Mintz v. Mintz

2023 UT App 17THE UTAH COURT OF APPEALS
RAYNA ELIZABETH MINTZ,
Appellant and Cross-appellee,
v.
GLEN RYAN MINTZ,
Appellee and Cross-appellant.
Opinion
No. 20200507-CA
Filed February 9, 2023
Third District Court, Silver Summit Department
The Honorable Kent R. Holmberg
No. 174500034
Julie J. Nelson and Alexandra Mareschal, Attorneys
for Appellant and Cross-appellee
Thomas J. Burns and Aaron R. Harris, Attorneys for
Appellee and Cross-appellant
JUDGE DAVID N. MORTENSEN authored this Opinion, in which
JUDGE GREGORY K. ORME and JUSTICE DIANA HAGEN concurred.1
MORTENSEN, Judge:
¶1 After a lengthy marriage, Rayna and Glen Mintz2 divorced
and have since been involved in ongoing litigation regarding the
1. Justice Diana Hagen began her work on this case as a judge of
the Utah Court of Appeals. She became a member of the Utah
Supreme Court thereafter and completed her work on the case
sitting by special assignment as authorized by law. See generally
Utah R. Jud. Admin. 3‑108(4).
2. Due to the parties’ shared surname, we employ their given
names.
Mintz v. Mintz
distribution of marital property. Rayna and Glen now raise
various issues for review, including questions about alimony,
property distribution, and dissipation awards. In response to
these appeals, we affirm in part, reverse in part, and remand to
the district for further proceedings.
BACKGROUND3
¶2 Through more than twenty years of marriage, Rayna and
Glen enjoyed a relatively luxurious lifestyle. During the marriage,
in addition to meeting their regular expenses, Rayna and Glen
invested money essentially as savings. Before 2014, they made
deposits into investment accounts “when money was left over
after normal marital spending,” and after 2014, they made direct
deposits into investment accounts as part of Glen’s employment.
Historically, they spent money freely, traveled frequently, and
treated themselves to a variety of entertainment—often with other
people. For Rayna’s part, she often invited friends to join her on
different jaunts across the globe or visits to the theater. For Glen’s
part, as is relevant to this appeal, he invested both time and
substantial money into an extramarital affair.
¶3 Rayna and Glen financed this lifestyle through substantial
income generated by Glen’s employment as an investment
advisor managing the assets and investments of various clients.
As a salaried employee for his employer (Employer), Glen “did
not sell . . . a client list to [Employer]”; instead, he expanded the
clients he serviced by creating relationships with other employees
3. The parties are appealing an order from a bench trial. “We view
the evidence in a light most favorable to the trial court’s findings,
and therefore recite the facts consistent with that standard.
However, we present conflicting evidence to the extent necessary
to clarify the issues raised on appeal.” Kidd v. Kidd, 2014 UT App
26, n.1, 321 P.3d 200 (cleaned up).
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and assisting other employees in managing their clients’ assets.
As part of Glen’s compensation, Employer offered cash awards
distributed as forgivable loans. For each loan, Employer provided
the cash to Glen up front and then forgave Glen’s payback
obligation each year, leaving Glen with a decreased payback
obligation but an increased tax obligation. The cash awards were
deposited directly into Glen and Rayna’s investment accounts.
¶4 When Rayna discovered Glen’s infidelity, the couple
sought a divorce. Ultimately, the district court made several
determinations relevant to this appeal. First, although Rayna
would be awarded alimony, a monthly amount for investment
would be excluded from the calculation because she presented
insufficient evidence to show that the parties’ investments were
“standard practice during the marriage” or that they “helped
form the couple’s standard of living.”
¶5 Second, although an amount for entertainment was
included as a historical expense in alimony calculations, the court
“divided by four” the amount Rayna had proposed because the
entertainment amount was calculated based on a time “when two
minor children also lived in the home.”
¶6 Third, although the list of clients Glen serviced could be
considered an asset, Glen did not own a “book of business,” and
accordingly, whatever value his client list contained could not be
divided between the parties.
¶7 Fourth, although Glen had admitted to dissipating $75,000
on his extramarital affair and although the court determined that
Rayna should be entitled to “half” that amount, in an appendix to
the district court’s findings of fact and conclusions of law,
designating the specific property distributions, the court
provided no amount in the space for money awarded to Rayna
because of Glen’s dissipation.
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¶8 And fifth, although Rayna would receive what Glen
argued was an investable property distribution, the court
declined to include investment income in its alimony calculation
because (1) the likelihood of a specific return was uncertain, (2)
Rayna’s investment income should be left unencumbered as was
Glen’s, and (3) the parties had traditionally reinvested investment
income instead of living off it.
¶9 Following entry of the divorce decree, Rayna filed a motion
to enforce, asserting that various investment accounts at issue in
the divorce “were not divided immediately after trial and that
they subsequently appreciated in value.” Accordingly, Rayna
sought an order requiring Glen to transfer holdings “equivalent
to her proportionate share of appreciation since trial.” However,
before the hearing on that motion, Rayna filed a notice of appeal.
At the hearing, the court determined that the enforcement order
Rayna requested would require the court to not just enforce the
order but to “read language into [the decree] and interpret [the
decree] in a way that modifie[d] or amend[ed]” it. Because a
notice of appeal had been filed in the case, the court determined
it had been “divested of jurisdiction” to amend the decree and
therefore could not provide the relief Rayna requested.
