In Re Estate of Uzelac

ORME, Judge

(concurring):

¶ 27 I concur in the lead opinion and agree that Wife, as the surviving spouse, is entitled under the agreement to all marital property not otherwise dealt with in the agreement, including property Husband acquired during the marriage. However, I write separately to draw the trial court’s attention to the general rule, not mentioned in the lead opinion, that any appreciation of, or interest on, premarital property is separate property and not part of the marital estate. See Dunn v. Dunn, 802 P.2d 1314, 1320 (Utah Ct.App.1990) (“The general rule is that equity requires that each party retain the separate property he or she brought into the marriage, including any appreciation of the separate property.”). There are some exceptions to this rule, see, e.g., Burt v. Burt, 799 P.2d 1166, 1169 (Utah Ct.App.1990), but if none of the exceptions apply, the trial court must, in determining what Wife is entitled to under the Agreement, ensure that any interest on, or appreciation of, Husband’s premarital property is regarded as his separate property rather than as property acquired during the marriage.

¶ 28 I go out of my way to make this point not because I see any suggestion to the contrary in the lead opinion, but only because I gather from comments made at oral argument that Wife’s counsel may hope to employ an approach on remand that reflects a different view. Specifically, it was mentioned that certain bank accounts were in a particular amount at the time of marriage and were several times larger at the time of Husband’s death. The implication seemed to be that the difference was property acquired during the marriage to which Wife would be entitled. This approach ignores the general rule I have highlighted. In actuality, Wife would only be entitled to the difference net of the interest attributable to Husband’s premarital principal.

¶ 29 I must also offer a couple of comments about footnote 2 of the lead opinion, the addition of which is what prompted our issuance of an Amended Opinion in this case. This footnote was added in response to Wife’s petition for rehearing, which was aimed solely at my separate opinion. The thrust of the petition was that equitable principles used in making property distributions in divorce cases are inapplicable here. As to footnote 2, my colleagues are right: the issue I have highlighted was not before the trial court, given the erroneous interpretation it made of the Agreement; the majority chose not to address it; and as my comment is that of a single appellate judge, it surely is not “the law of the case.” All of that having been said, it is far from aberrational for such a viewpoint to be expressed. On the contrary, appellate courts often will — and often should — comment on matters likely to come before the trial court on remand. See, e.g., Bair v. Axiom Design, L.L.C., 2001 UT 20, ¶22, 20 P.3d 388 (stating that “where an appellate court finds that it is necessary to remand a case for further proceedings, it has the duty of ‘pass[ing] on matters which may then become material’ ”) (citation omitted). Such comments are necessarily advisory only, as the appellate court can do little more than guess at how the proceedings on remand will unfold.

¶ 30 As to the main point made in the petition for rehearing, I can only observe that the lead opinion itself, in developing the interpretative analysis that leads to Wife’s success on Issue II, relies — and appropriately so — on two divorce cases. It seems obvious that divorce cases will be the lodestar of jurisprudence concerning marital property, whether it be on the question of what the phrase “acquired by the parties” means or the question of how to treat interest earned or appreciation accrued during marriage on a spouse’s separate property. Were I the trial judge responsible to sort this all out on remand, I would be quite skeptical about the proposition that the rules defining marital property vary considerably, depending on the legal context in which such issues arise.