Rothwell v. Rothwell , 2023 UT App 50 ( 2023 )

2023 UT App 50THE UTAH COURT OF APPEALS
SHAUN ROBERT ROTHWELL,
Appellant,
v.
JENEA ROTHWELL,
Appellee.
Opinion
No. 20210493-CA
Filed May 11, 2023
Fourth District Court, Provo Department
The Honorable Darold J. McDade
No. 184401412
Aaron R. Harris, Thomas J. Burns, Stephanie L.
O’Brien, and Lacee M. Whimpey,
Attorneys for Appellant
Julie J. Nelson, Mitchell J. Olsen Sr., and Mitchell J.
Olsen Jr., Attorneys for Appellee
JUDGE MICHELE M. CHRISTIANSEN FORSTER authored this Opinion,
in which JUDGES RYAN D. TENNEY and JOHN D. LUTHY concurred.
CHRISTIANSEN FORSTER, Judge:
¶1 In June 2018, Shaun Robert Rothwell commenced a divorce
action against his wife, Jenea Rothwell. Among other things, the
district court was tasked with dividing substantial assets and
calculating an appropriate award of alimony to Jenea. On appeal,
we are asked to review numerous rulings of the district court,
including its decision to substantially adopt Jenea’s proposed
findings of fact and conclusions of law, its valuation and division
of various assets, its calculation of Jenea’s needs and income for
alimony purposes, and its inclusion of attorney fees in Jenea’s
alimony award. Because we conclude that there was no evidence
supporting Jenea’s claimed expense for her adult children and
Rothwell v. Rothwell
that the court should not have included attorney fees in its
calculation of Jenea’s needs for alimony purposes, we reverse the
district court’s findings that those two expenses should be
considered for purposes of alimony. We remand for the district
court to analyze Jenea’s request for attorney fees under the
appropriate rubric and to reduce its alimony award by $3,800 per
month so as not to reflect Jenea’s claimed needs for her adult
children expense and her attorney fees. We affirm the district
court’s ruling in all other respects.
BACKGROUND
¶2 Jenea and Shaun married in 1992 and had four children
together, all of whom are now adults. 1 During the parties’
marriage, Jenea “stayed home and cared for the children and
other home-related duties” while Shaun worked outside the
home to support the family. In 2008, Shaun founded iDrive
Logistics (Logistics) and iDrive Supply Chain Solutions (SCS).
These businesses were very successful and allowed the parties a
very “comfortable and affluent lifestyle.” In June 2018, Shaun
filed for divorce.
¶3 To help them resolve issues relating to division of the
marital property and the parties’ standard of living, the parties
engaged a joint expert, Brad Townsend. Shaun subsequently
hired additional experts, including Daniel Rondeau, to provide
opinions on those issues.
¶4 Townsend provided estimated values of Logistics and SCS
as of June 2018 and February 2019. In reaching these estimates, he
reviewed the companies’ financial statements and tax returns,
examined the marketplace and the economy in general, looked at
1. The youngest child was a minor when the divorce was finalized
but became an adult soon after. The parties stipulated to custody
and parent-time, and those matters are not at issue on appeal.
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industry data, spoke to Shaun, and interviewed Logistics’
controller, Chantale Smith. He opined that the value of Logistics
was $11,882,550 in 2018 and $13,840,775 in 2019 and that the value
of SCS was $3,776,775 in 2018 and $930,550 in 2019.
¶5 Townsend further opined that the marital value of
Logistics should be reduced proportionate to Shaun’s personal
goodwill, which he calculated to be 37.87%. 2 He calculated this
number “primarily based on [his] understanding of how the
company acquires contracts for its consulting business” and
Shaun and Smith’s “explanation of [Shaun’s] role . . . in obtaining
those contracts.” However, he indicated that if there were other
individuals at the company who had key roles in obtaining
contracts, that fact would “temper[]” his assessment of Shaun’s
goodwill.
¶6 Smith testified that Logistics’ president and vice president
also secured consulting contracts. Shaun testified that the
president and he “work together” to secure contracts with new
clients and that the vice president also works on securing
contracts, but that the vice president does not do so alone and that
he mostly works on renewals. The vice president testified that he
works with Shaun and the president to “close” deals.
¶7 Townsend explained that the value of SCS decreased
between June 2018 and February 2019 because its “revenues and
profits plummeted,” with its revenue declining by approximately
$40 million between 2018 and 2019. Townsend testified that he
used “a projection” provided to him by Smith as “a primary
information source” for completing the February 2019 valuation
of SCS. The projection indicated that “the company was going to
lose money going forward” over the next several years. He also
2. Applying this percentage would have reduced the estimated
marital value of Logistics to $8,587,350 in 2018 and $9,996,875 in
2019.
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testified that Smith’s projections would be impeached if it turned
out that “Shaun’s distributions from 2018 to 2019 increased.”
Shaun’s tax returns showed that his distributions from SCS
increased from $617,425 in 2018 to $791,699 in 2019, and that his
Logistics distributions increased from $3,532,396 in 2018 to
$8,656,850 in 2019.
¶8 When asked whether the 2018 or the 2019 valuation of the
two businesses was “a more reliable indicator of [each] company’s
value” at the time of trial, Townsend answered that “the more
recent one would be the better indicator” but that he was not sure
“how reliable either one would be as far as the value today” and
that “they may be good indicators of the value today or they may
not” because he did not “know what’s happened in the last two
years.”
¶9 Rondeau also assessed the value of the companies. He
agreed that Townsend’s assessment of Shaun’s personal goodwill
was “reasonable.” However, unlike Townsend, Rondeau “tax
affected” the businesses by deducting from their value the
amount Shaun could expect to pay in taxes if he sold them. After
taking into account Shaun’s goodwill and the anticipated taxes,
Rondeau opined that the marital value of Logistics was $6,835,569
and the marital value of SCS was $860,692.
¶10 The parties and their experts also provided extensive
evidence regarding the parties’ marital property and its value.
Relevant to this appeal, this evidence included information
regarding a home Shaun purchased in Heber, Utah, while the
divorce was pending (the Heber Home), unaccounted-for marital
funds, the parties’ 2019 tax return, and several of the parties’
vehicles.
¶11 The purchase price of the Heber Home was approximately
$6 million. Shaun paid $1.5 million as a down payment on the
home, which he testified came from a loan provided by Logistics.
The remainder of the home was financed by a mortgage on which
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Shaun had been making payments of $20,000 per month since
October 2020. Shaun testified that the loan from Logistics was
secured by a promissory note “with a fair market interest rate”
and that he would eventually pay that money “back into the
business.” However, Shaun did not produce the promissory note
for the court.
¶12 Townsend indicated in his report that he had been unable
to account for several withdrawals totaling $481,741.73 that Shaun
had made from a marital account. When Townsend inquired
about the funds, Shaun provided documentation that two of the
withdrawals—in the amounts of $250,000 and $220,988.66—
matched equivalent transfers to the account from an Ameritrade
account belonging to the parties. The parties had previously
stipulated to divide $700,000 from the Ameritrade account, with
each receiving $350,000 as separate property.
¶13 The parties filed joint tax returns in 2018 and 2019. The
parties had overpaid taxes in 2018 and applied the overpayment
to their 2019 taxes. They again had an overpayment in 2019 in the
amount of $668,444, which Shaun instructed the IRS to apply to
his 2020 taxes. Shaun testified that, historically, he had applied
any tax overpayments to taxes for the next quarter. Jenea argued
that the 2019 tax refund was marital property that should be
divided between the parties, whereas Shaun argued that it should
be applied to his next year’s taxes, consistent with the parties’
practice during the marriage. The court had entered a bifurcated
decree in May 2020, so the parties would be unable to file a joint
tax return for 2020.
¶14 The parties owned numerous vehicles. 3 These included a
2020 Mercedes Benz G Wagon and several trucks, including a
3. We refer to the vehicles by the names the parties and the court
used at trial and in the divorce decree, acknowledging that these
may not be consistent with how these vehicles are marketed.
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2019 King Ranch. The Mercedes was purchased by Shaun and was
in his possession at the time of trial. Shaun purchased the King
Ranch truck for one of the parties’ children. He testified that he
“traded [his] truck in” and spent an additional $12,000 to $15,000
to purchase the King Ranch truck, but he could not recall the value
of the trade-in. He also did not identify the truck he traded in to
purchase the King Ranch truck.
¶15 In addition to their disputes regarding property division,
the parties disputed how much Shaun should pay to Jenea in
alimony. As part of his report, Townsend provided a breakdown
of the parties’ spending between January 1, 2016, and December
31, 2018. He then used those amounts to estimate what each party
would need to maintain the marital standard of living going
forward. Jenea also provided the district court with a financial
declaration concerning her needs. 4 The financial declaration was
entered as an exhibit, and Jenea confirmed that it accurately
reflected her expenses. Some of her calculations were in line with
Townsend’s estimates, and some were not. As relevant to this
appeal, the estimates concerned educational and religious mission
expenses for the parties’ adult children, as well as expenses for
real estate maintenance, yard care, house cleaning, pool services,
real estate insurance, telephone, gifts, dining out, entertainment,
and attorney fees.
