] court’s basis for such deviation.” Rappleye v. Rappleye, 855 P.2d 260, 262 (Utah Ct. App. 1993).
¶63 In this case, the parties separated on May 24, 2016. In 2019, the matter proceeded to a multi-day bench trial that took place between January and April. The court delivered its oral ruling on August 2, 2019. In that ruling, the court addressed the division of the parties’ retirement accounts, ordering that they “be divided . . . 50/50 to each party, effective . . . today, . . . August the 2nd.” Approximately four months later, on December 11, 2019, the court reduced its oral ruling to writing.
¶64Duane contends that the valuation date set by the district court is “arbitrary” and not supported by sufficient findings. He maintains that the court should have set the valuation date as the date of separation. We disagree.
¶65 The valuation date was not arbitrary; it was in fact consistent with the general rule that “the marital estate is valued at the time of the divorce decree or trial.” See Jacobsen, 2011 UT App 161, ¶ 39 (quotation simplified). Here, the court set the valuation date as August 2, 2019—the same date on which it delivered its oral ruling at the close of trial. Because the court followed the general rule of setting the valuation date at the time of trial, it was not required to articulate any additional findings of fact explaining its decision. See id.
¶66 Moreover, the district court was not presented with sufficient evidence to justify a departure from the general rule. After the court’s oral ruling, Duane filed a motion to alter or amend arguing, among other things, that the date of separation should be used as the valuation date because Celia did not contribute to the retirement accounts during the period between the separation and the date of the divorce and therefore should not benefit from the increase in its value.
¶67The court considered Duane’s motion and issued an order upholding its choice of valuation date. It explained that “due to the totality of the circumstances a firm date of August 2nd, 2019 is the date of division of the retirement assets. The Court finds that there was not sufficient argument about a different division date being used.” Given the lack of argument as to an alternative valuation date, the court had no option other than to set the date as the date “of the divorce decree or trial.” See id. (quotation simplified). Duane does not persuade us that the district court acted outside the bounds of its discretion in setting the valuation date for the retirement accounts.
CONCLUSION
¶68 The district court abused its discretion by failing to meaningfully address Duane’s argument that based upon the court’s own post-trial findings, he was entitled to an offset for overages paid in temporary alimony, including offsets arising from the amount of Celia’s imputed income and inflated expenses. The district court similarly erred in failing to consider Duane’s arguments regarding the award of medical expenses, including orthodontics. The district court also abused its discretion when calculating Duane’s ability to pay permanent alimony by excluding tithing as part of the marital standard of living and by underestimating Duane’s post-divorce tax obligation. But we affirm the court’s valuation date for the parties’ retirement accounts. We therefore reverse the district court’s alimony award and remand the matter to the court for reconsideration of the alimony award in accordance with this opinion.
Third District Court, Salt Lake Department
The Honorable Robert P. Faust
No. 144903963
Steve S. Christensen and Clinton R. Brimhall,
Attorneys for Appellant
James H. Woodall and Deborah L. Bulkeley,
Attorneys for Appellee
JUDGE DIANA HAGEN authored this Opinion, in whichJUDGES KATE APPLEBY and JILL M. POHLMAN concurred.
HAGEN, Judge:
¶1 In 2005, Heather and Renson Marroquin were married. Prior to the marriage, Renson owned and operated a vending machine business.[1] After Heather filed for divorce in 2014, the value of that business became a central question in valuing the marital estate and distributing its assets. On appeal, Heather challenges the district court’s valuation of the business, its failure to impose a due date or interest rate for payment of her half of the marital assets, and its denial of her motion to amend its findings and for a new trial. Because we conclude the district court did not exceed its discretion with respect to any of the issues raised by Heather on appeal, we affirm.
BACKGROUND
¶2 Before marrying Heather in 2005, Renson founded Deluxe Vending LLC and now owns a 99% interest in that company.[2] Deluxe Vending operates eighty-seven vending machines and three “micro-markets”[3] in numerous locations throughout Salt Lake City, Utah. For the first year of their marriage, and two summers following that, Heather helped Renson stock the vending machines throughout the day and count the money collected. Once she completed her education, Heather obtained other employment, but she continued to “help [Deluxe Vending] sporadically as needed or as requested.”
¶3 Renson managed and conducted all of Deluxe Vending’s business operations and had no other employees. He established personal relationships with the property owners, which allowed him to continue to operate his vending machines and micro-markets at their respective locations. Most of Deluxe Vending’s contracts are on a month-to-month basis and can be replaced by other vendors at any time after the monthly contract ends.
¶4 In 2014, Heather filed for divorce. The primary issue at the parties’ divorce trial was the value of Deluxe Vending and division of its assets. Each party obtained his or her own expert to testify to the business’s value. Heather’s expert is a certified public accountant who had “no credentials in the area of business valuation.” Heather’s expert initially valued Deluxe Vending between $725,000 and $900,000 but increased “his estimate to a range of $1,229,317 to $1,530,803” just before trial by using an “income approach to value the business,” which includes “goodwill associated with the business.” At trial, Heather’s expert reduced his estimated value of Deluxe Vending to $700,000.
¶5 Renson’s expert is a certified public accountant, with accreditations in business valuation and as a senior appraiser. He “devotes approximately 75% of his practice to performing business valuations and testifying as an expert.” Following accepted industry practices of using the net asset approach, Renson’s expert valued Deluxe Vending at $152,937. The value was determined by subtracting the fair market value of liabilities from the fair market value of assets and then subtracting “between a 5 and 10 percent marketability discount.” In this case, Renson’s expert “went on the low end and took [a] 5 percent” discount. Renson’s expert opined that Deluxe Vending did not have any “institutional goodwill,” but only personal or professional goodwill attributed solely to Renson. The expert explained that, “without the relationships that exist for the places where the vending machines are located, there is no potential for goodwill. There’s no income earning capacity that would be in excess of the value of the assets.” At trial, Renson’s expert testified that Heather’s expert was unreliable and opined that he “failed to follow accepted industry practices, that he relied on inaccurate information, and that he made unreasonable assumptions.”