¶10 On these issues, Rayna and Glen both appeal.
ISSUES AND STANDARDS OF REVIEW
¶11 First, Rayna contends that the court abused its discretion
through its award of alimony. Specifically, Rayna contends that
(1) the court “misapplied Utah law” when it declined to award
alimony consistent with historical investment and (2) the court
entered unsupported findings of fact in reducing her
entertainment expenses. “We review a district court’s alimony
determination for an abuse of discretion and will not disturb its
ruling on alimony as long as the court exercises its discretion
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within the bounds and under the standards we have set and has
supported its decision with adequate findings and conclusions.”
Gardner v. Gardner, 2019 UT 61, ¶ 16, 452 P.3d 1134 (cleaned up).
However, misapplication of the law is a de facto abuse of
discretion, and an alimony award based on a misapprehension of
the law will not be upheld. See Bjarnson v. Bjarnson, 2020 UT App
141, ¶ 5, 476 P.3d 145. Moreover, an alimony award based on
clearly erroneous findings of fact will be overturned, see Leppert v.
Leppert, 2009 UT App 10, ¶ 8, 200 P.3d 223, as will be an incorrect
determination that evidence is insufficient to support an award,
see Kimball v. Kimball, 2009 UT App 233, ¶ 14, 217 P.3d 733.
“[U]nder our clearly erroneous standard, we will disturb a court’s
factual findings only where the court’s conclusions do not
logically follow from, or are not supported by, the evidence.”
Gardner, 2019 UT 61, ¶ 32.
¶12 Second, Rayna contends that the district court erred when
it determined that the list of clients Glen managed as an
investment advisor (the book of business) was not a divisible
marital asset. “Determining and assigning values to marital
property is a matter for the trial court,” and an appellate court
“will not disturb those determinations absent a showing of clear
abuse of discretion.” Talley v. Talley, 739 P.2d 83, 84 (Utah Ct. App.
1987).
¶13 Third, Rayna contends that the district court failed to
award or reimburse her half of the amount that Glen dissipated.
“Where the trial court’s conclusions of law do not properly follow
from the findings of fact, those conclusions can be overturned on
appeal.” Cowley v. Porter, 2005 UT App 518, ¶ 46, 127 P.3d 1224.
¶14 Fourth, Rayna contends that the court erred in
determining, based on the divorce decree’s language, that it
lacked jurisdiction to grant Rayna appreciation on investment
account awards. We review for correctness the district court’s
interpretation of a divorce decree, Mitchell v. Mitchell, 2011 UT
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App 41, ¶ 5, 248 P.3d 65, and the district court’s “determination
on jurisdictional issues,” National Advert. Co. v. Murray City Corp.,
2006 UT App 75, ¶ 11, 131 P.3d 872 (cleaned up).
¶15 Fifth, on cross-appeal, Glen contends that the district court
abused its discretion when it did not “determine an amount of
income that Rayna [would] be able to earn from her awarded
investment account assets and . . . apply that income to her ability
to pay for her marital standard of living.” As indicated above, we
review the district court’s alimony determination for abuse of
discretion. See Gardner, 2019 UT 61, ¶ 16.
ANALYSIS
I. Alimony
A. Investment
¶16 Rayna contends that the district court erred in excluding
from the alimony award an amount reflective of historical
investment. Specifically, Rayna argues that the court
misunderstood the phrases “standard practice” and “marital
standard of living” as these phrases have been employed in Utah
caselaw concerning the appropriateness of alimony awards that
include amounts for investment or savings. Rayna argues that the
parties made deposits into investment accounts as a standard
practice that contributed to their marital standard of living, and
she asserts that she should have received a higher alimony award
to be able to continue this practice and maintain her standard of
living. On appeal, we conclude that the district court erred in its
application of the law on this point.
¶17 In Bakanowski v. Bakanowski, 2003 UT App 357, 80 P.3d 153,
we indicated that “while the recipient spouse’s need to fund post-
divorce savings, investment, or retirement accounts may not
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ordinarily be factored into an alimony determination, we cannot
say that the ability to fund such post-divorce accounts may never
be taken into account as part of” that analysis. Id. ¶ 16. Rather,
“[t]he critical question is whether funds for post-divorce savings,
investment, and retirement accounts are necessary because
contributing to such accounts was standard practice during the
marriage and helped to form the couple’s marital standard of
living.” Id. (emphasis added); see also Knowles v. Knowles, 2022 UT
App 47, ¶ 57 n.8, 509 P.3d 265; Miner v. Miner, 2021 UT App 77,
¶ 58 n.8, 496 P.3d 242. Thus, the court should, as a legal matter,
ensure it employs the correct legal definitions of standard practice
and marital standard of living, apply the facts of a given case to
those definitions, and then determine whether the facts as found
meet the criteria for a savings-based alimony award.
¶18 First, the district court erred in concluding that Rayna and
Glen’s undisputed course of conduct did not demonstrate a
standard practice. See Bakanowski, 2003 UT App 357, ¶ 16; Kemp v.
Kemp, 2001 UT App 157U, paras. 3–4, 2001 WL 522413. When the
Bakanowski court provided the test for appropriate consideration
of savings, investment, and retirement accounts in alimony
calculations, it cited Kemp v. Kemp, in which the court reasoned
that because “the parties had made regular savings deposits,”
including savings in the alimony award could help “maintain the
recipient spouse’s marital standard of living.” See 2001 UT App
157U, paras. 3–4 (emphasis added).