¶16 In her financial declaration, Jenea asserted a need for $300
per month for “Adult College Aged Child” expenses and $450 per
month for “Adult Child Mission.” Evidence at trial indicated that
the parties had a practice of supporting their adult children’s
educational expenses and paying for the cost of religious missions
they had served on behalf of their church. At the time of trial,
4. Jenea actually submitted several financial declarations in the
course of the proceedings, but the final updated declaration was
the one on which the district court relied for its findings and the
one to which we refer throughout this opinion.
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Shaun was paying the adult children’s educational expenses, and
Jenea was paying for one child’s mission expenses.
¶17 Townsend estimated that the parties had spent an average
of $1,432 per month on property maintenance for their home
between 2016 and 2018. In assessing the parties’ needs, Townsend
did not allocate separate funds for pool services, house cleaning,
or yard care services. In her financial declaration, Jenea asserted
that in addition to $1,432 per month for general property
maintenance, she needed $595 per month for yard care, $480 per
month for house cleaning, and $720 per month for pool services.
Although the parties owned other properties, they did not present
evidence relating to the precise cost of maintaining or insuring
those properties.
¶18 Townsend’s report indicated that the parties had spent a
total of $2,943.05 on telephone expenses over the three years he
reviewed. Based on their historical spending, Townsend
estimated that Jenea needed $40.88 per month for cell phone
services. Jenea, on the other hand, asserted in her financial
declaration that she needed $99 per month for a cell phone. She
explained that the parties’ businesses had historically paid for
their phones but that she had researched cell phone plans and
found them to cost an average of $100 per month.
¶19 Townsend included a section labeled “gifts” in his
assessment of the parties’ historical spending. This section
included amounts the parties had spent at “gift” stores, party
stores, floral shops, and wedding registries. He calculated that the
parties’ historical spending in this category amounted to an
average of $41.47 per month. On the other hand, Jenea asserted in
her financial declaration that she needed $250 per month for gifts.
¶20 Townsend did not include a separate expense for dining
out in his report. However, Jenea asserted in her financial
declaration that she spent $300 per month on dining out. With
respect to entertainment, Townsend found that Jenea had a
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monthly need of $426.18 while Shaun had a monthly need of
$2,113.18. Jenea also listed $426 per month for entertainment on
her financial declaration.
¶21 Townsend included attorney fees in his assessment of
Jenea’s monthly needs, estimating that she would need $929.88
per month. Jenea reported in her financial declaration that she
was paying her attorneys $10,000 per month. She testified that her
fees would continue after the divorce action ended because Shaun
had sued her for defamation. She also requested that the court
award her $250,000 in attorney fees based on her need for fees and
Shaun’s ability to pay.
¶22 As to Jenea’s income, Rondeau reported that she had the
ability to earn gross income of $25,000 per year, based on a
vocational assessment, resulting in a net income of $1,438 per
month. He also testified that he believed she could earn an
additional $178,000 per year by investing $3 million of her assets
without invading the principal.
¶23 Following trial, the district court asked the parties to
prepare “proposed findings, conclusions, and a decree.” Upon
receiving the parties’ proposals, the district court largely adopted
Jenea’s proposal as its final findings, conclusions, and decree,
even leaving the word “proposed” in the document heading. The
court replaced Jenea’s introduction with its own, stating that it
had “heard the evidence presented” and that it entered its
findings of fact and conclusions of law “having received and
considered the exhibits and being fully advised.” But the only
substantive change it made to Jenea’s proposal concerned her
requested award of attorney fees. With respect to attorney fees,
the court found “that each party should pay his or her own
respective attorney fees, expert fees, and costs in this matter.”
¶24 The court found that it was appropriate “to value the
marital estate at the time of trial.” It further concluded that it was
not appropriate to “tax affect any asset in this matter” because
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while “the tax consequence is calculable, an event triggering the
tax consequence is too speculative.”
¶25 The court accepted Townsend’s 2019 valuation of Logistics
as its value at the time of trial, which amounted to $13,840,775. It
found that while “Shaun does have some personal goodwill,” it is
not “as extensive as Shaun communicated to . . . Townsend.” The
evidence at trial indicating that the president and vice president
were “also able to secure consulting contracts” undermined the
importance of Shaun’s role in securing the contracts. Thus, the
court found it appropriate to “reduce . . . Townsend’s percentage
calculation of Shaun’s personal goodwill in half, from 37.87% to
18.94%.” This brought the marital value of Logistics to
$11,918,308.
¶26 As to SCS, the court found the 2018 valuation to be a more
appropriate measure of the business’s value at the time of trial. It
found that Smith’s projections regarding SCS’s performance were
impeached by the fact that Shaun’s distributions increased by
$174,274 (approximately 28%) from 2018 to 2019, demonstrating
that “SCS did not lose money in 2019, but in fact, made money.”
Because the 2019 valuation was based on inaccurate projections,
the court concluded that the 2018 valuation of $3,776,775 was
more accurate than the lower 2019 valuation.
¶27 With respect to the Heber Home, the court found that there
was a lack of evidence relating to the $1.5 million promissory note,
leading the court to “question[] whether a note between Shaun
and Logistics exists, and even if it did exist, whether said note
requires Shaun to pay Logistics $1,500,000.00.” The court
concluded that Shaun had acquired $100,000 of equity in the
Heber Home through his monthly payments of $20,000 and $1.5
million of equity from his down payment. The court credited this
total amount against Shaun’s share of the marital estate.
¶28 The court also credited the unaccounted-for withdrawals
from a marital account against Shaun’s share of the marital estate,
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finding that “Shaun made certain withdrawals from marital
accounts that were never accounted for,” amounting to
$481,741.73. As to the 2019 tax refund, the court concluded that
the overpaid taxes were marital funds subject to division and
awarded the entire amount of the refund to Jenea. Finally, the
court found that the Mercedes should be awarded to Jenea and
the King Ranch truck should be sold, with the proceeds divided
between the parties.
¶29 With respect to alimony, the district court imputed net
income of $1,438 per month to Jenea. However, it did “not find it
appropriate to impute Jenea additional income.” The court
explained that the parties had not historically invested “in stocks,
bonds, or securities during the marriage,” and it did not consider
it appropriate to “force Jenea to do something with her portion of
the marital estate that the parties did not do during the marriage.”
The court then found that Jenea had a monthly need of $21,093.36.
Its findings in support of specific needs at issue on appeal include
the following:
• The parties had historically paid their adult children’s
mission costs, and Jenea needed $450 per month to cover
this expense.
• The parties had historically paid for their adult children’s
educational expenses, and Jenea needed $300 per month to
cover this expense.
• Jenea had a reasonable need of $1,432 per month for real
estate maintenance of her primary residence and a
reasonable need of an additional $500 per month on each
of two other properties she was awarded in the divorce
(the Riverside Property and the SSR Holdings Property).
• Jenea had an additional need of $595 per month for yard
care services, $480 per month for house cleaning services,
and $720 per month for pool services.
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• Jenea had a need of $200 per month for insurance on the
Riverside Property and $200 per month for insurance on
the SSR Holdings Property.
• Jenea had reasonable needs of $99 per month for cell phone
services, $250 per month for gifts, and $300 per month for
dining out.
• Jenea should receive an amount for entertainment
expenses equal to Shaun, and $2,113.18 was a reasonable
amount.
• Jenea’s request for attorney fees was “excessive” and
Townsend’s estimate was “understated.” Jenea had a
reasonable need of $3,500 per month for attorney fees.
¶30 Following the district court’s ruling, Shaun filed a motion
under rule 59(c) of the Utah Rules of Civil Procedure, requesting
that the district court either conduct “a second review of the
evidence presented at trial” or conduct “a new trial.” He asserted
that the district court had erred in substantially adopting Jenea’s
proposed findings and pointed to several specific errors he
believed the district court had made. The district court denied the
motion, concluding that it “lack[ed] merit” and “fail[ed] to
recognize all pertinent evidence.” The court explained that it had
entered its findings, conclusions, and decree “[a]fter much
consideration” and that “much of” Jenea’s proposal “was
consistent with the Court’s view of the evidence and testimony
presented.”
¶31 Shaun now appeals.
ISSUES AND STANDARDS OF REVIEW
¶32 Shaun challenges the district court’s order in several
respects, asserting (1) that the district court abused its discretion
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by substantially adopting Jenea’s proposed findings of fact;
(2) that the court abused its discretion by valuing the marital
property at the time of trial rather than at the time of the parties’
separation; (3) that the court’s findings regarding its valuation of
the Heber Home, the businesses, and Shaun’s goodwill, were not
supported by the evidence; (4) that the court abused its discretion
by not “tax affecting” the value of the businesses; (5) that the
court’s finding that Shaun dissipated the marital estate was not
supported by the evidence; (6) that the court abused its discretion
in dividing the parties’ tax refund and two vehicles; (7) that the
court made numerous findings relating to Jenea’s needs that were
not supported by the evidence; (8) that the court erroneously used
alimony to award Jenea attorney fees rather than undertaking a
traditional attorney fee analysis; and (9) that that court abused its
discretion in refusing to impute additional income to Jenea based
on what she could earn from investing her share of the marital
estate.