¶6 In its findings of fact, the court rejected Heather’s expert’s valuation and found Renson’s expert to be more credible. It found that the business was worth $152,937, awarded Deluxe Vending to Renson, and ordered him to pay Heather “one-half of the value, or $76,468.50.” The court also awarded alimony to Heather and divided the equity of certain personal property in half. The court entered the divorce decree consistent with those findings of fact.
¶7 Heather filed a motion to amend the court’s findings of fact or for a new trial (the post-judgment motion). In the post-judgment motion, Heather argued that the court erred in determining the value of Deluxe Vending because Renson testified at trial that some of the business’s liabilities had been paid off since Renson’s expert prepared the valuation report. Relatedly, she argued that the court should amend its findings to account for the institutional goodwill of the business rather than attribute the goodwill solely to Renson. Heather asked the court to set a date for Renson’s payment to Heather for one-half the value of Deluxe Vending and the personal property award. She also asked the court to make findings “regarding Renson’s dissipation of marital funds.” Finally, she requested a new trial “because the court’s method of ruling was irregular and surprising.”
¶8 The court found that the post-judgment motion was Heather’s “attempt[] to modify and add additional terms that were not presented as evidence at trial nor were they presented when [she] was given an additional opportunity to provide information to the Court due to lack of information and evidence at trial.” Based on her “failure to provide the information as directed within the time frames set, the Court was left with only the information provided at trial upon which to make a determination.” The court therefore denied the post-judgment motion.
¶9 Heather appeals.
ISSUES AND STANDARDS OF REVIEW
¶10 Heather raises three principal issues on appeal. First, Heather claims that the district court’s valuation of Deluxe Vending was clearly erroneous in two respects. She contends the court erroneously determined that any goodwill associated with Deluxe Vending was personal to Renson. Relatedly, she contends the court erred in accepting the appraisal value assigned by Renson’s expert to Deluxe Vending several months before trial given that Renson testified at trial that the liabilities had been reduced. A district court is “entitled to a presumption of validity in its assessment and evaluation of evidence,” and we defer to the district court’s “findings of fact related to property valuation and distribution unless they are clearly erroneous.” Taft v. Taft, 2016 UT App 135, ¶ 63, 379 P.3d 890 (quotation simplified). We “will not disturb a court’s distribution of marital property unless it is clearly unjust or a clear abuse of discretion.” Id. ¶ 32.
¶11 Second, Heather contends the court erred when it failed to set a due date or impose an interest rate on Renson’s payment to Heather for one-half the value of Deluxe Vending and the one-half interest award of personal property. District courts “have considerable discretion in determining property distribution in divorce cases,” Stonehocker v. Stonehocker, 2008 UT App 11, ¶ 8, 176 P.3d 476 (quotation simplified), and we will not disturb the district court’s determination absent a clear abuse of discretion, Taft, 2016 UT App 135, ¶ 59.
¶12 Third, Heather contends the district court erred in denying the post-judgment motion because “the transcript showed that the district court had halted or interfered with [her] attempts to elicit testimony regarding dissipation of marital assets.”[4] We will reverse a district court’s denial of a motion for a new trial or to amend the findings and judgment for abuse of discretion. Bergmann v. Bergmann, 2018 UT App 130, ¶ 12, 428 P.3d 89. “To the extent that our review turns on facts presented at trial, we defer to the trial court’s underlying findings of fact, which shall not be set aside unless clearly erroneous.” Id. (quotation simplified).
ANALYSIS
I. The Value of Deluxe Vending
¶13 Heather contends the district court made two errors when
calculating the value of Deluxe Vending. First, she argues that the court should have included institutional goodwill in its calculation. Second, she argues the court’s calculations of the value of the company should have taken into consideration Renson’s testimony regarding the reduction in liabilities of Deluxe Vending. We address each argument in turn and conclude that the court did not err when calculating the value of Deluxe Vending.
A. Goodwill of Deluxe Vending
¶14 Heather contends the district court “should have included goodwill value in its calculations” of the value of Deluxe Vending. “In a divorce proceeding, determining and assigning values to marital property is a matter for the trial court and this court will not disturb those determinations absent a showing of clear abuse of discretion.” Dunn v. Dunn, 802 P.2d 1314, 1317 (Utah Ct. App. 1990) (quotation simplified). “Marital property is ordinarily all property acquired during marriage and it encompasses all of the assets of every nature possessed by the parties, whenever obtained and from whatever source derived.” Id. at 1317–18 (quotation simplified). Here, Renson does not dispute that Deluxe Vending is marital property subject to division. See id.
¶15 When valuing a business in marriage dissolution cases, district courts must consider whether goodwill is institutional or personal to one spouse. See Sorensen v. Sorensen, 839 P.2d 774, 775 (Utah 1992) (agreeing with “jurisdictions that do not treat [personal] goodwill as a marital asset to be divided”). Institutional, or enterprise, goodwill “is based on the intangible, but generally marketable, existence in a business of established relations with employees, customers and suppliers, and may include factors such as a business location, its name recognition and its business reputation.” See DeSalle v. Gentry, 818 N.E.2d 40, 47 (Ind. Ct. App. 2004). Personal goodwill is based on an individual’s “reputation for competency” and is not subject to distribution upon divorce. Sorensen, 839 P.2d at 775–76; see also Stonehocker v. Stonehocker, 2008 UT App 11, ¶ 44, 176 P.3d 476 (“There can be no good will in a business that is dependent for its existence upon the individual who conducts the enterprise and would vanish were the individual to die, retire or quit work.” (quotation simplified)).
¶16 Here, the district court concluded that the only goodwill associated with Deluxe Vending was personal to Renson. The court found that Deluxe Vending was the type of sole proprietorship where the owner’s goodwill is not a marital asset subject to division. Accordingly, the court did not consider Renson’s personal goodwill in calculating the value of Deluxe Vending.