¶19 An event must certainly be recurring but need not be
uniformly systematic to be considered “regular.” See id. at para. 3.
Indeed, “something can be done ‘regularly’ if done whenever the
opportunity arises, though the actual time sequence may be
sporadic.” Youth Tennis Found. v. Tax Comm’n, 554 P.2d 220, 223
(Utah 1976); see also Allen Distrib., Inc. v. Industrial Comm’n, 604
P.2d 938, 940 (Utah 1979) (reciting the then-enacted workers’
compensation laws that provided that “regularly” could include
employment “continuous throughout the year or for only a
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portion of the year” (cleaned up)); Holt v. Industrial Comm’n, 87
P.2d 686, 689 (Utah 1939) (defining “regularly employed” to
include “all employees who are employed and engaged in the
usual or regular business of the employer, regardless of whether
they were regularly or only casually or occasionally employed”
(cleaned up)). Thus, even though an activity may “occur[] at
intermittent times,” it can still be a regular activity. See Youth
Tennis, 554 P.2d at 223 (cleaned up); see also B.L. Key, Inc. v. Utah
State Tax Comm’n, 934 P.2d 1164, 1166 (Utah Ct. App. 1997). And
although “regular” could also be understood to require methodic
uniformity, see Valentine v. Farmers Ins. Exch., 2006 UT App 301,
¶ 11, 141 P.3d 618 (noting that “‘regular use’ connotes use that is
consistent with a recurring pattern or uniform course of conduct
or dealing” and that it “embodies use that is marked by a pattern
of usage or some frequency of usage”); Youth Tennis, 554 P.2d at
223 (noting that “one of the meanings of the term ‘regular’ is:
‘Steady or uniform in course, practice or occurrence’” (quoting
Black’s Law Dictionary 1450 (Rev. 4th Ed. 1968))), there exists no
requirement that savings or investment deposits be made with
uniform frequency.
¶20 Accordingly, even if savings deposits and investments do
not occur on an exact timetable, such marital expenditures can be
considered a standard practice, see Bakanowski, 2003 UT App 357,
¶ 16, in those infrequent and unusual circumstances where a party
can produce sufficiently persuasive evidence that savings
deposits and investments were a recurring marital action
“whenever the opportunity ar[ose], though the actual time
sequence may be sporadic.” See Youth Tennis, 554 P.2d at 223; see
also Bakanowski, 2003 UT App 357, ¶ 16.
¶21 The district court found that Rayna did not present
“sufficient evidence” to show that contributing to savings and
investment accounts was the standard practice during the
marriage. But on appeal, neither party appears to dispute that the
district court was presented with evidence that before 2014 the
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parties invested substantial amounts of income at least yearly
and that after 2014 a substantial portion of Glen’s income
was deposited directly into investment accounts at least yearly.
Accordingly, for nearly a decade immediately preceding
the divorce, the parties set aside substantial money for
investments at least annually. This undisputed evidence
established that the parties followed a regular pattern, i.e., a
“standard practice,” see Bakanowski, 2003 UT App 357, ¶ 16, of
investing a portion of their annual income. In other words, given
these undisputed facts, we conclude the district court applied too
narrow a definition of standard practice in rejecting this evidence
as insufficient.
¶22 Second, to justify an alimony award that includes an
amount for investment, the parties’ acts of investing must
also contribute to the “marital standard of living.” Id. “Standard
of living is defined as a minimum of necessities, comforts, or
luxuries that is essential to maintaining a person in customary or
proper status or circumstances.” Howell v. Howell, 806 P.2d 1209,
1211 (Utah Ct. App. 1991) (cleaned up) (emphasis added). In
other words, in the alimony context, the marital standard of living
is all that the parties enjoyed during the marriage—including
luxuries and customary allocations—by virtue of their financial
position. See id.; see also Rule v. Rule, 2017 UT App 137, ¶ 15, 402
P.3d 153.
¶23 In Knowles v. Knowles, 2022 UT App 47, 509 P.3d 265, the
trial court refused to include tithing expenditures as part of the
alimony calculation because it was “not a necessary living
expense.” Id. ¶ 57 (cleaned up). On appeal, we reversed that
decision, explaining that it “ignored the requirement that [trial
courts] assess the expense based on how the parties chose to
spend and allocate their money while married.” Id. (emphasis
added). “By failing to assess whether the parties’ expenditures
were consistent with the marital standard of living, the court
abused its discretion.” Id.
20200507-CA 9 2023 UT App 17Mintz v. Mintz
¶24 The marital standard of living analysis is not merely a
question about what the parties spent their money on or whether
they spent it at all. Rather, in terms of alimony, the marital
standard of living analysis is about whether the parties’ proposed
points of calculation are consistent with the parties’ manner of
living and financial decisions (i.e., the historical allocation of their
resources). Something may contribute to the marital standard of
living even though it may not result in a direct benefit or
detriment to the marital estate’s net worth.
