Taft v. Taft , 379 P.3d 890 ( 2016 )

2016 UT App 135THE UTAH COURT OF APPEALS
TERESA TAFT,
Appellant,
v.
MILTON LEE TAFT JR., GERALDINE POULSON TAFT, 1
AND MILTON LEE TAFT III,
Appellees.
Opinion
No. 20140690-CA
Filed June 30, 2016
Sixth District Court, Loa Department
The Honorable Wallace A. Lee
Nos. 120600028, 094600018
Leslie W. Slaugh, Attorney for Appellant
Michael R. Labrum, Attorney for Appellees
JUDGE STEPHEN L. ROTH authored this Opinion, in which JUDGES
J. FREDERIC VOROS JR. and MICHELE M. CHRISTIANSEN concurred.
ROTH, Judge:
¶1 In this consolidated appeal, Teresa Taft (Wife) appeals
from a supplemental decree of divorce and judgment between
herself and Milton Lee Taft III (Husband), entered on September
16, 2014. We affirm in part and reverse in part and remand.
1. Husband’s parents, Milton Lee Taft Jr. and Geraldine Poulson
Taft, are included because they were listed as defendants along
with Husband in a separate fraudulent transfer claim, case
number 120600028, which has been consolidated into this
appeal.
Taft v. Taft
BACKGROUND
¶2 Husband and Wife married in June 1987, and the
marriage ended with the entry of a bifurcated decree of divorce
in December 2009. During twenty-two years of marriage, the
parties built two businesses and acquired certain real property.
In particular, Husband and Wife purchased property to build
and operate Taft Travel Plaza (the Travel Plaza) in 1991. Initially
the Travel Plaza consisted of a convenience store and a gas
station, but it was later expanded to include a fast food
restaurant and a five-unit strip mall of commercial rentals. In
2006, the couple separated. During the separation and prior to
the divorce, Husband and his parents—Milton Lee Taft Jr. and
Geraldine Poulson Taft—began Milton’s South, Inc. (Milton’s
South), a business consisting of “an apartment, a business space,
two separate large buildings of storage units, a 2-bay car wash,
and a credit card fueling station.” At the time of the divorce,
Husband owned 33.4% of the stock in Milton’s South, though by
the time of trial, Husband had acquired full ownership of the
corporation.
¶3 During the marriage, Husband primarily ran the
businesses and Wife primarily took care of their four children,
occasionally assisting with various tasks at the Travel Plaza as
needed. The business assets and the real property acquired
during the marriage were titled solely in Husband’s name,
though the parties understood that Wife had an interest in the
property. Although the businesses were incorporated, Husband
has consistently treated them as sole proprietorships, paying
both business and personal expenses from the business accounts.
In 2011, Wife decided to enroll in and attend graduate school at
the University of Utah. As part of her graduate studies, Wife
received a scholarship stipend, which must be annually
renewed, that provided her with monthly income. In 2014, her
stipend was $1,909 per month.
20140690-CA 2 2016 UT App 135Taft v. Taft
¶4 The 2009 bifurcated decree of divorce reserved child
custody and support, alimony, and property issues for later
resolution. At the time of the bifurcated decree, the parties
“stipulated to temporary orders” that “required [Husband] to
pay $3,500 per month to [Wife] for family support,” but no
agreement was reached regarding the parties’ respective
incomes. The temporary orders “reserved the right” for the
parties to “retroactively adjust the support payment” once both
parties’ incomes became “fully established.” However, the
parties’ incomes were not determined until trial.
¶5 In April 2011, Husband filed a motion for modification of
the temporary support orders because he believed that he was
“no longer able to pay the amount ordered” for family support.
Husband identified the source of his financial difficulties as a
faulty credit card reader at the Travel Plaza gas pumps, which
resulted in “highly unusual business losses” for Husband during
2009 to 2010. 2 During this period of financial difficulty, Husband
sold a twenty-acre parcel of land in Wayne County, Utah, on
which he had built a golf course (the Sunglow Property). He had
2. In 2007, Husband had established a line of credit with his bank
that would, among other things, allow him to purchase
additional supplies of gasoline when the price fell during the
wintertime. Husband would store the gasoline in tanks at his
business locations and resell it in the summertime when prices
were typically higher. Husband would then pay down the loan
with the proceeds. However, Husband’s accountant discovered
in 2009 that even though the stored gasoline was being sold at a
higher price than purchased, Husband was inexplicably losing
money. It took some time to track the source of the loss to the
faulty credit card reader, and by 2011, Husband had exhausted
the line of credit and was unable to pay it back. It was during
this time that Husband filed his motion to modify the temporary
support orders.
20140690-CA 3 2016 UT App 135Taft v. Taft
originally purchased the land from his parents in October 2001
for $50,000. In 2011, however, in order to “pay down loans” and
help secure “additional SBA business financing,” Husband sold
the parcel back to his father for $50,000. 3 After the sale, Husband
continued to use the Sunglow Property in the same manner as he
had before.
¶6 In January 2012, Wife filed a motion for an order to show
cause, asking the trial court to hold Husband “in immediate
contempt” and to award Wife delinquent support along with her
attorney fees. The court issued an order to show cause in
January 2012, and the case was scheduled for a hearing on that
issue as well as Husband’s motion for modification of temporary
orders at the end of that month. The issues were not resolved at
that hearing, and they were not raised again until trial.
¶7 The case went to trial in December 2013, and the court
issued a memorandum decision in June 2014 wherein it ruled on
child custody; child support; alimony; division of real and
personal property, including the alleged fraudulent transfer of
the Sunglow Property; the temporary support order; allocation
of the parties’ debts; and attorney fees. The court directed
Husband’s counsel “to draft the final documents necessary to
implement the Court’s decision.” Wife filed a motion for
reconsideration (the Motion to Reconsider) and objections to
Husband’s proposed findings of fact and conclusions of law (the
Objections). On September 16, 2014, the trial court denied the
Motion to Reconsider, overruled the Objections, and filed its
supplemental findings of fact and conclusions of law and
3. Prior to the 2011 sale, the Sunglow Property, the Travel Plaza,
and Milton’s South were all encumbered as collateral for the
same bank debt. But at the time of this sale, the bank released its
interest in the Sunglow Property. In addition, Husband had put
up personal property as collateral on business loans.
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supplemental decree of divorce and judgment. Wife appeals
from the supplemental order as well as from the trial court’s
denial of the Motion to Reconsider and its decision to overrule
the Objections.
ISSUES
¶8 Wife first argues that the trial court erred in determining
the amount of Husband’s alimony obligation. In particular, she
contends that the court erroneously calculated Husband’s
income and that the court’s alimony findings generally do not
support the award.
¶9 Second, Wife challenges several aspects of the trial court’s
property division. She asserts that the evidence does not support
several of the trial court’s findings and that some of the findings
were inadequate. She also contends that the trial court abused its
discretion in establishing the terms for Husband’s payment of
Wife’s property settlement.
¶10 Third, Wife argues that the trial court erred in concluding
that the Sunglow Property was not fraudulently conveyed by
Husband to his father under the Uniform Fraudulent Transfer
Act. See Utah Code Ann. §§ 25-6-1 to -16 (LexisNexis 2013).
¶11 Fourth, Wife argues that the trial court abused its
discretion by failing to order Husband to pay her the support
that remained unpaid under the temporary support order.
¶12 Fifth, Wife argues that the trial court abused its discretion
by denying the Motion to Reconsider. She also asserts that the
trial court abused its discretion by summarily rejecting the
Objections without considering their merits.
¶13 Finally, Wife challenges the trial court’s refusal to award
her attorney fees.
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ANALYSIS
I. Alimony
¶14 Wife argues that the trial court erred in determining the
amount of Husband’s alimony obligation. We will uphold a trial
court’s alimony determination on appeal “unless a clear and
prejudicial abuse of discretion is demonstrated.” Breinholt v.
Breinholt, 905 P.2d 877, 879 (Utah Ct. App. 1995) (citation and
internal quotation marks omitted). An alimony award must be
based on the court’s consideration of “a number of factors when
determining the amount and duration of alimony.” Roberts v.
Roberts, 2014 UT App 211, ¶ 12, 335 P.3d 378. The principal
factors are “(i) the financial condition and needs of the recipient
spouse; (ii) the recipient’s earning capacity or ability to produce
income; [and] (iii) the ability of the payor spouse to provide
support.” Utah Code Ann. § 30-3-5(8)(a) (LexisNexis 2013); see
also Jones v. Jones, 700 P.2d 1072, 1075 (Utah 1985). The trial court
must also “make adequate findings on all material issues of
alimony to reveal the reasoning followed in making the award.”
Bolliger v. Bolliger, 2000 UT App 47, ¶ 19, 997 P.2d 903 (citation
and internal quotation marks omitted). “Findings are adequate
only if they are sufficiently detailed and include enough
subsidiary facts to disclose the steps by which the ultimate
conclusion on each factual issue was reached.” Rayner v. Rayner,
2013 UT App 269, ¶ 11, 316 P.3d 455 (citation and internal
quotation marks omitted).
¶15 In addition, a trial court must take into account the goals
of a proper alimony award, which are “(1) to get the parties as
close as possible to the same standard of living that existed
during the marriage; (2) to equalize the standards of living of
each party; and (3) to prevent the recipient spouse from
becoming a public charge.” Dobson v. Dobson, 2012 UT App 373,
¶ 20, 294 P.3d 591 (citation and internal quotation marks
omitted). In cases where the parties’ combined resources are
insufficient to support both parties at the economic level they
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enjoyed during marriage, equalization of “the parties’ respective
standards of living” is appropriate. Utah Code Ann. § 30-3-
5(8)(f). “Equalization of income . . . is a trial court’s remedy for
those situations in which one party does not earn enough to
cover his or her demonstrated needs and the other party does
not have the ability to pay enough to cover those needs.” Keyes v.
Keyes, 2015 UT App 114, ¶ 39, 351 P.3d 90 (citation and internal
quotation marks omitted). Accordingly, the trial court “must
determine how to equitably allocate the burden of insufficient
income” to meet the needs of “two individuals living
separately.” Id.A. Husband’s Income Calculation
¶16 Wife first contends that the trial court erroneously
calculated Husband’s income. For each statutory factor the court
considers to determine alimony, “the trial court must make
sufficiently detailed findings of fact.” Connell v. Connell, 2010 UT
App 139, ¶ 12, 233 P.3d 836 (citation and internal quotation
marks omitted). We will reverse a trial court’s findings of fact
“only if the findings are clearly erroneous.” Breinholt, 905 P.2d at
879. “A trial court’s factual determinations are clearly erroneous
only if they are in conflict with the clear weight of the evidence,
or if [the] court has a definite and firm conviction that a mistake
has been made.” Lamar v. Lamar, 2012 UT App 326, ¶ 2, 292 P.3d
86 (citation and internal quotation marks omitted).
¶17 The trial court found that “testimony at trial established
that [Husband] treats both businesses as sole proprietorships,
routinely paying all business and personal expenses out of
business checking accounts.” It therefore determined Husband’s
income according to the procedure outlined in Utah Code
section 78B-12-203 for self-employed persons, like Husband.
“Gross income from self-employment or operation of a business
shall be calculated by subtracting necessary expenses required
for self-employment or business operation from gross receipts.”
Utah Code Ann. § 78B-12-203(4)(a) (LexisNexis 2012). The trial
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court clearly outlined the procedure it used to determine
Husband’s income in accordance with the statute’s directions.
The court used the information provided on Husband’s
corporate tax returns from 2005 to 2008 and from 2011 to 2012 to
determine Husband’s average monthly income. The court
explained that it did not consider the 2009 and 2010 tax years
because of the substantial losses Husband incurred due to “a
faulty credit card reader at the gas pumps,” reasoning that it
would be “improper and unfair to include the huge business
losses from those two years in averaging gross receipts and
operating expenses.” For each of the tax years it did take into
account, the court deducted the average operating expenses
from the average gross receipts for the Travel Plaza and Milton’s
South separately, determined the average annual profit from
each business, and then divided the result by twelve to arrive at
an average monthly income from each business. It then added
those amounts together to arrive at a total average monthly
income for Husband of $10,188, which the court rounded to
$10,000. The court then used this figure “for calculation of child
support and for determination concerning spousal support.”