¶33 “The court’s valuation of the marital property, the manner
in which it distributed that property, and its alimony
determination are all subject to the same standard of review.”
Wadsworth v. Wadsworth, 2022 UT App 28, ¶ 39, 507 P.3d 385, cert.
denied, 525 P.3d 1259 (Utah 2022). “In divorce actions, a district
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.” Gardner v. Gardner, 2019 UT
61, ¶ 18, 452 P.3d 1134 (quotation simplified). “We can properly
find abuse of the district court’s discretion only if no reasonable
person would take the view adopted by the district court,” that is,
if “a misunderstanding or misapplication of the law” resulted in
“substantial and prejudicial error,” if the court’s factual findings
are “clearly erroneous,” or if the award is so seriously inequitable
as to “manifest a clear abuse of discretion.” Wadsworth, 2022 UT
App 28, ¶ 39 (quotation simplified). “A district court’s factual
determinations are clearly erroneous only if they are in conflict
with the clear weight of the evidence, or if this court has a definite
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and firm conviction that a mistake has been made.” Gardner v.
Gardner, 2012 UT App 374, ¶ 16, 294 P.3d 600 (quotation
simplified).
¶34 Shaun also challenges several of the court’s evidentiary
rulings pertaining to the admission of certain expert reports and
the permissible scope of Smith’s and the vice president’s
testimony at trial. 5 We review “a trial court’s evidentiary rulings
for an abuse of discretion” and its “interpretation of evidentiary
rules for correctness.” State v. Alzaga, 2015 UT App 133, ¶ 31, 352
P.3d 107.
ANALYSIS
I. Court’s Adoption of Jenea’s Proposed Findings
¶35 Shaun first argues that he should be granted a new trial
because the district court erred by substantially adopting Jenea’s
proposed findings rather than preparing its own. 6 Our supreme
5. We have not addressed the factual background relating to these
evidentiary rulings in detail because we ultimately determine that
these issues are inadequately briefed.
6. Shaun also briefly asserts that the district court failed to comply
with rule 52(a)(6) of the Utah Rules of Civil Procedure by failing
to adequately explain the ground for its decision to deny Shaun’s
motion for a new trial. However, as Jenea points out, even if the
court’s statement of grounds was inadequate, the “failure to issue
a statement of grounds is not reversible error absent unusual
circumstances.” See Retherford v. AT&T Commc’ns. of Mountain
States, Inc., 844 P.2d 949, 958 n.4 (Utah 1992). Shaun has not
established that any such unusual circumstances are at play here,
and ultimately, we do not conclude that any shortcomings in the
district court’s ruling hamper our ability to understand its
reasoning or review its decisions on appeal. See id.20210493-CA 13 2023 UT App 50Rothwell v. Rothwell
court has determined that a court “may ask counsel to submit
findings to aid the court in making the necessary findings for the
particular case.” Boyer Co. v. Lignell, 567 P.2d 1112, 1113 (Utah
1977). And “while we do not recommend” that district courts
“mechanically adopt” findings prepared by a party, they have the
discretion to adopt the findings submitted to them “as long as the
findings are not clearly contrary to the evidence.” Id. at 1113–14
(quotation simplified); see also Twitchell v. Twitchell, 2022 UT App
49, ¶ 11 n.2, 509 P.3d 806 (declining to “go so far as to say that it
is inappropriate for the court to fully adopt one party’s proposed
findings” so long as the court confirms “that the findings
sufficiently explain the court’s reasoning for the decision,” that
the evidence conforms to the findings, and that the findings
“disclos[e] the steps by which the ultimate conclusion on each
factual issue was reached”).
¶36 Shaun asserts that previous cases that have approved a
court’s adoption of one party’s findings have involved
situations where the court had already ruled on the issues in
the case and simply asked one party to draft proposed findings
to support the court’s decision. See, e.g., Whitear v. Labor
Comm’n, 973 P.2d 982, 984, 986–87 (Utah Ct. App. 1998)
(administrative law judge ruled against the petitioner following
a hearing and asked the respondent to “prepare proposed
findings of fact, conclusions of law and an order”); State v.
James, 858 P.2d 1012, 1014 (Utah Ct. App. 1993) (explaining
that the court denied the motion to suppress and then
“later executed findings of fact submitted by counsel for
the State”). But other cases make it clear that, while not
encouraged, the practice of having parties prepare proposed
findings, even before a court has ruled, is not necessarily
prohibited. See, e.g., Automatic Control Prods. Corp. v. Tel-Tech,
Inc., 780 P.2d 1258, 1260, 1264 (Utah 1989) (majority opinion
and Zimmerman, J., concurring in the result) (approving the
adoption of findings of fact and conclusions of law, prepared
after “the court took the case under advisement” but before
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the court had “decided how the case was to come out,” “without
modifying or changing them in any respect” because there was
“no indication from the record . . . that the trial judge failed to
adequately deliberate and consider the merits of the case”);
Twitchell, 2022 UT App 49, ¶ 11 n.2 (considering a situation where
“the court did not announce a ruling from the bench at the
conclusion of the trial” and, instead, “asked both parties to
prepare proposed findings of fact and conclusions of law,”
ultimately adopting, “with only a few minor alterations,” one
party’s proposed “findings of fact and conclusions of law in their
entirety”).
¶37 In the introduction to its findings and conclusions, the
court here stated that it had reached its decision after “having
heard the evidence presented, having received and considered the
exhibits and being fully advised.” And in denying Shaun’s motion
for a new trial, the district court explained that it had engaged in
“much consideration” of the issues in the case and that “much of”
Jenea’s proposed findings were “consistent with the Court’s view
of the evidence and testimony presented.” The sheer number of
issues involved admittedly prompts some skepticism regarding
the court’s near-total alignment with Jenea’s findings of fact and
conclusions of law, and we are somewhat suspicious that “the
trial court may have been less than assiduous in reviewing the
proposed findings.” See Automatic Control Prods., 780 P.2d at 1264
(Zimmerman, J., concurring in the result); see also Whitear, 973 P.2d
at 988 (Orme, J., dissenting in part) (expressing a desire not “to
encourage any expansion of the practice” of “delegating the
responsibility” of drafting findings of fact to counsel). Moreover,
without any “guidance from the trial court as to how to craft their
findings,” “[i]t can be assumed that . . . each party prepared
findings that were favorable to [them] on all points.” Automatic
Control Prods., 780 P.2d at 1264 (Zimmerman, J., concurring in the
result). Thus, there is certainly “some danger that in the press of
business,” the district court may have “rel[ied] too heavily on
these proposals and inadvertently permit[ted] counsel to inject
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findings that may not be entirely in conformity with the judge’s
views or that may deal with issues the judge [had] not even
thought about.” See id.¶38 However, given the degree of discretion granted to
district courts in making findings of fact, and the fact that
our courts have approved time and again—albeit with
some reservations—the practice of adopting findings drafted
by counsel, we are not convinced that the court’s decision to
adopt the vast majority of Jenea’s proposed findings requires
that those findings be set aside in their entirety. Moreover, we
are bound to “presume the regularity and validity of the
district court’s proceedings, and that it applied the correct legal
standard, in the absence of evidence to the contrary.” Gerwe v.
Gerwe, 2018 UT App 75, ¶ 13, 424 P.3d 1113 (quotation simplified).
And that presumption is reinforced by the district court’s
statement that it did, in fact, give “much consideration” to the
findings before adopting them. Thus, we will uphold the district
court’s findings as long as they “disclos[e] the steps by which the
ultimate conclusion on each factual issue was reached,” Twitchell,
2022 UT App 49, ¶ 11 n.2, and “are not clearly contrary to the
evidence,” see Boyer, 567 P.2d at 1114. Accordingly, we proceed to
examine each of the challenges Shaun has made to the court’s
specific findings.
II. Valuation Date
¶39 Shaun argues that the district court abused its discretion
by valuing the marital estate at the time of trial rather than at
the time of separation. “Generally, the marital estate is valued
at the time of the divorce decree or trial. However, in the
exercise of its equitable powers, a trial court has broad
discretion to use a different date, such as the date of
separation, when circumstances warrant.” Shepherd v. Shepherd,
876 P.2d 429, 432–33 (Utah Ct. App. 1994) (citations omitted).
“[I]f the trial court uses a date other than the date of the divorce
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decree, it must support its decision with sufficiently detailed
findings of fact explaining its deviation from the general rule.” Id.
at 433. However, there is no corresponding requirement that the
court make findings of fact to explain its decision not to deviate
from the general rule.