¶17 Heather argues that Deluxe Vending is distinguishable from the type of sole proprietorship where goodwill is not subject to division. For example, she cites Sorensen, in which the district court valued a sole-practitioner dental practice at $100,060 and determined that $62,560 of that value represented the personal “goodwill” of the husband. 839 P.2d at 775. The husband appealed the district court’s decision, arguing that it “should not have included [personal] goodwill and reputation in its valuation of his dental practice.” Id. Our supreme court determined that “the goodwill of a sole practitioner is nothing more than his or her reputation for competency.” Id. “It may well be that if the sole practitioner retires at the time of a divorce and his or her practice is actually sold and an amount is realized over and above the value of the tangible assets, the full amount should be viewed as marital property.” Id. But where no actual sale of the business takes place, personal goodwill “should not be treated differently from a professional degree or an advanced degree,” and requiring the sole practitioner to pay the spouse “part of the value ascribed to the [personal] goodwill” would be inequitable. Id. at 775–76.
¶18 Relying on Sorensen, Heather asserts the district court made “no findings about [Renson] having a reputation that matters to the business’s operation.” Both the district court’s oral and written findings of fact refute this assertion. The court specifically found that “the goodwill of Deluxe Vending is solely attributable to Renson’s work, his efforts, and his reputation for competency” based on Renson “being the face of the business” and the “personal relationships” he has made with the property owners that have allowed him to continue to conduct business, largely on a month-to-month basis.
¶19 Deluxe Vending is more akin to the car dealership at issue in Stonehocker. In that case, the district court determined that a used car dealership formed by the husband during the course of the marriage was “in reality a sole proprietorship” and the success of the used car dealership was “solely attributable to [the husband’s] personal, professional reputation.” Stonehocker, 2008 UT App 11, ¶¶ 6, 40, 43. This court agreed that the used car dealership was “essentially [the husband’s] sole proprietorship,” because the wife had “only token involvement” in the business, and its success was “the product of [the husband’s] reputation, goodwill, and sole efforts.” Id. ¶¶ 40–42 (quotation simplified). The district court therefore correctly concluded that the value of the used car dealership “did not include any amount for goodwill.” Id. ¶ 43.
¶20 Here Renson owns 99% of Deluxe Vending and is the only employee of the business. He remains in contact with the entities that continue to allow Deluxe Vending to operate vending machines and micro-markets on the properties on a month-to-month basis. Heather’s involvement in the business was minimal and limited to stocking the machines and counting the money at the beginning of the marriage. Thus, Renson is akin to the sole proprietor in Stonehocker and Heather had “only token involvement” in Deluxe Vending’s operations. See id. ¶¶ 40–41 (quotation simplified).
¶21 Heather asserts that “anybody could step into [Renson’s] shoes and carry on with the business under its name and with its assets,” but she has not marshaled any record evidence that would support that assertion. See id. ¶ 9 (explaining that when a party challenges the findings of fact, the party “must first marshal the evidence in support of the findings and then demonstrate that the findings are unsupported by substantial evidence” (quotation simplified)). We therefore conclude that the district court did not exceed its discretion when it did not include institutional goodwill in calculating the value of Deluxe Vending.
B. Decreased Liabilities of Deluxe Vending
¶22 Heather contends the district court erred by basing its valuation of Deluxe Vending on the expert reports created prior to trial. Heather argues that the court should have valued the business as of the exact date of the divorce by accounting for Renson’s trial testimony that he had further paid down the business’s liabilities in the intervening months.
¶23 “Determining and assigning values to marital property is a matter for the trial court, and [we] will not disturb those determinations absent a showing of clear abuse of discretion.” Ebbert v. Ebbert, 744 P.2d 1019, 1023 (Utah Ct. App. 1987). Because Heather did not argue at trial that the district court should adjust the appraised value of Deluxe Vending based on a reduction in its liabilities, she cannot show an abuse of discretion.
¶24 Here, both parties submitted expert reports regarding the value of Deluxe Vending several months before trial. A valuation is necessarily a snapshot in time and both parties relied on the experts’ valuations when preparing for trial. Similarly, the district court relied on those expert reports and determined that Renson’s expert’s valuation was more credible. In the post-judgment motion, Heather cited portions of Renson’s testimony, noting that some of Deluxe Vending’s loans had been paid off or reduced. Heather argued that the court “should amend its findings consistent with the evidence at trial” by increasing the value of Deluxe Vending to account for the decrease in liabilities. Raising this factual issue for the first time in a post-judgment motion to amend the court’s findings of fact did not give Renson the opportunity to present evidence as to whether there were other changes that affected the valuation of Deluxe Vending, such as a decrease in assets. And Heather has failed to demonstrate that she could not have requested the court consider evidence outside of the experts’ valuation reports at trial. Cf. Hudema v. Carpenter, 1999 UT App 290, ¶ 40, 989 P.2d 491 (affirming the district court’s denial of a post-judgment motion for a new trial because “the evidence offered [in the post-judgment motion] could have been produced at trial with reasonable diligence”). Indeed, Heather elicited the testimony from Renson, but never asked the court to consider it when calculating the value of Deluxe Vending.
¶25 Heather cannot establish that the district court erred by not reducing the appraised value of Deluxe Vending, sua sponte, based on trial testimony regarding decreased liabilities. Nor has she shown that the district court abused its discretion in denying her post-judgment motion to amend its findings on grounds not presented at trial.
II. Failure to Set Due Date or Interest Rate for Heather’s Award of Marital Assets
¶26 Heather contends the district court “should have included an interest rate or due date” for her award of marital assets. Heather asserts that the court’s failure to do so places her “at such a disadvantage” that it amounts to “an abuse of discretion.” We disagree.
