Hillam v. Hillam

2024 UT App 102

THE UTAH COURT OF APPEALS

JOHN DINSDALE HILLAM,
Appellee,
v.
TARA HILLAM (LOVELAND),
Appellant,
v.
DUSTIN HANCOCK,
Appellee.

Opinion
No. 20220488-CA
Filed July 18, 2024

Second District Court, Farmington Department
The Honorable David J. Williams
No. 174700031

Bart J. Johnsen and Alan S. Mouritsen,
Attorneys for Appellant
Julie J. Nelson, Attorney for
Appellee John Dinsdale Hillam
Joshua L. Lee, Attorney for
Appellee Dustin Hancock

JUDGE RYAN D. TENNEY authored this Opinion, in which
JUDGES DAVID N. MORTENSEN and JOHN D. LUTHY concurred.

TENNEY, Judge:

¶1 John Hillam and Tara Hillam were married in 2000. 1 John
filed for divorce in 2017, and John and Tara then spent several

1. Tara changed her last name to Loveland while the case was
proceeding below. Because the parties shared a last name for
(continued…)
Hillam v. Hillam

years litigating various questions relating to their divorce, most of
which concerned the proper distribution of their assets. The
district court issued findings of fact and conclusions of law in
December 2021 that resolved all remaining issues.

¶2 Tara now appeals several of the district court’s rulings. We
decide the various issues as follows:

• Tara first raises several challenges to the court’s conclusion
that, as part of this divorce, it could not divide certain
assets that John had placed in an irrevocable trust (the
Trust) during the marriage. We reject two of Tara’s
challenges for lack of preservation, and we reject a third on
the merits.

• Also related to the Trust, Tara claims that the district court
abused its discretion when it concluded that John had not
dissipated marital assets by placing them into the Trust.
We conclude that the court erred in its analysis of two of
the dissipation factors, so we remand this matter for the
court to reconsider the dissipation question in light of the
principles set forth below.

• Finally, separate from the Trust issues, Tara argues that the
court erred by not awarding her half of a stock payout that
John had received after he filed for divorce. On this issue,
we conclude that there was no abuse of discretion.

much of the case, we’ll follow our usual practice and refer to both
of them by their first names, with no disrespect intended by the
apparent informality.

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BACKGROUND 2

The Marriage and John’s Employment

¶3 John and Tara married in June 2000, and they had three
children between 2001 and 2005. Except for occasional
hairdressing jobs, Tara stopped working once the parties had
children. John “earned the vast majority of the household income”
during the marriage.

¶4 In August 2010, John started working for Maverik, Inc. His
compensation consisted of two components: (i) salary and
(ii) deferred compensation, under which John shared in a portion
of the company’s profits and which the parties have referred to
during the litigation as “stock options” or “stock payouts.”3 “In

2. As explained in more detail below, this appeal challenges both
(i) a ruling granting summary judgment on the issue of the
validity of the Trust and (ii) findings of fact and conclusions of
law that were entered after a bench trial on other matters. “When
reviewing a rule 56(c) motion for summary judgment, we recite
the facts in the light most favorable to the non-moving party.”
Johnson v. Hermes Assocs., Ltd., 2005 UT 82, ¶ 2, 128 P.3d 1151.
“Following a bench trial, we recite the facts from the record in the
light most favorable to the findings of the trial court and present
conflicting evidence only as necessary to understand issues raised
on appeal.” State v. Schroeder, 2023 UT App 57, n.4, 531 P.3d 757
(quotation simplified).

3. The parties acknowledged at trial that the references to “stock”
were something of a misnomer given that they did not signify
John’s ownership in the company. But since this appeal does not
deal with any other stock-like financial assets, we do not delve
into the technical functions of the financial products at issue and
will instead simply mirror the terms used by the parties when
referring to the deferred compensation program.

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2010 and 2011, Maverik granted [John] 1000 shares of stock
options.” The deferred compensation scheme changed in 2012
such that John received “stock payouts” between the years 2013
to 2017. The district court later found that the payouts made from
2013 to 2016 “presumably were used for marital expenses.” John
received a stock payout in 2017 after he had initiated divorce
proceedings, and that payout, which was for about $570,000, was
placed into John’s personal bank account.

John Counsels with an Attorney and Creates a Trust

¶5 In late 2012, John consulted with an attorney (Attorney) for
two purposes. The first was that John and Tara were experiencing
marital difficulties, so John sought assistance “with the
negotiation of a postnuptial agreement.” John later testified that
the couple’s marital difficulties during that period “were no
different than what they had experienced in earlier portions of the
marriage,” though he acknowledged that Tara had “threatened
divorce” somewhere around that time. In spite of John’s
discussions with Attorney about a postnuptial agreement, the
couple didn’t execute such an agreement.