¶40 Shaun refers us to several cases in which this court
has upheld a district court’s decision to use the date of
separation rather than the date of trial as the valuation date
for the marital property. However, each of these cases upholds
a district court’s decision to deviate from the general rule.
See Donnelly v. Donnelly, 2013 UT App 84, ¶¶ 41–47, 301 P.3d 6(upholding a decision to value a husband’s retirement plan as
of the date of separation because the court’s decision was
“adequately supported and explained”), cert. denied, 312 P.3d
619 (Utah 2013); Jacobsen v. Jacobsen, 2011 UT App 161, ¶ 39,
257 P.3d 478 (upholding valuation at time of separation
because the “trial court clearly explained its rationale”), cert.
denied, 263 P.3d 390 (Utah 2011); Andrus v. Andrus, 2007 UT
App 291, ¶ 13, 169 P.3d 754 (upholding valuation of stock
based on its average value over time rather than as of the date
of trial because “the trial court noted multiple factors
supporting its decision”). Shaun has pointed us to no case in
which a district court’s decision not to depart from the general
rule was held to be an abuse of discretion. And while Shaun
points to several facts he believes the district court could have
relied on to support a valuation date other than the date of trial,
he has failed to establish that the court abused its discretion by
declining to do so. Indeed, many facts also suggest that valuing
the estate at the time of trial was appropriate, such as that the
parties filed joint tax returns during the period of separation and
that Shaun retained control of the vast bulk of the parties’ assets
during the pendency of the divorce. Thus, it was not an abuse of
the district court’s discretion to decline to depart from the general
rule and thus value the marital estate as of the time of the trial or
decree.
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III. Value of Marital Assets
¶41 Shaun goes on to assert that several of the district court’s
findings of fact and conclusions of law regarding the value of the
marital assets were not supported by the evidence. 7
A. Heber Home
¶42 Shaun argues that the district court erred in dividing $1.5
million worth of equity in the Heber Home, which represented
the amount of Shaun’s down payment on the home. 8 Shaun
testified at trial that the $1.5 million down payment came from a
loan provided by Logistics. He testified that the loan was secured
by a promissory note “with a fair market interest rate” and that
he would eventually pay that money “back into the business.”
However, Shaun did not produce the promissory note for the
court, leading the court to “question[] whether a note between
Shaun and Logistics exists” and what the note required if it did
exist. For this reason, the court considered the $1.5 million down
payment to constitute equity in the home, divisible as part of the
marital estate.
¶43 Shaun asserts that the court erred in disregarding his
testimony about the promissory note, essentially because there
was no evidence demonstrating that he did not obtain financing
for the down payment. But the court was not required to accept
7. Many of Shaun’s arguments concern the fact that certain assets
were obtained during the period between the parties’ separation
and trial. However, as we have rejected Shaun’s contention that
the district court erred in valuing the marital estate at the time of
trial, we consider such arguments to be irrelevant and accordingly
disregard them.
8. On appeal, Shaun does not challenge the district court’s finding
that he acquired $100,000 in marital equity through his mortgage
payments.
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his testimony at face value, nor was Jenea required to prove a
negative to discredit his testimony. The court accepted evidence
that Shaun made a $1.5 million down payment on the Heber
Home and, based on that evidence, could find that the $1.5 million
constituted equity in the home. Without having a chance to
review the alleged promissory note, the court was well within its
discretion to question the credibility of Shaun’s representation
that such a note existed.
¶44 Moreover, even if we were to agree with Shaun that the
court was required to view the $1.5 million as a debt that had to
be paid back, the creditor for the loan was a business belonging to
the parties. And there is no evidence that the value of a $1.5
million promissory note was added to the value of Logistics in the
experts’ calculations. Were Shaun allowed to treat the $1.5 million
down payment as a debt, without allocating an equal value to
Logistics in the form of an account receivable, he would
essentially be able to shield $1.5 million of marital assets for
himself. Either (a) he would be allowed to keep the $1.5 million
value taken from a marital asset for himself and never pay back
Logistics or (b) he would be allowed to artificially reduce the
value of Logistics prior to its valuation and division in the divorce
and then put the $1.5 million back into the business after the
divorce is final. Either result is impermissible. Indeed, it would
have been an abuse of the district court’s discretion not to treat
the $1.5 million down payment as equity without adding an
additional $1.5 million to the value of Logistics. See Wadsworth v.
Wadsworth, 2022 UT App 28, ¶ 55, 507 P.3d 385 (holding that in
assigning value to loans from the husband to the parties’
businesses, it was an abuse of the district court’s discretion to
include “accounts payable in its calculation” of the businesses’
liabilities “without also crediting the notes receivable to [the
husband] as an asset”), cert. denied, 525 P.3d 1259 (Utah 2022).
Thus, we have no trouble upholding the district court’s division
of the equity in the Heber Home.
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B. Businesses
¶45 Shaun next takes issue with the district court’s decision to
use Townsend’s 2019 valuation of Logistics while using his 2018
valuation of SCS. Shaun frames this decision as the court using
two different valuation dates for the two businesses, but we do
not see it that way. As established above, the court assessed the
value of the marital estate as of the date of trial. It merely used the
valuations provided by the experts in assessing what that value
might be.
¶46 Thus, if the district court’s review of the evidence
convinced it that the 2018 valuation of SCS more accurately
reflected the business’s value at the time of trial than the 2019
valuation, it was within the court’s discretion to use that number
as a basis for its then-current valuation. And the evidence did, in
fact, support such a determination. The court had before it the
following evidence regarding the value of SCS:
• When asked which valuation was “a more reliable
indicator of the company’s value” at the time of trial,
Townsend answered that “the more recent one would be
the better indicator” but that he was not sure “how reliable
either one would be as far as the value today” and that
“they may be good indicators of the value today or they
may not” because he did not “know what’s happened in
the last two years.”
• When asked why the valuation of SCS decreased between
2018 and 2019, Townsend answered that its “revenues and
profits plummeted,” with its revenue declining by
approximately $40 million between 2018 and 2019.
• Townsend testified that he used “a projection that the
company provided” as “a primary information source” for
completing the February 2019 valuation.
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• Townsend testified that Smith projected at the time of
Townsend’s valuation in 2019 “that . . . the company was
going to lose money going forward” over the next several
years.
• Townsend testified that Smith’s projections would be
impeached if it turned out that “Shaun’s distributions from
2018 to 2019 increased.”
• Shaun’s distributions from SCS increased from $617,425 in
2018 to $791,699 in 2019. 9
¶47 Based on the evidence, it was not an abuse of discretion for
the district court to take the view that the more than 28% increase
in distributions Shaun took from SCS in 2019 demonstrated that
the projections on which Townsend had primarily relied in
assigning a value to SCS had been impeached, that the value of
SCS had actually increased following Townsend’s 2019 valuation,
and that its true value was therefore closer to Townsend’s 2018
valuation than his 2019 valuation. And in fact, the court did find
that the projections of future losses were impeached and that
9. Shaun asserted at oral argument that his increase in
distributions was the result of a “unicorn event” in which
Logistics received an influx of approximately $4 million from the
proceeds of a lawsuit that resolved in 2019. But he did not assert
this argument in his brief on appeal, and we are unclear on how
an influx of cash to Logistics would have affected Shaun’s
distributions from SCS. At trial, Shaun used the influx of money
from the lawsuit to explain the increase of his Logistics
distributions from $3,532,396 in 2018 to $8,656,850 in 2019, not to
explain the increase in distributions from SCS. And even if the
extra money did affect the value of SCS, Shaun has failed to
explain why Jenea would not be entitled to share in that increase,
which occurred before trial when the marital estate was valued.
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“SCS did not lose money in 2019, but in fact, made money.” Thus,
its findings support its valuation of the two businesses.
C. Goodwill
¶48 Shaun next contests the district court’s finding that his
personal goodwill amounted to only 18.94% of Logistics’ value,
asserting that the district court’s calculation was speculative and
not based on the evidence. “Personal goodwill is based on an
individual’s reputation for competency and is not subject to
distribution upon divorce.” Marroquin v. Marroquin, 2019 UT App
38, ¶ 15, 440 P.3d 757 (quotation simplified). Thus, any portion of
Logistics’ value attributable to Shaun’s personal goodwill was not
divisible as a marital asset.
¶49 “Generally, we will uphold a district court’s valuation of
marital assets as long as the value is within the range of values
established by all the testimony, and as long as the court’s
findings are sufficiently detailed and include enough subsidiary
facts to disclose the steps by which the ultimate conclusion on
each factual issue was reached.” Wadsworth v. Wadsworth, 2022 UT
App 28, ¶ 64, 507 P.3d 385 (quotation simplified), cert. denied, 525
P.3d 1259 (Utah 2022). “Courts are not bound to accept the
testimony of an expert and are free to judge the expert testimony
as to its credibility and its persuasive influence in light of all of the
other evidence in the case.” Barrani v. Barrani, 2014 UT App 204,
¶ 4, 334 P.3d 994 (quotation simplified). This is true even “when
that expert’s opinion is unchallenged by the opinion of an
opposing expert.” Lyon v. Bryan, 2011 UT App 256, ¶ 10, 262 P.3d
1199; see also Glauser Storage, LLC v. Smedley, 2001 UT App 141,
¶ 24, 27 P.3d 565 (“Even where testimony is uncontroverted, a
trial court is free to disregard such testimony if it finds the
evidence . . . not credible.” (quotation simplified)).
