Wadsworth v. Wadsworth

2022 UT App 28THE UTAH COURT OF APPEALS
H. CANDI WADSWORTH,
Appellant,
v.
GUY L. WADSWORTH,
Appellee.
Amended Opinion 1
No. 20190106-CA
No. 20200430-CA
Filed March 3, 2022
Third District Court, Salt Lake Department
The Honorable Su Chon
No. 104904966
Michael D. Zimmerman, Troy L. Booher, and Julie J.
Nelson, Attorneys for Appellant
Clark W. Sessions, T. Mickell Jimenez, Marcy G.
Glenn, and Kristina R. Van Bockern, Attorneys
for Appellee
JUDGE MICHELE M. CHRISTIANSEN FORSTER authored this Opinion,
in which JUDGES RYAN M. HARRIS and RYAN D. TENNEY
concurred.
CHRISTIANSEN FORSTER, Judge:
¶1 This appeal arises from the divorce and division of the
marital estate belonging to H. Candi Wadsworth and Guy L.
1. This Amended Opinion replaces the Opinion issued January
13, 2022, Wadsworth v. Wadsworth, 2022 UT App 5. Paragraphs 6,
76, and 83 and footnote 14 have been revised in response to the
parties’ petitions for rehearing.
Wadsworth v. Wadsworth
Wadsworth. Candi 2 challenges various aspects of the district
court’s marital property valuation, its decision to defer the
payment of her share of the marital estate, its award of alimony,
and various other findings and orders. Guy cross-appeals,
raising challenges relating to terms of the deferred payment and
the alimony award. In a separate appeal, Candi also challenges
the district court’s decision not to grant her a security interest in
her portion of the marital estate, which she will not receive in
full until December 31, 2024. Because that issue is intertwined
with various issues raised in the first appeal, we address both
appeals in this consolidated opinion.
¶2 We remand for the district court to add certain notes
receivable to the value of the marital estate, to adjust its alimony
award to account for Candi’s tax burden, to clarify its decision
on whether security is required for the alimony award, and to
grant Candi a security interest in her portion of the marital
estate. We otherwise affirm the district court’s decision.
BACKGROUND
¶3 Candi and Guy married in 1979. Guy started Wadsworth
Brothers Construction (WBC) in 1991, and over the years, it grew
into a multimillion-dollar company. The parties also have
interests in numerous other business entities, including two
restaurants, a hotel, and various real estate holdings.
¶4 In 2009, Candi filed for divorce, suspecting that Guy was
involved in an extramarital affair. Guy denied the infidelity, and
the couple reconciled. However, a year later, Guy confessed to
an affair, and Candi again filed for divorce.
2. As is our practice, because the parties share the same last
name, we refer to each by their first name, with no disrespect
intended by the apparent informality.
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Pre-Divorce Proceedings and Temporary Orders
¶5 During the period between these two divorce filings, Guy
purchased two restaurants, a plane, a cabin, and a yacht. He did
not discuss any of these purchases with Candi, and she learned
about them from other people. The yacht cost $2,502,800, but by
the time of trial, the yacht was under water—Guy still owed
$1,175,399, but the yacht was worth only $790,500.
¶6 Without consulting Candi, Guy also assigned fractional
shares of various marital entities to the Wadsworth Children’s
2007 Irrevocable Trust (the Trust) in 2009. Although Guy had
created the Trust two years before, he had originally funded it
with only $10. By the time of trial in 2017, the fractional shares
held by the Trust were worth approximately $4 million.
¶7 While the divorce was pending, Guy maintained control
of the marital estate, apart from $1 million and two interest-
generating accounts that he transferred to Candi early in the
proceedings. In February 2012, the district court adopted the
parties’ stipulation regarding temporary orders (the Stipulation)
stating that, on a temporary basis, Guy “shall pay all of the
children’s expenses as he has in the past as well as all of
[Candi’s] expenses as he has in the past.” Because Guy was
paying these expenses, he was not ordered to pay temporary
child support or alimony at that time. The Stipulation also
addressed the use of marital assets during the pendency of the
divorce proceedings:
1. Based upon the parties’ stipulation, [Guy] shall
maintain, in the regular course of business, the
management and control of [WBC], as he has in the
past.
2. Based upon the parties’ stipulation, neither party
shall sell, gift, transfer, dissipate, encumber, secrete
or dispose of marital assets other than in the course
of their normal living expenditures, ordinary and
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necessary business expenses and to pay divorce
attorneys and expert fees and costs. [Guy] shall
have the right to conduct the business hereinabove
identified as he has in the past, which may include
incurring debt, paying expenses and acquiring
assets.
¶8 During the divorce proceedings, Candi asked the court to
hold Guy in contempt based on alleged violations of the
Stipulation. She asserted that he made numerous financial
transactions that violated the Stipulation, including selling his
home, buying a new home, selling a hotel, creating a new
business entity and loaning it money, investing money in a
property development company (FDFM), purchasing a jet to
“flip,” and making an “undisclosed sale” of $697,448.72. The
court accepted Guy’s and his estate planning attorney’s
testimonies that “Guy had a history of setting up different
corporate entities for liability protection purposes” and that he
“did not create any entity or transfer any asset with the intention
of hiding it from Candi.” The court found that “the transactions
Candi complains of were consistent with Guy’s historical
practice of transferring assets from one entity to another or from
one form into another” and that those actions fell within the
Stipulation’s condition permitting Guy “to conduct the business
hereinabove identified as he has in the past, which may include
incurring debt, paying expenses and acquiring assets.” The court
also found that “[t]here is no indication that these transactions
were out of the ordinary or done with the intent to hide assets.”
¶9 In September 2014, Guy sought to modify the Stipulation,
explaining that the parties’ last child had reached majority, that
he had paid off the mortgage on Candi’s house, and that he had
purchased Candi a new vehicle, thereby eliminating many of her
expenses. Guy asked the court to modify its order to require him
to pay Candi $20,000 per month rather than all her expenses
without limit. Following a hearing in January 2015, the court
ordered that Guy pay Candi $20,000 per month in temporary
alimony. It also ordered that Candi “keep an accounting of how
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the money is spent if she desires more funds.” During the first
month following the order, Candi exceeded the $20,000 budget
and “she had to repay Guy for amounts she had previously
spent as well as cancel planned travel with the children.” In
April 2015, the court issued a written order in which it clarified
that Guy should “reimburse” Candi “as to any payments beyond
the $20,000” unless he could show it was “an inappropriate or
excessive expense.” Candi never requested additional funds
from Guy after the court issued the written April 2015 order. She
claims this was because she elected to curtail her spending rather
than ask Guy for extra money; she maintains that she did not
believe he would comply with her requests and she did not want
to incur more attorney fees to collect the money. During this
period, Guy was spending approximately $60,000 per month.
¶10 Guy represented that Candi continued to have access to
the parties’ boats and planes, a cabin, free dining at the
restaurants, and a country club and other exclusive resorts for
which Guy continued to pay the membership fees. However, to
use the planes and boats, Guy expected Candi to pay for the cost
of the pilot, captain, and other expenses out of her $20,000
monthly funds. Candi did not do so because she understood the
cost to be between $5,000 and $10,000 per trip. Candi also
alleged that Guy refused a number of requests she made to use
the parties’ shared assets.
Procedural History of the Divorce
¶11 The parties spent more than six years conducting
discovery and other pretrial litigation before the matter finally
came before the district court for an eight-day bench trial in
February 2017. The court held a second four-day trial in May
2017 concerning Candi’s attempt to revoke the Trust. See infra
¶ 25.
¶12 The court issued a Memorandum Decision, Findings of
Fact and Conclusions of Law in September 2017 (the 2017
Findings). Subsequently, Candi filed a Motion to Clarify, and
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both parties also filed Motions to Amend. The court issued an
order addressing those motions in May 2018 (the May 2018
Order). In response to that order, both parties filed additional
Motions to Amend, which the district court ruled on in a
Memorandum Decision and Order in October 2018 (the October
2018 Order). The court then directed Guy to prepare
supplemental findings of fact to incorporate the various rulings
encapsulated in the May 2018 Order and the October 2018 Order.
¶13 Following the October 2018 Order, Guy filed an Ex Parte
Motion for Expedited Entry of Decree of Divorce. Guy pointed
out that new federal tax law would change how alimony was
taxed for any divorce decrees entered on or after January 1, 2019.
Instead of alimony being taxable to the payee spouse and
deductible to the payor spouse, alimony would become taxable
to the payor and deductible to the payee. Since the trial had
occurred and the 2017 Findings had been entered over a year
before, “predicated on the application of the existing divorce
laws,” Guy asserted that it would be inequitable to enter the
divorce decree after December 31, 2018. Although the court
indicated that it believed “both parties are to blame” for the
delays in finalizing the decree, it ultimately did enter
Supplemental Findings of Fact and Conclusions of Law (the 2018
Supplemental Findings), as well as the Decree of Divorce, on
December 31, 2018.
¶14 The parties then filed a third set of cross-motions to
amend the findings and conclusions, and the court held a
hearing on those motions in early 2019. The court entered a
Memorandum Decision and Order in May 2019, which it
subsequently amended in June 2019 (the 2019 Order). The court
directed Candi to prepare corrected Supplemental Findings of
Fact and Conclusions of Law and a Supplemental Decree of
Divorce. The court entered the Amended Supplemental Findings
of Fact and Conclusions of Law (the 2019 Supplemental
Findings) and the Amended Decree of Divorce on October 30,
2019.
20190106-CA 6 2022 UT App 28Wadsworth v. Wadsworth
Expert Valuation of Marital Property
¶15 Both parties hired experts to value the various business
entities. Three aspects of that valuation and the district court’s
findings are relevant on appeal: notes receivable, WBC’s
backlog, and WBC’s equipment.
Notes Receivable
¶16 The balance sheets for three of the entities owned by Guy
included in their accounting of liabilities loans that they owed to
Guy—Immobiliare II, Ltd. owed Guy $252,861; Five Diamond
Hospitality, Inc. owed Guy $706,605; and FDFM owed Guy
$100,000. These liabilities were considered in the court’s final
calculation of these entities’ value. However, the notes receivable
on these loans—which belonged to Guy—were not counted as
marital assets.
¶17 The court made no mention of the notes receivable in its
2017 Findings. Candi raised this matter in her Motion to Clarify.
Candi asked the court to add the value of the notes receivable to
the value of the estate. In response, Guy did not assert that the
notes had been included but nevertheless resisted their inclusion
as part of the marital estate, arguing that Candi had not made
the “request at trial and did not enter evidence of where the
funds remain and in which entities or whether the funds are
being used for business purposes.” The court found that “[t]he
parties agree that the Court did not consider the three notes
receivable” but observed that “[n]either party points to the
record regarding this issue.” The court did not adjust its
valuation of the estate based on the notes.
¶18 Subsequently, Candi filed her second motion to amend, in
which she again raised the matter of the notes receivable, among
other things. In the October 2018 Order, the court found that
Candi “does not show that those notes were not considered in
the company valuations” and that it had “already addressed her
argument” in the previous order. Guy was then asked to prepare
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supplemental findings based on the court’s order, and that
version of the findings stated that “all Notes Receivable were
included in the valuation of the various marital entities by the
parties’ experts.”
WBC’s Backlog
¶19 As of June 30, 2016, WBC had a backlog of work—
construction contracts that had been signed but for which the
work had yet to be completed—amounting to an estimated value
of approximately $75 million. Guy testified that WBC’s profit
margin on such projects was typically between 5% and 7%.