¶6 John’s second purpose in consulting with Attorney was to
discuss the potential creation of a trust. John and Tara had
discussed creating a trust before John met with Attorney, and
Tara understood that “other Maverik executives who were
starting to retire were . . . establish[ing] trusts as a means of saving
money on the taxes of a stock buy-back.” John asked Tara to meet
with Attorney “regarding the formation of the trust.” Though
Tara would later testify that “she did not feel she had a choice in
the matter,” she also testified that “she trusted [John] and trusted
that he was doing what was in the best interest of the family.”

¶7 Tara met with Attorney “on one or perhaps two
occasions,” during which they discussed “the assets used to fund
the trust.” While it is not clear the extent to which Tara

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understood which assets would ultimately fund the Trust, “she
knew that marital assets of some kind would be used to form what
she believed was a ‘family trust.’” The district court later found
that Tara “was not provided any draft documents to review” but
that, even so, Tara did not “object[] to the formation of the trust”
at the time that it was created.

¶8 The Trust (formally, the John D. Hillam 2012 Irrevocable
Trust) was finalized on November 27, 2012. The Declaration of
Trust and Agreement (the Trust Agreement) listed John as settlor,
with Dustin Hancock as trustee (the Investment Trustee). The
listed beneficiaries included, among others, John, John’s
“spouse,” and John’s “children.” The Trust Agreement named
Tara as the “spouse,” but it then defined the term by providing:

All references to [John’s] spouse are to Tara Hillam.
However, if [John] and [John’s] spouse divorce after
the date of this Trust Agreement, then as of the date
the divorce is effective, the terms “spouse” and
“[John’s] spouse” shall no longer refer to Tara
Hillam, and for all purposes of this Trust
Agreement[,] . . . she shall be deemed to have died
on the divorce’s effective date.

As to the Trust’s other terms, we note (for purposes of this appeal)
that the Trust Agreement contained a spendthrift clause, a
provision designating its situs and choice of law as Nevada, and
various terms rendering the Trust irrevocable.

¶9 On the same day the Trust was finalized, John transferred
his rights in the 1,000 shares of Maverick stock options that he had
received in 2010 and 2011 to the Trust as a gift, and those options
were valued at $350,000.

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Divorce Proceedings

¶10 John filed for divorce in January 2017. What followed was,
as later described by the district court, a “high conflict” multi-year
divorce case. We recount just the proceedings from the district
court that are relevant to this appeal.

¶11 John and Tara appeared before a domestic relations
commissioner in March 2017, after which the commissioner
entered temporary orders (the Temporary Orders). The
Temporary Orders allotted custody and parent-time, assigned
temporary alimony and child support, and awarded certain
property for the duration of the divorce proceedings. Notably, the
Temporary Orders “imputed” John with a gross monthly income
of $29,792.

¶12 In November 2017, the parties met for a so-called “4-903
Settlement Conference” (the Settlement Conference). 4 At that
conference, the commissioner bifurcated the divorce proceedings,
mostly for purposes of reserving certain issues that had arisen
regarding the Trust for future proceedings. But the corresponding
order also reserved “[a]ll other objections or issues not addressed
below.” It emphasized that “[b]y entering this partial order,
neither party has, or intends to, abandon any agreement or
stipulation reached and placed on the record following the 4-903
Settlement Conference.” This order superseded the Temporary
Orders and entered new amounts for child support and alimony
payments, but it did not detail what income figures those
determinations were based on.

4. This type of proceeding is held in conjunction with a “custody
evaluation,” and it “provide[s] the court with information it can
use to make decisions regarding custody and parenting time
arrangements that are in a child’s best interest.” Utah R. Jud.
Admin. 4-903(1).

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¶13 The next month, Tara submitted a proposed Bifurcated
Decree of Divorce. The district court apparently believed that the
terms contained in this proposal had been agreed to by both
parties, so it soon signed and entered this as the Bifurcated Decree
of Divorce (the First Decree). John almost immediately filed a
motion under rule 60(b) of the Utah Rules of Civil Procedure,
wherein he asked the court to set aside the First Decree. In this
motion, John alleged that the parties had not actually agreed to its
terms and that Tara had engaged in “objectionable conduct” by
submitting the proposed decree to the court.

¶14 Around the same time, John filed an amended divorce
petition (the Amended Petition). The Amended Petition added a
new claim in which John requested a declaration from the court
that the Trust was valid and enforceable. The Investment Trustee
was notified of this and was subsequently involved in
proceedings on behalf of the Trust. Tara later answered the
Amended Petition, and in her answer, she denied that the Trust
was valid or enforceable.