¶18 Wife objected, claiming that the court failed to include
certain rental receipts from the Travel Plaza in its calculations of
Husband’s income. The court acknowledged that the Travel
Plaza “also includes a strip mall business from which [Husband]
derives rental income” but found that, although Wife “argues
this rental income should be considered separately from the
remainder of . . . [the] Travel Plaza income,” the “rental income
from the strip mall has consistently been reported on tax returns
as part of the overall income from [the] Travel Plaza,” which the
court took into account in calculating Husband’s income. As a
consequence, the court concluded that it would amount to
double counting to treat the rental receipts as a separate
component of Husband’s income for support purposes. Wife
argues that by failing to count these rental receipts as additional
income, the trial court improperly ignored an additional $4,400
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of monthly income, which would have increased Husband’s
ability to pay alimony. Specifically, Wife argues that the trial
court erred by misinterpreting Husband’s corporate tax returns
to include the strip mall rents. She claims that the line 11—
“rents”—item on the corporate tax return is a deduction, not an
accounting of rental income from investment properties, and
that the trial court should have consulted Part I of Schedule E on
Husband’s personal tax returns to calculate his rental income.
She asserts that, had the court properly considered the tax
returns in evidence, it must have determined Husband’s
monthly income to be at least $14,400, rather than the $10,000
figure it used to calculate her alimony award. Thus, Wife
essentially argues that the trial court interpreted the evidence
incorrectly.
¶19 But to successfully challenge a trial court’s factual finding
on appeal, the appellant must “overcom[e] the healthy dose of
deference owed to factual findings” by “identify[ing] and
deal[ing] with [the] supportive evidence” and demonstrating the
legal problem in that evidence, generally through marshaling the
evidence. State v. Nielsen, 2014 UT 10, ¶¶ 40–41, 326 P.3d 645;
Kimball v. Kimball, 2009 UT App 233, ¶ 20 n.5, 217 P.3d 733 (“The
pill that is hard for many appellants to swallow is that if there is
evidence supporting a finding, absent a legal problem—a ‘fatal
flaw’—with that evidence, the finding will stand, even though
there is ample record evidence that would have supported
contrary findings.”). The Utah Rules of Appellate Procedure
require that “[a] party challenging a fact finding must first
marshal all record evidence that supports the challenged
finding.” Utah R. App. P. 24(a)(9). We require this, because to
properly marshal the evidence, the appellant
must temporarily remove its own prejudices and
fully embrace the adversary’s position. . . . In so
doing, appellants must present the evidence in a
light most favorable to the trial court, and not
20140690-CA 9 2016 UT App 135Taft v. Taft
attempt to construe the evidence in a light
favorable to their case. Appellants cannot merely
present carefully selected facts and excerpts from
the record in support of their position. Nor can
they simply restate or review evidence that points
to an alternate finding or a finding contrary to the
trial court’s finding of fact.
Ostermiller v. Ostermiller, 2010 UT 43, ¶ 20, 233 P.3d 489 (citation
and internal quotation marks omitted); see also Simmons Media
Group, LLC v. Waykar, LLC, 2014 UT App 145, ¶ 42, 335 P.3d 885(“An appellant cannot demonstrate that the evidence supporting
a factual finding falls short without giving a candid account of
that evidence.” (citation and internal quotation marks omitted));
Kimball, 2009 UT App 233, ¶ 20 n.5 (noting that “marshaling” is
important because it “adds discipline and order to challenges to
factual findings, precluding an unfocused allegation that the
findings lack evidentiary support and requiring the appellate
court to comb the record and see if that might possibly be true,”
and instead places the burden on the appellant to “identify
which particular findings are challenged as lacking adequate
evidentiary support and then show the court why that is so”).
And our supreme court has stated that “a party who fails to
identify and deal with supportive evidence will never persuade
an appellate court to reverse under the deferential standard of
review that applies” to factual findings. Nielsen, 2014 UT 10,
¶ 40; see also Simmons Media Group, 2014 UT App 145, ¶ 42 (“[A]n
argument that does not fully acknowledge the evidence
supporting a finding of fact has little chance, as a matter of logic,
of demonstrating that the findings lacked adequate factual
support.” (citation and internal quotation marks omitted)). Wife
has failed to marshal the evidence.
¶20 In particular, Wife has not demonstrated that, although
Husband’s corporate tax returns included a line-item for “rents,”
the court’s finding that it had already included all pertinent rents
20140690-CA 10 2016 UT App 135Taft v. Taft
in Husband’s income was so undermined by other evidence that
the finding was nonetheless left without any support. See
Kimball, 2009 UT App 233, ¶ 20 n.5 (“If there is some supportive
evidence, . . . it is the challenger’s burden to . . . explain why the
evidence is legally insufficient to support the finding.” (citation
and internal quotation marks omitted)). The problem with
Wife’s argument of error is that both types of Husband’s tax
returns—corporate and personal—included entries for rents and
rental income. As a result, to prevail on this argument, she must
show that the court’s alleged error was more than simply a
factual choice between the conflicting evidence contained in
those returns. Instead, she must show that the trial court’s
factual conclusion about the rents amounts to clear error.
¶21 During trial, extensive evidence was presented regarding
the complicated intermingling of Husband’s personal and
business financial affairs and accounts. More than 190 exhibits
were admitted, which included loan documents, property
appraisals, personal and corporate tax returns, general ledgers
for each business, and bank statements. Due to the complexity of
the issues and the volume of exhibits, the court requested that
the parties submit closing briefs in lieu of closing arguments. But
even so, the court still described it as “difficult to precisely
ascertain” certain core information, such as monthly income or
the valuation of certain assets. As a consequence, the court
conceded that while it “understands its valuation is not
perfect . . . [the valuation] is the best [it] can muster under the
circumstances.” Our review of the record corroborates this
assessment; indeed, the very complexity of the factual
arguments Wife makes on appeal more than support the court’s
determination in that regard. Neither Husband nor Wife
directed the judge to an exhibit that could clearly establish
Husband’s monthly income, much less where the income from
strip mall rents could be reliably accounted for.
20140690-CA 11 2016 UT App 135Taft v. Taft
¶22 Further, neither party provided expert testimony to assist
the trial court in understanding the extensive financial
documents the parties provided at trial or to overcome the
accounting challenge they posed to the court’s final assessment
and adjudication of the issues. See State v. Rasabout, 2015 UT 72,
¶ 18, 356 P.3d 1258 (noting that in cases where the “knowledge
and expertise required” is “usually not within the common
knowledge of judges,” “testimony from relevant experts is
generally required in order to ensure that [judges] have
adequate knowledge upon which to base their decisions”
(alteration in original) (citation and internal quotation marks
omitted)); Brown v. Small, 825 P.2d 1209, 1212 (Mont. 1992)
(noting that the complexity inherent in some cases makes
arriving at a conclusion that is wholly “consistent with the
evidence” difficult if an expert is not provided (citation and
internal quotation marks omitted)). Instead, only one witness—
Husband’s long-time accountant—testified regarding the strip
mall rental income. He testified that the accounting for the strip
mall was separate from the accounting of the Travel Plaza and
that, as a result, the strip mall rental income would have
appeared on Husband’s personal returns. However, the witness
did not testify regarding where on Husband’s personal tax
returns the rental income would have been accounted for nor
did he testify about what aspects of Husband’s income might be
accounted for in the “rents” line-item on Husband’s corporate
tax returns.
¶23 And subsequent to trial, Wife argued in the Motion to
Reconsider and the Objections only that the strip mall rents were
not included in the corporate tax returns, directed the trial court
to the pages and lines of Husband’s personal income tax returns
where she contended the strip mall rents appeared, and
provided a table detailing the strip mall rents for 2005 to 2008
and 2011 to 2012 with no explanation of how those rents were
accounted for in the documents she referenced. Wife did not
argue to the trial court, as she does now on appeal, that the
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“rents” line-item did not account for the strip mall rents, nor did
she explain why it was error for the trial court to find that that
line-item included those rents. Instead, she merely argued that
the trial court’s assessment of the evidence—the information
provided on Husband’s corporate tax returns—was incorrect.
¶24 Furthermore, on appeal, Wife’s explanation of the
financial evidence she claims supports her position can only be
described as impenetrable. 4 Rather than a reasoned explanation,
she presents what amounts to an accounting puzzle that she
seems to expect this court to put together from a pile of cursory
explanations—explanations that do not appear to have been
presented to the trial court, much less with the help of an expert
4. As an example, Wife provides in her briefing on appeal a
detailed explanation regarding tax year 2011:
Again referring to 2011, the Taft Travel Plaza
“Ordinary business income” (line 21) was $4,060.
The Milton’s South “Ordinary business income”
was $46,282, and Husband’s 33.4% share of that
was $15,458 (Schedule K-1, attached to the
corporate return). These amounts appear on page 2
of Schedule E of Husband’s personal tax return.
Part I of Schedule E for 2011, which reports
“Income or Loss From [R]ental Real Estate and
Royalties,” shows rental income of $59,177 on line
3b, which is in addition to the income from the
corporations. Part II of Schedule E, which reports
Income or Loss From Partnerships and S
Corporations,” gives the $4,060 (Taft Travel Plaza)
and $15,458 (Milton’s South) figures described
above. The total $68,937 in supplemental income
(line 41 of Schedule E) appears on line 17 of Form
1040, again confirming that rents were in addition
to the corporate income.
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who could trace a discernible path through the numbers. Such
an approach transfers too much of the burden of evidentiary
interpretation to the appellate court; more importantly, because
these arguments were not made to the trial court in the first
place, Wife has not carried the considerable burden of
persuading us that the trial court’s factual finding on this point
was made in error. See 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.”).
¶25 In particular, where “rents” was a line-item that factored
into the overall yearly accounting on each of the corporate tax
returns the trial court relied on to assess Husband’s income,
Wife has not demonstrated that it was error for the court to
choose to rely on the information in those returns rather than in
Husband’s personal returns. Instead, Wife’s arguments
subsequent to trial merely assert one interpretation of the
available evidence without providing a reasoned accounting
basis to conclude that “rents” in the corporate tax returns did not
account for strip mall rental income. Certainly, we cannot
conclude that it was clear error for the court to find that
Husband’s corporate tax returns accounted for the strip mall
rents; the evidence presented to the trial court on this issue was,
at best, conflicting. See Kimball v. Kimball, 2009 UT App 233, ¶ 20
n.5, 217 P.3d 733 (“No matter what contrary facts might have
been found from all the evidence, our deference to the trial
court’s pre-eminent role as fact-finder requires us to take the
findings of fact as our starting point, unless particular findings
have been shown . . . to lack legally adequate evidentiary
support.”). And under circumstances like these, where a court is
largely left to its own resources to untangle complex financial
issues, we are reluctant to conclude that an interpretive error
was made, especially based on factual arguments that have been
presented on appeal in a far more focused and complex form
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than to the trial court. Rather, under such circumstances, the
presumption of validity we afford to a trial court when it adjusts
the financial interests of parties to a divorce is at its most robust.
See Savage v. Savage, 658 P.2d 1201, 1203 (Utah 1983) (“In a
divorce proceeding, it is well established that the trial court is
permitted considerable discretion in adjusting the financial and
property interests of the parties, and its actions are entitled to a
presumption of validity.”).
¶26 Consequently, given the evidence before the trial court
regarding the accounting of the strip mall rents, we conclude
that it was not error for the trial court to determine that the
rental income was accounted for in the “rents” line-item of
Husband’s corporate tax returns.