Candi’s expert estimated the projected net profit on the backlog
to be $3,441,733. Guy’s expert estimated that the projects would
realize a gross profit of $4,676,347, but he also opined that the
backlog ultimately had “no value” because “the backlog in its
current state” was not sufficient to sustain the company and
could therefore be expected to start “absorb[ing] cash flow.” Guy
also testified that WBC had struggled to make a profit since the
recession and had to lay off workers and use capital to continue
operating. He testified that WBC had failed to get some large
contracts it was hoping for and that its backlog was less than in
past years. Another witness, who advises large companies on
marketing and selling their businesses, testified that
“marketability” and “valuation methodologies” are “all centered
around current backlog.” He explained that “in a construction
company, they’re only as good as the backlog in front of them.”
¶20 The court found that “the value of the projected backlog
profit is $4 million.” However, the court adopted Guy’s expert’s
valuation of WBC, which had assigned the backlog no
independent value. The parties addressed the inconsistency in
their motions to amend. Candi asked the court to adjust the
overall valuation of WBC upward by $4 million to reflect its
finding that the backlog profit was worth $4 million. Guy asked
the court to change its finding that the backlog was worth $4
million to conform to its adoption of his expert’s valuation of the
company, which assigned the backlog no value. In its May 2018
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Order, the court found that Guy’s expert had “testified the
backlog had no value to a potential buyer, and the Court
adopted his valuation of WBC.” It also found that the other
witness had testified that “any potential purchaser would not
purchase the company based on a backlog.” Finally, it found that
“Candi did not provide counter-testimony to” the “statements of
no value in the backlog.” Accordingly, it concluded that “[t]he
evidence supports that the backlog has no value in the valuation
of the company” and amended its decision to state that “the
backlog has no value.” These amended findings were
incorporated into the 2018 Supplemental Findings.
WBC’s Equipment
¶21 Both parties hired experts to assess the value of WBC’s
equipment. Guy’s expert had worked in the construction
industry for twenty-five years and had been an appraiser for
Ritchie Brothers Auctioneers for four years. To value the
equipment, the expert used “internal standards that [Ritchie
Brothers] has developed over time and experience” based on
“historical auctions, personal experiences of appraisers, and
knowledge of the world’s economic conditions.” Guy’s expert
testified that Ritchie Brothers’ “business is derived primarily
from stable operators exchanging equipment and updating
equipment inventories in the normal course of business,” rather
than wholesalers trying to resell and make additional profit, and
that “80 percent of [their] sales . . . represent fair market value.”
Guy’s expert and his team “personally inspected nearly all the
pieces of equipment at issue”; “[t]hey turned on the machines,
checked the miles and hours and verified the [vehicle
identification numbers].” They appraised 569 items and
estimated that “the entire package of equipment . . . would sell at
unreserved public auction in the range of $13,890,300.”
¶22 Candi’s expert is a member of the American Society of
Appraisers and is an Accredited Senior Appraiser. He conducts
appraisals based on the Uniform Standards of Professional
Appraisal Practice (USPAP). He testified that “he evaluated the
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equipment at the fair market value of a ‘going concern’
business” and that he believed using “auction values” was more
appropriate for a business that was trying to liquidate its
inventory. Candi’s expert received a list of approximately 400
pieces of equipment with the make, model, description, and
serial number. He “did not closely inspect each piece of
equipment,” “did not start any of the equipment, did not look at
the mileage or hours logged, and did not consider the condition
of each piece.” He “took photos of the equipment and researched
the values by contacting manufacturers, contractors, and dealers;
consulting other sales [online]; and considering his prior
appraisals and experience.” Ultimately, Candi’s expert valued
the equipment at $22,499,255.
¶23 The court found that the method used by Guy’s expert
was “more accurate” and that his team was “more thorough in
assessing the individual pieces of equipment.” The court rejected
Candi’s assertion that selling equipment at “an auction house
has the same connotation as a fire sale,” relying on the expert’s
testimony that end users regularly buy heavy construction
equipment at auction. It therefore adopted Guy’s expert’s
$13,890,300 valuation of the equipment.
Dissipation
¶24 Candi argued to the district court that Guy had dissipated
marital assets in anticipation of divorce, including spending
money on his girlfriend; purchasing the yacht, a jet, and a wine
collection; paying attorney fees for the Trust; and transferring
money out of the estate into the Trust. Except as to $814,000 Guy
spent on his girlfriend, for which it compensated Candi out of
the marital estate, the court found that “Guy did not dissipate
marital assets.” Although the court found that the legal fees
spent on the Trust were not dissipation, it nevertheless allocated
half of that value to Candi as part of the marital estate. As to the
purchase of the yacht, jet, and wine, the court reasoned that Guy
did not dissipate assets by purchasing these items because the
items were still in the marital estate, and Candi was awarded
20190106-CA 10 2022 UT App 28Wadsworth v. Wadsworth
half their value. The court also found that “[i]t was Guy’s
historical practice to buy planes and boats” and that “[s]ome
depreciation of” such assets “is to be expected.” The court
rejected Candi’s argument that purchasing a depreciating asset
should, as a rule, be considered dissipation. However, the court
assigned the negative value on the yacht entirely to Guy,
reasoning that he “unilaterally purchased this boat” and limited
Candi’s access.
¶25 The parties engaged in extensive litigation regarding the
Trust, even going through a separate trial to address the validity
of the transfers and to consider Candi’s attempt to revoke the
Trust. However, the court ultimately determined that “the Trust
was validly created,” that the parties intended for it to be
irrevocable, that the creation and funding of the Trust was “in
line with the parties’ history of gifting assets to the children as
part of their wealth management and estate planning strategy,”
that “there is no evidence that Guy was motivated by a desire to
divest Candi of marital assets,” and that the transfers were
completed before Candi filed for divorce so that the Trust
property was not part of the marital estate or subject to division.
Accordingly, the court rejected Candi’s argument that Guy’s
transfer of assets into the Trust constituted dissipation.
¶26 Candi also took issue with Guy’s investment in FDFM, an
entity “created to develop land in [North] Dakota when the oil
rush was booming.” Although Guy’s interest in FDFM by the
time of trial was worth only $734,000, he had invested $1,129,000
into it. Candi asserted that the higher value should be used
because Guy did not disclose the investment to her. The district
court rejected this argument, explaining that Guy “never
consulted with Candi on any business decisions that he made”
throughout the marriage, so making business decisions without
disclosing them to her was “well within the scope of his
historical practices.”
¶27 Candi also complained that Guy had used marital funds
to pay his attorney fees and that his spending on fees had not
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been credited to the marital estate. In examining the funds each
party had already received, the court recognized that Candi had
received $1,277,500 in marital funds to pay her attorney and
expert fees and costs. The court also estimated, based on Guy’s
testimony, that Guy had spent approximately $800,000 in
attorney and expert fees and costs. The court equalized these
amounts in calculating the value of the marital estate.
Division of the Estate and Equalization Payment
¶28 The district court found that the total value of the marital
estate was $43,886,329.85 and that each party should receive half
of that value ($21,943,164.93). The court awarded Candi various
liquid assets, real property, vehicles, retirement plans,
investments, and other property totaling just over $4.7 million. It
awarded the remainder of the marital property, including all
interest in the parties’ various businesses, to Guy and ordered
Guy to pay Candi $17,238,018.02 to compensate her for the value
of her portion of the estate. The court explained that “because of
the overlapping entities and the numerous assets placed in
various entities, it would be more appropriate to award Candi a
sum of money constituting her share of the marital estate.” The
court found that “shared ownership of the companies” was not
an option because “Candi does not have the business acumen
necessary to know how to run these companies” and that it
would be “a bad idea” for the parties to continue their
relationship by operating the companies together, “especially
given Candi’s distrust of Guy.” It also found that “[a] forced sale
of marital business assets is not in the best interest of either
party” because both parties benefit from “Guy’s continued work
for WBC and other businesses.”
¶29 Although Candi had argued to the district court that she
should be given ownership of the two restaurants to help offset
the portion of the estate owed to her, the court rejected that
request because it found that “her limited business experience
would not help her in increasing the value of the business.” In its
May 2018 Order, the court further explained its refusal to award
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the restaurants to Candi by observing that the restaurants had
only just begun to be profitable due to Guy’s careful
management and that the restaurants were partially owned by a
third party.
¶30 In the initial 2017 Findings, the court did not outline a
method for Candi to receive her share of the marital estate.
Candi proposed several options, including appointing a special
master to oversee the distribution, transferring some of the
assets to her directly, sharing ownership of the companies, or
forcing a sale of some of the assets. The court rejected each of
these proposals. Instead, in the 2018 Supplemental Findings, the
court ordered Guy to pay the amount owed to Candi “in such
equal monthly installments as he shall determine.” Any
remaining amount was to be paid in a balloon payment five
years from the date of the entry of the Decree of Divorce, which
made the final payment to Candi due December 31, 2023. The
court also ordered that Guy pay 10% annual interest on the
amount owed to Candi. Although Guy contested the high
interest rate, the court justified it because the court had given
him “substantial leeway in setting the payment schedule over
the next five years.” Because Guy would have “exclusive and
full access to the marital assets,” the court reasoned that the high
interest rate would give him a necessary incentive to make the
payments more quickly.
¶31 In subsequent motions, the parties continued to dispute
the court’s equalization order. Thus, in its 2019 Supplemental
Findings, the court again modified the payment schedule. Guy
was to pay Candi (1) $30,000 per month, to be applied first
toward interest; (2) $500,000 per year, to be applied first toward
interest; and (3) a balloon payment of the outstanding principal
and interest by December 31, 2024. 3 The court also modified the
3. Because of the various objections to the payment plan, the
court changed the commencement date from the date of the
entry of the Decree of Divorce to the date of entry of the
(continued…)
20190106-CA 13 2022 UT App 28Wadsworth v. Wadsworth
interest rate to 5% per year. The court explained that the 10%
interest rate “was appropriate” when the court had “deferred to
Guy to come up with an appropriate payment plan” but that it
was excessive once the court “determined the payment plan.”
Instead, the court set the interest rate at 5% and explained that
rate was intended “to provide Guy with an incentive to pay the
Equalizing Balance quickly.”
¶32 After the court issued its ruling, Candi filed a motion
asking the court to secure her unpaid share of the marital estate.
She explained that security was necessary to “protect her from
dissipation, economic uncertainties, or Guy’s death.” She also
asked for an injunction ordering Guy “not to alienate, waste,
dissipate, or diminish his share, ownership interest, or the value
of the entities” without “Candi’s express, prior, written
permission.” Candi proposed several methods for securing her
interest, including attaching a UCC-1 lien to the assets of WBC
or other marital entities or imposing other “conditions and
covenants” on Guy and WBC. But she also explained that “there
are a lot of different ways” to give her an effective security
interest, including placing a lien on the restaurants, WBC’s
equipment, or Guy’s interest in the businesses.
¶33 The court refused to grant Candi any security, reasoning
that it could not award a lien against the businesses because
“[t]he businesses were not parties to this suit,” that the
equalization payments were not subject to the Uniform
Commercial Code because the division of the marital estate is
not a commercial transaction, and that Guy was unable to obtain
adequate life insurance to secure her interest due to his age and
health. The court did not provide any further rationale for its
(…continued)
Amended Decree of Divorce and changed the balloon payment
due date from December 31, 2023, to December 31, 2024. The
court found the change to be appropriate because it could not
“determine who has delayed the payment plan.”
20190106-CA 14 2022 UT App 28Wadsworth v. Wadsworth
determination that no security was warranted or explain why
other options for securing Candi’s unpaid interest in the marital
estate, such as a lien on Guy’s personal interest in the businesses,
could not be employed.