¶15 The court later set aside the First Decree, and in December
2018, it entered an Amended Bifurcated Decree (the Second
Decree) that reflected a stipulation by the parties. The Second
Decree reiterated many of the same terms concerning custody,
parent-time, child support, alimony, and the division of property
that were present in the First Decree, but it now included a
broader list of reserved issues. Specifically, it outlined that “the
main remaining issue is a complex trust issue,” and it also
reserved the allocation of attorney fees, as well as “issues,
objections, and defenses” raised following the Settlement
Conference. The Second Decree established the “valuation date
for marital and/or trust property” as June 13, 2018.

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The Trust’s Motion for Summary Judgment

¶16 In March 2020, the Investment Trustee filed a motion for
summary judgment on the portion of the Amended Petition
relating to the Trust. The Investment Trustee asked the court to
rule that “the undisputed facts demonstrate that the Trust is valid
and enforceable, and is not subject to division as part of the
divorce.” As part of this motion, the Investment Trustee noted
that, a month earlier, John had renounced his rights in the Trust
as both settlor and beneficiary. In light of this renunciation, the
Investment Trustee argued that John no longer had any “right to
receive any Trust proceeds.” From this, the Investment Trustee
argued that the Trust’s assets were no longer the property of John
or Tara, so those assets were not subject to equitable division in
the divorce proceedings.

¶17 Tara opposed the Investment Trustee’s motion. Tara
argued that the Trust was not validly created because it was
“initially funded by an invalid conveyance” and that John “had
no right to unilaterally convey the sole asset of the Trust.” In
passing, she then simply asserted that because the “Trust is
invalid, [John] had nothing to renounce rights to.”

¶18 The district court granted the Investment Trustee’s motion
for summary judgment. The court first ruled that questions about
the creation of the Trust were governed by Nevada law and that,
under Nevada law, the Trust was validly created. But the court
then ruled that remaining questions, such as those about its
enforceability or administration, were governed by Utah law.
Turning to the various questions raised by the parties about the
potential division in this divorce case of the Trust’s assets, the
court first concluded that the stock options that had been placed
into the Trust were marital property but that the “law precludes
consideration of what may have been a marital asset that was
placed in an irrevocable [t]rust.” In the court’s view, since a “title-
holder has the power to dispose of [marital] property during the

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marriage as he or she sees fit, and without consent of the other
spouse, or even over the disapproval of the other spouse,” Tara
could not show the Trust was improperly funded since the stock
options were in John’s name at the point of transfer. Of some note
for this appeal, the court further observed that Tara had “not
made a claim that public policy would override the Utah Uniform
Trust Code if the Trust [was] deemed valid and irrevocable.”
Since Tara failed to show how the Trust’s assets qualified as
divisible for purposes of this divorce, the court granted summary
judgment in favor of the Investment Trustee. 5

Trial and the Third Divorce Decree

¶19 The court later held a three-day bench trial to address the
issues left unresolved by the Second Decree. The parties litigated
a number of issues. Of note for this appeal, Tara raised two
particular issues. First, she argued that although the court had
previously ruled that it could not divide the assets in the Trust, it
should still award her (as part of its division of the marital estate)
half of the value of the Trust’s assets because John had allegedly
dissipated marital assets when he first placed the stock options
into the Trust. Second, Tara asked the court to award her half of
the 2017 stock payout because the proceeds had been generated
during the marriage.

¶20 In response, John denied that the transfer of stock options
into the Trust qualified as dissipation. John also argued that the

5. The district court certified this as a final order pursuant to rule
54(b) of the Utah Rules of Civil Procedure. Tara then appealed.
On appeal, we concluded that the rule 54(b) certification was
flawed and thus dismissed the appeal. See Hillam v. Hillam, 2022
UT App 24, ¶¶ 15–20, 507 P.3d 380. But we expressly
contemplated that Tara could still challenge the district court’s
summary judgment ruling in an appeal from a final judgment in
the divorce case. Id. ¶ 25.

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court should not award Tara half of the value of the 2017 stock
payout because that value had previously been accounted for as
income during earlier proceedings in the case.

¶21 The court subsequently issued findings of fact and
conclusions of law, followed by a Supplemental Bifurcated Decree
of Divorce (the Third Decree). With respect to the dissipation and
2017 stock payout issues, the court ruled as follows.

¶22 Dissipation. On the alleged dissipation of marital assets,
the court considered the five factors described in Rayner v. Rayner,
2013 UT App 269, ¶ 19, 316 P.3d 455 (numerals added): “(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.”

• On the first factor, the court concluded that the “corpus of
the Trust” was “indisputably marital property.” The court
recognized that “the parties were experiencing marital
strife” at the time the Trust was created, but it thought it
“unclear whether any marital problems that were being
experienced at the time were different than marital
problems the parties had experienced prior to October
2012.” But the court then found that it was “undisputed”
that the purpose of the Trust was “to avoid tax
consequences,” which it regarded as a legitimate marital
purpose, and it further found that “neither party ha[d]
received any direct benefit from the Trust”—i.e., that
neither of them had “requested or received any
distribution from the Trust.” From all this, it concluded
that the first factor weighed against dissipation.