B. Wife’s Needs and Husband’s Ability to Pay
¶27 Wife next contends that the trial court failed to consider
her necessary expenses and make adequate findings regarding
Husband’s ability to pay. The trial court found that there were
“simply not enough financial resources available to adequately
provide for both parties the standard of living they desire,” and
it therefore fashioned the award “with an eye toward somewhat
equalizing the standard of living for both parties.” It ultimately
awarded Wife alimony “in the amount of $1,000 per month for
22 years and 6 months, the length of the marriage,” and based
this award on several findings regarding the parties’ relative
incomes and expenses. First, it found that Wife had a “fair”
financial condition at the time of trial but that she had
“depended on [Husband] and family members for support” and
was “living below the standard of living she enjoyed during the
marriage.” The court concluded that, as a result, Wife had “a
need for financial support.” Next, it found that Wife was able to
work and that her income was $1,900, an amount roughly equal
to the monthly stipend she received as a doctoral candidate at
the University of Utah. It also found that although Wife claimed
monthly expenses of $7,645, that amount was “unreasonably
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inflated in some areas” and that Wife was “able to meet $2,962 of
the monthly expenses she claim[ed were] necessary.” Finally, the
court found that Husband’s monthly income was $10,000, but it
did not make a specific finding as to Husband’s expenses.
Instead, it found that Husband’s “personal finances are
thoroughly entangled with business finances” and that “the
amount [Husband] claims for purposes of personal income taxes
and expenses may not accurately reflect the financial assets at
[Husband’s] disposal.” The court also noted that Husband’s
businesses were “heavily in debt.” Nonetheless, it found that
“[Husband] still has roughly the same standard of living the
parties had during the marriage, while [Wife] struggles to get
by.”
¶28 We agree with Wife that the trial court’s findings do not
adequately support the alimony award. The trial court
purported to equalize the parties’ respective incomes by setting
the alimony award at $1,000, but it failed to make specific
findings as to either Husband’s or Wife’s expenses. Instead, it
noted the difficulty in determining Husband’s expenses but did
not ultimately designate or appropriately estimate an amount for
those expenses. Similarly, while it found that Wife’s claimed
monthly expenses of $7,645 were “unreasonably inflated,” it did
not determine the expenses that it considered reasonable. The
lack of detailed findings in this respect makes it impossible for
us to determine on review whether the $1,000 alimony award
was proper. Husband’s and Wife’s relative expenses are
determinations that relate directly to Wife’s ability “to produce
sufficient income” and Husband’s ability “to provide support”—
in other words, findings the trial court must make to determine
the alimony award. See Utah Code Ann. § 30-3-5(8)(a)
(LexisNexis 2013); Jones v. Jones, 700 P.2d 1072, 1075 (Utah 1985).
Their respective expenses are also significant to the
determination of whether the “burden of insufficient income”
has been “equitably allocate[d]” between Husband and Wife. See
Keyes v. Keyes, 2015 UT App 114, ¶¶ 39–40, 351 P.3d 90 (noting
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that the award was an inequitable allocation of the shortfall
burden because the husband was left “without the ability to
meet any of his most basic needs”); see also Hansen v. Hansen,
2014 UT App 96, ¶ 8 & n.4, 325 P.3d 864 (holding that
equalization of income was not in error where both the husband
and the wife had a shortfall of $521 to meet their monthly
expenses); Kidd v. Kidd, 2014 UT App 26, ¶ 3, 321 P.3d 200(affirming an alimony award where the court added together the
parties’ monthly income, divided that income in half, and then
subtracted the wife’s imputed income to leave both parties with
a monthly shortfall). Thus, without more specific findings
regarding the parties’ respective monthly expenses, we are
unable to determine if the trial court properly considered the
requisite factors, whether the alimony award accomplished the
court’s stated goal of equalizing the parties’ incomes, or whether
instead the court’s decision simply formalized the inequitable
circumstances that seemed to trouble the trial court—namely,
that Husband continued to maintain a lifestyle “roughly” similar
to what he had enjoyed during the marriage while Wife
“struggle[d] to get by.” Accordingly, we remand the case to the
trial court to make these specific findings and re-evaluate the
alimony award in light of them. 5
5. Because we are remanding for the trial court to make adequate
findings, once those findings have been made, the trial court is
free to reassess “the awards in light of those findings and our
opinion.” Willey v. Willey, 866 P.2d 547, 556 (Utah Ct. App. 1993).
In particular, “[t]o the extent that [Husband’s and Wife’s]
monthly expenses are modified on remand, the trial court
should also reconsider its alimony determination in light of the
altered figure.” Dobson v. Dobson, 2012 UT App 373, ¶ 29, 294
P.3d 591; see also Keyes v. Keyes, 2015 UT App 114, ¶ 42, 351 P.3d
90 (stating that because the case was remanded for the trial court
to “further consider the award of alimony . . . the court may
(continued…)
20140690-CA 17 2016 UT App 135Taft v. Taft
¶29 In so doing, we note that the record shows the trial court
“engaged in a thoughtful review” of the circumstances in this
difficult case. See Stonehocker v, Stonehocker, 2008 UT App 11,
¶ 24, 176 P.3d 476. Indeed, the heart of the court’s difficulties
appears to be the “entanglement” of Husband’s business and
personal expenses. It is also apparent that a substantial portion
of the responsibility for any lack of clarity in the trial court’s
findings must fall on the parties’ failure to substantiate, rather
than merely summarize, their monthly expenses and income. See
Dahl v. Dahl, 2015 UT 79, ¶¶ 95–96 (explaining that “[a] party
seeking alimony bears the burden of demonstrating to the court
that the Jones factors support an award of alimony” and that
burden is satisfied when the party seeking alimony “provide[s]
the court with a credible financial declaration and financial
documentation to demonstrate that the Jones factors support an
award of alimony” (citations omitted)). As a consequence, the
ability of the trial court to precisely determine the parties’
expenses may be limited by gaps in the evidence they presented
at trial. In such situations, the court must make the best of what
the parties have given it to work with, and if precision is not
possible, findings that are “sufficiently detailed” may include
estimates shown to be reasonably derived from the available
evidence such as it is. See Stonehocker, 2008 UT App 11, ¶ 16
(“The findings [of fact] should be sufficiently detailed and
include enough subsidiary facts to disclose the steps by which
the ultimate conclusion on each factual issue was reached.”
(citation and internal quotation marks omitted)). But at this
point, absent further explanation of Wife’s and Husband’s
expenses to support a determination regarding Wife’s needs and
Husband’s ability to pay and a fuller explication of how the
(…continued)
need to reconsider other aspects of its alimony decision . . . and
should not consider this remand order to either require or
restrict it from doing so”).
20140690-CA 18 2016 UT App 135Taft v. Taft
ultimate award properly fulfills the purpose of alimony in this
case—either to ensure Wife’s ability to continue to live the
lifestyle established during the marriage 6 or to equalize the
burden of a shortfall—“we cannot assess the merits of the
challenges to” the alimony award. 7 See id. ¶ 24.
6. Wife also argues that the trial court erred by “bas[ing] alimony
on Wife’s actual expenses during the divorce action” and that,
instead, the trial court should have “determine[d] Wife’s
reasonable and necessary expenses to maintain the standard of
living enjoyed during the marriage.” Wife points to the trial
court’s statement that she was “presently able to meet $2,962 of
the monthly expenses she claims are necessary . . . [and] is in
need of some financial assistance.” (Emphasis added.) While a
trial court should generally consider a party’s “financial
condition and needs” “in light of the standard of living [the
parties] had during marriage,” Batty v. Batty, 2006 UT App 506,
¶¶ 4–5, 153 P.3d 827 (alteration in original) (citations and
internal quotation marks omitted), when there is a shortfall in
the resources required to allow each party to maintain the
standard of living enjoyed during marriage, it is not improper to
consider the present financial resources and needs “to ensure
that . . . the shortfall is equitably shared,” Kidd v. Kidd, 2014 UT
App 26, ¶ 26, 321 P.3d 200. Nevertheless, it seems problematic to
base Wife’s expenses on her apparently strained circumstances
at the time of trial, while suggesting that Husband’s expenses
were appropriately based on the standard of living during the
marriage. Rather, where the court is faced with a shortfall, the
determination of expenses ought to meet the requirements of
equity under the circumstances.
7. The trial court also concluded that “[t]his award of alimony,
added to [Wife’s] stipend, child support, and property
settlement, would enable [Wife] to meet her expenses and
somewhat equalize the standard of living for both parties.” Wife
(continued…)
20140690-CA 19 2016 UT App 135Taft v. Taft
¶30 In sum, we remand to the trial court to make more
detailed findings regarding Wife’s financial needs and
Husband’s ability to pay. However, we affirm the trial court’s
determination of Husband’s income.
II. Property Valuation and Division
¶31 Wife raises several contentions regarding the property
valuation and division. First, Wife argues that the court’s
valuation of certain marital assets and debts is either not
supported by the evidence or lacks adequate findings. She
argues that the trial court improperly conflated the business
assets and expenses of the Travel Plaza with Milton’s South, that
the court’s finding regarding the parties’ real property debt was
not supported by the evidence, that the court erroneously
awarded Husband certain water shares, that the court’s
valuation for a Mercury Sable is not supported by the evidence,
and that the court failed to account for or award Wife her share
of the business inventory. “A challenge to the sufficiency of the
evidence concerns the trial court’s findings of fact. Those
findings will not be disturbed unless they are clearly erroneous.”
Kimball v. Kimball, 2009 UT App 233, ¶ 14, 217 P.3d 733 (citation
and internal quotation marks omitted). As noted above, see supra
(…continued)
argues that the trial court improperly considered her property
settlement when determining the alimony award. While
consideration of the property award when making an alimony
determination is not generally improper, in this case, reliance on
the property award seems problematic because the judgment is
payable over a ten-year period, with the monthly amount at
Husband’s sole discretion, thus making it an unreliable income
supplement. See infra Part II.B. In any event, the trial court
will have an opportunity to reconsider both its alimony
determination and property settlement on remand.
20140690-CA 20 2016 UT App 135Taft v. Taft
¶¶ 19–20, a party who challenges the sufficiency of the evidence
must “establish[] a basis for overcoming the healthy dose of
deference owed to factual findings” by marshaling the evidence
that “supports the very findings the appellant resists” and then
demonstrating the “legal insufficiency” in that evidence. State v.
Nielsen, 2014 UT 10, ¶ 41, 326 P.3d 645; Kimball, 2009 UT App
233, ¶ 21 (citation and internal quotation marks omitted).
¶32 Second, Wife argues that the trial court abused its
discretion when it determined that Husband could pay the
property award in monthly installments of his choosing for ten
years, when a final balloon payment becomes due, with the
interest rate set at the judgment rate of only 2.13%. “The trial
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.” Ouk v. Ouk,
2015 UT App 104, ¶ 3, 348 P.3d 751 (citation and internal
quotation marks omitted). “Thus, this court will not disturb a
court’s distribution of marital property unless it is clearly unjust
or a clear abuse of discretion.” Id. ¶ 10 (citation and internal
quotation marks omitted).
¶33 The trial court found that “all real property should be
considered marital property, subject to equitable distribution.”
In order to ensure an equitable property division, a court should
engage in a four-step process:
First, the trial court should distinguish between
separate and marital property; second, it should
consider whether there are exceptional
circumstances that overcome the general
presumption that marital property [should] be
divided equally between the parties; third, it
should assign values to each item of marital
property; and fourth, it should distribute the
property in a manner consistent with its findings
20140690-CA 21 2016 UT App 135Taft v. Taft
and with a view toward allowing each party to go
forward with his or her separate life.
Boyer v. Boyer, 2011 UT App 141, ¶ 10, 259 P.3d 1063 (alteration
in original) (citation, footnote, and internal quotation marks
omitted). Importantly, “[d]etermining 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.” Ebbert v. Ebbert, 744 P.2d 1019, 1023 (Utah
Ct. App. 1987) (citation and internal quotation marks omitted).
Failing to accept one party’s “proposed valuations” “does not
constitute an abuse of discretion.” Id. However, “[i]n order to
permit appellate review of a trial court’s property distribution in
a divorce proceeding, the distribution should be based upon
written findings,” and “[f]ailure to make findings on all material
issues is reversible error unless the facts in the record are clear,
uncontroverted, and capable of supporting only a finding in
favor of the judgment.” Andersen v. Andersen, 757 P.2d 476, 479
(Utah Ct. App. 1988). Thus, we consider whether the trial court
“assigned values” to the marital properties and assets and then
distributed them “in a manner consistent” with those findings.