Alimony
¶34 In its 2017 Findings, the district court found that Candi
testified “she had more than $20,000 in reasonable monthly
expenses.” However, the court found that Candi “could not
testify as to specific details” and “did not prepare a financial
declaration.” Nevertheless, the court examined standard
financial declaration items, Guy’s financial declaration, a
standard of living analysis of the parties’ pre-separation
spending prepared by one of Candi’s experts, and Guy’s record
of the expenses he paid on Candi’s behalf while the divorce was
pending to reach a determination regarding Candi’s monthly
need. The court included numerous categories of expenses in its
needs calculation and determined Candi’s reasonable monthly
expenses to be $27,693.90. However, the court did not include
taxes in its assessment of Candi’s needs, because Candi “failed to
provide evidence of her tax liability at trial.” The court imputed
minimum wage income to Candi at $1,257 per month. The court
subtracted the imputed income from Candi’s reasonable
monthly expenses to determine that her monthly need is
$26,436.90.
¶35 The court found that Guy had a net income of $141,143
per month and reasonable monthly expenses of $50,138.
Accordingly, it found that Guy easily had the ability to pay
alimony in the amount of $26,436.90 per month to Candi. It
ordered Guy to pay that amount of alimony for a length of time
equal to the length of the marriage, effective as of the date of the
2017 Findings. Alimony was to terminate upon “the death of
either party” or “remarriage or cohabitation by” Candi. The
court also indicated that “Guy should provide a life insurance
policy for Candi to cover alimony for a period of time sufficient
to cover his obligation should he unexpectedly pass away.”
20190106-CA 15 2022 UT App 28Wadsworth v. Wadsworth
¶36 While the parties’ various motions were pending
following the entry of the 2017 Findings, Guy represented that
he was unable to get life insurance due to a health condition and
asked the court to remove that requirement. The court denied
Guy’s request and found in the May 2018 Order,
Although there was information regarding Guy’s
health, there was no information whether or not he
could or could not obtain a life insurance policy.
The Court wants to ensure that Candi will receive
the money awarded should he pass unexpectedly.
The parties may also work toward a mutually
agreeable solution that will protect Candi and her
ability to receive said money.
However, the 2018 Supplemental Findings, drafted by Guy,
stated simply that “there was no information as to whether or
not Guy could or could not obtain a life insurance policy for
such purpose nor the cost thereof.” Candi urged the court to be
more specific by making its life insurance order mandatory and
requiring Guy to provide an alternative means of security if he
could not get life insurance. However, the court declined to do
so, stating that “[t]he Court’s ruling in the [May 2018 Order] is
sufficient.”
ISSUES AND STANDARDS OF REVIEW
¶37 On appeal, Candi argues (1) that the operative dates of
the Decree of Divorce should be adjusted or, alternatively, that
the balloon payment should be due on December 31, 2023; (2)
that she received unequal access to the marital estate while the
divorce was pending and should be compensated for the
inequality; (3) that the court erred in its valuation of the marital
estate, namely, by failing to take into account the value of the
notes receivable, undervaluing WBC’s backlog and equipment,
and not crediting the estate for Guy’s alleged dissipation of
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assets; (4) that the court erred in setting the terms of the marital
estate division and refusing to grant her a security; (5) that the
court should have included her tax burden in its calculation of
her need for alimony purposes and required Guy to secure his
alimony obligation with life insurance or by some other means;
and (6) that the court exceeded its discretion by not holding Guy
in contempt for violating the Stipulation.
¶38 For his part, Guy argues, on cross-appeal, (1) that the
court set too high an interest rate on the balloon payment, (2)
that the court should have required Candi to share in transaction
costs that may be incurred if and when Guy liquidates assets to
make the balloon payment, and (3) that the court should not
have awarded any alimony to Candi at all.
¶39 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. “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.” Goggin v. Goggin, 2013 UT 16,
¶ 26, 299 P.3d 1079 (quotation simplified).
Accordingly, we will reverse only if (1) there was a
misunderstanding or misapplication of the law
resulting in substantial and prejudicial error; (2)
the factual findings upon which the award was
based are clearly erroneous; or (3) the party
challenging the award shows that such a serious
inequity has resulted as to manifest a clear abuse of
discretion.
Gardner, 2019 UT 61, ¶ 18 (quotation simplified).
20190106-CA 17 2022 UT App 28Wadsworth v. Wadsworth
¶40 The court’s decision whether to hold Guy in contempt is
also entitled to deference. “The decision to hold a party in
contempt of court rests within the sound discretion of the trial
court and will not be disturbed on appeal unless the trial court’s
action is so unreasonable as to be classified as capricious and
arbitrary, or a clear abuse of discretion.” Barton v. Barton, 2001
UT App 199, ¶ 9, 29 P.3d 13 (quotation simplified).
ANALYSIS
I. Operative Dates
¶41 Candi first argues that the court should make the entire
divorce decree effective on October 30, 2019, rather than
December 31, 2018, since that was the date the court entered the
final Amended Decree of Divorce. Alternatively, she asserts that
the balloon payment should be due on December 31, 2023,
consistent with the terms of the initial Decree of Divorce.
However, Candi has not presented us with any substantive
arguments in support of this contention. Her argument is
essentially that it was unfair to put the Decree of Divorce into
effect before the tax laws changed and yet delay the equalization
payments until after the Amended Decree of Divorce was
entered because both results “favored Guy.” But the fact that a
ruling favors one party or the other does not, by itself, make that
ruling an abuse of the court’s discretion. In fact, we cannot see
any meaningful link between these two rulings—one concerns
the effective date of the entire Decree, whereas one concerns the
commencement of the payment plan.
¶42 Moreover, the district court had good reason for
both decisions. As Guy pointed out in his Ex Parte Motion
for Expedited Entry of Decree of Divorce, “[t]he trial of
this matter, and the evidence submitted at trial and
considered by the Court, were all predicated on the application
of the existing divorce laws.” Thus, entering the Decree of
Divorce after the first of the year would have, no doubt,
20190106-CA 18 2022 UT App 28Wadsworth v. Wadsworth
spurred even more objections and additional hearings
regarding alimony. Entering the Decree before the law changed
was consistent with the parties’ expectations throughout the
divorce proceedings.
¶43 With respect to the equalization payments, the court’s
2019 Supplemental Findings were drastically different from
its 2018 Supplemental Findings. The 2018 Supplemental
Findings left the equalization payment schedule in Guy’s
hands, whereas the 2019 Supplemental Findings required him
to pay a specified monthly amount. Leaving the effective
date for those payments on December 31, 2023, as outlined in
the 2018 Supplemental Findings, would have required Guy
to come up with the entire first year’s payments all at once, as
he was not required to make monthly or yearly payments
under the 2018 Supplemental Findings. The court found
it appropriate for the equalization payments to commence at
the same time it issued its 2019 Supplemental Findings because
it could not “determine who has delayed the payment plan”
and it “believe[d] that both parties share the responsibility
for the delay in this matter.” Candi has not demonstrated
that this was an abuse of the district court’s discretion.
II. Access to Marital Estate
¶44 Candi next asserts that the district court should have
compensated her for “inequities [that] resulted from Guy’s
use of the marital estate” while the divorce was pending.
Candi raises three arguments concerning the allegedly
unequal access to the marital estate: (1) that Guy was ordered
to pay her only $20,000 per month in temporary alimony while
he continued to spend around $60,000 per month, (2) that
she did not have equal access to the parties’ tangible assets
and funds while the divorce was pending, and (3) that Guy
spent more on attorney fees out of the marital estate than the
$800,000 found by the district court.
20190106-CA 19 2022 UT App 28Wadsworth v. Wadsworth
A. Monthly Spending
¶45 First, Candi contends that it was unfair for the district
court to grant her only $20,000 in temporary alimony while Guy
had an income of more than $141,000 per month and was
spending over $60,000 per month.
¶46 “Prior to the entry of a divorce decree, all property
acquired by parties to a marriage is marital property, owned
equally by each party.” Dahl v. Dahl, 2015 UT 79, ¶ 126, 459 P.3d
276; accord Brown v. Brown, 2020 UT App 146, ¶ 23, 476 P.3d 554.
“For this reason, it is improper to allow one spouse access to
marital funds to pay for reasonable and ordinary living expenses
while the divorce is pending, while denying the other spouse the
same access.” Dahl, 2015 UT 79, ¶ 126.
¶47 But this principle does not require that the parties account
for every dollar spent out of the marital funds and reimburse
one another for any disparity. Rather, it requires that each party
have equal access to use marital funds and assets “to pay for
reasonable and ordinary living expenses while the divorce is
pending.” Id. For this reason, Dahl and Brown are distinguishable
from the case at hand. In Dahl, the district court had ordered the
wife to repay $162,000 she had received from the husband to pay
for her living expenses while the divorce was pending without
requiring the husband to repay the marital funds he spent
during that time. Id. ¶ 125. The supreme court held that this was
an abuse of discretion because it “had the effect of allowing one
spouse to use marital funds to pay for living expenses during the
pendency of the divorce, while denying such use to the other
spouse.” Id. ¶ 129. In Brown, the district court ordered the
husband to pay for the wife’s “expenses insofar as they exceeded
the income she earned plus amounts [he] advanced while the
divorce was pending.” Brown, 2020 UT App 146, ¶ 24. This court
found that order to be appropriate because it gave the wife
“the benefit of the marital estate to help cover [her] living
expenses . . . up until the divorce decree was entered.” Id. ¶¶ 27–
28.
20190106-CA 20 2022 UT App 28Wadsworth v. Wadsworth
¶48 Here, the district court ordered Guy to “reimburse” Candi
for reasonable monthly expenses “beyond $20,000” unless they
were “inappropriate or excessive.” And although Candi
indicated that she voluntarily curtailed her spending to avoid
fighting for reimbursement, she did not present any evidence
that she incurred expenses in excess of the $20,000 Guy provided
each month. Since the court ordered Guy to pay for reasonable
expenses beyond $20,000, it established a mechanism for Candi
to have continued access to the marital estate to pay for her
living expenses. The fact that Candi found it too burdensome to
request additional funds and was skeptical about Guy honoring
her request does not mean she lacked meaningful access to the
marital estate. 4 And the fact that Guy spent more each month
than Candi does not, by itself, indicate that Candi lacked equal
access to marital funds while the divorce was pending. Access is
not the same as use. And we are aware of no principle requiring
that district courts equalize the parties’ use of marital assets
during the pendency of a divorce as opposed to reimbursing a
party for expenses they incurred as a result of unequal access.
B. Tangible Assets
¶49 Our analysis of Candi’s challenge to the unequal use of
the parties’ tangible assets is similar to our analysis of her
unequal use of funds: she has not demonstrated that she had
unequal access to the assets, as opposed to unequal use. It was
certainly easier for Guy to use the assets, since they were in his
control. And it is undisputed that Guy told Candi she would
have to pay the expensive costs associated with using the planes
4. Had Candi actually attempted to seek additional funds and
had Guy denied her request, then we may have been faced with
a different situation. However, the only time this occurred was
in the time period between the court’s January 2015 minute entry
and its April 2015 written order on the subject, and the minute
entry was not clear as to Guy’s obligation to reimburse Candi for
reasonable expenses in excess of $20,000 per month.
20190106-CA 21 2022 UT App 28Wadsworth v. Wadsworth
and boats. However, Candi never attempted to use the yacht or
plane due to her concerns regarding the expense. Had she done
so, she could have requested that Guy reimburse her for these
costs in accordance with the court’s temporary alimony award.