¶25 Like the trial court in Knowles, the district court here did
not fully consider how the parties chose to “allocate” their
income. See id. The parties’ choice to devote a substantial portion
of income to investment and savings—much like the parties in
Knowles chose to devote a substantial portion of their income to
tithing, see id.—contributed to the parties’ marital standard of
living. The court should consider this evidence in determining the
amount of investment and savings expenditures to include in its
alimony calculations. See id.; see also, e.g., Lombardi v. Lombardi, 145
A.3d 709, 716 (N.J. Super. Ct. App. Div. 2016) (“An appropriate
rate of savings can, and in the appropriate case should, be
considered as a living expense when considering an award of
maintenance.” (cleaned up)); Bryant v. Bryant, 534 S.E.2d 230, 232
(N.C. Ct. App. 2000) (“The trial court may also consider
established patterns of contributing to savings as part of the
parties’ standard of living.” (cleaned up)); In re Marriage of Stenzel,
908 N.W.2d 524, 536 (Iowa Ct. App. 2018) (“[R]etirement savings
in a reasonable sum may be a part of the needs analysis in fixing
spousal support.”).
¶26 Below, the district court declared that “Rayna ha[d] not
convinced the court that [the couple’s] savings [practices]
somehow helped form the couple’s standard of living.” The court
continued, “There was no evidence that the deposits into the
investment accounts were used to fund future purchases or
otherwise contributed to the marital standard of living.” In
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making this ruling, the district court apparently relied on Kemp,
where the court found that “during their marriage, the parties had
made regular savings deposits to fund future major purchases,
rather than making those purchases on credit.” 2001 UT App
157U, para. 3. Including saved money in the “marital standard of
living,” however, does not require a party to spend it, as the
parties did in Kemp. Our precedent does not exclude prudent
saving from the definition of the marital standard of living.
Indeed, it would be a perverse state of the law if we, as a rule,
always included in an alimony calculation all sums parties spent,
even imprudently, but excluded sums wisely saved.
¶27 The parties presented evidence (and on appeal the parties
continue to agree) that the investments were meant to facilitate
future financial growth; that during the economic recession in
2008, the parties dipped into their investments to maintain their
standard of living; and that they later used investments to pay tax
obligations incurred because of Glen’s compensation structure.
The very fact that such a substantial amount of Glen’s income
went straight to investment that then served to pay off a tax
obligation represents the type of allocation that constituted part
of the marital standard of living. An understanding of the marital
standard of living that is restricted to direct and immediate
expenses is simply too limited. Instead, the use of marital funds
to cover the parties’ investments and savings—provided it was
standard practice during the marriage—is a proper consideration
in determining the marital standard of living. See Bakanowski, 2003
UT App 357, ¶ 16.
¶28 In sum, the district court erred in concluding that
insufficient evidence supported Rayna’s request to include
amounts for investment in alimony calculations. The undisputed
evidence established that it was both a standard practice to invest
marital assets annually and that this pattern of investment
contributed to the marital standard of living. We remand the case
to the district court to recalculate alimony based on the amount
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that the couple’s historical investment contributed to the marital
standard of living. See Bjarnson v. Bjarnson, 2020 UT App 141, ¶ 5,
476 P.3d 145 (“We will reverse if the court has not exercised its
discretion within the bounds and under the standards we have
set.” (cleaned up)).
B. Entertainment
¶29 Rayna also contends that the district court “entered a
factual finding that was unsupported by the evidence regarding
[her] entertainment expenses.” This is so, she argues, because
testimony at trial established that the amount she originally
requested for entertainment as part of her living expenses was
“carved out . . . for her alone” and because the evidence, including
the exhibit used to calculate her living expenses, did not otherwise
suggest that the amount should have been reduced as it was by
the district court. We agree that the district court’s reduction of
Rayna’s entertainment expenses was based on clearly erroneous
findings of fact because “the court’s conclusions do not logically
follow from” and are not supported by “the evidence.” See
Gardner v. Gardner, 2019 UT 61, ¶ 32, 452 P.3d 1134.
¶30 In determining the amount for entertainment expenses to
include in its alimony calculation, the district court stated that the
amount “presents expenses calculated for . . . years . . . when two
minor children also lived in the home. Therefore, this amount
should have been divided by four.” The district court reduced the
amount it considered in its alimony calculation related to
entertainment accordingly. However, this does not follow from
the evidence presented at trial.
¶31 As an initial matter, when asked about the entertainment
line item, Rayna testified that she loved “to go to concerts,” that
she went “to New York City to the ballet [and] to the theater,” and
that she generally hosted a friend on those trips. And testimony
from Rayna’s expert on the matter explained that the amount was
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for “entertainment that she would normally spend on a monthly
basis” and, specifically, that the amount was “what she actually
spent if . . . carved out [for] her alone.” (Emphasis added.)
¶32 Glen attempts to provide support for the district court’s
apparently contrary finding by suggesting that several line items
on Rayna’s living-expense exhibit included a note that the amount
was for “Rayna Only,” and that based on this notation, the district
court “acted within its appropriate discretion” when it
determined the amount requested for entertainment should be
reduced because that line item did not include that note.
However, in our review of the exhibit referred to by Glen, of the
thirty-nine line items listed, only three specify that the amount
was for “Rayna Only.” Yet some of the unmarked items reflect
amounts the parties agree were spent on Rayna alone. Therefore,
the absence of the “Rayna Only” notation does not necessarily
reflect that those items were not for “Rayna Only.” And further, a
line item for “Money Spent on Kids” specifically notes that it
includes “Entertainment” expenses for those children. If Rayna’s
entertainment expenses included money spent on the children,
there would be no need to include a separate line item for
entertainment under “Money Spent on Kids.” Moreover, we note
that the district court’s determination that the amount should be
“divided by four” because “two minor children also lived in the
home” does not quite add up. Rayna and two children add up to
three, and whether the court also included Glen or the friends
Rayna often hosted is unclear from the court’s findings of fact.