A. Valuation of the Property
1. Separate Business Asset and Expense Evaluation
¶34 Wife first argues that “the trial court should have
evaluated the assets and expenses for [the] Travel Plaza
separately from Milton’s South.” She claims that at the time of
the divorce in 2009, Husband owned only 33.4% of Milton’s
South, that it was error for the trial court to treat the businesses
as unitary, and that this conflation resulted in a note owed by
Milton’s South to the Travel Plaza being “ignored as an asset of
[the] Travel Plaza” and the Travel Plaza’s expenses being
“inflated because they included Milton’s South expenditures.”
She concedes that, because the accounts were commingled, “it
was impossible to determine exactly which expenses should be
20140690-CA 22 2016 UT App 135Taft v. Taft
charged to Milton’s South.” Nonetheless she urges us to remand
because “the trial court should have assessed Milton’s South for
its share of expenses paid by [the] Travel Plaza.” Husband urges
that Wife did not preserve this issue for appeal and that it is
therefore waived. We agree with Husband.
¶35 “[I]n order to preserve an issue for appeal[,] the issue
must be presented to the trial court in such a way that the trial
court has an opportunity to rule on that issue.” 438 Main St. v.
Easy Heat, Inc., 2004 UT 72, ¶ 51, 99 P.3d 801 (alterations in
original) (citation and internal quotation marks omitted). In
other words, the issue “must at least be raised to a level of
consciousness such that the trial judge can consider it.” See
LeBaron & Assoc. Inc. v. Rebel Enters., Inc., 823 P.2d 479, 483 (Utah
Ct. App. 1991) (citation and internal quotation marks omitted). If
it is not, and if the party does not argue an exception on appeal,
the argument may be deemed waived. See 438 Main St., 2004 UT
72, ¶ 51; see also Jacob v. Bezzant, 2009 UT 37, ¶ 34, 212 P.3d 535(“[W]e do not address arguments brought for the first time on
appeal unless the [trial] court committed plain error or
exceptional circumstances exist.” (second alteration in original)
(citation and internal quotation marks omitted)).
¶36 Wife’s assertion that the trial court did not take into
account Husband’s 33.4% interest in Milton’s South as of the
divorce in December 2009 appears to be correct; the court
calculated the value as though Husband’s ownership interest in
both historically had been 100%, as it was by the time of trial.
However, Wife did not present the argument she now raises—
that the trial court’s conflation of the Travel Plaza and Milton’s
South’s values and debts created subsidiary errors in the
business asset valuation and inflation of the Travel Plaza’s
expenses—to the trial court “in such a way” that the court had
“an opportunity to rule on [this] issue.” See 438 Main St., 2004
UT 72, ¶ 51 (citation and internal quotation marks omitted).
20140690-CA 23 2016 UT App 135Taft v. Taft
¶37 Prior to this appeal, Wife did not alert the trial court that
treating both businesses “as one unitary business” was an error.
In the briefing she submitted in lieu of closing arguments, she
argued that the trial court should value the marital estate as of
2007 (rather than as of the time of their divorce in 2009) because,
she alleged, in 2007 Husband began to intentionally dissipate the
marital estate; Wife pointed to Milton’s South’s “free use [of the
Travel Plaza’s] money” to pay its expenses only as proof of
Husband’s intentional dissipation. She also made no mention of
the note Milton’s South owed to the Travel Plaza in her closing
arguments. In the trial court’s memorandum decision, the court
rejected Wife’s dissipation argument, found that Husband had
not dissipated the marital estate, and concluded that “no
adjustments need[ed] to be made to fairly and equitably divide
marital assets.” It also expressly treated the Travel Plaza and
Milton’s South as though they were a single entity, explaining
that it “considers these businesses together because they both
appear to be encumbered by the same debt.”
¶38 Thus, at the time of the memorandum decision, Wife was
fully alerted to the trial court’s view of the business valuation
and the effect of any potential ownership differential between
the two businesses. In particular, it was clear that the trial court
treated the businesses as a single entity for purposes of valuation
and division of the marital property. But in the Objections, Wife
did not object to the trial court’s treatment of the two businesses
as a single entity. Instead, Wife contested only the trial court’s
calculation of the total debt encumbering all of the marital real
property, including the businesses. By her calculation, the total
debt encumbering all the real property owned by the parties was
overstated by $154,687. She did not, however, argue that the
source of this valuation error was the trial court’s treatment of
the two businesses as unitary. And she only conclusorily stated
in the Objections to the business personal property valuation
that the note owed from Milton’s South to the Travel Plaza was
not included in that valuation. Wife did not argue to the trial
20140690-CA 24 2016 UT App 135Taft v. Taft
court that either or both of the subsidiary errors she alleges on
appeal (failing to account for the Milton’s South expenses paid
by the Travel Plaza and ignoring the note) flowed from the same
overarching error—the court’s treatment of the two businesses
as unitary. Instead, Wife failed to raise her claim of an error
regarding expenses at any point in the Objections and only
argued the claim of an error regarding the note as one that
apparently diminished the valuation of the business personal
property. Thus, while Wife provided the trial court with an
opportunity to reassess the evidence supporting its calculation of
the total marital debt and whether the note should have been
included as an asset to offset the total marital debt, the trial court
was not provided an opportunity to reassess its decision to
consider both of the businesses as one business. See Dickman
Family Props., Inc. v. White, 2013 UT App 116, ¶ 12, 302 P.3d 833(concluding that an issue had not been preserved where the
appellant was “unambiguously alerted” to the court’s
“conception” regarding the issue and where the appellant let
two opportunities to bring the issue to the court’s attention pass
by).
¶39 Nonetheless, in her reply brief, Wife contends that she
preserved this issue because she mentioned in the Objections
that the note that Milton’s South owed to the Travel Plaza was
not included in the business asset valuation and because “[h]er
closing arguments also noted that Milton’s South expenses were
improperly treated as necessary expenses for [the Travel Plaza].”
But “a party may not claim to have preserved an issue for appeal
by merely mentioning” it. Pratt v. Nelson, 2007 UT 41, ¶ 15, 164
P.3d 366 (citation and internal quotation marks omitted).
Moreover, neither reference connected the valuation issues
together or sufficiently focused the trial court’s attention on the
allegedly fundamental error of treating both businesses “as one
unitary business” wholly owned by Husband—the error she
now claims is the overarching source of the expenses and
valuation errors. See id. (noting that one of the requirements for
20140690-CA 25 2016 UT App 135Taft v. Taft
the trial court to have an opportunity to adequately rule on an
issue is that “the issue must be specifically raised” (emphasis
added) (citation and internal quotation marks omitted)).
¶40 Thus, it does not appear that the trial court was provided
an opportunity to address and correct the issues Wife now
argues on appeal. 8 See 438 Main St. v. Easy Heat, Inc., 2004 UT 72,
¶ 51, 99 P.3d 801. And because Wife has not argued for or
demonstrated exceptional circumstances or plain error on
appeal, we do not consider her arguments regarding the note
receivable and the inflated expenses of Milton’s South.
2. Marital Property Debt Valuation
¶41 Wife argues that the “evidence does not support the
court’s findings” that the value of the marital debt—both the
businesses and the personal real property—at the time of the
divorce was $1,373,500, because “the trial court’s figures
8. Wife also argues that she was not required to object to the trial
court’s valuation because its error first arose in a ruling
following trial. But regardless of whether the preservation
requirement generally applies when the error arises for the first
time in a trial court’s final order, Wife herself provided the trial
court an opportunity to reassess its findings and conclusions
when she objected to and moved to have the memorandum
decision reconsidered and, having embarked on that approach,
could have brought this issue to the court’s attention at that
point. This is particularly true when the issue was not raised to
the court’s attention before the decision and the error was, in
that sense, a latent one from the trial court’s perspective. Cf.
Dickman Family Props., Inc. v. White, 2013 UT App 116, ¶ 12, 302
P.3d 833 (noting that an issue was not preserved where, in part,
the appealing party failed to include the error argument they
made on appeal in their objections to the court’s proposed order
below).
20140690-CA 26 2016 UT App 135Taft v. Taft
overstate the debt and understate the total equity by at least
$154,687.”
¶42 Under the circumstances, it appears to us that the trial
court appropriately considered the evidence and made reasoned
determinations to arrive at its decision regarding the total
amount of debt encumbering the marital properties. The trial
court found that the Travel Plaza and Milton’s South had a
combined value of $1.465 million and were jointly encumbered
by debt totaling $1.2 million. The court stated that it valued the
two properties together because “they both appear to be
encumbered by the same debt” and it arrived at the debt figure
because “[t]he parties seem to agree in Exhibit 70 [December
2009 ASSETS of Milton Lee Taft III & Teresa Taft] and
[Husband’s] Final Closing Statement, . . . that this is the
appropriate amount of debt” for these two properties combined.
In addition to the businesses, the parties acquired three other
parcels of real property during the marriage—the Home Parcel,
the Bicknell Lot, and the Richfield Parcel—which the court was
required to divide by taking into account the value and
associated debt of each. In this regard, the court found that the
Home Parcel had a value of $170,000 but that it was encumbered
by debt of $92,500; the Bicknell Lot had a value of $18,000 and no
debt; and the Richfield Parcel had a value of $60,000, but a debt
of $81,000. The court explained in detail how it determined the
debt associated with each parcel of property. For example, the
court stated that it simply averaged the two estimates provided
by the parties to find the “fair amount of debt” for both the
Home Parcel and the Richfield Parcel because the parties did not
explain how they arrived at their estimates of the debt on those
parcels. In addition, we note that neither party provided the
court with exhibits regarding the debt on any of the personal real
properties that did more than summarize what that party
supposed the debt to be in 2009 and that the trial court
specifically found that “there is really no authoritative source
from which to base an accurate summary of debt related
20140690-CA 27 2016 UT App 135Taft v. Taft
specifically to each asset.” Thus, it is apparent that the trial court
identified the evidence on which it relied to make each of the
debt determinations and, when the evidence was in conflict,
noted where and why it averaged the values urged by the
parties to arrive at its determined valuation.
¶43 Nevertheless, Wife points to several exhibits that purport
to show that at the time of the divorce the parties’ total real
estate debt was $1,218,812.70 and that, consequently, the trial
court’s debt determination “understate[d] the total equity by at
least $154,687.” But Wife’s arguments on this point fail because,
rather than marshaling the supportive evidence and directing us
to the fatal flaw in that evidence or engaging with the trial
court’s reasoning, Wife simply points us toward certain
exhibits—her exhibits that the trial court did not rely on when it
made its determinations—that she contends provide accurate
loan information that, in the aggregate, suggests the trial court
“overstate[d] the debt and understate[d] the total equity” of the
parties’ properties. See State v. Nielsen, 2014 UT 10, ¶ 40, 326 P.3d
645 (noting that “an appellant who seeks to prevail in
challenging the sufficiency of the evidence to support a factual
finding . . . on appeal should follow the dictates of rule 24(a)(9)
[of the Utah Rules of Appellate Procedure], as a party who fails
to identify and deal with supportive evidence will never
persuade an appellate court to reverse under the deferential
standard of review that applies to such issues”). As discussed
above, see supra ¶¶ 19–20, Wife cannot carry her burden by
simply listing or rehashing the evidence and arguments she
presented during trial. See Kimball v. Kimball, 2009 UT App 233,
¶ 21, 217 P.3d 733 (noting that parties cannot prevail by “just
list[ing] all the evidence presented at trial or simply rehash[ing]
the arguments on evidence they presented at trial”). Nor can
Wife persuasively carry her burden by merely pointing to
evidence that might have supported findings more favorable to
her; rather, Wife must identify flaws in the evidence relied on by
20140690-CA 28 2016 UT App 135Taft v. Taft
the trial court that rendered the trial court’s reliance on it, and
the findings resulting from it, clearly erroneous. Id.¶44 Furthermore, we note that it is within the trial court’s
discretion to weigh the evidence and accept what it finds to be
most credible and reject or give less weight to the rest. See
Schaumberg v. Schaumberg, 875 P.2d 598, 603 (Utah Ct. App. 1994)
(stating that it is appropriate to afford the trial court
considerable deference in determining the facts because “the
trial court . . . [is] in a superior position to judge the credibility of
witnesses and to weigh the evidence”). And “[d]etermination of
the value of the assets is a matter for the trial court which will
not be reviewed in the absence of a clear abuse of discretion.”