Since Guy was using the marital assets to pay for the costs of the
yacht and plane in addition to meeting his monthly needs, such
a request would not have been “inappropriate or excessive.” It is
unfortunate that Candi was deterred from taking advantage of
this option by the conditions Guy placed on the use of these
assets. However, since she did not actually incur the expenses or
seek reimbursement for extra expenses from Guy, Candi does
not persuade us that the district court should have ordered an
increase in her alimony or awarded her more of the marital
estate under Dahl or Brown to make up for the disparity in access
to the tangible assets.
C. Attorney Fees
¶50 Candi next contends that the district court improperly
assessed the attorney fees Guy paid out of the marital estate at
only $800,000. This number was taken from Guy’s testimony at
trial that he had paid between $700,000 and $800,000 in attorney
fees at that point. Candi argues that this estimate was made
before Guy paid for the twelve days of trial and post-trial
litigation and that “[t]he court should have ordered Guy to
disclose all his attorney fees and attributed the full amount to his
side.”
¶51 However, although the Decree of Divorce did not go into
effect until the end of 2018, the court valued the parties’ marital
estate based on the information before it at trial in 2017. Because
this was the “snapshot in time,” see Marroquin v. Marroquin, 2019
UT App 38, ¶ 24, 440 P.3d 757, on which the valuation of the
marital estate was based, spending that occurred after that date
could not have reduced the overall value of the estate. This
means that any funds Guy expended on attorney fees following
trial were necessarily post-division expenses. Even assuming
that Guy spent more than $800,000 on attorney fees in total—
20190106-CA 22 2022 UT App 28Wadsworth v. Wadsworth
which he likely did, given that the $800,000 accounted only for
what he had incurred as of trial—that does not necessarily mean
that he paid for those fees out of the marital estate as it existed at
the time of trial. He was obligated to pay Candi her share of the
estate’s value calculated based on the value proven at trial,
regardless of any later spending.
III. Valuation of the Marital Estate
¶52 Candi argues that the district court made several errors in
assessing the overall value of the marital estate. Specifically, she
asserts that it failed to account for the value of the notes
receivable and that it used the wrong method to assess the value
of WBC’s backlog and equipment. She also asserts that Guy
dissipated assets and that the estate should have been credited
for the dissipation.
A. Notes Receivable
¶53 The account ledgers for three of the parties’ entities
included line items for loans owed to Guy, totaling $1,059,466.
The district court deducted these amounts from the value of
those entities in calculating the overall value of the marital
estate. However, the notes receivable, owed to Guy, were not
counted as an asset of the marital estate. When Candi brought
the matter to the court’s attention, it found that “[t]he parties
agree that the Court did not consider the three notes receivable”
but rejected Candi’s argument on the ground that “[n]either
party points to the record regarding this issue.” However, when
the 2018 Supplemental Findings, drafted by Guy, addressed the
matter, the court’s finding evolved to “all Notes Receivable were
included in the valuation of the various marital entities by the
parties’ experts.”
¶54 Candi asserts that the court’s findings are clearly
erroneous and that the court therefore erred in refusing to
include the notes receivable in the valuation of the marital estate.
We agree with Candi that the trial evidence memorializing the
20190106-CA 23 2022 UT App 28Wadsworth v. Wadsworth
accounts payable to Guy constituted record evidence of Guy’s
notes receivable with respect to those entities. Thus, the court
erred in finding that Candi had not “point[ed] to the record
regarding this issue.” Moreover, its finding in the 2018
Supplemental Findings that “all Notes Receivable were included
in the valuation of the various marital entities by the parties’
experts” is not supported by the evidence. 5 We are aware of
nothing in the record indicating that any experts added the notes
receivable to the valuation of the marital estate.
¶55 It was unreasonable for the court to include the accounts
payable in its calculation of the other entities’ liabilities without
also crediting the notes receivable to Guy as an asset. The only
evidence before the court concerning the notes receivable is that
contained in the owing entities’ ledgers—that Guy was entitled
to receive the funds. Thus, it is necessary for the district court to
adjust the value of the marital estate to include the $1,059,466
owing to Guy from the other entities.
B. Backlog
¶56 Candi next asserts that the district court erred in assessing
the value of WBC’s backlog. She asserts that because WBC is a
“viable business,” the court should have recognized that it “has
future work lined up and future work yet to come.” Specifically,
Candi takes issue with two of the court’s findings relating to the
backlog: (1) that “Candi did not provide counter-testimony to”
Guy’s witnesses’ “statements of no value in the backlog” and (2)
that one of Guy’s witness had “testified that any potential
5. This finding also appears to be inconsistent with the court’s
previous ruling, in which it found that the values were not
considered. Candi objected to the form of the findings prepared
by Guy, pointing out this inconsistency, but the court rejected
her objection, stating that it believed the notes were “considered
in the Court’s decision because the experts testified to the same.”
20190106-CA 24 2022 UT App 28Wadsworth v. Wadsworth
purchaser would not purchase the company based on a
backlog.”
¶57 Candi points to the testimony of her own expert that the
backlog would generate a net profit of $3,441,733. She further
argues that Guy’s expert’s assertion that the profit would be
eaten up with administrative costs and capital expenditures
relies on a misguided “assumption that WBC would obtain no
new work.” 6 She points out that such an assumption was faulty,
as “WBC had only one negative year in the . . . five-and-a-half
years” prior to trial.
¶58 But Guy’s expert’s opinion that the backlog lacked value
did not rely on the assumption that WBC would never get new
work, as Candi asserts. Rather, it was based on his assessment
that the backlog was not large enough to keep up with
administrative expenses the company would need to incur, such
as equipment costs, salaries, insurance, etc. Guy’s expert
explained that in assessing the value of the backlog, he examined
“the general and administrative expenses in the current
environment that both a buyer and seller would look at when
they’re examining whether or not this backlog has any value.”
Based on this examination, he concluded that “the backlog in its
current state would start to absorb cash flow from a negative
performance during the next eleven months”—in other words,
6. Closely related to this argument, and similar to her argument
regarding the valuation of WBC’s equipment, see infra Part III.C,
Candi asserts that the court’s determination that the backlog
lacked value was erroneous “because it reflects a liquidation
value for WBC rather than its value as a going concern.” But this
argument rests on Candi’s assertion that Guy’s witness and the
court assumed WBC would obtain no new work. And as we
discuss infra ¶ 58, neither the testimony nor the court’s findings
relied on such an assumption. Thus, we do not agree with Candi
that either Guy’s expert or the court relied on WBC’s liquidation
value to conclude that the backlog lacked value.
20190106-CA 25 2022 UT App 28Wadsworth v. Wadsworth
although WBC could expect to earn a gross profit from the
backlog, it would have to dip into that profit to make up for its
negative cash flow and would therefore not earn a net profit.
This concept was further addressed by Guy in his testimony,
where he explained that although WBC had a backlog, at the
time of the evaluation it did not have as many contracts as it
needed, had to lay off workers, and had to rely on capital to
continue operating.
¶59 While Candi’s expert testified that the backlog would
generate a net profit of $3,441,733, he did not address the details
about anticipated administrative costs or the state of the industry
that Guy and his expert addressed in their testimonies, and this
seems to be the absent “counter-testimony” to which the court
was referring in its finding. Indeed, the court was clearly aware
of and considered Candi’s expert’s testimony and valuation, as it
included that information in its findings. But it nevertheless
concluded that “Candi presented no other evidence or expert
testimony in that industry regarding the backlog.” Thus, the
court’s finding was not in error. And in any event, it was the
court’s prerogative to credit the testimony of Guy’s expert over
the testimony of Candi’s expert. See Henshaw v. Henshaw, 2012
UT App 56, ¶ 11, 271 P.3d 837 (“It is within the province of the
trial court, as the finder of fact, to resolve issues of credibility.”);
see also Barrani v. Barrani, 2014 UT App 204, ¶ 4, 334 P.3d 994(“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.” (quotation simplified)).
¶60 As to the court’s finding regarding Guy’s witness’s
testimony about a potential buyer, while that finding could have
been more precise—the witness actually testified that a buyer
cares only about a “sustainable backlog” and that a buyer would
rely on “the backlog in front” of the company rather than its
historic backlog—the imprecision ultimately does not convince
us that the court relied on an erroneous assumption. The witness
did not testify specifically regarding WBC’s backlog, and his
20190106-CA 26 2022 UT App 28Wadsworth v. Wadsworth
actual statement ultimately supports the district court’s finding
regarding the value of the backlog. If the court applied the
principle stated by the witness—that only the backlog in front of
WBC was relevant—to the testimony it relied on that the backlog
would not generate a net profit, the testimony was not
inconsistent with the court’s finding that the backlog lacked
value.
¶61 Ultimately, it was within the court’s discretion to accord
each party’s expert testimony the weight it deemed proper. And
the testimonial evidence presented by Guy and his expert and
witness supports the court’s conclusion that the backlog lacked
value. Even assuming that WBC was a viable company that
would continue to generate contracts, the evidence supported a
determination that its current contracts were not sufficient for
the company to expect to generate a net profit.
C. Equipment
¶62 Next, Candi challenges the district court’s valuation of
WBC’s equipment. Her argument rests primarily on her
assertion that the court erroneously used “liquidation value” to
calculate the value of the equipment rather than valuing WBC as
a “going concern.” 7
7. Candi also challenges two of the court’s findings regarding the
equipment and asserts that misstatements in those findings
undermine the court’s determination regarding the value of the
equipment.
First, Candi challenges the court’s finding that Guy
“testified that auctions are the most common way that heavy
equipment is bought and sold in the construction business” and
“that if he needed a particular piece of equipment he would
check Ritchie Bros. to see what was available.” As Candi points
out, this finding most closely reflects Guy’s counsel’s recap of
the evidence, not testimony actually provided by Guy. In fact,
(continued…)
20190106-CA 27 2022 UT App 28Wadsworth v. Wadsworth
¶63 First, we agree with Guy that Utah law does not support
Candi’s contention that the court was required to evaluate WBC
as a going concern. In fact, our case law is clear that courts have
broad discretion in determining the proper method for
calculating the value of marital property. See DeAvila v. DeAvila,
2017 UT App 146, ¶ 12, 402 P.3d 184 (“District courts generally
have considerable discretion concerning property distribution
(…continued)
Guy testified that although Ritchie Brothers had made him an
offer for his equipment, he had not actually done business with
Ritchie Brothers in the past. Nevertheless, we are not convinced
that this misstatement undermines the court’s conclusion. Ample
additional findings supported the court’s determination,
including its opinion that Guy’s expert had provided a more
thorough appraisal than Candi’s expert and its reliance on the
expert’s testimony that auctions are commonly used to buy and
sell heavy construction equipment and that his appraisal
represented the fair market value of the equipment.
Second, Candi challenges the court’s finding that there are
“no approved standards” for appraising equipment. She asserts
that her expert’s testimony that the USPAP “provides a standard
of value” and Guy’s expert’s testimony that “the majority of the
equipment people use” USPAP demonstrates that there are
approved standards for appraising equipment. But Candi’s
expert also testified that no specific qualifications are required to
appraise heavy construction equipment. The fact that the USPAP
“provides a standard of value” and that many appraisers use it
does not mean that it is the approved standard that must be
followed. (Emphasis added.) Ritchie Brothers described its
valuation method as a “market approach” that took into account
historical auction sales; “usage, attachments, options, and
condition”; personal experience over the course of fifty years;
and knowledge of world economic conditions. The court found
this method to be reliable, and Candi has failed to point to any
rule mandating that the USPAP standards be followed in this
context.