¶50 Here, the court was presented with an opinion from
Townsend that 37.87% of the value of Logistics was attributable
to Shaun’s “personal knowledge and abilities and contacts and
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what he contributes to the business.” Townsend calculated this
number “primarily based on [his] understanding of how the
company acquires contracts for its consulting business” and
Shaun and Smith’s “explanation of [Shaun’s] role in obtaining
those contracts.” However, Townsend indicated that if there were
other individuals at the company who had key roles in obtaining
contracts, that fact would “temper[]” his assessment of Shaun’s
goodwill. Rondeau testified that he believed Townsend’s
assessment of Shaun’s personal goodwill was “reasonable.” Smith
testified that the company’s president and vice president secured
consulting contracts, Shaun also testified that he works with the
president and vice president on securing contracts, and the vice
president testified that he works with Shaun and the president to
“close” deals.
¶51 The district court found that while “Shaun does have some
personal goodwill,” it is not “as extensive as Shaun
communicated to . . . Townsend.” The court found that some
“information provided by Shaun and his management team to . . .
Townsend” was “faulty and inaccurate” and that the evidence at
trial indicating that the president and vice president were “also
able to secure consulting contracts” undermined the importance
of Shaun’s role in securing the contracts. In reaching this
conclusion, the district court could very well have concluded that
Shaun’s goodwill had no value or, at least, that it could not assign
it a value due to a lack of credible evidence. But the court did not
consider the evidence that other individuals could secure
consulting contracts to indicate that Shaun had no personal
goodwill in Logistics. Rather, the court concluded from the
evidence that Shaun’s goodwill had “some” value—just not as
much as Townsend estimated. To resolve the conflict in the
testimony, the court elected to value Shaun’s goodwill at half of
Townsend’s estimate. We cannot say that this finding fell outside
“the range of values established by all the testimony.” Wadsworth,
2022 UT App 28, ¶ 64 (quotation simplified); see also Weigel v.
Weigel, 24 N.E.3d 1007, 1011 (Ind. Ct. App. 2015) (“There is no
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abuse of discretion where sufficient evidence and reasonable
inferences support the trial court’s valuation.”). Moreover, the
court’s findings were “sufficiently detailed” and included
“enough subsidiary facts to disclose the steps by which” it
reached the conclusion it did. See Wadsworth, 2022 UT App 28,
¶ 64 (quotation simplified). Accordingly, we decline to disturb
them.
IV. Taxes
¶52 Shaun argues that the court should have “tax affected” the
marital businesses by reducing their value to take into account the
taxes that would need to be paid if the businesses were sold. The
court declined to do this, explaining that although “the tax
consequence is calculable,” tax affecting the businesses in
assessing their value for purposes of dividing the marital estate
was inappropriate because “an event triggering the tax
consequence is too speculative.”
¶53 We agree with Jenea that the district court’s decision not to
tax-effect the businesses is consistent with Utah law. “We do not
generally expect courts to speculate about hypothetical future tax
consequences.” Wadsworth v. Wadsworth, 2022 UT App 28, ¶ 97,
507 P.3d 385 (quotation simplified) (rejecting the argument that a
wife’s property award should be decreased based on possible
transaction costs the husband would incur if he liquidated the
business), cert. denied, 525 P.3d 1259 (Utah 2022); see also Morgan v.
Morgan, 795 P.2d 684, 690 (Utah Ct. App. 1990) (explaining that
courts are under “no obligation to speculate about hypothetical
future tax consequences” (quotation simplified)), cert. denied, 860
P.2d 943 (Utah 1993). The sale of a business has tax consequences
only if the business is actually sold, which may be long in the
future when tax laws have changed or may not happen at all. Cf.
Howell v. Howell, 806 P.2d 1209, 1213–14 (Utah Ct. App. 1991)
(rejecting an argument that the tax associated with selling real
property should have been deducted from the value of the
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property because such taxes were speculative), cert. denied, 817
P.2d 327 (Utah 1991).
¶54 Shaun asserts that the tax consequences in this case are not
speculative because they can be calculated. But future tax
consequences of selling a business are not speculative merely
because they are incalculable; they are speculative because they
may not occur at all. While Shaun’s experts may have been able to
calculate his theoretical tax liability based on a sale of the business
at the time of trial, there was no way to know what liability he
would actually incur if he were to sell the business many years
down the road. And if he never sells the business, he will never
incur the tax consequences.
¶55 We also think it worth noting that the district court here
awarded Shaun the entire value of the businesses and then offset
Jenea’s share with comparable assets and a structured cash
payout over several years. The entire purpose of such an
arrangement is to help the parties avoid selling a large and
profitable business and, presumably, likewise avoid the
associated transaction costs that would eat into both parties’ share
of those assets. This division ultimately gave Shaun the freedom
to decide whether to sell the businesses and incur the tax
consequences, with no input from Jenea. In such a situation, we
have observed that it is equitable to put the burden of any
speculative future tax or other transaction costs associated with a
sale on the party who is awarded the asset. See Wadsworth, 2022
UT App 28, ¶ 98. The same is true here.
V. Dissipation
¶56 Shaun next takes issue with the district court’s finding that
he dissipated the marital estate by failing to account for
withdrawals of marital funds totaling $481,741.73. He points to
evidence indicating that these funds could be traced to two
transfers to the account from the parties’ Ameritrade account in
the amounts of $250,000 and $220,988.66 in September 2018. He
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then asserts that this money was his separate property because the
parties agreed to divide $700,000 from the Ameritrade account at
the time the court issued temporary orders in the case.
¶57 Having reviewed this argument, we conclude that it is
inadequately briefed. First, Shaun has addressed only two of the
six withdrawals from which the court calculated the dissipation
amount, so even if we accepted his argument that the two
Ameritrade transfers were his separate property, he has still not
accounted for the remaining $10,753.07 the court found had been
dissipated. Second, the numbers he provides simply do not add
up. Shaun was entitled to remove only $350,000 from the
Ameritrade account as his separate property, but he made
withdrawals from the account totaling $470,988.66. There is no
evidence explaining why he would have withdrawn more than
his allotted $350,000. The evidence suggests that the Ameritrade
account had $734,344 as of June 1, 2018, that each party received
$350,000 from that account, and that the remaining $34,344 was
ultimately awarded to Shaun as part of his share of the marital
estate. But Shaun does not point us to the evidence in the record
showing the disbursements from the Ameritrade account, so we
do not know when the parties withdrew their respective $350,000
or what went in or out of the account after June 1, 2018. Moreover,
Shaun’s explanation that he spent his separate monies on a
vehicle, a boat, and other personal property is not supported by
record cites on appeal. In short, we simply do not have enough
information to conclude that Shaun’s unaccounted-for
withdrawals could be traced to his separate property, let alone to
conclude that the district court clearly erred in finding that those
withdrawals were marital funds.
VI. Property Division
¶58 Shaun also takes issue with the district court’s division of
two specific items of marital property: the parties’ tax refund and
two vehicles.
20210493-CA 26 2023 UT App 50Rothwell v. Rothwell
A. Tax Refund
¶59 First, Shaun argues that the court should not have awarded
the parties’ 2019 tax refund to Jenea. His only argument in support
of this assertion is that the parties “had a practice of applying any
refund to the tax obligation for the following year.” We find no
merit to this argument.
¶60 It is unclear whether Shaun is asserting that he should have
been allowed to apply the entire refund to his 2020 taxes without
reimbursing Jenea for her share or if he is suggesting that her
share should have been offset in some other way. The tax refund
is certainly a marital asset, subject to division between the parties.
So if his position is that Jenea was not entitled to any portion of
the tax refund, he is mistaken. But even if he is asserting that
Jenea’s share should have been offset in some other way, he has
not shown that the district court abused its considerable
discretion in awarding this cash asset to Jenea as it attempted to
equalize the estate and reduce the amount of the equalization
payment Shaun would have to make later.
B. Vehicles
¶61 Second, Shaun argues that the court erred in awarding
Jenea a 2020 Mercedes Benz G Wagon and ordering him to sell a
2019 King Ranch truck and divide the proceeds with Jenea.
¶62 With respect to the Mercedes, Shaun simply argues that it
was unfair for the district court to award Jenea his “personal”
vehicle. But this was a matter firmly within the district court’s
discretion. Shaun was awarded three other personal vehicles as
well as numerous recreational vehicles. Jenea was awarded only
one other vehicle apart from the Mercedes. We cannot say that
this division was an abuse of the district court’s discretion,
especially given that awarding Jenea the $125,000 Mercedes could
help to offset the large equalization payment Shaun would be
required to make.