Turner v. Turner, 649 P.2d 6, 8 (Utah 1982) (stating that an
appellate court will not weigh the evidence and substitute its
judgment for that of a trial court merely because “its judgment
may differ”). Consequently, because Wife has failed to point out
legal error or deal with the supportive evidence presented at
trial, we affirm the trial court’s debt valuation.
3. Water Shares Valuation
¶45 Wife next argues that the trial court should not have
awarded the water shares related to the Richfield Parcel “to
Husband without assigning any value to [them]” and requests
that we remand “with directions to award the water shares to
Wife, or alternatively to determine the value of the shares and
adjust the property settlement accordingly.” “[W]e cannot affirm
[a trial court’s] determination . . . [if] it fails to enter specific,
detailed findings supporting its financial determinations.” Hall v.
Hall, 858 P.2d 1018, 1021 (Utah Ct. App. 1993) (citation omitted).
We agree with Wife that the trial court should have made a
finding as to the water shares’ value and included that value in
the property settlement. We remand so that the trial court may
do so.
20140690-CA 29 2016 UT App 135Taft v. Taft
¶46 During trial, Husband testified that he kept “water stock
certificates” in a safe deposit box, and when cross-examined by
Wife’s counsel, Husband stated that he had “four shares of water
on the land in Richfield.” Wife asserted in the Objections that
Husband’s disclosure at trial was the first instance she had
learned of the existence of the shares, that Husband did not
“disclose [these] water shares in his full [financial] disclosure” or
his interrogatory responses, and that “[b]ecause Husband failed
to disclose these water certificates prior to trial, Wife had no
opportunity to investigate and [had] . . . no way to determine
their value.” She argued that “[i]t is not equitable to award [the]
water share[s] to Husband with no valuation.” Nonetheless, the
trial court awarded Husband “all properties, including water
rights or water certificates,” without making a determination as
to the water shares’ value. 9
9. We note that Wife did take steps before trial that should have
revealed the existence of the shares had Husband responded
appropriately to her discovery requests. She made “use of
available discovery procedures” in an effort to avoid a
“surprise” at trial regarding potential marital assets by asking in
her interrogatories about “any and all documents regarding or
relating to any Real Property [w]hich is currently owned or held
(either jointly or individually) by [Husband]” or “[w]hich was
owned or held (either jointly or individually) by [Husband] . . .
between June 1, 1987 and the present.” Cf. Ault v. Dubois, 739
P.2d 1117, 1122–23 (Utah Ct. App. 1987) (determining that
because “surprise at trial . . . could have been easily guarded
against by use of available discovery procedures,” the trial
court’s denial of a new trial was not an abuse of discretion). In
response, Husband simply directed Wife to his financial
disclosure, which did not list the water shares. At trial, Wife’s
counsel cross-examined Husband about the water shares after
Husband had belatedly disclosed their existence. Finally, Wife
objected to the court’s award of the water shares to Husband in
(continued…)
20140690-CA 30 2016 UT App 135Taft v. Taft
¶47 One of the steps in equitable property division requires
the trial court to “assign values to each item of marital
property.” See Stonehocker v. Stonehocker, 2008 UT App 11, ¶ 15,
176 P.3d 476; see also Munns v. Munns, 790 P.2d 116, 119 (Utah Ct.
App. 1990) (stating that findings regarding property distribution
in divorce proceedings “must place a dollar value on the
distributed assets”). The trial court did not appear to do this for
the water shares. Instead, the court simply awarded the water
shares along with the other marital real properties to Husband,
apparently without determining the value of those shares either
apart from the property, or in terms of any enhancement in the
property’s value as a consequence of associated water shares.
Perhaps the trial court reasoned that the value of the water
shares was included in the value of the Richfield Parcel, or
perhaps the trial court determined that because the Richfield
Parcel was encumbered with greater debt than value, any
residual value the water shares might have provided would not
exceed the debt. The trial court did not, however, specifically
indicate whether its determination of the Richfield Parcel’s value
included the value of the water shares, and we are therefore
unable to effectively review the trial court’s decision as to the
water shares without more detailed findings. See Stonehocker,
2008 UT App 11, ¶ 24. We remand to give the trial court the
opportunity to enter more detailed findings as to the water
shares, and, if necessary, to amend the property division.
4. Mercury Sable Valuation
¶48 The parties acquired a Mercury Sable during the
marriage, which the trial court awarded to Wife. The trial court
found that the vehicle had a value in 2009 of $16,000. This
(…continued)
the Objections and therefore alerted the trial court to a potential
error in its failure to determine a value for the shares.
20140690-CA 31 2016 UT App 135Taft v. Taft
valuation was based on Husband’s testimony during trial that
the purchase price for the vehicle was $16,000 and that Husband
was still making payments on the car. Husband’s testimony
regarding the value of the vehicle focused on Husband’s
explanation of two particular exhibits: one was a list of assets
Husband asserted that Wife took with her in July 2009, which
listed the vehicle’s value at $16,000, and the other was
Husband’s “Proposed Property Debt Division” as of 2013, which
also listed its value at $16,000. The trial court noted that other
than Husband’s testimony, “there is no other evidence
concerning [the vehicle’s] value,” that “$16,000 [was] a
reasonable value in 2009, and [that Wife] took [the vehicle]
without any debt.” Wife asserts that the trial court’s valuation of
the vehicle was not supported by the evidence, because other
evidence indicated the vehicle was encumbered with debt that
should have offset the value the court assigned to it. In
particular, she points first to Husband’s financial disclosure,
which indicates that both the value and the debt of the vehicle in
2009 was $14,000, and then to a refinance document from 2013
that shows that it continued to be encumbered with debt “more
than 3 years after the 2009 divorce.” She contends that because
Husband’s financial disclosure “indicated there was no value in
the car” and “this agrees with Wife’s reported value, no value
should be assigned to the Mercury Sable.”
¶49 In order to prevail on this argument, Wife must deal with
the evidence that supports the trial court’s finding regarding the
Mercury Sable’s value and “establish[] a basis [in the evidence]
for overcoming the healthy dose of deference owed to factual
findings.” State v. Nielsen, 2014 UT 10, ¶¶ 41–42, 326 P.3d 645.
But Wife’s argument is essentially that the trial court erred in
which reported value it credited to the vehicle in 2009, not that
there was no evidence at all to support the value of $16,000. Wife
supports her argument merely by pointing to two other exhibits
—Husband’s financial disclosure, and a refinance agreement of
Wife’s that held the vehicle as collateral and showed that, as of
20140690-CA 32 2016 UT App 135Taft v. Taft
2013, there was approximately $2,800 still owing on it—and
contending that the trial court should have relied on those
exhibits rather than Husband’s testimony and the exhibits
supporting it. As we have previously noted, see supra ¶¶ 19–20,
Wife cannot carry her burden on appeal merely by pointing
toward conflicting evidence and asserting that the trial court
ought to have relied on her evidence instead. See Kimball v.
Kimball, 2009 UT App 233, ¶ 21, 217 P.3d 733; see also Ebbert v.
Ebbert, 744 P.2d 1019, 1023 (Utah Ct. App. 1987) (stating that
failing to accept one party’s “proposed valuations . . . does not
constitute an abuse of discretion”). The exhibit prepared by
Husband regarding the property Wife took with her in 2009,
although self-reported, did indicate that the value of the vehicle
was $16,000 in 2009, and Husband confirmed his belief that that
was the 2009 value in his testimony. Certainly Wife has not
identified any document among the exhibits, such as the
vehicle’s original purchase contract, an appraisal, or the original
loan documents that clearly stated the vehicle’s 2009 value and
debt encumbrance. And although Wife relies on Husband’s 2009
financial disclosure as proof that the vehicle should be assigned
“no value,” that exhibit was similar in quality to the exhibits
Husband later relied on for the vehicle’s value—each reported
the value rather than substantiating it with purchase contracts or
loan documents. As a consequence, we conclude that Husband’s
testimony at trial regarding the vehicle’s value was sufficient to
support the trial court’s valuation. See Olson v. Olson, 2010 UT
App 22, ¶ 27, 226 P.3d 751 (“Generally, a knowledgeable owner
may testify as to the market value of property.” (citation and
internal quotation marks omitted)). Other than pointing to
conflicting evidence and her overall disagreement with the
valuation itself, Wife has failed to demonstrate how Husband’s
testimony or the trial court’s reliance on that testimony
amounted to clear error. See Stonehocker, 2008 UT App 11, ¶ 44
(stating that “[w]e defer to the trial court in its findings of fact
related to property valuation and distribution” unless they are
clearly erroneous).
20140690-CA 33 2016 UT App 135Taft v. Taft
5. Business Inventory Valuation
¶50 Wife finally argues that the trial court failed to account for
the business inventory in its valuation of the businesses and, as a
result, neglected to equitably assign Wife her portion of the
value of those assets. She asserts that the trial court’s valuation
of business property as a whole was only as to “land and fixed
business assets” and did not include “the gasoline and store
inventories.” We agree with Wife.
¶51 The trial court found that “[t]he parties ha[d] already
divided the personal property” and determined that “[t]he
parties are each awarded their business and personal bank
accounts and vehicles currently in their possession . . . subject to
payment of all associated debt and insurance.” The trial court
made specific valuation findings for the many personal property
items—such as cars, recreational equipment, and household
appliances—that it believed had a “sufficient evidentiary basis”
to be fairly divided, and the court refused to divide or make
findings regarding those it determined did not. But the trial
court did not make a finding or valuation as to the business
inventory. Instead, the trial court stated in a footnote that it
“consider[ed] bank accounts and assets such as fuel tanks and
inventory associated with operation of the businesses to have
been awarded along with the business assets.”
¶52 We appreciate the difficulties arising from the financial
complexity the trial court was faced with, but because “we
cannot tell from this record what dollar value, if any, [the trial
court] ultimately assigned to the business [inventory],” these
findings are inadequate. See Stonehocker, 2008 UT App 11, ¶ 44.
Nor is it clear to us from the findings why the trial court
determined that the value of the business inventory was already
taken into account in its distribution of the business real
property. The two appraisals that the court relied on to
determine the value of the two businesses did not value the
business inventory, such as the fuel inside the tanks; they
20140690-CA 34 2016 UT App 135Taft v. Taft
appeared to include only the value for fixtures, furniture, and
equipment necessary to, and included in, the operation of the
business ventures. 10 Furthermore, as Wife points out, financial
statements prepared by Husband’s long-time accountant were
presented to the trial court that indicated the value of the
inventories and fuel in December of 2009. Tax returns from
Milton’s South and the Travel Plaza were also admitted into
evidence and included line items detailing the amount in
inventory at the end of the tax year.
¶53 While the trial court does not have to accept Wife’s
proposed valuation, the trial court does have to make findings
sufficient to allow us to review and determine whether an
equitable property award has been made. See Boyer v. Boyer, 2011
UT App 141, ¶ 10, 259 P.3d 1063. This is particularly so in light of
the fact that the court awarded Husband all the real property the
parties acquired during marriage and limited Wife’s property
judgment to a monetary figure derived from an equal division of
the marital assets. See Goggin v. Goggin, 2013 UT 16, ¶ 7, 299 P.3d
1079 (stating that in equitable distribution, “[g]enerally, [e]ach
party is presumed to be entitled to all of his or her separate
property and fifty percent of the marital property” (second
alteration in original) (citation and internal quotation marks
omitted)). Here, the trial court found that the businesses were
marital property, and the value of those businesses undoubtedly
included the business inventory. But even though the trial court
indicated that it considered business inventory to be included in
its overall valuation of the Travel Plaza and Milton’s South,
10. For example, one appraisal found that the Travel Plaza had
$65,000 in fixtures, furniture, and equipment, such as the two
double-sided fuel pumps, the five above-ground tanks, and the
point of sale system. The other appraisal estimated that Milton’s
South had $192,000 of equipment that included the car wash
equipment, the fuel pump, and the tanks.