20190106-CA 28 2022 UT App 28Wadsworth v. Wadsworth
and valuation in a divorce proceeding and their determinations
enjoy a presumption of validity.” (quotation simplified)); cf.
Griffith v. Griffith, 1999 UT 78, ¶ 19, 985 P.2d 255 (“[T]rial courts
have broad discretion in selecting an appropriate method of
assessing a spouse’s income and will not be overturned absent
an abuse of discretion.”). Moreover, courts may even reject all
valuation methods presented by experts and elect to simply split
the difference between multiple appraisals. See Newmeyer v.
Newmeyer, 745 P.2d 1276, 1278–79 (Utah 1987) (upholding a
court’s decision to fix the value of a marital home by splitting the
difference between the values presented by two experts); Andrus
v. Andrus, 2007 UT App 291, ¶¶ 12–13, 169 P.3d 754 (upholding a
district court’s decision to average the value of stock on nine
different relevant dates to reach the fair value of stock in the
marital estate); Barber v. Barber, No. 961783-CA, 1998 WL
1758305, at *1 & n.1 (Utah Ct. App. Oct. 8, 1998) (holding that the
district court acted within its discretion when it valuated a
business by averaging four appraisals provided by expert
witnesses).
¶64 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.” Morgan v.
Morgan, 795 P.2d 684, 691–92 (Utah Ct. App. 1990) (quotation
simplified); see also Weston v. Weston, 773 P.2d 408, 410 (Utah Ct.
App. 1989) (upholding a court’s election not to apply a
marketability discount to the value of stock in a closely held
corporation, despite several experts recommending that such a
discount be applied, because the value the court found was
“within the range of values established by all the testimony”). 8
8. The only case Candi cites in support of her contention that the
court was required to value WBC as a going concern is Hogle v.
(continued…)
20190106-CA 29 2022 UT App 28Wadsworth v. Wadsworth
¶65 Thus, even assuming that Guy’s expert’s valuation was
“liquidation value,” it would have been within the court’s
discretion to use that valuation, which was “within the range of
values established by all the testimony,” so long as the court
adequately supported its decision with factual findings
explaining its decision. See Morgan, 795 P.2d at 691–92. Here, not
only did the court support its determination with detailed
factual findings, but those factual findings make clear that it
considered the auction value to represent the fair market value
of the equipment, not the liquidation value.
¶66 In accepting Guy’s expert’s valuation over that of Candi’s
expert, the court explained that Guy’s expert was more thorough
because he examined each individual piece of equipment and
took into account its condition, mileage, and hours.
Additionally, the court found it relevant that 80% of Ritchie
Brothers’ “sales are directly to end users” and credited the
expert’s testimony that their appraisal was based on fair market
value, specifically rejecting Candi’s assertion that auction value
was equivalent to the value in a “fire sale.” The court also
pointed out that even Candi’s expert had used some sales data
from auction houses to assess values. Based on this evidence, the
court found that “[t]here is no indication that [Guy’s expert’s]
evaluation does not reflect the actual marketplace price the
parties could expect to receive upon sale” and adopted the
(…continued)
Zinetics Medical, Inc., 2002 UT 121, 63 P.3d 80. See id. ¶ 20
(pointing out in dicta the general rule that “in the absence of
actual liquidation a corporation must be valued as a going
concern”). But that case involved the valuation of stock shares in
the context of a forced purchase, not the equitable division of a
marital estate. The rule articulated in Hogle has not been applied
in the context of marital property division, and Candi has not
convinced us that it should overcome the general rule granting
courts wide discretion to assign value to marital assets.
20190106-CA 30 2022 UT App 28Wadsworth v. Wadsworth
$13,890,300 value provided by Guy’s expert. We will not disturb
the court’s well-supported decision on this issue. 9
D. Dissipation
¶67 Candi next contends that “Guy dissipated assets at a time
he understood that divorce was likely” and that the district court
should have included the value of additional allegedly
dissipated assets—over and above the money Guy spent on his
girlfriend, which the court considered dissipation and accounted
for as such—in its valuation of the marital estate.
¶68 “Where one party has dissipated an asset, hidden its
value or otherwise acted obstructively, the trial court may, in the
exercise of its equitable powers, value a marital asset at some
time other than the time the decree is entered . . . .” Goggin v.
Goggin, 2013 UT 16, ¶ 49, 299 P.3d 1079 (quotation simplified). In
other words, “when a court finds that a spouse has dissipated
marital assets, the court should calculate the value of the marital
property as though the assets remained” and give “the other
spouse . . . a credit for his or her share of the assets that were
dissipated.” Id.
9. We note that with respect to both the backlog and the
equipment, our decision should not be construed as a
determination that the court’s findings were a foregone
conclusion. Indeed, Candi also presented evidence that could
have supported different findings regarding the value of both
assets. However, because the court’s findings fell within the
wide range of its discretion, we are not in a position to disturb
those findings. See Gardner v. Gardner, 2019 UT 61, ¶ 18, 452 P.3d
1134; Goggin v. Goggin, 2013 UT 16, ¶ 26, 299 P.3d 1079; see also
Barrani v. Barrani, 2014 UT App 204, ¶ 4, 334 P.3d 994 (“A trial
court is free to accept or reject an expert’s opinion and may
accord that opinion whatever weight it deems proper.”
(quotation simplified)).
20190106-CA 31 2022 UT App 28Wadsworth v. Wadsworth
¶69 A number of factors may be relevant to this inquiry,
including
(1) how the money was spent, including whether
funds were used to pay legitimate marital expenses
or individual expenses; (2) the parties’ historical
practices; (3) the magnitude of any depletion; (4)
the timing of the challenged actions in relation to
the separation and divorce; and (5) any obstructive
efforts that hinder the valuation of the assets.
Marroquin v. Marroquin, 2019 UT App 38, ¶ 33, 440 P.3d 757(quotation simplified). Candi’s dissipation argument concerns
three transactions: (1) Guy’s purchase of the yacht, (2) Guy’s
investment in FDFM, and (3) Guy’s transfer of assets into the
Trust.
1. Yacht
¶70 Candi first argues that the district court erred in
concluding that the purchase of the yacht was not dissipation.
Candi asserts that although the yacht itself remained in the
estate, its rapid depreciation meant that it was “cash going out
the door for no benefit.” She also argues that because Guy used
the yacht and she did not, any benefit from the use of the yacht
was individual to Guy rather than to the marital estate.
¶71 Candi acknowledges that Utah law has not held that the
purchase of a depreciating asset constitutes dissipation. But she
nevertheless urges us to adopt such a rule, relying on case law
from Illinois. However, even if we were inclined to find these
cases persuasive, most of them appear to be distinguishable
from the case at hand. For example, in In re Marriage of Thomas,
608 N.E.2d 585 (Ill. App. Ct. 1993), the court held that the
devaluation of the parties’ business constituted dissipation not
simply because it had decreased in value but because the
husband had directly undermined the business through
“inattention” and “his failure to solicit additional clients or
20190106-CA 32 2022 UT App 28Wadsworth v. Wadsworth
through his outright stealing of clients for his new business.” Id.
at 587. In In re Marriage of Schneeweis, 2016 IL App (2d) 140147, 55
N.E.3d 1280, the court upheld a finding of dissipation where the
husband had begun making “secretive, risky and progressively
more destructive” financial decisions that were “inconsistent
with the parties’ prior practices.” Id. ¶ 28 (internal quotation
marks omitted). And in In re Marriage of Block, 441 N.E.2d 1283(Ill. App. Ct. 1982), where the husband had purchased a racing
boat that was financially under water, the court held that it could
be considered “a debt in dissipation” but clarified that “there
would be no net effect on the marital estate” if “the value of the
boat is approximately the same as the amount of indebtedness.”
Id. at 1288–89. 10
¶72 Here, the court found that the purchase of the yacht was
consistent with “Guy’s historical practice” of buying “planes and
boats” and that there was no evidence “that Guy caused
excessive diminution in value.” Additionally, the court assigned
to Guy all responsibility for the outstanding debt on the yacht, so
any “debt in dissipation” caused by the yacht’s purchase was
resolved, see id. at 1288. While the yacht was used primarily by
Guy, he did make it available to Candi, and he never transferred
it out of the marital estate. We agree with Guy that the
depreciated value of the yacht, alone, does not mandate a
finding of dissipation, particularly where its purchase was
consistent with purchases made during the marriage and there is
10. In re Marriage of Hubbs, 843 N.E.2d 478 (Ill. App. Ct. 2006),
does support the argument that a district court may treat money
as a dissipated asset when it is used to purchase a depreciating
asset used primarily by one party. Id. at 485–86. But the case
does not mandate that a court treat the asset this way, and
therefore, even if we were to adopt its reasoning, it would not
support a determination that the district court abused its
discretion in this case by declining to treat the money used to
purchase the yacht as a dissipated asset.
20190106-CA 33 2022 UT App 28Wadsworth v. Wadsworth
no indication that Guy’s actions contributed to the
depreciation. 11
2. North Dakota Investment
¶73 Candi next claims that the district court should have
valued FDFM based on the $1,129,000 Guy invested in it rather
than its $734,000 value at the time of trial. She asserts that “had
Guy not unilaterally made that poor investment, more money
would have remained in the estate.” According to Candi,
because Guy did not consult her regarding the investment, he
“acted obstructively” and should therefore be held accountable
for the diminished value of the asset. See Goggin v. Goggin, 2013
UT 16, ¶ 49, 299 P.3d 1079 (quotation simplified).
¶74 However, the mere failure to disclose the investment did
not mandate a finding that Guy acted obstructively. In fact, the
evidence here supported the court’s finding that Guy “never
consulted with Candi on any business decisions that he made”
throughout the marriage and that making business decisions
without disclosing them to her was “well within the scope of his
historical practices.” Moreover, even where a party has acted
obstructively, the decision whether to “value a marital asset at
some time other than the time the decree is entered” is a matter
within the court’s discretion in its “exercise of its equitable
powers.” Id. (quotation simplified). We are not convinced that
11. Indeed, the rule suggested by Candi—that the purchase of a
depreciating asset constitutes dissipation per se—is unworkable.
The practical effect of this rule would be that every purchase of a
vehicle, furniture, appliances, or essentially any personal
property that does not retain its full value after purchase during
the pendency of a divorce could subject the purchaser to a
dissipation claim. We note that the case-by-case factor-based test
outlined in Marroquin v. Marroquin, 2019 UT App 38, 440 P.3d
757, is a much more practical approach to assessing dissipation.
See id. ¶ 33.
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the court abused its discretion here. To the contrary, though we
can sympathize with Candi’s desire to be included in financial
decision-making, the evidence clearly suggests to us, as it did to
the district court, that the diminution of FDFM’s value resulted
from changes in the market, and there is nothing to indicate that
the loss of value resulted from any deceptive or obstructive
actions by Guy.
3. Transfers to the Trust
¶75 Finally, Candi asserts that the district court should have
considered the transfers to the Trust to constitute dissipation.
She asserts that the timing of the transfers—after she filed for
divorce the first time and before Guy confessed his affair—
suggests that Guy transferred the funds in anticipation of the
divorce. See Finan v. Finan, 949 A.2d 468, 475–76 (Conn. 2008)
(collecting cases and explaining that the “majority” of “states
allow trial courts to consider a spouse’s dissipation of marital
assets, that occurs prior to the spouses’ physical separation, in
determining the allocation of assets to each respective spouse”).