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¶63 With respect to the King Ranch truck, Shaun argues that
the court erred in failing to give him credit for the value of another
vehicle he traded in to buy it. According to Shaun, he traded in a
2017 Ford F350 Super Duty truck worth $55,000, which was
awarded to him in the divorce and counted against his share of
the property division, to buy the King Ranch truck. However,
Shaun did not present the court with any evidence from which the
court could have recognized that the value of the Ford truck was
tied up in the value of the King Ranch truck. At trial, Shaun
testified that he “traded [his] truck in” to buy the King Ranch
truck and that he paid an additional $12,000 to $15,000 on top of
the trade in. But it was not clear from this testimony that the
“truck” he was referring to was another truck that was already
being considered as part of the marital estate, much less which
truck it was. 10 And in fact, Shaun’s proposed property division
listed both the Ford truck and the King Ranch truck separately,
suggesting that he still had possession of both. Because the court
was presented with no evidence that the King Ranch truck was
purchased with a trade-in of the Ford truck, the court had no basis
for deducting the value of the Ford truck from the sale of the King
Ranch truck before dividing the proceeds.
VII. Assessment of Jenea’s Need
¶64 Shaun raises several challenges to the court’s findings
relating to Jenea’s needs. We address each in turn.
A. Adult Children’s Expenses
¶65 The district court included $300 per month for “adult
college aged child” expenses in its calculation of Jenea’s needs
because it concluded that the parties had “paid their adult
children’s education expenses during the course of the marriage.”
10. Four separate trucks were distributed by the court in the
parties’ decree: the Ford truck, the King Ranch truck, another Ford
F350, and a Dodge Ram.
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On appeal, Shaun asserts that courts are prohibited from using
alimony as a means to pay an adult child’s expenses. However,
Shaun did not raise this argument before the district court, and it
is therefore not preserved for our consideration. 11
¶66 Shaun also asserts that there was no evidence from which
the court could have determined that Jenea actually incurred
expenses on behalf of their adult children. On this point, we agree
with Shaun. The evidence presented at trial indicated that Shaun
paid for their two daughters’ “tuition and . . . housing,” for their
oldest son’s “college-related expenses,” and for their youngest
son’s “full-time living expenses.” Jenea asserts that “‘education
expenses’ include more than ‘tuition and housing,’” and that it
was within the court’s discretion to award her funds “to help pay
for those costs.” While the first of these propositions may be true,
there was still no evidence from which the district court could
have found that any of the children’s expenses were actually
11. We do observe that this question appears to have been
resolved already in Olsen v. Olsen, 2007 UT App 296, 169 P.3d 765,
in which a panel of this court held that a district court could
consider payment of a health insurance premium for adult
children in the calculation of an alimony recipient’s needs because
the “parties had always maintained health insurance for their
now majority-aged-children and . . . the insurance expense was
part of [the parties’] established standard of living.” Id. ¶ 28.
While a court cannot order payment of child support for adult
children, see Ferguson v. Ferguson, 578 P.2d 1274, 1275 (Utah 1978),
or count expenses for minor children—whose expenses are
presumed to be covered by child support—in an alimony needs
analysis, see Farnsworth v. Farnsworth, 2012 UT App 282, ¶ 27, 288
P.3d 298 (McHugh, J., concurring in part and dissenting in part),
Olsen indicates that expenses for adult children may be included
as alimony if evidence demonstrates that paying those expenses
was part of the parties’ standard of living during the marriage, see
2007 UT App 296, ¶ 28.
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being paid for by Jenea. None of the children were living with
Jenea at the time of trial, and she did not testify to any specific
expenses—apart from one child’s mission expenses, which were
included as a separate line item—that she incurred on behalf of
her adult children.
¶67 While we conclude that Jenea’s financial declaration alone
constituted sufficient evidence of some expenses Shaun
challenges, such as the home maintenance and dining-out
expenses we discuss below, see infra ¶¶ 75, 82, we cannot say the
same of the adult child expense. It was reasonable for the court to
accept that Jenea would incur expenses dining out or maintaining
her pool based merely on the fact that she needs to eat and that
she has a pool. It was not likewise reasonable for the court to
accept that Jenea pays expenses for her adult children when she
has no legal obligation to do so, and the evidence at trial indicated
that none of the children lived with her and that Shaun was
paying their expenses. Thus, the court exceeded its discretion in
allocating adult child expenses to Jenea in calculating her need.
B. Mission Costs
¶68 Shaun asserts that the religious mission costs for the
parties’ adult child was not an appropriate line item to include in
Jenea’s need calculation because that cost would continue for a
short period of time but he would be required to continue paying
alimony based on that amount for many years. He argues that
including an item in Jenea’s expense calculation that would last
for only a few years was an abuse of the district court’s discretion.
However, he cites no law in support of his position that a court is
not permitted to consider short-term expenses in its needs
calculation. 12
12. Again, Shaun argues that the court was not permitted in any
event to include expenses relating to adult children in its needs
(continued…)
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¶69 This court was faced with a similar question in Miner v.
Miner, 2021 UT App 77, 496 P.3d 242. In that case, the district court
included a line item in the wife’s needs calculation for monthly
payments on her student loans, even though the student loans
would be paid off within four years. Id. ¶¶ 41–42. We concluded
that it was not plain error 13 for the court “to allocate an amount
for . . . an expense” that existed during the marriage “even if it
may not be certain that the expense will be present for the entire
. . . alimony period.” Id. ¶ 43. We also observed that “prospective
changes to alimony are disfavored” unless a future event affecting
the alimony calculation “is certain to occur within a known time
frame.” Id. (quotation simplified). Given that the time it would
take to pay off the student debt was certain, we concluded that “it
would have been within the court’s discretion to order a
prospective change” to alimony at the time the loan would be paid
off, had the husband asked for one, but that the court was not
required to do so. Id.
¶70 Here, there was evidence that Jenea and Shaun paid for
their oldest son’s mission while they were married and that, at the
time of trial, Jenea was paying the cost of their daughter’s mission
alone. Moreover, the parties had two more children that could
elect to serve missions at a later time, at least one of whom was
“currently planning on serving [a religious] mission.” The fact
calculation. However, he did not preserve this challenge in the
district court, and even on appeal, he did not raise it until his reply
brief. Thus, we do not consider this argument further, though we
once again note that we are skeptical as to its merit. See supra
note 11.
13. The inclusion of the student loan expense in Miner was
reviewed for plain error because the husband had not preserved
his challenge. However, we are not convinced—and Shaun has
not argued—that the court’s conclusion in Miner would have been
different had the issue been preserved.
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that Jenea was continuing to incur an expense that was part of her
standard of living during the marriage supported the court’s
inclusion of that expense in its needs calculation. And since it was
uncertain whether Jenea would incur the same expense for her
remaining two children, the end date for Jenea’s need was
uncertain. Thus, it was not an abuse of the district court’s
discretion to include the mission expense in its calculation of
Jenea’s needs and its award of alimony.
C. Home Maintenance Expenses
¶71 Shaun argues that the court’s inclusion of $500 per month
each for real estate maintenance of the Riverside Property and the
SSR Holdings Property was not supported by the evidence and
that the court “double counted” Jenea’s expenses for yard care,
house cleaning, and pool services by including those expenses as
separate line items in addition to the general line item for real
estate maintenance of $1,432 per month on her primary residence.
¶72 First, Shaun asserts that “the trial court had no evidence to
make any finding regarding a reasonable maintenance amount for
either of the additional real properties that it referenced.” We
disagree. “Utah has an interest in ensuring that marital assets are
fairly and equitably distributed during divorce and that divorcing
spouses both retain sufficient assets to avoid becoming a public
charge.” Dahl v. Dahl, 2015 UT 79, ¶ 25, 459 P.3d 276. When it
comes to crafting an alimony award, this means that “trial courts
have wide discretion to fashion remedies that fit the situation
faced by the family at issue.” Wellman v. Kawasaki, 2023 UT App
11, ¶ 16, 525 P.3d 139. Thus, “[w]hen a party obviously
underestimates . . . or overestimates . . . his or her living expenses,
the trial court is not limited to awarding either the reported
amount or nothing. Instead, the dearth of credible evidence
regarding a particular claim simply renders the quantum of
evidence as to that claim insufficient.” Sauer v. Sauer, 2017 UT App
114, ¶ 9, 400 P.3d 1204. If a court determines that there is a lack of
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credible and relevant evidence regarding one of the alimony
factors, the court may “impute a reasonable amount based on
other evidence provided by the parties.” Id. ¶ 10; accord Dahl, 2015
UT 79, ¶ 116. We will uphold such an imputation “as long as there
is sufficient evidence to support” it. Wellman, 2023 UT App 11,
¶ 17. Such evidence may include “the opposing party’s
documentation,” “updated financial declarations supported . . .
by the sworn testimony of witnesses,” id., evidence of the other
party’s reasonable need, Sauer, 2017 UT App 114, ¶ 10,
information about the parties’ expenses during the marriage, or a
“reasonable estimate” of the party’s need, Dahl, 2015 UT 79, ¶ 116.