¶27 When the district court assigns a value to an item of marital property, the court must equitably distribute it “with a view toward allowing each party to go forward with his or her separate life.” Stonehocker v. Stonehocker, 2008 UT App 11, ¶¶ 13, 15, 176 P.3d 476. We will not disturb the district court’s payment determination absent a clear abuse of discretion. Taft v. Taft, 2016 UT App 135, ¶ 59, 379 P.3d 890; see also Stonehocker, 2008 UT App 11, ¶ 8.
¶28 Heather relies exclusively on Taft to support her argument. In Taft, the district court granted the husband “discretion to pay [the] judgment all at once or in monthly installments for a period of time.” 2016 UT App 135, ¶ 57 (quotation simplified). The court did not order any minimum payment and provided that if the husband chose to make monthly payments, he “shall begin equal monthly payments, and the duration of such monthly installment payments shall not exceed a period of ten years, whereupon the balance shall be paid to [the wife] in one final balloon payment.” Id. (quotation simplified). On appeal, the wife argued that this payment strategy was inequitable because it allowed the husband “to receive full immediate enjoyment of the assets awarded to him as well as the full use of [the wife’s] share of the assets while [the wife was] deprived of meaningful access to her award.” Id. ¶ 58 (quotation simplified). This court agreed, determining that the husband was “given nearly complete discretion regarding the payment to [the wife] of her share of the marital property over a ten-year period” at a low interest rate and that the wife, who had “been granted a substantial judgment in token of her share of the marital real property,” had “no ability to collect, access, or substantially enjoy until ten years pass[ed], unless [the husband] decide[d] otherwise.” Id. ¶ 59. This court therefore concluded “that the terms of [the wife’s] property judgment [were] inequitable and that the trial court exceeded its discretion by structuring the terms of [the wife’s] property judgment as it did.” Id. ¶ 62.
¶29 This case is distinguishable from Taft. The district court in Taft gave the husband discretion to delay payment to the wife in an inequitable way. Unlike the spouse in Taft, Heather does not lack the “ability to collect, access, or substantially enjoy” her award of marital property. See id. ¶ 59. Instead, she can collect on the judgment just as any other judgment creditor. See Utah R. Civ. P. 62(a) (providing that “[n]o execution or other writ to enforce a judgment may issue until the expiration of 14 days after entry of judgment, unless the court in its discretion otherwise directs”). Heather acknowledges this ability in her brief on appeal, stating that Renson “can hold onto the assets and reap the benefits while [Heather] waits for payment or expends time, effort, and money to enforce the divorce decree.” (Emphasis added.) Because Heather has not yet attempted to enforce the divorce decree, she cannot show that she has been deprived of meaningful access to her award or prevented from going forward with her separate life. We therefore conclude the district court did not abuse its discretion when it did not impose a due date or interest rate for the payment of Heather’s award of marital assets.
III. Irregularity of Proceedings
¶30 Finally, Heather contends the district court erred in denying her motion for a new trial based on an irregularity of the proceedings. Heather argues that she attempted to establish a claim that Renson dissipated marital assets, but the court declined to address it and “cut off [Heather’s] attempts to elicit testimony on the subject.”
¶31 Following a bench trial, “a new trial may be granted to any party on any issue” if, among other circumstances, “there was an “irregularity in the proceedings . . . or abuse of discretion by which a party was prevented from having a fair trial.” Utah R. Civ. P. 59(a)(1). “Because the grant of a new trial is ordinarily left to the sound discretion of the trial court, we will review the court’s decision in this regard under an abuse of discretion standard.” Child v. Gonda, 972 P.2d 425, 429 (Utah 1998). And “absent a showing by the appellant that the trial outcome would have differed, every reasonable presumption as to the validity of the [judgment] below must be taken as true upon appeal.” Id.
¶32 Here, Heather asserts that the district court, “on several occasions . . . cut off [Heather’s counsel’s] questioning” of Renson regarding the claim of dissipation of marital assets. She claims that, on one occasion, Heather’s counsel was “attempting to elicit testimony related to [Renson’s] credibility and the finer details of the evidence,” but the court “cut off the questioning” and “asked [Renson] point blank if he was hiding money.” Heather argues that this was “uniquely harmful” because it “was an unfair boon to [Renson]” and that the effect was to “shield[]” Renson “from questions about his waste of marital assets.” We disagree.
¶33 When determining “whether a party should be held accountable for the dissipation of marital assets,” there are “a number of factors that may be relevant,” including (1) “how the money was spent, including whether funds were used to pay legitimate marital expenses or individual expenses”; (2) “the parties’ historical practices”; (3) “the magnitude of any depletion”; (4) “the timing of the challenged actions in relation to the separation and divorce”; and (5) “any obstructive efforts that hinder the valuation of the assets.” Rayner v. Rayner, 2013 UT App 269, ¶ 19, 316 P.3d 455. “While marital assets are generally valued as of the date of the divorce decree, where one party has dissipated an asset, hidden its value or otherwise acted obstructively, the trial court may, in the exercise of its equitable powers, value a marital asset at some time other than the time the decree is entered, such as at separation.” Parker v. Parker, 2000 UT App 30, ¶ 13, 996 P.2d 565 (quotation simplified).
¶34 Our review of the record shows that Heather’s counsel asked questions about spending money, but never directly asked Renson whether the money came from either the company account or a joint checking account. See id. Instead, Heather’s counsel asked questions about where, when, and how much money Renson spent. The court interjected, stating, “Let’s just cut to the chase, do you have any other squirrel holes or nest eggs that you’ve been hiding or putting money in . . . that you didn’t report in your financial declarations and did not disclose to [c]ounsel?” Renson said he did not. Heather’s counsel then pursued a different line of questioning. When Heather’s counsel attempted to ask Renson again about where and when he spent his money, Renson’s counsel objected as to relevance, arguing that “unless [Heather] ties it to a business expense that’s been improperly claimed, he can spend his money on anything he wants.” See id. Heather’s counsel argued that it was relevant to the court’s consideration regarding attorney fees. The court sustained the objection and explained that “what people do with their income and how they spend it” is irrelevant. Cf. Rayner, 2013 UT App 269, ¶ 19.