She argues that even though the money is now beyond the reach
of the district court, it should have ordered Guy to compensate
her for the loss in value under a dissipation theory. See Jefferies v.
Jefferies, 895 P.2d 835, 838 (Utah Ct. App. 1995).
¶76 While we agree with Candi that the court could have
compensated her for the marital assets put into the Trust had it
found dissipation, we do not agree that the court exceeded its
discretion in finding that the transfers did not constitute
dissipation. The court found that the transfers did not amount to
dissipation because transferring assets to their children was
consistent with the parties’ practices during the marriage,
beginning as early as 1993, and Candi had deferred to Guy to
“run the parties’ finances and estate” throughout the marriage.
The court found “no evidence that Guy attempted to withhold
information or cut Candi out from the estate planning process.”
And while the timing of the transfers could provide
circumstantial evidence of dissipation, the parties’ historical
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practices and the lack of additional evidence suggesting
obstructive intent on Guy’s part support the court’s
determination that the transfers were not dissipation.
IV. Division of the Estate and Equalization Payments
¶77 The parties raise various challenges to the district court’s
division of the estate and its order regarding the equalization
payments. First, Candi asserts that the court erred by not
awarding her a greater share of the marital estate directly.
Second, she argues that the court erred by refusing to grant her
security to help ensure that she actually receives her unpaid
share of the estate. Third, both parties challenge the 5% interest
rate set by the district court. Finally, Guy argues that the court
should have ordered Candi to share in any transaction costs that
may be incurred should he be required to liquidate assets to
make the equalization payment.
A. Estate Division
¶78 Candi argues that the district court abused its discretion
by—at least temporarily—awarding Guy the bulk of the estate
and giving him five years to pay Candi her share. She argues
that instead, the court should have done one or more of the
following: (1) ordered Guy to pay Candi her share immediately;
(2) awarded her a greater share of cash and retirement accounts;
(3) awarded her the restaurants; (4) ordered Guy to liquidate
investments, yachts, planes or spare equipment to pay Candi
more cash up front; or (5) ordered larger annual payments in
implementing the equalization payment schedule.
¶79 “When the district court assigns a value to an item of
marital property, the court must equitably distribute it with a
view toward allowing each party to go forward with his or her
separate life.” Marroquin v. Marroquin, 2019 UT App 38, ¶ 27, 440
P.3d 757 (quotation simplified). In situations where the marital
estate consists primarily of a single large asset, such as a
business or stock, a common acceptable approach for the court to
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take is to award the asset to one party and make a cash award to
the other party. See Taft v. Taft, 2016 UT App 135, ¶ 56, 379 P.3d
890; Argyle v. Argyle, 688 P.2d 468, 471 (Utah 1984). This avoids
the necessity for the parties “to be in a close economic
relationship which has every potential for further contention,
friction, and litigation.” Argyle, 688 P.2d at 471 (quotation
simplified).
¶80 In fashioning this type of marital property division, “a
court has the ability to make equitable provisions for deferred
compensation”—the keyword being “equitable.” Taft, 2016 UT
App 135, ¶ 60. One way to assess the equitability of the
provisions is to examine whether the award affords one party
“significantly more latitude to go forward with his [or her]
separate life” than the other. Id. ¶ 61 (quotation simplified). It is
also relevant whether the party required to pay the deferred
compensation will be able to use the property to their unfair
advantage at the expense of the person to whom the
compensation is owed. Id. ¶¶ 59–60.
¶81 We agree with Guy that the specific division scheme
selected by the district court—Guy receiving, on a temporary
basis, a larger share of the estate, but with the obligation to make
equalization payments to Candi—is not inequitable, so long as
adequate security for the unpaid equalization payments is
included. See infra Part IV.B. While the court may have been
within its discretion to employ one or more of the other methods
recommended by Candi, its numerous factual findings support
its ultimate determination, and the deferred payment provisions,
coupled with security, are sufficiently equitable to fall within its
discretion. 12
12. There were certainly some smaller liquid assets and business
assets, such as the restaurants, that the district court could have
awarded Candi to decrease the overall amount of the balloon
payment. And had we been in the court’s shoes, we might have
(continued…)
20190106-CA 37 2022 UT App 28Wadsworth v. Wadsworth
¶82 Candi asserts that the court’s distribution of marital
assets and its use of the equalization payment plan
impermissibly gives Guy disproportionate access to the
estate. She compares the facts of this case to those in Taft v.
Taft, 2016 UT App 135, 379 P.3d 890, in which this
court determined that a deferred payment plan that gave
the husband discretion to dictate the amount of monthly
(…continued)
employed some of these methods. We are troubled by the
district court’s adoption of the paternalistic argument that
merely because Candi had little business experience, she was not
capable and should not be awarded any of the business assets.
Not every business owner has extensive business experience,
and even inexperienced business owners can succeed, often by
hiring experienced managers to help run the business. Indeed,
courts should be cautious about perpetuating inequalities
established in the course of a marriage—perhaps due to an
imbalance of power in the parties’ relationship—as the parties
move forward with their separate lives simply because such
inequality had been established as the status quo. For example,
in this case, it appears that Candi’s inability to present evidence
about what she “could or couldn’t do with respect to
employment” was based on the parties’ practices while they
were married. Candi testified that it was Guy who wanted her to
be a stay-at-home mom and that he “insisted on taking care of all
the finances.” Although Candi wanted to be more involved in
financial decisions, “it just wasn’t worth the fight.” While we
understand the court’s desire not to penalize Guy for continuing
to act in a manner consistent with the parties’ historic practices,
see supra Part III.D; infra Part VI, we caution against perpetuating
apparent inequalities in marital relationships by relying on
parties’ historic practices to divide and distribute the marital
estate. Nevertheless, we are ultimately unpersuaded that the
estate division structure chosen by the district court in this case
was outside its wide discretion in such matters, as long as
sufficient security for the unpaid portion is provided.
20190106-CA 38 2022 UT App 28Wadsworth v. Wadsworth
installments over ten years at a 2.13% interest rate was not
equitable. See id. ¶¶ 59–60. Candi argues that just like in Taft,
“the overall dynamics of the court’s award more readily allow
[Guy], with his immediate ability to use and enjoy the property
awarded to him[,] . . . significantly more latitude to go forward
with his separate life than [Candi] is afforded.” See id. ¶ 61
(quotation simplified).
¶83 But Taft is distinguishable from the case at hand. First,
the husband in Taft was permitted to decide the amount of
the monthly payments to his ex-wife over the course of ten
years between the time of the divorce decree and the time
the balloon payment was due. See id. ¶ 59. His discretion was
so absolute that the court observed he “could conceivably make
. . . equal monthly payments of $1 for nine years and
eleven months before making the final balloon payment . . . ,
thereby forcing [his wife] to wait ten years before realizing
any real benefit from her property award.” Id. Here, on the
other hand, the district court set the terms of the payment
plan, ultimately requiring Guy to pay Candi $30,000 per
month plus an additional $500,000 per year. Although the
court certainly could have ordered Guy to pay more, we are
not convinced that the amount ordered was so inequitable as
to fall outside the bounds of the court’s discretion. Unlike
the wife in Taft, Candi will not have to wait until the
balloon payment is due to realize any benefit from her
property award. Rather, she will receive $860,000 each year in
addition to the money she has already received. While this
leaves Guy in control of a substantial portion of Candi’s
property, she is at least able to benefit from her property award
in the meantime.
¶84 Second, the interest applied to the property distribution in
Taft was only 2.13%, an amount this court observed “provides
very little incentive for [the husband] to substantially pay it prior
to the expiration of the ten-year period, much less for him to pay
[the wife] sizeable monthly installments.” Id. ¶ 60. In fact, the
low interest rate “would almost certainly allow [the husband] to
20190106-CA 39 2022 UT App 28Wadsworth v. Wadsworth
invest [the wife’s] money elsewhere and reap the benefit of any
additional increment of interest—a benefit that in fairness
should accrue to [the wife].” Id. In this case, on the other hand,
the district court applied a 5% interest rate, which it
acknowledged was higher than the statutory postjudgment
interest rate, to incentivize Guy to pay Candi sooner. See supra
¶ 31; see also infra Part IV.C. By setting interest at a rate
calculated to discourage any delays in paying Candi, the court
avoided the type of inequitable deferred payment plan at issue
in Taft.
¶85 We acknowledge that granting Guy a five-year period
in which to continue using the bulk of Candi’s property award
to grow his business does afford him a benefit that may, to
some degree, come at Candi’s expense. But we are convinced
that it is not inequitable in light of the entire landscape of
the marital estate and property division. First, the size of
the parties’ estate and the fact that the bulk of it is wrapped
up in WBC means that gathering the liquid funds to pay
Candi’s property award is not something that can be
accomplished overnight, at least not without substantially
decreasing the overall value of the marital estate. Thus, it was
reasonable for the court to allow Guy some period of time to
gather the funds necessary to pay Candi. Second, this time
period may allow Guy to keep his larger businesses intact and
find other ways to pay Candi. Keeping the businesses intact will
ultimately benefit both parties, as it will allow Guy to maintain
his income and continue paying alimony to Candi. Finally, we
take Guy’s point that he may incur substantial transaction costs
if he ultimately does need to liquidate assets to pay Candi. See
infra Part IV.D. Thus, it seems to us that the hypothetical benefit
Guy may incur by using Candi’s share of the property to
increase the value of the estate will be offset by the hypothetical
detriment he could incur if he has to liquidate the assets. Since
the court did not order Candi to share in any of these transaction
costs, the court’s decision to give Guy the use of Candi’s portion
of the property during the five-year forbearance period does not
20190106-CA 40 2022 UT App 28Wadsworth v. Wadsworth
strike us as inequitable, at least so long as adequate security is
afforded to Candi. 13
B. Security
¶86 And this brings us to Candi’s next argument: that the
district court abused its discretion by imposing this specific
deferred-payment arrangement without requiring Guy to
provide adequate security. Candi asserts that the court’s
arrangement put her in the position—involuntarily—of an
unsecured creditor and posits that no lender would agree to
make a $15 million loan without some sort of security interest.
Without any type of security, Candi argues, she stands to lose
her ability to collect her share of the marital estate in the event
Guy passes away before the balloon payment is due or he moves
his assets into irrevocable trusts. We agree with Candi and
emphasize that the district court’s chosen arrangement passes
13. We observe that arrangements such as this should be
reserved for only the most unusual cases. As we have already
emphasized, in distributing marital property, courts should act
“with a view toward allowing each party to go forward with his
or her separate life,” Marroquin, 2019 UT App 38, ¶ 27 (quotation
simplified), and avoiding the necessity of parties continuing “in
a close economic relationship which has every potential for
further contention, friction, and litigation,” Argyle v. Argyle, 688
P.2d 468, 471 (Utah 1984) (quotation simplified). The estate
division and equalization payments in this case have the
unfortunate result of keeping the parties tied together long after
their divorce and depriving Candi of immediate access to her
share of the estate. However, though we have reservations,
because of the unusual circumstances of this case—i.e., the size
of the estate coupled with the concentration of the estate’s value
in various non-liquid business entities that are difficult to
divide—we cannot ultimately fault the court’s resolution, so
long as it secures Candi’s interest in her share of the marital
estate.
20190106-CA 41 2022 UT App 28Wadsworth v. Wadsworth
discretionary muster only if it comes accompanied by an
adequate security mechanism.