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• The court concluded that the second factor also weighed
against dissipation because, although the “parties had not
created a trust prior” to this one, they had previously done
“what they could do to avoid tax consequences.”

• On the third factor, the court determined that the
magnitude of depletion was a neutral factor because,
although the funds were no longer available to Tara, they
still existed within the Trust and “continue[d] to grow.”

• On the fourth factor, the court again acknowledged that
John and Tara were having marital problems at the time of
the Trust’s formation, but it nevertheless concluded that
“those issues apparently resolved because the parties’
separation did not occur until approximately five years
later.” As a result, it concluded that this factor weighed
against dissipation.

• Finally, the court concluded that the fifth factor “weigh[ed]
heavily” against dissipation. The court was not convinced
by Tara’s characterization that the Trust “was created
clandestinely and against her wishes,” instead finding that
there was “no evidence that . . . details were hid” from Tara
and that “she did not take affirmative action to learn”
about the Trust’s details either.

In short, because the court concluded that none of the factors
weighed in favor of dissipation, it rejected Tara’s request for a
determination that John had dissipated marital assets.

¶23 Stock payout. The court also rejected Tara’s request for a
division of the 2017 stock payout as part of the marital estate. In
explaining this decision, the court found that at the temporary
orders hearing, John had agreed “to be imputed a higher income
to account for the 2017 stock payout.” As a result, it found that
John had been “required to pay more in alimony and child
support than he otherwise would have had to pay,” and it further

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found that John had remained current on those payments. The
court referenced the figures calculated in both the Temporary
Orders and the Settlement Order in conjunction with this finding.
The court then concluded that, “in equity,” it would not award
any of the 2017 stock payout to Tara because “the evidence
indicates that the parties already agreed on how this payout
should be addressed.”

ISSUES AND STANDARDS OF REVIEW

¶24 Tara appeals the Third Decree and “all subsidiary orders,”
including the ruling granting the Investment Trustee’s request for
summary judgment. In response to Tara’s appeal, the Investment
Trustee has filed a brief and presented argument on the issues
relating to the summary judgment ruling, while John has briefed
and presented argument on the issues relating to the distribution
of the marital estate.

¶25 With respect to the summary judgment ruling relating to
the Trust, Tara raises several challenges to the court’s conclusion
that it could not divide the assets in the Trust as part of its division
of the marital estate. The question of whether a district court
“appropriately granted summary judgment is a question of law,”
and in assessing that decision, we review the court’s “legal
conclusions for correctness.” 11500 Space Center LLC v. Private Cap.
Group Inc., 2022 UT App 92, ¶ 33, 516 P.3d 750 (quotation
simplified). The question of whether a trust is valid also presents
“a legal question, which we review for correctness.” Wittingham,
LLC v. TNE LP, 2020 UT 49, ¶ 13, 469 P.3d 1035 (quotation
simplified).

¶26 Tara next challenges the court’s determination (entered
after trial) that John did not dissipate marital assets when he
transferred stock options into the Trust. We’ve previously treated
a district court’s ruling on a dissipation question as being part of

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its ruling about how to value the marital estate. See, e.g., Clark v.
Clark, 2023 UT App 111, ¶¶ 25–26, 537 P.3d 633; Wadsworth v.
Wadsworth, 2022 UT App 28, ¶¶ 37, 39, 507 P.3d 385, cert. denied,
525 P.3d 1259 (Utah 2022); Rayner v. Rayner, 2013 UT App 269, ¶ 4,
316 P.3d 455. So viewed, a “district court has considerable
discretion considering property division in a divorce
proceeding[;] thus its actions enjoy a presumption of validity, and
we will disturb the district court’s division only if there is a
misunderstanding or misapplication of the law indicating an
abuse of discretion.” Clark, 2023 UT App 111, ¶ 18 (quotation
simplified). “Legal errors, such as the incorrect interpretation of a
statute or the application of an improper legal standard, are
usually an abuse of discretion.” State v. Forbush, 2024 UT App 11,
¶ 21, 544 P.3d 1 (quotation simplified), cert. denied, -- P.3d -- (Utah
2024). And to the extent that any of the court’s discretionary
decisions turned on subsidiary factual determinations, “we defer
to the trial court’s underlying findings of fact, which shall not be
set aside unless clearly erroneous.” Marroquin v. Marroquin, 2019
UT App 38, ¶ 12, 440 P.3d 757 (quotation simplified).

¶27 Finally, Tara challenges the court’s decision not to award
her half of the 2017 stock payout. This, too, constitutes a challenge
to the court’s division of the marital estate. As a result, the district
court possesses “considerable discretion” in making this decision,
“its actions enjoy a presumption of validity,” and we will disturb
the court’s decision “only if there [was] a misunderstanding or
misapplication of the law indicating an abuse of discretion.” Clark,
2023 UT App 111, ¶ 18 (quotation simplified).