¶35 Because Heather never asked the court to find that Renson’s personal spending decreased the value of the company or any other marital asset, the questions did not go to a material issue or fact in dispute. Heather had the opportunity at trial, on numerous occasions, to direct the court to specific assets that had been dissipated by Renson’s spending, but she did not. Heather therefore cannot show that she did not have the opportunity to present the issue to the district court or that she was denied a fair trial. See Utah R. Civ. P. 59(a)(1). Accordingly, the district court did not abuse its discretion when it denied her motion for a new trial based on an irregularity in the proceedings.
IV. Attorney Fees
¶36 Renson seeks attorney fees incurred on appeal under rule 33 of the Utah Rules of Appellate Procedure, arguing that Heather’s appeal was “frivolous or for delay.” Rule 33 allows for the sanction of “just damages, which may include . . . reasonable attorney fees” to the prevailing party if an appeal “is not grounded in fact, not warranted by existing law, . . . not based on a good faith argument . . . or [if taken] for the purpose of delay.” Utah R. App. P. 33(a),(b). “The sanction for bringing a frivolous appeal is applied only in egregious cases, lest there be an improper chilling of the right to appeal erroneous lower court decisions.” Maughan v. Maughan, 770 P.2d 156, 162 (Utah Ct. App. 1989) (quotation simplified). Although Heather has not been successful on appeal, her arguments were “worthy of consideration and should not be subject to the chilling effect” of rule 33 sanctions. See id.
CONCLUSION
¶37 We conclude the district court did not exceed its discretion when it calculated Deluxe Vending’s value without including institutional goodwill and when it did not recalculate the value of Deluxe Vending based on testimony elicited at trial regarding a reduction of liabilities. We further conclude the court did not exceed its discretion by not imposing a deadline on or interest rate for Renson’s payment to Heather where there are no limitations on her ability to enforce the judgment. And because Heather failed to show an irregularity in the proceedings, we conclude the court did not exceed its discretion when it denied the post-judgment motion for a new trial. Accordingly, we affirm.
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[1] Because both parties share the same surname, we refer to them by their first names with no disrespect intended by the apparent informality.
[2] Heather is not the 1% interest owner of Deluxe Vending.
[3] Deluxe Vending’s micro-markets are “self-serve kiosks” that allow patrons to access food and beverage items from a cooler and then scan the item at the kiosk and pay with either a credit or debit card or with cash.
[4] Heather also contends the district court “abused or entirely failed to exercise its discretion when it declined to factor dissipation of marital assets into its division of the parties’ martial assets.” This argument is unpreserved. “[P]arties are required to raise and argue an issue in the trial court in such a way that the court has an opportunity to rule on it.” State v. Johnson, 2017 UT 76, ¶ 18, 416 P.3d 443 (quotation simplified). Failure to do so “precludes a party from arguing that issue in an appellate court, absent a valid exception,” such as plain error, ineffective assistance of counsel, or exceptional circumstances. Id. ¶¶ 18–19. Here, Heather never alleged at trial or in the post-judgment motion that the value of the marital assets should be adjusted to account for money Renson spent on non-marital assets. Nor did she identify Deluxe Vending’s bank account as the asset depleted or suggest that the money Renson spent on non-marital expenses was taken from the joint checking account. Instead, Heather asked the court to consider the alleged dissipation only with respect to attorney fees and alimony. Because Heather failed to raise this issue before the district court and she has failed to argue that an exception to preservation applies, see id., we decline to address it.
DeAvila v. DeAvila, 2017 UT App 146 (August 10, 2017)
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THE UTAH COURT OF APPEALS
CRISTY DEAVILA,
Appellant,
v.
PERICLES DEAVILA,
Appellee.
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Opinion
No. 20160024-CA
Filed August 10, 2017
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Second District Court, Farmington Department
The Honorable Michael G. Allphin
No. 144700136
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Ben W. Lieberman, Attorney for Appellant
Stacy J. McNeill, Eric B. Vogeler, and Jenna Hatch,
Attorneys for Appellee
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JUDGE JILL M. POHLMAN authored this Opinion, in which JUDGES GREGORY K. ORME and J. FREDERIC VOROS JR. concurred.[1]
[1] 1. Judge J. Frederic Voros Jr. participated in this case as a member of the Utah Court of Appeals. He retired from the court before this decision issued.
POHLMAN, Judge:
¶1 Cristy DeAvila, now known as Cristy Brown, appeals the trial court’s division of marital assets under a decree of divorce. We affirm.
BACKGROUND
¶2 Brown and Pericles DeAvila married in 2004, separated in 2013, and divorced in 2015. At a one-day bench trial, the parties disputed, among other things, the division of two assets relevant to this appeal, namely, the insurance proceeds stemming from the destruction of a vehicle (the Lexus) and the stock from DeAvila’s company (the Sector 10 stock).
¶3 At trial, Brown took the position that the Lexus was her separate property and that she should retain all of the insurance proceeds. Brown had listed the Lexus in her name on her financial declaration, and she testified that DeAvila bought the Lexus and gave it to her as a gift for her birthday. According to Brown, DeAvila had a vehicle “through [his] business,” and Brown had paid the insurance on that vehicle. When the business vehicle was totaled, DeAvila used proceeds from the insurance to buy the Lexus. Brown further testified that the Lexus was “destroyed” during the parties’ separation and that she believed DeAvila was responsible for the damage because she “saw him driving by [her] house” within fifteen minutes of hearing “loud bashes” in her garage. After this incident, which totaled the Lexus, Brown received an insurance check for $17,371. Because, in her view, DeAvila “intentionally destroyed” the Lexus, Brown alternatively asserted that even if the Lexus was deemed to be marital property, DeAvila was “not entitled to the benefit of the insurance proceeds under the collateral source rule.”