20140690-CA 35 2016 UT App 135Taft v. Taft
neither of the appraisals that the trial court relied upon to arrive
at the averaged valuation for those properties appear to have
included business inventory in the property evaluations or
provided a separate estimate of the inventory’s value. See Boyer,
2011 UT App 141, ¶ 8. The trial court also failed to indicate any
other basis for its determination that the inventory was included
in the business asset valuation. Certainly, there was a reasonable
basis for the court to include business inventory as a component
of the award of the businesses to Husband, but we are unable to
determine whether the court appropriately took into account the
value of that inventory in determining the amount to be
awarded to Wife as her share of the marital property and thus
whether the award met the requirements of equity.
¶54 We do not suggest that a trial court tasked with equitably
dividing marital property must always make separate findings
regarding different aspects or components of one asset—in this
case, for example, to specifically distinguish the real property
value from the inventory value in assessing the overall worth of
the businesses. As we have said, “trial courts are not expected to
view each item of marital property in isolation and divide each
separately” and “the trial court is permitted to look at the
mar[it]al property in its entirety and to apportion it in a
manner that best facilitates ‘a clean break’ between the parties
and achieves a result that equitably divides the marital property
as a whole.” Id. ¶ 10 (citation omitted). But under these
circumstances, and considering the evidence the trial court relied
on to make its business asset valuation, we conclude that Wife is
correct that the trial court ought to have made more detailed
findings regarding its basis for considering business inventory to
have been included in the business assets awards. We therefore
remand for the trial court to do so.
20140690-CA 36 2016 UT App 135Taft v. Taft
B. Husband’s Discretion Regarding Payment of Wife’s
Property Judgment
¶55 Wife next argues that the trial court erred “by giving
Husband discretion to determine the amount of any
monthly payments [towards payment for] the property
settlement to Wife.” “Trial courts have considerable discretion in
determining . . . property distribution in divorce cases, and [such
determinations] will be upheld on appeal unless a clear and
prejudicial abuse of discretion is demonstrated.” Stonehocker,
2008 UT App 11, ¶ 8 (omission in original) (citation and internal
quotation marks omitted).
¶56 Wife correctly asserts that she is entitled both to an
equitable property award, see Olsen v. Olsen, 2007 UT App 296,
¶ 23, 169 P.3d 765, and to “interest on the accrued installments”
on the judgment, see McKay v. McKay, 370 P.2d 358, 359 (Utah
1962). The trial court awarded Wife a property judgment of
$169,500 plus “interest at the judgment rate of 2.13%, as
provided by Utah Code [section] 15-1-4.” The trial court arrived
at this judgment by finding that “all real property should be
considered marital property, subject to equitable distribution”
and that “the businesses are necessary for [Husband’s]
livelihood, and the remaining properties have some family
significance to [Husband].” On that basis, the trial court
awarded all the real property to Husband, “subject to his
assumption and payment of all debt thereon.” It then calculated
the net value of the real property assets at the time of the divorce
in 2009 to be $339,500 and allocated to Wife half of that value, or
$169,750. In addition, the trial court ruled that the property
judgment “shall constitute a lien against all real and personal
property awarded” to Husband and “ordered [Husband] to
maintain a life insurance policy” with Wife as beneficiary in the
amount of the judgment until it “has been paid in full, plus
interest.”
20140690-CA 37 2016 UT App 135Taft v. Taft
¶57 But the trial court also granted Husband the discretion to
“pay this judgment all at once or in monthly installments for a
period of time.” While no minimum payment was specified, the
court provided that if Husband chose to make monthly
payments, within “30 days after the amended decree of divorce”
Husband 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
[Wife] in one final balloon payment.” It also ordered that
Husband was free to “terminate monthly payments at any time
and pay the balance awarded to [Wife] early, with no penalty for
early payment.”
¶58 Wife argues that it is inequitable for Husband to receive
“full immediate enjoyment of the assets awarded to him” as well
as “the full use of Wife’s share of the assets” while Wife is
deprived of meaningful access to her award. Wife also asserts
that the judgment more closely resembles a loan or forbearance
to Husband than a true judgment because it is not enforceable
immediately and that Husband can simply treat it as if it were a
loan at a very favorable interest rate, providing him with an
obvious incentive to pay minimal installments for the entire
installment period. Consequently, Wife contends that the
interest rate should be 10%, the “legal rate of interest for the loan
or forbearance of any money,” pursuant to Utah Code section
15-1-1. 11
11. Utah Code section 15-1-1(1) explains how interest rates
regarding lawful contracts “for the loan or forbearance of any
money, goods, or chose in action” are to be determined. Utah
Code Ann. § 15-1-1(1) (LexisNexis 2013). Section 15-1-1(2) further
states that “[u]nless parties to a lawful contract specify a
different rate of interest, the legal rate of interest for the loan or
forbearance of any money, goods, or chose in action shall be 10%
per annum.” Id. § 15-1-1(2).
20140690-CA 38 2016 UT App 135Taft v. Taft
¶59 On its face, the amount of the judgment (half of the asset
valuation) appears to be equitable. The terms by which Wife’s
property settlement is to be paid, however, are not equitable. See
Boyer v. Boyer, 2011 UT App 141, ¶ 8, 259 P.3d 1063 (stating that
we will disturb a trial court’s property division “only if,” among
other things, “such a serious inequity has resulted as to manifest
a clear abuse of discretion” (citation and internal quotation
marks omitted)). As Wife points out, Husband has been
awarded the parties’ three parcels of real estate (the Home
Parcel, the Bicknell Lot, and the Richfield Parcel) and the two
businesses (the Travel Plaza and Milton’s South), all of which he
has full enjoyment of from the date of the decree. In addition, he
is given nearly complete discretion regarding the payment to
Wife of her share of the marital property over a ten-year period
via a judgment carrying a very low interest rate. Wife, on the
other hand, has been granted a substantial judgment in token of
her share of the marital real property that she has no ability to
collect, access, or substantially enjoy until ten years pass, unless
Husband decides otherwise. Indeed, Wife’s award is subject to
Husband’s plenary discretion regarding the amount of monthly
payments and how quickly the property award will be paid in
full. For example, under the terms of the judgment as we read it,
Husband could conceivably make Wife equal monthly payments
of $1 for nine years and eleven months before making the final
balloon payment to Wife, thereby forcing Wife to wait ten years
before realizing any real benefit from her property award.
¶60 Furthermore, we think Wife is correct that the interest rate
on the unpaid portion of the judgment provides very little
incentive for Husband to substantially pay it prior to the
expiration of the ten-year period, much less for him to pay Wife
sizeable monthly installments. The meager 2.13% interest rate
would almost certainly allow Husband to invest Wife’s money
elsewhere and reap the benefit of any additional increment of
interest—a benefit that in fairness should accrue to Wife herself.
We have been unable to find authority to specifically support the
20140690-CA 39 2016 UT App 135Taft v. Taft
10% interest rate that Wife urges, and Wife offers no cases to
support the propriety of imposing the statutory rate on a marital
property award. Nevertheless, we think there is some merit to
Wife’s contention that, in practical application, the court’s
structuring of the award creates a forbearance (in effect a loan to
Husband) without appropriate compensation or benefit. In fact,
the restrictions on payment of the judgment, accompanied by the
low rate of interest, appear to effectively reduce its value as the
years pass with low payments. Certainly, a court has the ability
to make equitable provisions for deferred compensation in the
context of the property division in a divorce proceeding. See Pope
v. Pope, 589 P.2d 752, 754 (Utah 1978) (concluding, first, that a
higher interest rate than statutorily allowed may be equitably
imposed where, “under the circumstances, that award is
reasonable,” and, second, that an increase of 2% over the
statutory interest rate imposed on the amount not paid to the
receiving party within six months was not an abuse of
discretion); cf. Utah Code Ann. § 15-1-1 (LexisNexis 2013)
(“Unless parties to a lawful contract specify a different rate of
interest, the legal rate of interest for the loan or forbearance of
any money, goods, or chose in action shall be 10% per annum.”).
See generally Argyle v. Argyle, 688 P.2d 468, 472 (Utah 1984)
(discussing that in cases where one party has been granted
current use of the other party’s award, it is not an abuse of
discretion for a trial court to impose interest on the unpaid
portions of a party’s award).
¶61 Finally, an important consideration underlying property
awards is to allow the respective party to “go forward with his
or her separate life.” See Boyer, 2011 UT App 141, ¶ 10; see also
Argyle, 688 P.2d at 471 (“It is the court’s duty to make a division
of the property and income in a divorce [proceeding] so that the
parties may readjust their lives to the new situation as well as
possible.”). And while the life insurance policy and the lien
enhance the likelihood that Wife will eventually be able to collect
her judgment, they also increase Husband’s incentives to pay the
20140690-CA 40 2016 UT App 135Taft v. Taft
bulk of the award prior to the expiration of the ten-year period
only a little; and neither will actually result in an earlier payout
unless Husband dies or attempts to sell his property within the
next ten years. We note that the trial court had previously found
in its alimony determination that Husband and the businesses
are “heavily in debt” and that the trial court ordered Husband to
bear those debts. But we think the overall dynamics of the
court’s award more readily allow Husband, with his immediate
ability to use and enjoy the property awarded to him and to
configure payment of Wife’s judgment to his advantage,
significantly more latitude to “go forward with his . . . separate
life” than Wife is afforded. See Boyer, 2011 UT App 141, ¶ 10.
¶62 Based on the foregoing, we conclude that the terms of
Wife’s property judgment are inequitable and that the trial court
exceeded its discretion by structuring the terms of Wife’s
property judgment as it did. We remand for reconsideration of
the terms of Wife’s property judgment and for entry of an award
that more equitably achieves the goals of marital property
division under the circumstances.
III. The Sunglow Property
¶63 Wife essentially challenges the trial court’s decision that
the Sunglow Property was not part of the marital estate subject
to division between the parties. First, Wife argues that the trial
court erred in determining that Husband had not fraudulently
conveyed the Sunglow Property. Second, Wife argues that
whether or not there was a fraudulent conveyance, the trial court
erred by not including the Sunglow Property in its valuation and
division of the marital property and requests that we “remand[]
with instructions to find the December 2009 value of the
property, and to adjust the property division accordingly.” A
trial court is entitled to a presumption of validity in its
assessment and evaluation of evidence, see Turner v. Turner, 649
P.2d 6, 8 (Utah 1982), and “[w]e defer to the trial court in its
findings of fact related to property valuation and distribution”
20140690-CA 41 2016 UT App 135Taft v. Taft
unless they are clearly erroneous, Stonehocker v. Stonehocker, 2008
UT App 11, ¶ 44, 176 P.3d 476. However, a challenge that
“involves a review of the trial court’s application of statutory
requirements to factual findings . . . is a mixed question of law
and fact.” Clark v. Clark, 2001 UT 44, ¶ 14, 27 P.3d 538. In such
cases, “a trial court’s findings of fact will not be reversed unless
they are clearly erroneous, and the trial court’s application of the
statute to those findings will not be reversed absent an abuse of
discretion.” Id.¶64 While we affirm the trial court’s fraudulent conveyance
analysis, we remand for the court to reconsider its conclusion
that the Sunglow Property was not marital property.