ANALYSIS

I. Issues Relating to the Trust

¶28 Tara argues that the stock that John placed into the Trust
should have been divided as part of the marital estate, and she

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gives us three primary grounds for reaching this result. For the
reasons set forth below, we decline to address two of these
grounds because they are unpreserved. We conclude that Tara at
least arguably preserved a third ground, but we reject this
argument because it is foreclosed by the district court’s
unchallenged findings. 6

A. Creditor Rights Under Section 75-7-505

¶29 As noted, John was the settlor of the Trust. Tara now
argues that, because John and Tara were contemplating divorce
when the Trust was created, Tara became his creditor. As a result,
Tara claims that she is authorized to “reach the maximum amount
that can be distributed to or for the settlor’s benefit” (in this case,
the full value of the Trust) under Utah Code section 75-7-505(2)(a).
In response, however, the Investment Trustee first argues that
Tara failed to preserve this argument. The Investment Trustee
also argues that Tara is wrong on the merits. We decline to
consider the merits of Tara’s assertion because we agree with the
Investment Trustee that this presents a distinct issue that was not
preserved below.

¶30 “Under our adversarial system, the parties have the duty
to identify legal issues and bring arguments,” and if they fail to
raise an issue at the appropriate time, “they risk losing the

6. The Trust Agreement had a choice-of-law provision stating that
the Trust was governed by the Spendthrift Trust Act of Nevada.
But even so, we agree with the district court that, with the
exception of questions relating to the creation of the Trust, Utah
law applies to questions regarding the enforcement of its terms.
See Dahl v. Dahl, 2015 UT 79, ¶ 27, 459 P.3d 276 (“Because Utah has
a strong policy of equitable distribution of marital assets, we
decline to enforce the Trust’s choice-of-law provision on the
grounds that doing so would deny the district court the ability to
achieve an equitable division of the marital estate.”).

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opportunity to have the court address that issue.” State v. Johnson,
2017 UT 76, ¶ 14, 416 P.3d 443. “An issue is preserved for appeal
when it has been presented to the district court in such a way that
the court has an opportunity to rule on it.” Id. ¶ 15 (quotation
simplified). “To provide the court with this opportunity, the issue
must be specifically raised by the party asserting error, in a timely
manner, and must be supported by evidence and relevant legal
authority.” Horne v. Horne, 2022 UT App 54, ¶ 10, 511 P.3d 1174
(quotation simplified). “Although new arguments, when brought
under a properly preserved issue or theory, do not require an
exception to preservation, an argument based upon an entirely
distinct legal theory is a new claim or issue and must be separately
preserved.” True v. Utah Dep’t of Transp., 2018 UT App 86, ¶ 32,
427 P.3d 338 (quotation simplified).

¶31 The “two primary considerations underlying” the
preservation rule are “judicial economy and fairness.” Patterson v.
Patterson, 2011 UT 68, ¶ 15, 266 P.3d 828. “Our preservation rule
promotes judicial economy in that it, among other things,
encourages parties to resolve their controversies at the trial level,
allows the trial judge to correct errors at the trial level, establishes
a comprehensive record for appeal, and helps alleviate the
otherwise heavy burden on appellate courts.” Kelly v. Timber Lakes
Prop. Owners Ass’n, 2022 UT App 23, ¶ 32, 507 P.3d 357 (quotation
simplified); see also Patterson, 2011 UT 68, ¶ 15 (concluding that the
rule furthers judicial economy, in part, by ensuring that the
district court is given the “opportunity to address the claimed
error, and if appropriate, correct it,” thereby “avoid[ing]
unnecessary appeals and retrials” (quotation simplified)). And
the preservation rule also promotes fairness between the parties
in the sense that “if no objection was made in the trial court, the
adverse party would not be compelled to overcome the objection
by presenting a rebuttal, providing an alternative argument,
establishing an alternative defense, or introducing new evidence
in an effort to overcome such an objection.” Kelly, 2022 UT App

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23, ¶ 32 (quotation simplified). “By extension, that party would be
restricted from introducing new evidence, defenses, and factual
arguments in an appellate court in order to rebut or defend an
unpreserved issue.” Id. (quotation simplified).

¶32 Here, we conclude that Tara’s assertion regarding the
potential applicability of Utah Code section 75-7-505(2)(a)
presents “an entirely distinct legal theory” that needed to be
preserved below. True, 2018 UT App 86, ¶ 32 (quotation
simplified).