¶4 DeAvila asserted that the parties were “jointly listed as owners” of the Lexus. He testified that he purchased the Lexus, believed he was an owner, and titled it in his name. DeAvila provided supporting evidence, including the 2009 bill of sale and the sales contract for the Lexus, which named DeAvila as the buyer. He also provided an exhibit with the application for original title, identifying himself as the primary owner and Brown as the secondary owner, but the record does not contain a copy of the original certificate of title.
¶5 DeAvila further asserted that shortly after the Lexus was damaged, Brown re-titled the Lexus “exclusively in her name.” In support, he provided a corrected certificate of title, dated after the Lexus was damaged, which listed only Brown as an owner. In his trial brief, he stated that he was “being prosecuted for charges associated with damage done” to the Lexus, and at trial he invoked the Fifth Amendment to the United States Constitution, refusing to answer questions about whether he damaged the car. Nonetheless, DeAvila claimed that Brown should pay him one-half of the insurance proceeds as his marital share.
¶6 With regard to the Sector 10 stock, Brown asserted that Sector 10 was a publicly traded company whose stock was traded “‘over the counter’” and testified that the stock’s market price as of the day of trial was five cents per share.[2]
[2.] Over-the-counter trading is carried out directly between two parties and does not involve the supervision of an exchange. Over-the-counter (finance), Wikipedia, https://en.wikipedia.org/ wiki/Over-the-counter_(finance) [https://perma.cc/YS9Q-BET5].
She testified that she held Sector 10 stock in her name, amounting to at least 400,000 shares. Brown urged the trial court to award DeAvila “his separate assets, including all shares in the Sector 10 [entities],” stating that “[w]hatever shares . . . are out there . . . he should be awarded those shares.” She further urged the court to value the Sector 10 stock at the market price of five cents per share.
¶7 DeAvila, for his part, alleged in his trial brief that he had transferred to Brown “at least 11 million shares of Sector 10 stock,” which were worth ten cents per share in 2008, totaling $1.1 million. He further alleged that Brown had dissipated that asset, and he sought a judgment for his half of the value of that stock. At trial, he testified that the current Sector 10 stock price was “[f]ive to seven cents” per share. But DeAvila also testified that the company had no value and was “going to basically file [for] bankruptcy” due to the fact that attorneys who were handling litigation on its behalf on a contingency fee basis had recently “dropped” the case. In closing argument, he encouraged the court to value the shares at five cents per share.
¶8 During his testimony, DeAvila referred to the company’s
Form 10-K that Sector 10 had filed with the Securities and Exchange Commission approximately one month before trial. The 10-K stated that Sector 10’s common stock had “an average market value of $.05 per share” and indicated that the stock traded on the Pink Sheets.[3]
[3.] The Pink Sheets, now known as the OTC Markets Group, was a financial market for over-the-counter securities. OTC Markets Group, Wikipedia, https://en.wikipedia.org/wiki/OTC_Markets_Group [https://perma.cc/MPT4-JFSQ]. The 10-K indicated that the Sector 10 stock closed at seven cents per share on March 31, 2015. The 10-K said that Sector 10 believed its stock was a “penny stock” that was “highly volatile,” and indicated the volume of trading was “limited.” The 10-K also stated, “There is a public market for our stock, but it is thin and subject to manipulation.”
The 10-K also disclosed pending litigation matters and resulting uncertainties, and showed that for the prior year, the company was operating at a loss and had an overall lack of revenue, income, and assets.
¶9 The trial court entered a decree of divorce in December 2015. Among other things, the court found that the parties owned a boat and four vehicles at the time of separation. It further found that one of those vehicles, the Lexus, “was destroyed” and subsequently declared a total loss by the insurance company. The court found that Brown had received $17,371 in insurance proceeds for the Lexus and that those proceeds were a marital asset. The court then awarded three of the vehicles to Brown and a boat and one of the vehicles to DeAvila. Because the value of the property awarded to Brown was worth more than that awarded to DeAvila, the court determined that DeAvila was “entitled to a judgment of $8,325 for the difference in value.”
¶10 As for the Sector 10 stock, the trial court determined that “the issue of who owns what shares in the company is moot,” relying on DeAvila’s testimony that “the company’s only asset is a lawsuit where attorneys were on a contingent fee basis and have withdrawn, and as a result, the lawsuit is expected to be dismissed.” The court thus awarded any and all shares, interest, or value in Sector 10 to DeAvila. Brown appeals.
ISSUES AND STANDARDS OF REVIEW
¶11 Brown advances two main contentions on appeal. First, Brown contends that the trial court erred when it treated the insurance proceeds from the Lexus as a marital asset and awarded half of the proceeds to DeAvila. She argues, in the alternative, that the collateral source rule barred DeAvila from receiving a portion of the insurance proceeds. Second, Brown contends that the trial court erred when it failed to value the Sector 10 stock at the market price of five cents per share.
¶12 District courts generally have “considerable discretion concerning property distribution [and valuation] in a divorce proceeding and their determinations enjoy a presumption of validity.” See Dahl v. Dahl, 2015 UT 79, ¶ 119 (citation and internal quotation marks omitted); see also Lindsey v. Lindsey, 2017 UT App 38, ¶ 26, 392 P.3d 968. As a result, this court “will uphold the decision of the district court on appeal unless a clear and prejudicial abuse of discretion is demonstrated.” Dahl, 2015 UT 79, ¶ 119 (citation and internal quotation marks omitted). Showing an abuse of discretion “is a heavy burden, and we can properly find abuse only if no reasonable person would take the view adopted by the trial court.” Goggin v. Goggin, 2013 UT 16, ¶ 26, 299 P.3d 1079 (citation and internal quotation marks omitted). Additionally, “[i]n reviewing a property distribution, we will not set aside findings of fact, whether based on oral or documentary evidence, unless they are clearly erroneous, and we give due regard to the district court’s superior position from which to judge the credibility of witnesses.” Dahl, 2015 UT 79, ¶ 121. In evaluating whether the trial court correctly declined to apply the collateral source rule, we review that decision for correctness. Mahana v. Onyx Acceptance Corp., 2004 UT 59, ¶ 35, 96 P.3d 893.