¶87 The court’s only justification for declining to grant Candi
any type of security was its determination that it could not
award a lien against the businesses, that the Uniform
Commercial Code did not apply, and that life insurance was not
an option due to Guy’s health. But the court did not explain why
these limitations prevented it from granting Candi any type of
security. Candi’s request was broad: she asserted that “there
needs to be some kind of order or security or lien or whatever
form it takes . . . that will ensure that those former marital assets
are there at the time that . . . the balloon payment needs to be
made.” “So all we’re asking for is some kind of order to ensure
that there’s going to be payment down the road.”
¶88 Guy maintains that no security is necessary because he
has shown himself to be reliable in making payments and does
not have a history of hiding assets. But we agree with Candi that,
regardless of Guy’s history, character, or intentions, she should
not be required to rely solely on Guy’s continued health and
goodwill to ensure her ability to collect what she is owed.
Whether Candi’s mistrust of Guy is warranted or not, it was
unreasonable for the court not to grant her any type of security
in her half of the marital estate.
¶89 Moreover, Candi has even greater cause for concern in
light of Guy’s age and poor health. In fact, Guy expressed
concern that he might pass away before the divorce decree was
finalized and relied on that possibility to argue that the divorce
action should be bifurcated. Should Guy pass away before the
balloon payment is due, Candi would no longer have even the
benefit of Guy’s goodwill. Instead, she would have to further
litigate with his heirs (including her own children) to fight for
her share of the marital estate. It is hard to reconcile why the
district court considered this to be an adequate legal remedy.
Candi should not have to take her chances as an unsecured
creditor should Guy pass away before she can receive her share
20190106-CA 42 2022 UT App 28Wadsworth v. Wadsworth
of the marital estate. No reasonable creditor would agree to a
forbearance on such terms, and it was therefore inequitable to
impose such terms on Candi.
¶90 Accordingly, we remand this case for the court to fashion
an equitable security interest that will adequately protect
Candi’s ability to collect her remaining share of the marital estate
at the end of the five-year forbearance period.
C. Interest Rate
¶91 Both Guy and Candi take issue with the 5% interest rate
the district court imposed on the equalization payments. Guy
asserts that the interest rate should have been set at the statutory
postjudgment interest rate, which was 4.58% at the time the
court entered the 2019 Supplemental Findings. Candi argues that
the court should have imposed the 10% interest rate originally
set in its 2018 Supplemental Findings. We reject both parties’
arguments and affirm the district court’s imposition of the 5%
interest rate.
¶92 Guy asserts that the court was bound by the
postjudgment interest rate established by section 15-1-4 of the
Utah Code, which provides that “final civil . . . judgments of the
district court . . . shall bear interest at the federal postjudgment
interest rate as of January 1 of each year, plus 2%.” Utah Code
Ann. § 15-1-4(3)(a) (LexisNexis Supp. 2021). Section 15-1-4 does
apply to orders in a divorce case “in relation to the children,
property and parties.” See Marchant v. Marchant, 743 P.2d 199,
207 (Utah Ct. App. 1987) (quoting Utah Code Ann. § 30-3-5(1)
(1984) (current version at id. (LexisNexis Supp. 2021) (stating that
the district court “may include in the decree of divorce equitable
orders relating to the children, property, debts or obligations,
and parties”))). However, section 15-1-4 provides the “minimum
interest allowable.” Id. (emphasis added). The statute “does not
preclude a District Court, under [section 30-3-5] from imposing
an interest rate of more than [the statutory postjudgment rate]
where, under the circumstances, that award is reasonable and
20190106-CA 43 2022 UT App 28Wadsworth v. Wadsworth
equitable.” Stroud v. Stroud, 738 P.2d 649, 650 (Utah Ct. App.
1987) (quoting Pope v. Pope, 589 P.2d 752, 754 (Utah 1978)). And,
in fact, setting equalization payments at the postjudgment
interest rate, rather than a higher rate, may be an abuse of
discretion if doing so is inequitable under the circumstances. See
Taft v. Taft, 2016 UT App 135, ¶¶ 56, 60, 379 P.3d 890 (finding a
2.13% interest rate, which was the rate provided by Utah Code
section 15-1-4 at the time, to be insufficient where the husband
was granted discretion to determine the amount of payments
over the course of ten years because it incentivized the husband
to invest the wife’s money elsewhere rather than paying her
sooner). Thus, we find no merit to Guy’s contention that the
court was bound to apply the default postjudgment interest rate
to the equalization payments.
¶93 Candi argues that an interest rate higher than the 5%
ordered by the court is necessary to “compensate Candi for her
unwilling forbearance to Guy and incentivize Guy to pay
quicker.” She argues that 10% is an appropriate interest rate
because it is consistent with the Utah Code’s default interest rate
for a “forbearance of any money, goods, or services.” Utah Code
Ann. § 15-1-1(2) (LexisNexis Supp. 2021). However, Candi has
not provided us with any authority suggesting that the court
was required to impose this specific interest rate.
¶94 The court’s decision to impose the 5% interest rate was
reasoned and supported by sufficient factual findings. The court
explained that it had considered the 10% interest rate to be
“appropriate” when the court had “deferred to Guy to come up
with an appropriate payment plan.” The court opined that had
Guy been permitted to set the payment schedule, as the husband
in Taft was, the 10% interest rate would have been needed to
avoid giving Guy “an incentive to invest the money and reap the
return instead of paying off” Candi. The court explained that
once it set the payment plan, rather than leaving it to Guy’s
discretion, it did not believe the 10% interest would be valid
under Taft. Nevertheless, it also explained that the interest rate
was not a postjudgment rate because the deferred payment was
20190106-CA 44 2022 UT App 28Wadsworth v. Wadsworth
more akin to a forbearance, and it still wanted to give Guy “an
incentive to pay the Equalizing Balance quickly.”
¶95 Our case law is clear that as with other aspects of
property division, equitability is the standard for evaluating the
appropriateness of an interest rate set by the district court for
deferred payments in a divorce. See Olsen v. Olsen, 2007 UT App
296, ¶ 25, 169 P.3d 765 (“The overriding consideration is that the
ultimate division be equitable . . . .” (quotation simplified)). We
are not convinced that the 5% interest rate fell outside the
reasonable range of equitable interest rates the court could have
selected. Moreover, the court clearly explained its reasoning.
Thus, we will not disturb the 5% interest rate the court set.
D. Transaction Costs
¶96 Finally, Guy asserts that the district court should have
required Candi to share in any transaction costs that he may
incur in the event he needs to liquidate assets to pay off Candi’s
share of the marital estate. He points out that taxes and other
transaction costs associated with liquidating the businesses or
any other large assets could be significant and that if the court
does not require Candi to pay her portion of those transaction
costs, it could substantially eat into his portion of the marital
estate.
¶97 We do not disagree with Guy that if he is forced to
liquidate assets, doing so may result in significant taxes and
transaction costs to him. But it is by no means certain that such
costs will be incurred. We do not generally expect courts to
“speculate about hypothetical future [tax] consequences.” See
Alexander v. Alexander, 737 P.2d 221, 224 (Utah 1987) (refusing to
reduce the value of a “stock-price-tied profit-sharing plan to
account for tax liability” because the imposition of taxes was not
certain); see also Sellers v. Sellers, 2010 UT App 393, ¶ 7, 246 P.3d
173 (holding that the district court was not required to consider
potential tax obligations associated with a retirement account
because the tax consequences were “speculative” and assumed
20190106-CA 45 2022 UT App 28Wadsworth v. Wadsworth
“massive withdrawals” from the account); Howell v. Howell, 806
P.2d 1209, 1213–14 (Utah Ct. App. 1991) (holding that the district
court “did not err in refusing to adjust property distribution
because of . . . theoretical [tax] consequences” of selling a second
home). The valuation of marital property “is necessarily a
snapshot in time,” Marroquin v. Marroquin, 2019 UT App 38, ¶ 24,
440 P.3d 757, and such a moment does not consider “the myriad
situations in which the value of [the parties’] property might be
positively or negatively affected in the future,” Sellers, 2010 UT
App 393, ¶ 7.
¶98 Moreover, excessive transaction costs were the very thing
the equalization payments were intended to prevent. The court
acknowledged that forcing the parties to immediately liquidate
assets would significantly cut into the pie that would be
available to divide between both parties. That is why the court
awarded the bulk of the estate to Guy and gave him five years to
pay Candi her portion. The court gave him unfettered discretion
to determine how to gather the funds necessary to pay Candi. In
doing so, it gave Guy free rein over the bulk of Candi’s share of
the estate, which he may use to continue building his businesses
and wealth over the next five years. The benefit he may derive
from using Candi’s share of the estate may very well amount to
much more than the interest Candi will receive at the 5% rate,
which is all she will have access to until the balloon payment is
due, yet she will not share in that benefit any more than she will
share in any transaction costs Guy may incur. 14 See supra ¶ 85.
The entire principal of Candi’s portion will remain in Guy’s
control until he makes the balloon payment at the end of 2024.
14. The $30,000 monthly and $500,000 annual payments will
provide her with $860,000 per year—less than the amount
needed to cover the interest. Thus, Guy will maintain complete
control over the principal of Candi’s share of the estate
throughout the five-year period and will actually owe her
approximately the same amount as the original judgment by the
time the balloon payment is due.
20190106-CA 46 2022 UT App 28Wadsworth v. Wadsworth
Furthermore, because the assets are in Guy’s control, Candi will
have no role in deciding how to liquidate the assets or which
transaction costs to incur. 15
¶99 Given the speculative nature of the potential taxes and
transaction costs, as well as the full discretion Guy was given to
determine whether and how to liquidate assets, it was not an
abuse of discretion for the court not to order that Candi share in
those costs.
V. Alimony
¶100 The next set of challenges the parties raise concerns the
district court’s award of alimony to Candi. Guy asserts that the
court exceeded its discretion in awarding any alimony
whatsoever. Candi, on the other hand, asserts that the court
should have increased the alimony award to account for her tax
burden. She also argues that the court should have required Guy
to either obtain life insurance or provide some other security to
15. Imagine, for example, that Guy found it necessary to sell one
of the restaurants to satisfy Candi’s deferred judgment. There
may be any number of reasons, apart from transaction costs, to
choose one restaurant over the other. Maybe one of the
restaurants is more convenient for Guy to travel to, or maybe he
feels that one will be more successful than the other down the
road and bring him more income. Factors like this may make it
reasonable for Guy to sell one of the two restaurants even
though selling the other might result in fewer transaction costs.
Because Candi will have no input on that decision, she would be
stuck paying the higher transaction costs even though she would
have been better off if Guy had sold the other restaurant. And of
course, it should go without saying that Guy would incur
minimal or no transaction costs if he decided simply to transfer
the restaurants (or any of the other businesses) to Candi in
partial payment of his obligation.
20190106-CA 47 2022 UT App 28Wadsworth v. Wadsworth
ensure that she would receive her alimony payments if he were
to pass away.
A. Alimony Award
¶101 Guy argues that the district court should not have
awarded alimony to Candi because (1) she did not provide the
court with sufficient evidence from which it could calculate her
monthly needs and (2) Candi’s property settlement was
sufficient to allow her to support herself. In support of both
arguments, Guy primarily relies on our supreme court’s holding
in Dahl v. Dahl, 2015 UT 79, 459 P.3d 276. But Dahl neither
automatically requires a court to deny a request for alimony in
the absence of documentation nor prevents the court from
awarding alimony to a spouse who receives a large property
settlement.
¶102 With respect to documentation of need, the Dahl
court held only that the district court “acted within its
discretion in denying” the wife’s alimony request when
she failed to provide evidence supporting her claimed need,
not that the district court was required to deny her request. Id.