Either way, the justification does not appear to support the
reduction.
¶33 Accordingly, the district court’s reduction of the alimony
amount requested for entertainment contradicts not only the
direct testimony at trial but also the very exhibit on which the
court expressly based its findings. Because the court’s conclusions
do not logically follow from and are not supported by the
evidence, we determine that this portion of the award is based on
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clearly erroneous findings of fact, and we therefore remand to the
district court for clarification and correction of the matter. See
Leppert v. Leppert, 2009 UT App 10, ¶ 8, 200 P.3d 223; Gardner, 2019
UT 61, ¶ 32.
II. Book of Business
¶34 Rayna next opposes the district court’s determination that
the book of business “was not a divisible marital asset.” However,
to prevail on such a contention, Rayna would need to show that
the court clearly abused its discretion, see Talley v. Talley, 739 P.2d
83, 84 (Utah Ct. App. 1987), something she has not done here.
¶35 In dealing with Rayna’s argument that Glen owned a book
of business that should be a divisible marital asset, the district
court first explained that the alleged book of business, comprising
“a client list and the assets under management from these clients,”
constituted an “asset” as a legal matter—a determination neither
party appears to challenge on appeal. But the court did not stop
there, determining next that this “asset” was owned not by Glen
but by Employer.
¶36 The court explained its reasoning in over five pages of
detailed findings of fact and conclusions of law. Throughout those
pages, the district court explained, among other things, that
although Glen had extensive experience in his field and a portion
of his compensation required him to meet lofty expectations
concerning the funds he managed, “[w]hen Glen began work for
[Employer], he did not sell a book of business or a client list to
[Employer]”; “[n]owhere within [the relevant employment
documents] did [Employer] indicate that it was purchasing any
client list from Glen or that Glen was selling anything at all to
[Employer]”; and “Rayna ha[d] not presented any evidence that
Glen sold any client list, client information, or other asset to
[Employer] as a condition of his hiring.” Further, Glen “worked
as an employee of [Employer]”; “ha[d] been paid a salary . . . as a
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W-2 employee”; and “expand[ed] the client list” by, in part,
“creat[ing] relationships with other . . . employees who advise
individuals that they service to place assets under Glen’s
management.” The court then noted that often “Glen manages
assets owned by numerous individuals and entities with whom
he has no personal relationship.”
¶37 The court then described various agreements concerning
Glen’s compensation and employment and highlighted portions
of those agreements. One read,
All information concerning [c]lients of [Employer],
former clients of [Employer], and prospective
clients of [Employer] must be treated as confidential
and must not be disclosed to anyone outside of
[Employer.] . . . [I]n the event Employee’s
employment is terminated for any reason
whatsoever[,] Employee may not take any
records or information referring or relating to
[c]lients of [Employer], former clients of [Employer]
and prospective clients of [Employer], whether
originals or copies, in hard copy or computerized
form.
Another read,
Employee may not directly or indirectly use,
maintain, take or disclose any Confidential
Information, except . . . in the course of carrying out
Employee’s duties for [Employer] during
Employee’s employment[.] . . . “Confidential
Information” . . . includes . . . client relationships and
prospective client relationships, client lists and
contact information, client information (including
but not limited to clients’ past and present financial
conditions, investment practices, preferences,
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activities, objectives, and plans and other client
data Employee obtained while in [Employer’s]
employ)[.] . . . Employee further expressly agrees
that, in the event his or her employment terminates,
Employee’s use of Confidential Information,
including but not limited to any information
referring or relating to clients of [Employer],
former clients of [Employer] and prospective
clients of [Employer], must immediately cease
and that Employee must immediately return,
destroy or delete, any Confidential Information
whether in hard copy or computerized form,
including in any electronic device owned by
Employee.
The court then reasoned, “[i]f the clients were clients,
relationships, or contracts that Glen owned, he would not be
subject to any restrictions with respect to the manner in which he
stored, maintained, or utilized any of the client information, either
during or after his employment with [Employer]. Similarly, if the
client information was owned by Glen, he would not be subject to
any restrictions.” Significantly, the court noted that “individuals
and entities that own the assets under management have no
contractual obligation to continue to use Glen to manage their
assets; they are free to select a different . . . adviser [of Employer]
at any time.” These individuals had “not contracted with Glen”
but instead had “contracted with” Employer. And finally, the
court reasoned that “[t]he terms Glen was offered by [Employer]
were not negotiated. He did not negotiate higher pay or different
terms but simply accepted employment on the terms offered by
[Employer]. If Glen owned the book of business[,] he would have
been in a position of greater leverage and been able to negotiate
with [Employer].” In short, the district court determined that
because Glen’s interactions with the book of business did not
demonstrate ownership, “Glen [did] not own the book of
business.”
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¶38 Rayna attacks this determination primarily based on the
alleged existence of alternative evidence. First, she asserts that
evidence that Glen had some control over the book of business
and its fruits and that the book of business included the
information of some clients he had obtained before joining
Employer demonstrated that Glen owned the book of business.