ANALYSIS
I. Insurance Proceeds
¶13 Brown contends that because the Lexus was her separate property, the insurance proceeds stemming from its destruction should not have been divided between her and DeAvila. In the alternative, Brown contends that even if the Lexus was marital property, “[DeAvila] was not entitled to a share of the [insurance] proceeds under the collateral source rule.” We address each argument in turn.
A. Determination of Marital Property
¶14 Brown argues that the Lexus was her “sole and separate property,” asserting that her “testimony that the Lexus was a birthday gift, coupled with the existence of the title solely in her name, should have been deemed conclusive by the trial court that the Lexus was indeed a gift and her separate property.” Brown therefore contends that DeAvila is not entitled to a marital share of the insurance proceeds resulting from the car’s destruction. We conclude that the trial court acted within its discretion when it deemed the insurance proceeds to be marital property subject to equitable distribution.
¶15 Utah law presumes that “marital property will be divided equally while separate property will not be divided at all.” Lindsey v. Lindsey, 2017 UT App 38, ¶ 32, 392 P.3d 968 (citing Dahl v. Dahl, 2015 UT 79, ¶ 121). Utah law further “presumes that property acquired during the marriage is marital property subject to equitable distribution.” Dahl, 2015 UT 79, ¶ 26. Indeed, “[m]arital property is ordinarily all property acquired during the marriage . . . , ‘whenever obtained and from whatever source derived.’” Dunn v. Dunn, 802 P.2d 1314, 1317–18 (Utah Ct. App. 1990) (quoting Gardner v. Gardner, 748 P.2d 1076, 1079 (Utah 1988)); see also Bradford v. Bradford, 1999 UT App 373, ¶ 26, 993 P.2d 887 (noting that the trial court has “broad equitable power to distribute marital property, regardless of who holds title”). Separate property, in contrast, is typically a spouse’s premarital property or property received by gift or inheritance during the marriage. Dahl, 2015 UT 79, ¶ 143; Kimball v. Kimball, 2009 UT App 233, ¶ 24, 217 P.3d 733.
¶16 In this case, the trial court found that the parties jointly owned four vehicles, including the Lexus, at the time of separation. Accordingly, the court treated the insurance proceeds that Brown received after the Lexus’s destruction as a marital asset.
¶17 Brown has not shown error in the trial court’s classification of the insurance proceeds as marital property subject to division. In support of her position, Brown cites her own testimony that DeAvila gave her the Lexus as a gift and a corrected certificate of title, which post-dated the damage to the Lexus and named Brown as the only owner. But the trial court also had before it evidence that weighed against Brown’s position. For example, DeAvila testified that he bought the Lexus and believed he retained an ownership interest. The trial court also had evidence in the form of the 2009 bill of sale and the sales contract for the Lexus, both of which name DeAvila as the buyer. Additionally, the application for original title listed both DeAvila and Brown as owners of the vehicle. Because this evidence could reasonably show that DeAvila acquired the Lexus during the marriage and intended it to be a marital asset, this evidence is sufficient to support the trial court’s decision. Given the trial court’s considerable discretion in this area of law and in light of the record evidence, we conclude that the trial court acted within the bounds of its discretion when it applied the general presumption—that marital property is all property acquired during the marriage from whatever source derived—to the insurance proceeds of the Lexus. See Dahl, 2015 UT 79, ¶ 26; Dunn, 802 P.2d at 1317–18; see also Barrani v. Barrani, 2014 UT App 204, ¶ 24, 334 P.3d 994 (“[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, leaving questions of credibility and weight to the trial court.”). Accordingly, Brown has not shown that the trial court exceeded its discretion in equitably dividing the insurance proceeds.
B. Collateral Source Rule
¶18 Brown alternatively argues that even if the Lexus was marital property, “[DeAvila] was not entitled to a share of the [insurance] proceeds under the collateral source rule.” In support, she argues that the trial court should have determined “how the Lexus was destroyed” because “the only evidence presented at trial was that . . . [DeAvila] destroyed the Lexus.” She further argues that “[t]he legal result of [DeAvila] destroying the Lexus . . . is that he is not entitled to any of the insurance proceeds under the collateral source rule.” Thus, Brown asserts that the “trial court’s order requiring her to divide [the insurance] payment with the wrongdoer who caused the damage is contrary to the collateral source rule in the same way as it would be in a tort case.” DeAvila responds that the collateral source rule is a “tort principle requiring a finding of wrongdoing by a tortfeasor” and “has no application in the equitable division of marital property.” Assuming, without deciding, that DeAvila was responsible for the damage to the Lexus, we conclude that Brown has not shown that the collateral source rule is applicable to the circumstances of this case.
¶19 Brown cites one Utah case in support of her argument. That case involved the tort of conversion, and the Utah Supreme Court affirmed the application of the collateral source rule to exclude from consideration bond proceeds paid to a victim whose truck had been converted. Mahana v. Onyx Acceptance Corp., 2004 UT 59, ¶¶ 1, 47, 96 P.3d 893. The court explained, “The collateral source rule provides that a wrongdoer is not entitled to have damages, for which he is liable, reduced by proof that the plaintiff has received or will receive compensation or indemnity for the loss from an independent collateral source.” Id. ¶ 37 (citation and internal quotation marks omitted); see also Collateral-source rule, Black’s Law Dictionary 299 (9th ed. 2009) (“The doctrine that if an injured party receives compensation for the injuries from a source independent of the tortfeasor, the payment should not be deducted from the damages the tortfeasor must pay.”). Subsequent Utah case law has identified two policy rationales for the rule. See Wilson v. IHC Hosps., Inc., 2012 UT 43, ¶ 31, 289 P.3d 369. “First, public policy favors giving the plaintiff a double recovery rather than allowing a wrongdoer to enjoy reduced liability simply because the plaintiff received compensation from an independent source.” Id. (citation and internal quotation marks omitted); accord Mahana, 2004 UT 59, ¶ 37. “Second, the rule encourages the maintenance of insurance by assuring that a plaintiff’s payments from a collateral source will not be reduced by a subsequent judgment.” Wilson, 2012 UT 43, ¶ 31 (citation and internal quotation marks omitted).