¶33 Consider first the nature of Tara’s proposed theory. In her
brief, Tara argues that “[w]ith respect to an irrevocable trust . . . a
creditor may reach the maximum amount that can be distributed
to or for the settlor’s benefit.” To support this, she relies on Utah
Code section 75-7-505(2)(a). And her proposed application of this
particular statute to this case turns on several proposed
subsidiary conclusions. First, Tara argues that she is a creditor; to
support this, Tara cites caselaw suggesting that “a debtor-creditor
relationship is created between husband and wife once divorce is
threatened.” See Porenta v. Porenta, 2017 UT 78, ¶ 19, 416 P.3d 487;
Bradford v. Bradford, 1999 UT App 373, ¶¶ 14–16, 993 P.2d 887.
Next, Tara argues that although John renounced his rights as a
settlor and beneficiary of the Trust, this renunciation was invalid.
But in making this argument, Tara advances a series of arguments
based on language from the Trust Agreement, Utah caselaw,
Nevada trust law, and even federal property law. From this, she
argues that John never validly renounced his rights to assets
within the Trust and that she remains his creditor.

¶34 This is a fairly intricate theory, and it turns on a
combination of statutes and cases and contractual language that
involves several distinct analytical frameworks. Given this, we
conclude that this theory presents an issue, not an argument, and
it therefore needed to be preserved below.

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¶35 Reviewing the record, we agree with the Investment
Trustee that this issue was not preserved. It’s true that the district
court grappled with the overarching question of “whether or not
the corpus of the Trust [was] marital property.” It’s also true that
Tara included citations to Dahl v. Dahl, 2015 UT 79, 459 P.3d 276,
in her pleadings below, and Dahl did explore the interplay of
marital estate distribution and trust law, see id. ¶¶ 22–27. But
Tara’s arguments at the summary judgment stage focused on two
particular theories: first, that the Trust was not “validly created”
because marital assets were placed into the Trust “without
[Tara’s] knowledge or consent”; and second, that, even if the Trust
was validly created, Tara’s “entitlement to her fair share of the
marital assets” and John’s “inequitable conduct” provided the
court with sufficient justification to reform the Trust in such a way
that she should receive a share of the stock options that were now
owned by the Trust.

¶36 The district court’s reasoning directly responded to these
two arguments. On the first, which the court described as a
“narrow” argument, the court concluded that “even when
property titled in the name of one spouse is considered marital
property, the title-holder has the power to dispose of that
property during the marriage as he or she sees fit, and without
consent of the other spouse, or even over the disapproval of the
other spouse.” From this, the court deemed the Trust to be “valid
and enforceable.” On the second, the court declined Tara’s
invitation to reform the Trust because application of that equitable
remedy requires evidence of mutual mistake or ignorance
coupled with fraud, and the court did not find sufficient evidence
of those conditions. Based on these determinations, the court
concluded that while the stock options were marital property,
they were not subject to equitable distribution because marital
property placed in an irrevocable trust “is no longer considered
marital property subject to equitable distribution, but rather, the
trust is a separate entity.”

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¶37 We see no place in Tara’s pleadings or in the court’s
analysis where anyone invoked Utah Code section 75-7-505(2)(a),
which provides the analytical foundation for the issue Tara is
presenting on appeal. Although formal citation to a particular
statute might not always be required to preserve an issue, it
would be the usual and presumptive starting place if an assertion
is predicated on a particular statute. Without such a citation, Tara
would have at least been required to present this “distinct legal
theory,” Johnson, 2017 UT 76, ¶ 14 n.2, to “the district court in such
a way that the court [had] an opportunity to rule on it,” id. ¶ 15
(quotation simplified). But we see no place where she made the
particular debtor-creditor argument that she’s now making on
appeal. We therefore regard it as unpreserved. And as a result, we
decline to consider it. 7

7. At oral argument, Tara suggested that her reliance on Dahl
below was, itself, enough to preserve this new issue given the
alleged similarity between her proposed issue and the issues
considered by the supreme court in that case. We disagree. In
Dahl, the supreme court held that although the wife in question
was not a named settlor of the trust, she retained the rights of a
settlor because she had contributed her interests in the marital
property to the trust. 2015 UT 79, ¶¶ 27, 36–37. The supreme court
then determined that, under Utah law, the trust was a revocable
trust because the trust agreement reserved the right of settlors to
amend any terms of the trust. Id. ¶ 29. From these conclusions, the
supreme court analyzed the wife’s “rights in relation to a revocable
trust” under Utah Code section 75-7-605(2). Id. ¶¶ 33, 38
(emphasis in original). And the supreme court then concluded
that because the wife was a settlor of what it now regarded as a
revocable trust, the wife had the right to “revoke that portion of
the [trust] funded with either her separate or marital property.”
Id. ¶ 38.
(continued…)

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B. Public Policy

¶38 Tara next asks us to conclude that the Trust is void as being
against public policy. In support of this assertion, Tara points to
the two factors that Utah courts consider when determining
whether a contract violates public policy: “(1) whether the law or
legal precedent has declared that the type of contract at issue is
unlawful and absolutely void, and (2) whether the contract
harmed the public as a whole—not just an individual.”
Wittingham, LLC v. TNE LP, 2020 UT 49, ¶ 24, 469 P.3d 1035
(quotation simplified).