But regardless of whether such evidence was before the district
court, it would not contradict the findings the court did make—
findings on which it relied to determine that, on the whole, Glen
did not own the book of business. And although Rayna contends
that “the evidence showed that [Employer] hopes to buy Glen’s
book of business when he retires or transitions out of the industry
and would facilitate the transfer of all of his clients to another
advisor within [Employer],” this argument fails to acknowledge
that the district court specifically considered this evidence in its
findings of fact and ultimately found that the evidence did not
deserve “any weight” because of a “lack of any testimony or other
evidence by anyone who actually knew anything about” such a
buy-out program. Indeed, “if there is evidence supporting a
finding, absent a legal problem—a fatal flaw—with that evidence,
the finding will stand, even though there is ample record evidence
that would have supported contrary findings.” See Hinds v. Hinds-
Holm, 2022 UT App 13, ¶ 28 n.4, 505 P.3d 1136 (cleaned up). And
here Rayna has not demonstrated that such a flaw exists.
¶39 Because none of Rayna’s arguments on appeal show that
the court clearly abused its discretion in its thorough and record-
supported explanation of why Glen did not own the book of
business, her contention on appeal is unavailing and we affirm
the district court’s determination.
III. Dissipation
¶40 Rayna also contends that the district court erred when it
included in the final distribution only half of the amount it
determined Glen dissipated and failed to award Rayna any of it.
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Indeed, the district court found that “the amount of dissipation
attributable to [Glen’s affair] is $75,000” and that “[t]hese funds
were marital funds, for which Glen was entitled to half and Rayna
to half.” But in the next line, the court, in seeming contradiction,
stated, “Through dissipation, Glen spent half of $37,500 which
Rayna was entitled to and therefore should be added to Glen’s
[distribution] column.”
¶41 On appeal, the parties agree that Rayna is owed $37,500
due to Glen’s dissipation of $75,000. But the parties do not agree
about the meaning of the court’s order or its associated appendix
distributing the marital property. Having viewed both the court’s
order, as recited above, and the appendix that purports to
effectuate that order, we remand this issue to the district court for
clarification.
¶42 Because the parties agree that the full amount of
dissipation is $75,000 and that Rayna is thus entitled to $37,500,
the only matter for us on appeal is to ensure that the order of
the district court reflects that agreement. And it does not appear
to do so. The court’s appendix lists three columns: one for the
value of a given property item, one for Rayna’s portion of the
property, and one for Glen’s portion of the property. In Rayna’s
and Glen’s respective columns, a number was entered without
parentheses to indicate a positive sum owed to the party, and a
number was entered inside parentheses to indicate a sum to be
subtracted from the ultimate distribution. For the line-item entry
for dissipation, instead of $75,000, the value was listed as only
$37,500. More important for our present purposes, Rayna’s
column for that line item is empty whereas Glen’s contains
$37,500 without parentheses, indicating a positive sum. As we
read this entry, it appears that the incorrect dissipation
amount was entered into the value, and instead of Rayna being
awarded half of that $75,000, the amount of $37,500 was given to
Glen. This was error.
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¶43 On remand, the district court should correct this error and
the associated appendix to indicate without ambiguity that the
full amount of dissipation is $75,000 and that Rayna will be
awarded $37,500 as her share of that total.4
IV. Property Distribution Appreciation
¶44 Rayna lastly contends that the district court “abused its
discretion when it refused to award [her] a proportional share of
the appreciation that accrued on the marital investment accounts”
as she requested in her motion to enforce. She asserts that the
court mischaracterized her motion to enforce as a motion to
amend and that it accordingly erred in determining that it lacked
jurisdiction to provide the relief she requested. On appeal, Rayna
appears to maintain that her motion below was nothing more than
a motion to enforce the decree; that the court had jurisdiction to
enforce its decree; and that in determining that the order she
requested would require an amendment (as opposed to mere
enforcement), the court inherently “determined the decree did not
already offer Rayna a proportional amount of the appreciation.”
We agree with the district court that the relief Rayna sought
would have required an amendment to the decree and that the
court did not have jurisdiction to amend that decree once the
notice of appeal had been filed.
¶45 We note that a “trial court is [generally] divested of
jurisdiction upon the filing of an appeal.” Ortiz v. Crowther, 2017
UT App 133, ¶ 2, 402 P.3d 34 (per curiam). But a court may still
4. The district court’s view, which we endorse, is that Glen spent
$75,000 in marital funds on his affair—not a proper marital
purpose. Half of that amount was essentially his, but the half
belonging to Rayna should properly be restored to her by Glen.
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enforce its decree even if an appeal has already been sought.5 See
Cheves v. Williams, 1999 UT 86, ¶ 48, 993 P.2d 191. Accordingly,
because “Rayna filed a motion to enforce the decree,” she asserts
that the court should have reached the merits of the issue she
presented to it. But “[t]he substance of a motion, not its caption, is
controlling.” DeBry v. Fidelity Nat’l Title Ins. Co., 828 P.2d 520, 523
(Utah Ct. App. 1992). And here, although Rayna titled her motion
as one “to enforce,” the requested relief does not match that title.
Cf. CBS Enters. LLC v. Sorenson, 2018 UT App 2, ¶¶ 11–12, 414 P.3d
925.
¶46 The decree instructed Glen “to ‘transfer’ equities valued at
the exact amounts set forth.” (Emphasis added.) But in her motion,
Rayna requested not only those exact amounts but also “post-trial
appreciation over and above the exact figures set forth.” On
appeal, Rayna concedes that “the decree said nothing about who
should receive the appreciation that accrued” post-trial.