¶20 Brown has not persuaded us that the collateral source doctrine applies here. She has not cited any precedent, either from Utah or elsewhere, that would support importing the collateral source rule from tort law into the context of family law. Nor has Brown made a compelling argument that the policy rationales behind the collateral source rule would support its application to this case. Moreover, Brown has not explained how the collateral source rule operates where, as here, the alleged tortfeasor has an ownership interest in the damaged property. See Dahl v. Dahl, 2015 UT 79, ¶ 141 (“[A]ppellate courts are not a depository in which [a party] may dump the burden of argument and research.” (second alteration in original) (citation and internal quotation marks omitted)). We therefore conclude that Brown has not demonstrated error in the trial court’s refusal to apply the collateral source rule in this case.
II. Stock Valuation
¶21 Next, Brown contends that the trial court erred in implicitly finding that the Sector 10 stock was valueless, asserting that the court “was not entitled to determine that shares of a publicly-traded corporation were valueless, contrary to the market price, based solely on [DeAvila’s] testimony.” Brown argues that the trial court could not “disregard the stock price . . . in favor of its own analysis” and that, “[a]t a minimum, expert testimony should be required if the trial court is to deviate from an open market stock price.”[4]
[4.] In so arguing, Brown does not argue that the trial court should have awarded her a portion of the Sector 10 stock. Rather, she asserts that by awarding at least 400,000 shares to DeAvila, the trial court awarded DeAvila “a value of $20,000 at the five-cent-per-share market price, not nothing,” entitling her to an appropriate adjustment in the property awarded to her.
We conclude that Brown has not shown that the trial court clearly erred in finding that the Sector 10 stock was essentially worthless.
¶22 In reviewing this issue, we bear in mind that “the district court’s factual findings as to the value of assets will not be disturbed unless they are clearly erroneous.” Dahl, 2015 UT 79, ¶ 131. “A trial 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.” Kimball v. Kimball, 2009 UT App 233, ¶ 14, 217 P.3d 733 (citation and internal quotation marks omitted). Further, “[w]hen considering testimony regarding valuation of property, the trial court is entitled to give conflicting opinions whatever weight [it] deems appropriate,” and a trial court’s valuation will be upheld if it is “within the range of values established by all the [evidence].” See Morgan v. Morgan, 854 P.2d 559, 564, 566 (Utah Ct. App. 1993) (second and third alterations in original) (citations and internal quotation marks omitted); cf. Bingham Consolidation Co. v. Groesbeck, 2004 UT App 434, ¶ 32, 105 P.3d 365 (“[W]hen assessing a party’s proposed valuation of shares, a trial court may rely on that party’s trustworthiness in adopting or reject[ing] its valuation.”).
¶23 The trial court’s analysis did not expressly state the precise value of the Sector 10 stock. But the court specifically noted that DeAvila testified that “the company’s only asset is a lawsuit where the attorneys were on a contingent fee basis and have withdrawn, and as a result, the lawsuit is expected to be dismissed.” Due to this fact, the court deemed moot “the issue of who owns what shares in the company” and, in accordance with Brown’s wishes, awarded DeAvila “any interest or value in Sector 10.” The court’s analysis—with its reliance on DeAvila’s testimony about the stalled lawsuit and its determination that the issue of stock ownership was moot—indicates that the court implicitly rejected the idea that the Sector 10 stock could be traded at five cents or more per share.
¶24 Brown has not met her burden on appeal to show that the trial court clearly erred in implicitly finding that the Sector 10 stock was worthless. Although DeAvila testified that Sector 10 was a publicly traded company and both parties testified that the stock’s current market price was five cents per share, the evidence in the record suggested the market for the stock was “thin” and thus raised questions as to whether the stock could be traded by either party for that amount. The trial court did not clearly err in implicitly finding more credible and relevant DeAvila’s testimony about the company’s current circumstances. DeAvila testified that Sector 10 claimed “substantial damage” in a lawsuit, but that because the company’s attorneys “dropped the litigation,” Sector 10 was “now going to basically file [for] bankruptcy.” DeAvila further indicated that the attorneys’ withdrawal from the lawsuit and the company’s resulting inability to pursue its case for damages meant that Sector 10 had no value. Brown disagrees with the trial court’s reliance on this aspect of DeAvila’s testimony and with its ultimate finding that the stock was worthless, but she has not shown that the trial court’s valuation falls outside “the range of values established by all the [evidence].” See Morgan, 854 P.2d at 566 (alteration in original) (citation and internal quotation marks omitted); see also id. at 563 (“[E]valuation of the weight and credibility of testimony and evidence is a matter for the trier of fact.”).
¶25 Brown also cites the lack of expert evidence in this case and asserts that expert testimony is required if a court deviates from an open market price. But under Utah law, a knowledgeable owner generally “may testify as to the market value of property,” including in divorce cases, see Olson v. Olson, 2010 UT App 22, ¶ 27, 226 P.3d 751 (citation and internal quotation marks omitted), and Brown has not persuaded us to adopt an expert-testimony requirement when stock is at issue. In short, Brown has not shown that the trial court clearly erred in valuing the Sector 10 stock or otherwise exceeded its discretion in awarding that stock to DeAvila.
CONCLUSION
¶26 Brown has not demonstrated that the trial court exceeded its discretion in dividing property between DeAvila and Brown. Accordingly, we affirm.
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