¶39 We have no difficulty concluding that Tara again presents
a distinct issue that needed to be preserved, as opposed to an
argument that didn’t. Of particular note, the first factor requires
Tara to identify the law or laws that have “declared” that “type of
contract” to be “unlawful and absolutely void.” Id. (quotation
simplified); see also WDIS, LLC v. Hi-Country Estates Homeowners
Ass’n, 2022 UT 33, ¶ 41, 515 P.3d 432 (“Because a statement of
public policy must be clear and free from doubt, a case in which
we invalidated particular restrictive covenants without a broader

This is not what Tara is arguing here. Unlike the analysis
set forth in Dahl, Tara is not arguing that she had become a settlor
of the Trust, nor is she arguing that the Trust had become
revocable and that she therefore had rights to its assets under
Utah Code section 75-7-605(2). Rather, Tara is asserting that she
had rights to its assets as a creditor under an entirely different
statutory scheme (Utah Code section 75-7-502(2)(a)). We therefore
regard Tara’s theory on appeal as a distinct legal theory from that
which the supreme court considered in Dahl. And while we don’t
foreclose the possibility that some court that is properly presented
with this issue in the future may (or may not) find some analytical
support in Dahl, we hold here that Tara’s reliance on Dahl below
was not sufficient, without more, to preserve the creditor-based
issue that she seeks to raise in this appeal.

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statement that such covenants are categorically void and
incapable of ratification is insufficient.” (quotation simplified));
Eagle Mountain City v. Parsons Kinghorn & Harris, PC, 2017 UT 31,
¶ 15, 408 P.3d 322 (“A contract will be held to violate public policy
only where it violates a well-defined and dominant policy.”
(quotation simplified)). And again, the second factor requires
Tara to show how this particular contract harmed the public, as
opposed to harming just her. Wittingham, 2020 UT 49, ¶ 24.

¶40 Tara didn’t present such a theory below. When Tara asked
the court to invalidate the Trust during the litigation regarding
the Investment Trustee’s summary judgment motion, she did not
identify any law that expressly forbade the transfer of marital
assets to an irrevocable trust, nor did she assert that the Trust
Agreement harmed the public as a whole. Indeed, the district
court itself pointed this out in its order granting summary
judgment, noting that “Tara ha[d] not made a claim that public
policy would override the Utah Uniform Trust Code if the Trust
is deemed valid and irrevocable.” Because this is an unpreserved
issue, we decline to consider it. 8

8. With respect to both the creditor issue and the public policy
issue, Tara suggests that, even if these issues are unpreserved, we
should still address them on the merits because the principles of
judicial economy and fairness would not be undermined were we
to do so.
It’s true that these interests support our preservation rule
generally. And it’s also true that our “waiver and preservation
requirements are self-imposed and are therefore doctrines of
prudence rather than jurisdiction.” State v. Johnson, 2017 UT 76,
¶ 12, 416 P.3d 443 (quotation simplified). But as discussed above,
the preservation rule itself is designed to protect interests of
judicial economy and fairness by, among other things,
incentivizing parties to raise issues in the first instance in the
(continued…)

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C. Transfer Made in Contemplation of Divorce

¶41 Finally, Tara asks us to adopt something of a new common
law rule under which assets that are placed by a spouse into a
trust during a marriage can be equitably distributed in a
subsequent divorce if the transfer was effectuated “in
contemplation of divorce or with the intent of impairing marital
rights.”

¶42 As with the creditor and public policy issues discussed
above, the Investment Trustee asserts that this issue was not
preserved. But unlike those issues, there is some reason to think
that this issue was preserved. In her opposition to the motion for
summary judgment, Tara argued that “one spouse is not entitled
to shield marital assets from another spouse by use of a trust,” and
she further complained that John acted “without [her] knowledge
or consent and with the clear intent to deprive her of her interest
in marital property.”

¶43 The Investment Trustee nevertheless asserts that these
statements were insufficient to establish preservation. But we
need not definitively decide whether Tara sufficiently preserved
this issue. If “the merits of [the] claim can easily be resolved in
favor of the party asserting that the claim was not preserved, we

district courts (thereby allowing a speedier and less expensive
resolution of cases), as well as by protecting the other party in the
case from being confronted with an issue for the first time on
appeal (and, as a result, being hamstrung in its ability to either
respond or instead make tactical or strategic adjustments). For
these and other reasons, we’ve recently held that the plain error
exception to preservation is unavailable in most civil cases. See
Kelly v. Timber Lakes Prop. Owners Ass’n, 2022 UT App 23, ¶ 41, 507
P.3d 357. We decline to accept Tara’s invitation to essentially
create a new and potentially amorphous preservation exception
here.