Accordingly, we agree with the district court that to award the
relief that Rayna sought would require the district court to “read
language into” the decree “in a way that modifie[d] or
amend[ed]” it. See Mitchell v. Mitchell, 2011 UT App 41, ¶ 5, 248
P.3d 65 (“We interpret a divorce decree according to established
rules of contract interpretation.” (cleaned up)); see also Brady v.
5. Notwithstanding this general rule, the lower court may, in
addition to dealing with motions to enforce the decree address
clerical errors and other mistakes “arising from oversight or
omission” that the appellate court asks it to address even after an
appeal has been filed. See Utah R. Civ. P. 60(a); see also Cheves v.
Williams, 1999 UT 86, ¶ 45, 993 P.2d 191 (“We have also recognized
exceptions to [the general] rule, in the interest of preventing
unnecessary delay, where any action by the trial court is not likely
to modify a party’s rights with respect to the issues raised on
appeal, or where the action by the trial court is authorized by rule
or statute.” (cleaned up)).
20200507-CA 20 2023 UT App 17Mintz v. Mintz
Park, 2019 UT 16, ¶ 53, 445 P.3d 395 (“If the language within the
four corners of the contract is unambiguous, the parties’
intentions are determined from the plain meaning of the
contractual language . . . .” (cleaned up)).
¶47 Because Rayna filed her notice of appeal before the district
court ruled on her request for post-trial appreciation of the
investment distribution, the district court had been divested of
jurisdiction to alter the divorce decree in the way Rayna
requested. See Ortiz, 2017 UT App 133, ¶ 2. Accordingly, we affirm
the district court’s determination.
V. Investment Income
¶48 On cross-appeal, Glen contends that the district court
abused its discretion when it did not include in its alimony
calculation an amount reflecting Rayna’s ability to earn income
from awarded investment accounts and apply that amount
toward Rayna’s unmet needs.6 Initially, Glen asserts that the
district court “fail[ed] to consider Rayna’s ability to earn” income
from these sources, but in the remainder of his argument, he
proceeds to explain why the court’s actual consideration of her
ability to earn income from investment accounts is based on
unsupported findings or is otherwise unjustified.
¶49 For its part, the district court acknowledged Glen’s
argument that Rayna would receive an investable property
distribution that could provide “at least” a six percent return.
While Utah “caselaw directs district courts to consider all sources
of income when determining alimony, it does not dictate that all
sources of income be counted as income received”—instead
district courts have “broad discretion to treat sources of income as
6. Although the district court did not impute income to Rayna
based on investment earnings, it did impute to her some income
based on an undisputed amount of earning capacity.
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the court sees fit under the circumstances.” Eberhard v. Eberhard,
2019 UT App 114, ¶ 21, 449 P.3d 202. The court then provided
three justifications for its determination that “it would be
inequitable to include interest, dividend or other unearned
income potentially generated from investment assets received in
the marital property award.”
¶50 First, the court explained that the “ability to obtain a 6%
return is not sufficiently certain for the court to rely on.” It noted
the inconsistency of historical returns, Rayna’s discretion to use
her distribution for purposes other than investment, and the
difficulty of projecting future investment income. Second, the
court explained that “[i]t would be inequitable for Glen to be able
to keep his share of the investments and retain their income
stream to reinvest as he continues to generate professional
income, while Rayna would retain only the investments after
being compelled to expend her investment income to pay her
living expenses.” The court felt that such an order would
“wrongly deprive[] Rayna of the full benefit and value of” her
distribution and that she should be able to “grow” any
investments she would make without the obligation to use that
money for providing for her own standard of living. Third, the
district court explained that “[i]t was the parties’ regular practice
not to spend or live off investment income, but rather to entirely
reinvest that income.” Accordingly, the court refrained from
applying any amount of potential investment income toward
Rayna’s projected earning capacity.
¶51 In determining whether a spouse should receive alimony,
the general rule is that a court should first take care of property
distribution. See Batty v. Batty, 2006 UT App 506, ¶ 5, 153 P.3d 827(“[An alimony] evaluation properly takes into account the result
of the property division, particularly any income-generating
property [the receiving spouse] is awarded, but alimony is not
meant to offset an uneven property award. Rather, as a matter of
routine, an equitable property division must be accomplished
20200507-CA 22 2023 UT App 17Mintz v. Mintz
prior to undertaking the alimony determination.”). Then,
depending on how the property distribution works out—
especially considering income-generating property—the court
considers whether alimony will be necessary for a spouse to meet
demonstrated needs. See Burt v. Burt, 799 P.2d 1166, 1170 (Utah
Ct. App. 1990) (“Alimony is appropriate to enable the receiving
spouse to maintain as nearly as possible the standard of living
enjoyed during the marriage and to prevent the spouse from
becoming a public charge.” (cleaned up)); see also Batty, 2006 UT
App 506, ¶ 4 (“In determining alimony, the trial court must
consider three important factors: (1) the financial condition and
needs of the spouse claiming support, (2) the ability of that spouse
to provide sufficient income for him or herself, and (3) the ability
of the responding spouse to provide the support. Although a trial
court is given considerable discretion in determining an alimony
award, failure to consider these factors constitutes an abuse of
discretion.” (cleaned up)). And as we held in Eberhard v. Eberhard,
2019 UT App 114, 449 P.3d 202, while the district court must
consider all potential sources of income, it is not required to count
those sources of income. Id. ¶ 21. This is nothing more than an
expression of the rule that a district court has “broad discretion to
treat sources of income as the court sees fit under the
circumstances.” Id.