¶ 117. In fact, the court explicitly acknowledged that “the
district court could have . . . imputed a figure to determine
[the wife’s] financial need based either on [the husband’s]
records of the parties’ predivorce expenses or a reasonable
estimate of [the wife’s] needs.” Id. ¶ 116 (emphasis added).
Furthermore, we have previously considered and rejected
the “assertion that failure to file financial documentation
automatically precludes an award of alimony.” Munoz-Madrid
v. Carlos-Moran, 2018 UT App 95, ¶¶ 8–9, 427 P.3d
420. “[A]lthough [Candi’s] expenses may have been difficult
to discern because she failed to provide supporting
documentation . . . , there was not a complete lack of evidence
to support their existence.” See id. ¶ 10. Indeed, the court
explained that it relied on the list of items in the standard
financial declaration, Guy’s financial declaration, evidence
concerning the parties’ spending during the marriage, and
20190106-CA 48 2022 UT App 28Wadsworth v. Wadsworth
evidence of Candi’s expenses during the pendency of the
divorce to calculate Candi’s reasonable monthly needs.
¶103 Dahl also does not stand for the proposition that
alimony should never be awarded to those who receive a
large property settlement. Rather, Dahl merely states that
receiving “a sufficiently large property award to support
a comfortable standard of living” prevented “any serious
inequity” from arising due to the court’s decision not to
impute the wife’s need in the face of her lack of evidence.
See 2015 UT 79, ¶ 116 (quotation simplified). We acknowledge
that if the 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.” Mortensen v. Mortensen, 760 P.2d 304, 308 (Utah
1988); see also Batty v. Batty, 2006 UT App 506, ¶ 5, 153 P.3d
827 (holding that the evaluation of a payee spouse’s ability
to meet his or her own needs “properly takes into account
the result of the property division, particularly any
income-generating property [the payee spouse] is awarded”);
Burt v. Burt, 799 P.2d 1166, 1170 n.3 (Utah Ct. App. 1990)
(explaining that courts should distribute property before
fashioning an alimony award, so they can take into
account income generated from property interests).
Nevertheless, the court in this case did not abuse its
discretion by awarding alimony despite Candi’s large property
settlement.
¶104 Although Candi was entitled to receive a large settlement
eventually, Guy continued to control the bulk of the parties’
marital estate and would do so for the next five years. The court
noted this in its determination regarding alimony, observing that
“alimony was needed” because “Guy was unable to pay Candi
the full value of the marital estate at this time.” The court
refused to take into account income Candi may derive from her
portion of the marital assets in the future because that analysis
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was “too speculative for the Court to consider.” 16 However, it
observed that “at such time as . . . Candi . . . receives income or
other assets from her share of the marital estate, or from other
sources, the Court will evaluate the amount, if any, by which
those amounts may reduce her unmet financial needs and
thereby reduce or eliminate Guy’s alimony obligation.” Thus,
the court did not abuse its discretion in awarding Candi
alimony, and any income she derives from the property
settlement may be considered when she actually has control of
that property.
B. Taxes
¶105 On the other hand, Candi argues that the district court
should have included her tax liability on alimony in its
calculation of her needs. In calculating both a payor spouse’s
ability to pay and a payee spouse’s needs, courts are generally
expected to consider the person’s tax liability. See McPherson v.
McPherson, 2011 UT App 382, ¶ 14, 265 P.3d 839; Andrus v.
Andrus, 2007 UT App 291, ¶¶ 17–18, 169 P.3d 754. In particular,
it is plain error for a court to consider the tax consequences for
one party in assessing their income and expenses but not for the
16. Although Candi was to receive interest payments on the
property settlement, we do not think it an abuse of the district
court’s discretion not to include those payments in its
assessment of Candi’s ability to meet her own needs. The court
classified these interest payments as compensation for Candi’s
forbearance on collecting her property settlement. To allow Guy
to offset his alimony obligation with these interest payments
strikes us as inequitable. Moreover, although Guy raised
arguments asserting that his alimony should be reduced by
future income once Candi receives her property, he does not
appear to have specifically asked the court to include the interest
payments in its calculation of Candi’s current income and
therefore failed to preserve any such argument for appellate
review.
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other party. Vanderzon v. Vanderzon, 2017 UT App 150, ¶¶ 45, 58,
402 P.3d 219.
¶106 In its findings, the court used Guy’s net income to assess
his ability to pay alimony. However, because Candi did not
present evidence of her tax burden on any alimony award, the
court did not consider her tax burden in assessing her need. We
acknowledge that the court’s ability to estimate Candi’s taxes
was hampered by Candi’s failure to provide evidence of her
anticipated tax liability. Nevertheless, it is certain that she will
incur some tax burden, particularly in light of the fact that she
will be taxed on any alimony payments she receives. 17 And we
agree with Candi that it was inequitable for the court to consider
Guy’s tax burden when calculating his ability to pay without
considering Candi’s tax burden in assessing her needs. Thus, we
remand the court’s alimony award for the limited purpose of
having the court make findings as to Candi’s projected tax
burden and adjust the alimony award accordingly.
C. Life Insurance
¶107 Next, Candi asserts that the district court should require
Guy to either obtain life insurance or provide a substitute for life
insurance to secure his alimony payments. She points out that
the court initially stated in its 2017 Findings that “Guy should
provide a life insurance policy for Candi to cover alimony for a
period of time sufficient to cover his obligation should he
unexpectedly pass away.” Although the court initially rejected
Guy’s argument that he should be required only to “use his best
efforts to obtain life insurance,” the court ultimately adopted
Guy’s proposed language in its 2018 Supplemental Findings
17. This especially should have been taken into account given the
district court’s entry of the Decree of Divorce on December 31,
2018, the day before a change in the tax laws, to allow Guy to
receive the benefit of a tax deduction on the amount of alimony
he pays to Candi.
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stating that “there was no information as to whether or not Guy
could or could not obtain a life insurance policy for such
purpose nor the cost thereof.” Candi asked the court to
reconsider that finding and make the life insurance requirement
mandatory. However, the court rejected that request and stated
that its finding in the May 2018 Order was “sufficient.” But
while that finding indicated the court’s intent “to ensure that
Candi will receive the money awarded should [Guy] pass
unexpectedly,” it did not definitively decide the issue of whether
Guy was required to obtain life insurance to secure his alimony
obligation or if he was able to demonstrate an inability to
comply with the court’s direction. We are left wondering
whether the court did, or did not, order Guy to obtain life
insurance and are unable to ascertain the answer to this question
from the court’s rulings. Accordingly, we remand this issue to
the district court to clarify its order. 18
VI. Contempt
¶108 Finally, Candi argues that the district court erred in
declining to hold Guy in contempt for violating the Stipulation,
18. We note that this decision falls within the district court’s
discretion. Although it is not uncommon for a divorce decree to
include provisions requiring a party subject to an alimony or
child support order to obtain life insurance, see, e.g., Kartchner v.
Kartchner, 2014 UT App 195, ¶ 36, 334 P.3d 1; Robinson v. Baggett,
2011 UT App 250, ¶ 17, 263 P.3d 411, we acknowledge that such
security is not mandatory. While Guy indicated to the court that
he is unable to get new life insurance due to a health condition, it
does not appear that Candi had the opportunity to challenge
Guy’s assertion or present evidence to the contrary. Moreover,
the court ordered that Guy’s alimony obligation would
terminate upon “the death of either party.” Unlike the property
award, which belongs to Candi regardless of any circumstances
that may change in the future, she is entitled to receive alimony
from Guy only so long as he is living.
20190106-CA 52 2022 UT App 28Wadsworth v. Wadsworth
which the parties reached early on in the proceedings, that they
would not “sell, gift, transfer, dissipate, encumber, secrete or
dispose of marital assets” but that Guy could continue to
manage WBC and conduct business “as he has in the past, which
may include incurring debt, paying expenses and acquiring
assets.” “As a general rule, in order to prove contempt for failure
to comply with a court order it must be shown that the person
cited for contempt knew what was required, had the ability to
comply, and intentionally failed or refused to do so.” Von Hake v.
Thomas, 759 P.2d 1162, 1172 (Utah 1988). In a civil contempt
proceeding, these elements must be proven “by clear and
convincing evidence.” Id.¶109 Candi asserts that the Stipulation’s language allowed Guy
to engage in business transactions only insofar as those
transactions related to WBC. She argues that the “business
hereinabove identified” language in the Stipulation is limited to
“the management and control of” WBC and that the court
therefore misread the Stipulation by not holding Guy in
contempt for any transactions that were not directly related to
WBC. But as Guy observes, the Stipulation also allowed the
parties to engage in transactions “in the course of their normal
living expenditures, ordinary and necessary business expenses
and to pay divorce attorneys and expert fees and costs.”
¶110 “We interpret language in judicial documents in the same
way we interpret contract language,” that is, “we look to the
language of the [document] to determine its meaning.” Cook
Martin Poulson PC v. Smith, 2020 UT App 57, ¶ 24, 464 P.3d 541(quotation simplified). We consider Guy’s reading of the
Stipulation to be more consistent with the plain language of that
document. The provision giving Guy “the right to conduct the
business hereinabove identified as he has in the past, which may
include incurring debt, paying expenses and acquiring assets,”
properly refers to both the operation of WBC and normal living
and business expenses.
20190106-CA 53 2022 UT App 28Wadsworth v. Wadsworth
¶111 Moreover, because contempt requires that the party knew
what was required and intentionally refused to comply, see Von
Hake, 759 P.2d at 1172, “for a violation of an order to justify
sanctions, the order must be sufficiently specific and definite as
to leave no reasonable basis for doubt regarding its meaning,”
Cook, 2020 UT App 57, ¶ 26 (quotation simplified). Even were we
inclined to agree with Candi’s more limited interpretation, we
could not say that the language is so clearly limited to WBC that
there could be “no reasonable basis for doubt regarding its
meaning.” See id. (quotation simplified).
¶112 The Stipulation allowed Guy to continue conducting
normal transactions as he had in the past, and the district court
found that “the transactions Candi complains of were consistent
with Guy’s historical practice of transferring assets from one
entity to another or from one form into another” and that there
was “no indication that [they] . . . were out of the ordinary.”
Candi does not challenge this finding. Thus, we conclude that
the court did not exceed its discretion in declining to find Guy in
contempt.
CONCLUSION
¶113 We conclude that the district court erred in failing to
credit the value of the notes receivable to the marital estate. We
also conclude that it erred in refusing to grant Candi a security
interest to protect her right to receive her unpaid share of the
marital estate. However, we affirm the district court’s property
valuation and distribution in all other respects.
¶114 As to the alimony award, we conclude that the district
court erred in failing to account for Candi’s tax obligation in its
calculation of her need and remand for clarification of whether
the court intended to order Guy to obtain security on Candi’s
alimony award. We affirm the alimony award in all other
respects.
20190106-CA 54 2022 UT App 28Wadsworth v. Wadsworth
¶115 We also affirm the remaining orders and findings
challenged on appeal, including the operative date of the Decree
of Divorce, the equalization payment schedule, the court’s
finding that Guy did not dissipate marital assets apart from the
money he spent on his girlfriend, and its decision not to hold
him in contempt.
¶116 Consistent with our discussion in this opinion, we
remand to the district court to adjust the marital property
valuation, to make findings regarding Candi’s tax liability and
adjust the alimony award, to clarify whether Guy must obtain
security on Candi’s alimony award, and to enter orders
necessary to adequately secure Candi’s interest in her unpaid
share of the marital estate.
20190106-CA 55 2022 UT App 28