So long as the court supports its alimony determinations with
“specific findings, supported by evidence in the record,” we will
not disturb its decision. Wellman, 2023 UT App 11, ¶ 18.
¶73 Although the parties do not appear to have presented
specific evidence regarding the cost of maintaining the Riverside
Property and the SSR Holdings Property, there would
undoubtedly be at least some cost to maintain them. The court
found that the value of Jenea’s primary residence was $1,833,333.
It found the value of the Riverside Property and the SSR Holdings
Property to be $925,000 and $3,275,000, respectively. The
Riverside Property was a home, and the SSR Holdings Property
was undeveloped land. Townsend’s report estimated that the
parties had spent an average of $1,432 per month maintaining
their primary residence between 2016 and 2018. In light of those
numbers, we cannot say that imputing $500 per month each for
maintenance of the Riverside Property and the SSR Holdings
Property was unreasonable.
¶74 Shaun next argues that yard care, house cleaning, and pool
services were encompassed in Townsend’s calculation of the
parties’ home maintenance costs, pointing to amounts in
Townsend’s records indicating that the parties had paid sums to
Completely Clean ($6.25 per month on average), Stewarts Lawn
Service ($14 per month on average), and Paradise Pools ($266.03
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per month on average) between January 1, 2016, and December
31, 2018. We agree with Jenea that these line items do not indicate
that the court double counted these expenses.
¶75 Jenea asserted in her financial declaration that, apart from
her other home maintenance costs, which she estimated to be
$1,432 for her primary residence, she spent $595 per month on
yard care, $480 per month on house cleaning, and $720 per month
on pool services. The court agreed that $1,432—which was also
the amount estimated by Townsend for the parties’ monthly
home maintenance expenses—was reasonable. It also found the
expenses for yard care and pool services to reasonably reflect the
cost of these items during the marriage in light of the pictures it
had reviewed of the yard and pool. Finally, it found the house
cleaning cost to be reasonable in light of Jenea’s testimony that the
parties had used house cleaners during the marriage that came
every week or every other week. This evidence was sufficient to
support the court’s findings regarding the home maintenance,
yard care, house cleaning, and pool service costs.
¶76 But even considering the contrary evidence Shaun points
to, we are not convinced that any double counting could have
occurred. First, Shaun has pointed to no evidence indicating what
expenses these three line items actually reflected. While we can
surmise, based on the business names, that they were expenses
for yard care, cleaning services, and pool services, there is no
evidence of that in the record. We also do not know whether these
were one-time or ongoing costs. For example, we know from
Townsend’s report that the parties paid $9,576.95 to Paradise
Pools at some point between January 1, 2016, and December 31,
2018 (which Townsend divided across thirty-six months to get a
monthly average of $266.03). But we do not know whether this
was a one-time charge for installation or repair, a monthly charge
for pool cleaning, or something else. In the case of the payments
to Completely Clean and Stewarts Lawn Care, not only do we not
know what the payments actually covered, but it is apparent even
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to the most uneducated observer that the monthly average ($6.25
and $14 per month, respectively) comes nowhere close to covering
the cost of house cleaning or yard care for even the most modest
home, let alone a $1.8 million property with extensive
landscaping.
D. Entertainment and Miscellaneous Items
¶77 Finally, Shaun asserts that the following findings of Jenea’s
needs were not supported by the evidence: $200 per month for
real estate insurance on the Riverside Property, $200 per month
for real estate insurance on the SSR Holdings Property, $99 per
month for telephone expenses, $250 per month for gifts, $300 per
month for dining out, and $2,113.18 per month for entertainment.
Jenea asserts that Shaun has not preserved his challenges to these
findings. However, while parties must preserve a challenge to the
adequacy of the detail in a court’s factual findings by giving the
court an opportunity to correct the alleged error, a party need not
take extra steps to preserve a challenge to the sufficiency of the
evidence supporting the findings. See In re K.F., 2009 UT 4, ¶¶ 60–
62, 201 P.3d 985. Thus, to the extent these challenges are based on
the sufficiency of the evidence, we conclude that they are
preserved. However, we do not agree with Shaun that the
evidence was insufficient to support the district court’s
imputation of these expenses in calculating Jenea’s needs.
¶78 As we discussed in the previous section, courts may rely
on evidence in the record to impute need figures even where the
evidence is insufficient to support precise numbers. Dahl v. Dahl,
2015 UT 79, ¶ 116, 459 P.3d 276. This is exactly what happened
here, and we cannot say that the district court exceeded its
discretion in making its imputations.
¶79 First, for the same reasons we uphold the district court’s
imputation of maintenance costs for the Riverside Property and
the SSR Holdings Property, we conclude that evidence that Jenea
paid $600 for insurance on her primary residence, coupled with
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evidence of the value of the various properties, made the court’s
imputation of $200 per month each for the Riverside Property and
the SSR Holdings Property to be a reasonable estimate of Jenea’s
need.
¶80 We also find $99 per month for cell phone service to be a
reasonable estimate of Jenea’s need. Jenea asserted in her financial
declaration that she expected cell phone service to cost $99. She
explained that the parties’ businesses had historically paid for
their phones but that she had researched cell phone plans and
found them to cost an average of $100 per month. Townsend’s
report showed that the parties had spent $2,943.05 on telephone
expenses between January 1, 2016, and December 31, 2018.
Dividing that amount by thirty-six months and then dividing it
between the parties, he concluded that each party needed $40.88
per month for telephone service, and Rondeau agreed. However,
the court found their estimates to be “arbitrarily low” and
accepted Jenea’s figure of $99. It was the court’s prerogative to
reject the experts’ opinions, and Jenea’s representations regarding
her need were sufficient to support its finding that $99 per month
was reasonable.
¶81 As to gifts, Jenea asserted in her financial declaration that
she needed $250 per month, contrary to Townsend’s estimate that
the parties’ spent an average of $41.47 per month on “gifts.” 14 The
court considered Townsend’s estimate “to be low for the parties
and the standard of living” and therefore accepted Jenea’s
representation as “fair and reasonable.” We agree with Jenea that
14. Townsend’s calculation of “gifts” does appear to have been
somewhat arbitrary. Rather than estimating what the parties had
actually spent on gifts, Townsend used the parties’ purchases
from certain types of stores—“gift” stores, party stores, floral
shops, and wedding registries—to estimate what they had spent
on gifts over three years. Presumably, the parties purchased gifts
from other types of retailers as well.
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her estimate could support the court’s imputation of this expense,
even in the absence of further documentation. In the absence of
detailed evidence of need, the court was entitled to rely on a
“reasonable estimate.” Dahl, 2015 UT 79, ¶ 116.
¶82 The court also found Jenea’s estimate of $300 per month for
dining out to be reasonable. Again, the court’s reliance on Jenea’s
estimate was sufficient to support its decision. 15
¶83 Finally, the court adjusted Jenea’s requested entertainment
expense of $426.18 to $2,113.18. The court explained that it
believed that the parties’ “entertainment expense should be
equal” and that “based upon the evidence related to the standard
of living,” the $2,113.18 attributed to Shaun was “reasonable.”
Courts have discretion to reject a party’s claimed need if it deems
that amount to be underestimated based on the marital standard
of living. See Miner v. Miner, 2021 UT App 77, ¶ 39, 496 P.3d 242;
Sauer v. Sauer, 2017 UT App 114, ¶ 10, 400 P.3d 1204. And when a
court so finds, it may use the other party’s reasonable need to
estimate the appropriate level of need. See Miner, 2021 UT App 77,
¶ 39; Sauer, 2017 UT App 114, ¶ 10. That is precisely what occurred
here. Because the court relied on Townsend’s estimate of Shaun’s
reasonable entertainment expenses to impute Jenea’s reasonable
15. Based on our own review of the record, it does appear that
Townsend included dining out in his estimate of the parties’ food
and household expenses, which the court adopted and included
in its needs assessment for Jenea. Thus, it is possible that the
expense for dining out was double counted. But Shaun did not
point out this discrepancy to the district court or address it on
appeal. Indeed, his only argument on appeal is that the court’s
calculation was “speculative” and not supported by evidence.
Because we conclude that the court was within its discretion to
rely on Jenea’s estimate in her financial declaration, we reject
Shaun’s argument.
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entertainment expenses, its finding was supported by the
evidence.
VIII. Attorney Fees
¶84 Shaun next challenges the district court’s inclusion of
Jenea’s attorney fees in her needs calculation, asserting that the
district court did not properly analyze and award the attorney
fees under the appropriate provisions of the Utah Code and the
Utah Rules of Civil Procedure.