¶52 Here, contrary to Glen’s assertion, the district court did, in
fact, consider Rayna’s ability to earn income from her distributed
investment assets in reaching its determination that she would
still require additional alimony to support herself to the level of
the marital standard of living. See Dobson v. Dobson, 2012 UT App
373, ¶ 21, 294 P.3d 591 (stating that for the purposes of
determining alimony, “the needs of the spouses are assessed in
light of the standard of living they had during marriage” (cleaned
up)). Given that the district court considered Rayna’s ability to
earn income in reaching its determination that she was entitled to
alimony, the question before us is whether the circumstances
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allowed the district court to refrain from counting any future
investment income Rayna may receive in its calculation. None of
Glen’s arguments attacking the court’s determination persuade us
that the court exceeded its discretion here.
¶53 First, Glen argues that the court’s determination that the
“ability to obtain a 6% return is not sufficiently certain for the
court to rely on” contradicts its other findings. Specifically, he
cites a finding that states “Glen’s income has consistently
increased” and “[o]ther than general economic uncertainty, there
was no evidence at trial that this trend would not continue.” He
then claims that this statement contradicts the court’s
determination that Rayna would not obtain a return on her
investments.
¶54 However, the two findings are not comparable at their
roots. Regarding Rayna’s potential income, the court was
specifically discussing income resulting from a return on
investments; but regarding Glen’s income, the court was noting
an increase in his income as a whole, including that income
derived from gainful employment and not exclusively income
derived from any returns on Glen’s ongoing investments. A
projection that Glen’s income as a whole, salary and all, will
continue to increase is not incompatible with a determination that
a return on investment income is insufficiently certain to rely on.
¶55 As part of this argument, Glen also characterizes an
unrelated finding from the court’s ruling as a determination that
Rayna’s relevant accounts were “not easily liquidated” and
asserts that the court’s statement that Rayna may choose to
liquidate a portion of these investments contradicts that finding.
But this description of the court’s finding is simply inaccurate—
the court noted that the “accounts [were] not liquid,” and it made
no statement about whether there would be difficulty in
liquidating them. And even if the accounts were difficult to
liquidate, it would, again, not be incongruous with the court’s
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other findings, specifically that Rayna could choose to liquidate,
any difficulty notwithstanding.
¶56 Further, Glen asserts that the court unjustifiably
determined that both parties should “grow” their investments but
that growth on Rayna’s accounts was uncertain. Again, these
findings are not incongruous—the district court could reasonably
find that a return was uncertain, that requiring Rayna to use any
return to provide for her needs would prevent her from increasing
the amount invested, and that Rayna deserved the opportunity to
have her investment returns be reinvested for potential future
growth.
¶57 Second, Glen asserts that the court gave Rayna freedom to
reinvest her investment returns while it restricted Glen to using
his investment returns to pay for both the taxes owed on his
forgiven loans and Rayna’s alimony award. As to the alimony
award, we note that Glen has not directed us to anywhere in the
record where the district court explained that he must pay for
Rayna’s alimony using investment income, and as such, Glen is
free to provide for Rayna’s alimony using whatever resources he
desires, whether it be his salary, proceeds from a mortgage or
other loan, or, indeed, his investment income.
¶58 Third, Glen asserts that the court’s finding that “[i]t was the
parties’ regular practice not to spend or live off investment
income, but rather to entirely reinvest that income” contradicts its
acknowledgment that Glen incurred a tax obligation from the
forgiven loans. However, we note that although Glen maintains
on appeal that he used the forgivable-loan investment returns to
pay tax obligations, Glen has not pointed to the court ever making
a finding to that effect, and thus the findings are not inconsistent.
Further, although such evidence was before the court, the court
also stated that “Glen did not include his own investment income
in his Financial Declaration as income available to pay alimony or
to otherwise meet his own need.” That fact, the court stated,
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“demonstrate[d] that neither party considered investment income
as income to be spent or expended, but rather as a vehicle to
increase savings and net worth.” While a pattern of using
investment returns to pay tax obligations may not be completely
compatible with a pattern of using returns to “increase savings
and net worth,” we do not view this apparent inconsistency as
enough to persuade us that the court abused its discretion.
¶59 In sum, Glen has not demonstrated that the court abused
its discretion in refusing to count Rayna’s potential investment
returns as income toward her ability to meet her living expenses.
Accordingly, we affirm the district court on this point.
CONCLUSION
¶60 First, we remand to the district court to apply the correct
standard to the evidence regarding investments and savings and
to adjust the alimony award based on calculations that account for
Rayna’s historical spending on future investments; we also
remand to the district court to adjust the alimony award based on
calculations that account for Rayna’s historical spending on
entertainment. Second, we affirm the district court’s
determination that Glen did not own the book of business. Third,
we remand to the district court to ensure that Rayna is awarded
the $37,500 owed to her due to Glen’s dissipation. Fourth, we
affirm the district court’s determination that the relief Rayna
requested in her motion to enforce would have required it to
amend the decree and that it lacked jurisdiction to do so. And
fifth, we affirm the district court’s decision not to include potential
investment income in calculating Rayna’s actual income. On
remand, we instruct the district court to engage in further
proceedings as necessary to effectuate the holdings provided in
this opinion.
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