A. The Fraudulent Conveyance Claim
¶65 Under the Uniform Fraudulent Transfer Act (UFTA), if
the property transferred fits the definition of an “asset,” and if
the debtor made the transfer “with actual intent to hinder, delay,
or defraud any creditor or debtor; or without receiving a
reasonably equivalent value in exchange for the transfer or
obligation,” the transfer will be considered fraudulent. 12 Utah
Code Ann. § 25-6-5(1)(a)–(b) (LexisNexis 2013). Section 25-6-5
lays out several factors to be considered in assessing whether a
debtor conveyed an asset “with actual intent to hinder, delay, or
12. “[P]roperty of a debtor” is an asset whose “transfer” is
subject to a creditor’s fraudulent conveyance challenge under
UFTA, except “to the extent it is encumbered by a valid lien.” See
Utah Code Ann § 25-6-2(12) (LexisNexis 2013) (defining
“transfer”); id. § 25-6-2(2)(a) (defining “asset”); id. § 25-6-2(6)
(defining “debtor); id. § 25-6-2(4) (defining “creditor”). A “[v]alid
lien” is a lien “that is effective against the holder of a judicial lien
subsequently obtained by legal or equitable process or
proceedings.” Id. § 25-6-2(13). The trial court determined that
Husband was a “debtor” and Wife a “creditor.”
20140690-CA 42 2016 UT App 135Taft v. Taft
defraud any creditor or debtor.” These include, among other
things, whether “the transfer or obligation was to an insider”;
whether “the debtor retained possession or control of the
property transferred after the transfer”; whether “the transfer or
obligation was disclosed or concealed”; and whether “the value
of the consideration received by the debtor was reasonably
equivalent to the value of the asset transferred or the amount of
the obligation incurred.” Id. § 25-6-5(2)(a)–(c), (h).
¶66 The trial court determined that Husband’s sale of the
Sunglow Property to his parents in 2011 (after the bifurcated
decree but before the trial) did not meet the requirements for a
fraudulent conveyance under UFTA. In particular, the trial court
found that the property “was [fully] encumbered by a valid lien
because there was a promissory note from [Husband] to his
parents, which was presumably secured by a deed of trust.” The
court then determined that the existence of this valid lien meant
that the Sunglow Property was not an asset under section 25-6-2.
The court reasoned that even if the Sunglow Property were an
asset under UFTA, “the evidence simply does not convince the
[c]ourt [that Husband] transferred the property with intent” to
defraud Wife under section 25-6-5(2) “or without receiving a
reasonably equivalent value in exchange.”
¶67 Wife argues that the trial court’s fraudulent conveyance
analysis was infirm because the trial court presumed, without
evidence, that the Sunglow Property was encumbered with a
valid lien, and she contends that the trial court did not
adequately assess whether the property was transferred for a
“reasonably equivalent value.” She asserts that we should
remand “with instructions to reevaluate the fraudulent
conveyance action” based on those alleged infirmities. However,
we conclude that even if the facts underlying the trial court’s
“valid lien” assumption are more complicated than the trial
court’s findings suggest, Wife has not demonstrated on appeal
that the trial court erred in its alternative conclusion that even if
20140690-CA 43 2016 UT App 135Taft v. Taft
the Sunglow Property amounted to an “asset” under UFTA, the
transfer did not meet the Act’s criteria for a fraudulent
conveyance. In particular, Wife has not carried her burden of
showing that the court’s findings that Husband had no actual
intent to defraud and that the sale was for reasonably equivalent
value are clearly erroneous. See State v. Nielsen, 2014 UT 10, ¶ 41,
326 P.3d 645. As above, see supra ¶¶ 19–20, Wife again simply
fails to acknowledge the evidence that supports the court’s
findings and conclusions, much less make any attempt at
dealing with them. Id.
¶68 The trial court found that, “even if the Sunglow
[Property] could be considered a proper asset under” UFTA,
“the evidence simply does not convince the [c]ourt [that
Husband] transferred the property with the actual intent to
hinder, delay, or defraud [Wife], or without receiving a
reasonably equivalent value in exchange.” The court addressed
the relevant UFTA factors and made a number of findings
regarding whether a transfer was made with actual intent to
defraud. The court determined that several factors supported an
inference of fraudulent intent—for example, “the transfer was to
insiders” and Husband “still retains control to use the property
whenever he wants”—but that other factors weighed against
such a conclusion, including findings that “the transfer was only
a small part of [Husband’s] assets” and that there was “no
evidence to indicate . . . that as a result of the transfer, [Husband]
became insolvent.” And with respect to the question of whether
the conveyance had been for reasonably equivalent value, the
court also weighed the evidence for and against, noting that “the
value of consideration received for the transfer is fairly
debatable,” as “[t]here is evidence to suggest it was
unreasonable and evidence to suggest it was reasonably
equivalent.” But the court ultimately concluded that “the
quantum of [the conflicting] evidence” balanced out and that, as
a result, Wife “failed to meet her burden to convince the [c]ourt
20140690-CA 44 2016 UT App 135Taft v. Taft
by [a] preponderance of the evidence” that Husband’s transfer of
the Sunglow Property to his parents was fraudulent.
¶69 Wife again does not marshal the evidence supporting the
trial court’s findings or attempt to show that the evidence
supporting them was legally insufficient. Nor does she engage
with the reasoning behind the trial court’s ultimate conclusion
that the property had not been fraudulently conveyed. Instead,
she merely makes conclusory assertions regarding what the
court should and should not have focused on when it evaluated
the transfer and, in so doing, essentially asks us to reweigh the
evidence presented to the trial court. For example, she does not
address the court’s actual intent findings at all. She merely states
that “the trial court . . . focused on Husband’s good faith or lack
thereof in making the transfer” when it “should have found the
transfer fraudulent based on the failure to receive reasonably
equivalent value,” and she asserts that the trial court “was
required to find the value of the Sunglow [P]roperty” and erred
when it failed to do so. Further, the only evidence Wife points us
toward regarding the property’s reasonable value is an appraisal
she submitted to the trial court that “placed the value [of the
property] at $198,000,” significantly in excess of the $50,000 sale
price.
¶70 But this is not sufficient to meet Wife’s burden of
demonstrating that the evidence did not support the trial court’s
findings. As discussed previously, see supra ¶¶ 19–20, when a
party challenges a finding of fact on appeal, the appellant must
“demonstrate that the evidence is legally insufficient to support
the finding even when viewing it in a light most favorable to the
court below.” Ostermiller v. Ostermiller, 2010 UT 43, ¶ 20, 233
P.3d 489 (citation and internal quotation marks omitted).
¶71 Here, while Wife suggests that the trial court should have
focused on the reasonable value issue rather than Husband’s
good faith and points us toward an appraisal completed in 2007
that indicated the value of the property several years prior to the
20140690-CA 45 2016 UT App 135Taft v. Taft
transfer was $198,000, she has ignored the other evidence that
might have supported the trial court’s findings regarding
Husband’s actual intent or the property’s reasonable value. In
particular, it is still not enough to simply point toward the piece
of evidence she submitted during trial that might support her
argument that the trial court’s assessment of the property’s
reasonable value was incorrect. See Kimball v. Kimball, 2009 UT
App 233, ¶ 21, 217 P.3d 733 (“The marshaling requirement is not
satisfied if parties . . . simply rehash the arguments on evidence
they presented at trial.”). Rather, our review of the record
indicates that the trial court was also provided with evidence
that suggested a large range of what the property might have
been worth in 2011. For example, the trial court was provided
another appraisal by Wife completed after the economic collapse
and Husband’s own financial difficulties that suggested the
value of the property was significantly less than $198,000. There
was also testimony presented at trial that due to the “economic
times and land-locked position of this property in relation to the
total property,” the $50,000 value was fair in 2011. And evidence
was presented by Husband during trial that the property might
have been worth considerably less than $50,000 due to its
predominantly nonirrigated state. All of this supports the trial
court’s assessment that there was evidence supporting multiple
valuations and that, given the quantum of evidence, the conflicts
evened out. Thus, Wife had not met her burden to show that the
$50,000 selling price was not reasonably equivalent to the
property’s value. Wife has failed to marshal this evidence on
appeal, let alone demonstrate that this evidence was legally
insufficient to support the trial court’s findings regarding the
value of the property. Consequently, to the extent Wife asks us
to reweigh the evidence presented to the trial court, we decline
to do so. Because Wife has not demonstrated “that the trial
court’s findings lack evidentiary support,” we will “defer to the
trial court’s advantaged position to weigh [the] evidence.” See
High Desert Estates LLC v. Arnett, 2015 UT App 196, ¶ 12, 357
P.3d 7 (citation and internal quotation marks omitted).
20140690-CA 46 2016 UT App 135Taft v. Taft
¶72 Furthermore, Wife’s failure to deal with the supportive
evidence is not countered by her assertion that under UFTA, the
trial court was required to make an express finding as to the
property’s value. Wife fails to explain why the trial court was
required to do so. Certainly, the statute itself does not require
that a court must expressly determine the property’s actual
value in order to conclude that the amount paid and the value
were reasonably equivalent. Rather, given the conflicting
evidence, the court’s determination that Wife had not shown the
$50,000 sale price to be significantly less than what the property
was actually worth appears to be a sufficient conclusion as to its
reasonable value. See Anderson v. Thompson, 2008 UT App 3, ¶ 19,
176 P.3d 464 (“The trial court [is] in the best position to consider
the conflicting evidence . . . , and we defer to its findings.”).
¶73 Thus, Wife has failed to persuade us that the trial court
erred in its determination that Husband’s 2011 sale of the
Sunglow Property to his parents did not amount to a fraudulent
conveyance under UFTA.
B. The Sunglow Property as Marital Property
¶74 Wife argues that, regardless of whether the Sunglow
Property was fraudulently conveyed, the trial court erroneously
failed to include the Sunglow Property in its marital property
division even though it was “marital property Husband retained
in the post-divorce property division.” She contends that
“[b]ecause the asset was owned by the parties at the time of the
divorce and its benefits were retained by Husband, the dollar
value of Husband’s share of the marital property should have
been increased by the value of that asset.” She asserts that we
should “remand[] with instructions to find the December 2009
value of the property, and to adjust the property division
accordingly.” We agree with Wife.
¶75 The trial court determined that “all real property” owned
by either party at the conclusion of the marriage “should be
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considered marital property, subject to equitable distribution.”
The Sunglow Property had been acquired in 2001 and, at the
time of the 2009 bifurcated decree, was still held in Husband’s
name. Nevertheless, at the conclusion of its UFTA analysis, the
trial court stated that it “decline[d] to void the [2011] transfer,
and does not consider the Sunglow [Property] in determining
equitable distribution of marital assets.” It is unclear why the
court did not consider the Sunglow Property as part of the
distributable marital property, even in light of its determination
that Husband had not fraudulently conveyed it.
¶76 The court found that Husband bought the Sunglow
Property in October 2001, during the parties’ marriage, and sold
the parcel back to his father “in 2011, after the bifurcated
divorce.” Thus, per the trial court’s own findings, regardless of
whether the property was conveyed in 2011 (fraudulently or
not), Husband owned and controlled the Sunglow Property as of
the date of the divorce decree in December 2009. Because the
“marital estate is evaluated according to the existing property
interests at the time the marriage is terminated by the decree of
the court,” see Fletcher v. Fletcher, 615 P.2d 1218, 1222–23 (Utah
1980), and because the trial court in this case specifically found
that “all real property should be considered marital property,”
we cannot avoid the conclusion that the trial court erred by
failing to include the Sunglow Property as a component of the
parties’ marital property subject to valuation and equitable
distribution as of the date of the bifurcated decree of divorce, see
Henshaw v. Henshaw, 2012 UT App 56, ¶ 16, 271 P.3d 837(“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.” (citation and internal quotation marks
omitted)). It is possible the trial court had a legitimate basis to
omit the parcel from its division of the marital estate. For
instance, the court may have concluded that its value was
entirely offset by debts or encumbrance at the time of the
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divorce—there was testimony at trial that in 2007 the property
was used as collateral to secure financing to build Milton’s
South. Absent adequate factual findings, however, we are unable
to discern the basis for the court’s decision not to count the
Sunglow Property as marital property subject to division.
Consequently, on remand the trial court should reconsider and
more fully explain its determination that the Sunglow Property
was not marital property subject to equitable division as of
December 2009.
¶77 In sum, because Wife has not carried her burden of
persuasion on appeal, we affirm the trial court’s fraudulent
conveyance conclusions. However, we remand for the trial court
to reconsider its determination that the Sunglow Property was
not marital property subject to equitable distribution.