¶85 In divorce actions, Utah law allows a court to “order a
party to pay the costs, attorney fees, and witness fees . . . of the
other party to enable the other party to prosecute or defend the
action.” Utah Code § 30-3-3(1); see also Utah R. Civ. P. 102(a).
“Such an award must be based on evidence of the receiving
spouse’s financial need, the payor spouse’s ability to pay, and the
reasonableness of the requested fees.” Dahl v. Dahl, 2015 UT 79,
¶ 168, 459 P.3d 276 (quotation simplified); see also Utah R. Civ. P.
102(b).
¶86 While an award of alimony is based on similar principles—
also weighing the requesting party’s need against the other
party’s ability to pay, see Bakanowski v. Bakanowski, 2003 UT App
357, ¶ 8, 80 P.3d 153—the basis of the needs assessment is
different. A party shows a need for purposes of an attorney fee
award by showing that they “lack[] the financial resources to pay
the costs and fees . . . necessary for the proper prosecution or
defense of the action.” Utah R. Civ. P. 102(b)(1), (3). A party shows
a need for alimony, on the other hand, by demonstrating the
amount they need to maintain their marital standard of living. See
Martinez v. Martinez, 818 P.2d 538, 542 (Utah 1991) (“Usually the
needs of the spouses are assessed in light of the standard of living
they had during [the] marriage.”).
¶87 The attorney fees Jenea incurred in connection with the
divorce—and even more glaringly, the fees she incurred in
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connection with the defamation case—were not part of the marital
standard of living because those fees did not arise until after the
parties had separated. Thus, they should not have been
considered as part of the needs analysis for purposes of alimony.
Instead, if the court was inclined to award Jenea her attorney fees
relating to the divorce action, 16 it should have made the necessary
findings to support that award under Utah Code section 30-3-3
and rule 102 of the Utah Rules of Civil Procedure. See Eberhard v.
Eberhard, 2019 UT App 114, ¶ 52, 449 P.3d 202 (requiring that an
award of attorney fees “be based on sufficient findings”
(quotation simplified)). We therefore reverse the district court’s
finding, for alimony purposes, that Jenea was entitled to $3,500
per month for attorney fees. However, as we are not sure whether
the district court’s decision not to award attorney fees as part of
the divorce case generally was based on its inclusion of those fees
in the alimony award, we remand for the district court, if it is so
inclined, to make additional findings regarding Jenea’s request
for attorney fees.
IX. Jenea’s Income for Alimony Purposes
¶88 Shaun argues that the district court should have
considered Jenea’s ability to earn income from her property
distribution in assessing her ability to meet her own needs for
alimony purposes. He points to testimony from Rondeau
indicating that Jenea could potentially earn $178,000 a year by
investing $3 million of her assets without invading the principal.
¶89 “If [a] payee spouse has income-producing property, the
income from that property may properly be considered as
eliminating or reducing the need for alimony by that spouse.”
Wadsworth v. Wadsworth, 2022 UT App 28, ¶ 103, 507 P.3d 38516. There was no basis for the district court to award Jenea fees
associated with the defamation case. Such fees should be assessed
and awarded, if appropriate, in that case.
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(quotation simplified), cert. denied, 525 P.3d 1259 (Utah 2022).
However, the court has significant discretion in determining
whether to count such property as income. See Eberhard v.
Eberhard, 2019 UT App 114, ¶ 21, 449 P.3d 202 (“[W]hile . . .
caselaw directs district courts to consider all sources of income
when determining alimony, it does not dictate that all sources of
income be counted as income received by a spouse for that
purpose.”); accord Mintz v. Mintz, 2023 UT App 17, ¶ 49, 525 P.3d
534. One of the key considerations is whether the property is
income-producing. See Batty v. Batty, 2006 UT App 506, ¶ 5, 153
P.3d 827 (observing that it is “particularly” appropriate to
consider the property division in calculating an alimony
recipient’s income where the property is “income-generating”);
see also Mortensen v. Mortensen, 760 P.2d 304, 308 (Utah 1988);
Wadsworth, 2022 UT App 28, ¶ 103. But courts typically do not
expect a party to use their property in a way they would not
otherwise be inclined to. For example, it was not an abuse of a
district court’s discretion not to impute investment income to a
wife for alimony purposes where the evidence showed the parties
had a history of reinvesting their investment returns rather than
living off them. Mintz, 2023 UT App 17, ¶ 59. Likewise, it was not
an abuse of discretion for a district court not to calculate an
alimony recipient’s income based on “funds that [she] could
potentially draw from her retirement accounts or that she could
receive by electing to collect Social Security benefits early.”
Eberhard, 2019 UT App 114, ¶ 22.
¶90 Here, the court found that “[t]he parties did not invest in
stocks, bonds, or securities during the marriage”—a finding
which Shaun does not contest—and “decline[d] to force Jenea to
do something with her portion of the marital estate that the parties
did not do during the marriage.” These findings support the
district court’s determination not to impute income to Jenea based
on what she could potentially earn from investing her share of the
marital estate. While the property in question had the potential to
produce income if used in a particular way, there was nothing to
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suggest that the property had historically been income-
producing. Thus, the court did not abuse its discretion by
declining to impute such income to Jenea at this stage.
X. Evidentiary Issues
¶91 Finally, Shaun challenges several evidentiary rulings made
by the district court. First, he argues that the district court
improperly admitted Townsend’s report and the report of two of
Jenea’s experts in violation of hearsay rules. Second, he argues
that the district court allowed Jenea to present direct evidence
through undisclosed witnesses whose testimony was supposed to
be limited to impeachment. But Shaun’s arguments on these
points are inadequately briefed.
¶92 “When we determine that a trial court erred” in admitting
evidence, “we do not reverse unless there is a reasonable
likelihood that a different result would have been reached absent
the errors, or, in other words, we do not reverse unless the
aggrieved party was prejudiced.” Johansen v. Johansen, 2021 UT
App 130, ¶ 20, 504 P.3d 152 (quotation simplified).
¶93 With respect to his hearsay argument, Shaun makes no
attempt to explain how any specific result in this case would have
been different without the expert reports. Instead, he merely
states that “the trial court relied extensively on” the reports and
then provides us with a string of page references to portions of the
district court’s decision. This is inadequate for Shaun to carry his
burden of persuasion on appeal. See Dahl v. Dahl, 2015 UT 79, ¶ 67,
459 P.3d 276 (citing our oft-repeated rule that “appellate courts
are not a depository in which a party may dump the burden of
argument and research” (quotation simplified)).
¶94 In his discussion of the testimony from undisclosed
witnesses, Shaun asserts that “[t]he trial court . . . relied on
evidence from [the impeachment] witnesses to make material
findings (including the findings regarding goodwill).” This
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provides us with slightly more argument than the hearsay
discussion, in that it at least identifies one specific issue—
goodwill—that Shaun believes would have come out differently
without the challenged testimony. However, Shaun does nothing
to develop his argument beyond this single line of text. In relation
to the goodwill question, the relevant testimony is Smith’s and the
vice president’s statements about whether other individuals
besides Shaun were involved in obtaining consulting contracts.
But Shaun makes no attempt to explain why this specific
testimony was not appropriate impeachment testimony, nor does
he explain how the outcome of the goodwill issue would have
been different in the absence of the testimony, particularly given
that Shaun also testified that the president and vice president
played at least some role in securing clients.
¶95 Without further development of his arguments regarding
these evidentiary issues—particularly concerning the prejudice
he suffered as a result of the allegedly erroneous rulings—Shaun
cannot carry his burden of persuasion on appeal. Accordingly, we
do not consider these arguments further.
CONCLUSION
¶96 Although we are not convinced that substantially adopting
Jenea’s findings of fact and conclusions of law was the best or
most careful method of resolving the issues in this case, the
district court did not exceed its discretion in doing so where its
views on the issues aligned with Jenea’s proposal and its findings
of fact were sufficiently detailed and supported by the evidence.
Moreover, the district court did not exceed its discretion in
valuing the marital estate as of the time of trial, in calculating the
value of the marital assets, or in dividing them. In assessing
Jenea’s need for alimony purposes, the district court’s finding that
she needed $300 per month to pay adult child expenses was not
supported by the evidence. Additionally, the district court
exceeded its discretion by including a monthly amount for
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attorney fees in its calculation of Jenea’s needs. The district court’s
remaining findings regarding Jenea’s needs were supported by
the evidence, and the court acted within its discretion in declining
to impute additional income to Jenea based on what she might
earn through investing her share of the marital estate. Finally, we
conclude that Shaun’s challenges to the court’s rulings on various
evidentiary issues were inadequately briefed.
¶97 Based on these conclusions, we remand this case for the
district court to decrease Jenea’s alimony award by $3,800 per
month. The district court should also consider whether its ruling
denying Jenea’s request for attorney fees was affected by its
inclusion of attorney fees in its calculation of Jenea’s need. If so,
the district court may elect to revisit its ruling regarding attorney
fees. We otherwise affirm the district court’s decision.
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