IV. Temporary Support Order
¶78 Wife argues that “the trial court abused its discretion [by]
failing to enforce its temporary support order.” “The abuse of
discretion standard . . . applies to our review of the district
court’s temporary orders.” Tobler v. Tobler, 2014 UT App 239,
¶ 11, 337 P.3d 296.
¶79 When the parties divorced in 2009, they stipulated to
temporary orders chiefly because the parties’ incomes had not
yet been established. At that time, Husband was required to pay
Wife $3,500 a month for support, though “the parties reserved
the right to ‘retroactively adjust’ [Husband’s] support
payment[s]” once their respective incomes were established. The
trial court found that Husband “did fairly well with his family
support payments” until March or April 2011 at which point
Husband stopped making the temporary support payments
because “he believed he could no longer afford to pay them.”
Husband filed a motion in April 2011 seeking relief from the
temporary support order, but this issue was not addressed again
until the trial. At trial, Wife asked “the [c]ourt to award her a
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judgment for delinquent support in the amount of $111,288 plus
interest at 10% from January 1, 2014.” The trial court denied her
request, determining that there was “unusual history
surrounding the stipulated temporary [support] orders” and that
Husband “did promptly attempt, by motion, to have the
obligation adjusted when he faced unusual financial problems.”
The trial court also stated that it was “not convinced [Husband]
lived a particularly lavish lifestyle during the time period at
issue” and that it appeared “from the evidence at trial” that
Husband “did his best, and only after encountering unusual
financial difficulties which made it difficult for him to continue
his payments, did he request relief from the Court.” Also, the
trial court found that “the respective incomes of the parties ha[d]
never been properly developed or decided” until the trial.
Because “a great deal of water ha[d] flowed under the bridge”
since the temporary order was granted in 2009, the trial court
“decline[d] to go backward and retroactively award judgment.”
¶80 While we think the trial court undoubtedly considered
the parties’ financial needs and abilities to pay when it declined
to retroactively award judgment, we conclude that the court’s
factual findings and analysis of this issue suffer from the same
deficiencies as the alimony determination. The considerations
that would have been pertinent to the eventual alimony award
were also pertinent to an assessment of temporary support
orders: at a minimum, the trial court needed to make more
detailed findings regarding the parties’ respective needs and
abilities to pay during the pertinent period. See McPherson v.
McPherson, 2011 UT App 382, ¶ 23, 265 P.3d 839. And although it
is not an abuse of discretion to refuse to impose a temporary
support obligation that is “mathematically impossible for
[Husband] to pay,” see id., the trial court did not make sufficient
findings to show that the circumstances weighed against
enforcing a retroactive award.
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¶81 In addition, we question the evidentiary basis on which
the trial court made its decision. The trial court determined that
even though Husband did not live a “particularly lavish”
lifestyle between 2011 and 2014, Husband nonetheless did not
have the ability to pay retroactive support. But the trial court
had previously determined in its alimony findings that at the
time of trial Husband “ha[d] roughly the same standard of
living” as he had during the parties’ marriage. It also found that
owing to the “entanglement of [Husband’s] business and
personal finances, . . . the amount [Husband] claims for purposes
of personal income taxes and expenses may not accurately reflect
the financial assets at [Husband’s] disposal” and that,
conversely, Wife “struggles to get by” and was dependent on
loans and family members. It is unclear what evidence led the
trial court to determine, on the one hand, that Husband had the
same living standard he had enjoyed during the marriage and
might possibly have access to additional assets and resources not
claimed on taxes but, on the other hand, that Husband “did his
best” when he stopped making his family support payments
owing to his “unusual financial difficulties.” We do not conclude
that the court had no basis for its determinations, but without
more detailed findings or reference to specific evidence from
which these seemingly disparate conclusions were drawn, we
are unable to discern whether the trial court abused its discretion
or not. See Stonehocker v. Stonehocker, 2008 UT App 11, ¶ 24, 176
P.3d 476. We therefore remand to the trial court to make
sufficient findings to support its determination regarding
retroactive temporary support. We again note that the trial court
is free on remand to reassess the evidence and reach a
conclusion contrary to that reached previously if it determines
the evidence supports it.
V. Motion to Reconsider
¶82 Wife argues that the trial court abused its discretion when
it denied the Motion to Reconsider. “[W]e review the trial court’s
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denial of the motion to reconsider under an abuse of discretion
standard. Under this standard, the trial court’s ruling may be
overturned only if there is no reasonable basis for the decision.”
Tschaggeny v. Milbank Ins. Co., 2007 UT 37, ¶ 16, 163 P.3d 615(citation and internal quotation marks omitted).
¶83 The trial court issued its memorandum decision on June
23, 2014, and stated that it was “a final Order and Judgment”
and that “[n]o additional order [was] necessary or required.”
The decision also directed counsel for Husband to “draft the
final documents necessary to implement the [c]ourt’s decision.”
Wife filed a notice of appeal of the memorandum decision and
order on July 23, 2014, clarifying that although she did not
consider the order to be final, she was “filing [the] notice of
appeal out of an abundance of caution.” Wife then filed the
Motion to Reconsider and the Objections to the decision on
August 15, 2014. On September 16, 2014, the trial court entered
its supplemental findings of fact and conclusions of law and also
entered a memorandum decision order denying Wife’s Motion
to Reconsider and overruling the Objections. The trial court gave
three reasons for this decision. First, the trial court stated that it
“certified its 23 June 2014 Memorandum Decision as a final order
ready for appeal” and that Wife’s “remedy is to appeal,”
particularly because “[m]otions to reconsider final orders are not
recognized by Utah’s rules,” citing Gillett v. Price, 2006 UT 24,
135 P.3d 861, for support. Second, the trial court stated that
“because [Wife] filed a notice of appeal, [it] no longer ha[d]
jurisdiction to make the sweeping changes [Wife] demand[ed].”
Finally, the court stated that it “[stood] by its decision and
decline[d] to reconsider” whether “the Findings of Fact and
Conclusions of Law and Supplemental Decree of Divorce and
Judgment submitted by counsel for [Husband] accurately reflect
the ruling of the [c]ourt’s Memorandum Decision” and that
Wife’s “objection to these documents is overruled.” Wife then
timely filed another notice of appeal on October 10, 2014.
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¶84 Wife contends that “[t]he trial court denied [her] motion
out of hand” and did not “even consider [it]” and that the court’s
reasons for doing so were based on a mistake of law because the
court considered the initial memorandum decision to be a final
order when it was instead an interlocutory order. Wife argues
that the Motion to Reconsider and the Objections should rather
be considered a rule 54(b) motion under the Utah Rules of Civil
Procedure and that the trial court abused its discretion when it
summarily denied her motion. Husband argues that because
Wife filed a notice of appeal on July 23, 2014, the trial court lost
jurisdiction to consider the later-filed Objections or, in the
alternative, that the trial court did consider her arguments and
simply chose to stand by its decision.
¶85 We agree with Husband that the trial court did not
summarily deny Wife’s motion. The trial court stated that one of
the reasons it denied the motion was because it “[stood] by its
decision” and that it overruled the Objections because it found
that the documents submitted by Husband subsequent to the
court’s memorandum decision “accurately reflect[ed] the ruling”
the court had made. The court also explained that “[Wife]
disagrees with nearly every aspect of the [c]ourt’s decision,”
which suggests to us that the court reviewed the substance of the
Motion to Reconsider and the Objections prior to making its
decision. Thus, even though the trial court did not provide a
detailed analysis, it seems clear enough that the court at least
considered the merits of the Motion to Reconsider and the
Objections before denying and overruling them. 13 As a
consequence, we view Wife’s claim that the court abused its
discretion by failing to properly consider the Motion to
Reconsider to be without merit.
13. Because we are remanding the case for reconsideration of
several of the issues Wife raised in the Motion to Reconsider and
the Objections, we do not reach Wife’s other arguments.
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VI. Attorney Fees
¶86 Finally, Wife argues that the trial court erroneously
denied her request for attorney fees. “Both the decision to award
attorney fees and the amount of such fees are within the sound
discretion of the [trial] court.” Morgan v. Morgan, 854 P.2d 559,
568 (Utah Ct. App. 1993) (citation and internal quotation marks
omitted). We will disturb the trial court’s decision regarding
attorney fee awards only if the trial court abused its discretion,
see Valcarce v. Fitzgerald, 961 P.2d 305, 316 (Utah 1998) (plurality),
or the findings are insufficiently detailed to allow appellate
review, Stonehocker v. Stonehocker, 2008 UT App 11, ¶¶ 50–52, 176
P.3d 476.
¶87 A trial court “may order a party to pay the costs [and]
attorney fees . . . of the other party” in a divorce proceeding.
Utah Code Ann. § 30-3-3(1) (LexisNexis 2013). It must base its
decision on specific findings regarding “‘evidence of the
financial need of the receiving spouse, the ability of the other
spouse to pay, and the reasonableness of the requested fees.’”
Stonehocker, 2008 UT App 11, ¶ 49 (quoting Oliekan v. Oliekan,
2006 UT App 405, ¶ 30, 147 P.3d 464). “[F]ailure to consider these
factors is grounds for reversal on the fee issue.” Id. (citation and
internal quotation marks omitted). In this case, the trial court
surmised that the “parties have likely incurred significant
attorney[] fees” and that Wife “is likely in need of assistance.”
Nonetheless, the trial court determined that “[Husband] does
not have sufficient remaining resources to assist [Wife]” with her
attorney fees and ordered “the parties [to] each . . . bear their
own costs and attorney[] fees.”
¶88 Again, the trial court’s determination lacks “detailed
written findings of fact” sufficient “to afford this court an
opportunity for meaningful review.” See Id. ¶¶ 50, 53. Rather,
the court’s decision is conclusory regarding Wife’s “likely” need
and Husband’s insufficient financial resources. We recognize
that there were findings from other sections—particularly the
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alimony findings regarding Husband’s ability to pay and Wife’s
need—that the trial court might have adopted and incorporated
into its assessment here. See id. ¶¶ 50–51 (recognizing that even
though the trial court did not make express findings as to the
financial need of receiving spouse, the ability of the other spouse
to pay, and the reasonableness of the requested fees, “there
[were] facts [from] other sections of the findings and conclusions
that could support the award,” particularly the alimony section,
but still remanding for the trial court to enter express findings as
to those factors). But we have already concluded that the trial
court’s alimony findings were themselves insufficient. See supra
Part I.B.
¶89 Moreover, because we are remanding the case for
consideration of similar questions regarding Wife’s need for
support and Husband’s ability to pay in the alimony context, it
makes sense that the trial court should reconsider the attorney
fees request once those alimony findings are made. See supra Part
I.B. While the determinations of need and ability to pay may not
always exactly correspond in the alimony and attorney fees
contexts, we think they are related enough that it makes sense
for the court to reassess its attorney fees determination after it
has readdressed its alimony determination. Accordingly, we
remand for the trial court “to enter express factual findings
related to the award of attorney fees that include findings on the
financial need of the receiving spouse, the ability of the other
spouse to pay, and the reasonableness of the requested fees”
once it has entered similarly “express factual findings” regarding
Wife’s need for support and Husband’s ability to pay in the
alimony context. See Stonehocker, 2008 UT App 11, ¶ 51 (internal
quotation marks omitted).
CONCLUSION
¶90 In sum, we affirm in part and reverse in part. Regarding
alimony, we affirm the trial court’s determination regarding
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Husband’s income but remand for the trial court to make
findings regarding Wife’s needs and Husband’s ability to pay.
For the property valuation, we affirm the trial court’s
determinations as to the value of the two businesses, the
business debt, and the Mercury Sable, but we remand for the
trial court to reevaluate its determinations regarding the
business inventory and the water shares. We remand the case for
the trial court to reconsider the equities in the terms of its order
regarding payment of Wife’s property judgment. Regarding the
Sunglow Property, we affirm the trial court’s fraudulent
conveyance conclusions, but we remand for the trial court to
reassess whether the Sunglow Property should be included as
marital property, subject to equitable division. Finally, we affirm
the trial court’s denial of the Motion to Reconsider, but remand
for more sufficient findings regarding its temporary support and
attorney fees conclusions.
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