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readily may opt to do so without addressing preservation.” State
v. Kitches, 2021 UT App 24, ¶ 28, 484 P.3d 415 (emphasis omitted).
And in practice, we’ve often done so where the preservation
question is somewhat murky but the merits question is not. This
is the case here.

¶44 Again, Tara’s proposed rule turns on the spouse’s reasons
or intent for transferring the marital property. But the
“determination of intent is a question of fact, which will only be
reversed if the district court’s finding is clearly erroneous.” Bonnie
& Hyde, Inc. v. Lynch, 2013 UT App 153, ¶ 13, 305 P.3d 196
(quotation simplified). In its posttrial findings of fact, the court
observed that the “CPA for the couple while they were married
. . . testified that such trusts are very common because they create
estate tax savings—in essence, the formation of the trust removes
any appreciation of the trust proceeds from the estate/death tax.”
The court further observed that Tara had “testified at the [t]rial
that she understood that one of the benefits of the trust was to
avoid tax consequences.” The court reiterated and relied on this
testimony by Tara and the CPA later in its dissipation analysis,
finding that it was “undisputed that the Trust was formed to
avoid tax consequences when the beneficiaries withdrew funds
from the Trust.”

¶45 Tara has not directly challenged this finding in her brief,
much less carried her burden of establishing that it was clearly
erroneous. In any event, to satisfy that burden of persuasion on
this point, Tara would need to marshal the evidence, and we see
nowhere in her brief where she has done so. See State v. Cecala,
2021 UT App 141, ¶ 30, 502 P.3d 790 (“Failure to marshal does not
result in procedural default, but a party challenging a factual
finding . . . will almost certainly fail to carry its burden of
persuasion on appeal if it fails to marshal.” (quotation
simplified)). And this finding directly undermines Tara’s
proposed resolution of this issue. After all, if the purpose of the
Trust was to avoid tax consequences, then Tara would not be

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entitled to relief even under her proposed rule. As a result, we
conclude that, potential preservation concerns aside, Tara is not
entitled to the requested relief. 9

II. Dissipation of Marital Assets

¶46 Tara next argues the district court erred in determining
that John did not dissipate marital assets when he transferred the
stock options to the Trust. Utah courts consider several factors in

9. The Investment Trustee argues that because Tara has raised a
“plethora of unpreserved arguments,” we should award the
attorney fees that he incurred defending against this appeal. The
Investment Trustee bases this request on rule 33(a) of the Utah
Rules of Appellate Procedure, which states that “if the court
determines” that an appeal was “either frivolous or for delay, it
will award just damages, which may include . . . reasonable
attorney fees . . . to the prevailing party.” For purposes of this rule,
a “frivolous appeal” or brief “is one that is not grounded in fact,
not warranted by existing law, or not based on a good faith
argument to extend, modify, or reverse existing law.” Utah R.
App. P. 33(b). “But parties seeking attorney fees under rule 33 face
a high bar. The imposition of such a sanction is a serious matter
and only to be used in egregious cases . . . .” Porenta v. Porenta,
2017 UT 78, ¶ 51, 416 P.3d 487 (quotation simplified).
We reject this request. While we have concluded that two
of Tara’s assertions presented unpreserved issues, Tara at least
had colorable (albeit unpersuasive) reasons for asserting that she
was advancing arguments, as opposed to issues (particularly with
respect to her first assertion), and we thought the preservation
question was close enough on her third assertion to warrant
decision on the merits. On balance, we don’t believe that the
portion of Tara’s brief to which the Investment Trustee responded
rises to the level of egregiousness contemplated by rule 33(a).

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determining if dissipation of marital assets has occurred,
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.

Wadsworth v. Wadsworth, 2022 UT App 28, ¶ 69, 507 P.3d 385
(quotation simplified), cert. denied, 525 P.3d 1259 (Utah 2022).
Although a district court’s determination regarding a dissipation
determination enjoys a “presumption of validity,” Dahl, 2015 UT
79, ¶ 119 (quotation simplified), a district court abuses its
discretion if it misapplies the law, see Clark v. Clark, 2023 UT App
111, ¶ 18, 537 P.3d 633. As explained below, we see no error with
respect to the court’s analysis of the first, second, and fourth
factors, but we do see legal error in the court’s analysis of the third
and fifth factors.

A. How the Money Was Spent

¶47 The first factor looks to “how the money was spent,
including whether funds were used to pay legitimate marital
expenses or individual expenses.” Wadsworth, 2022 UT App 28,
¶ 69 (quotation simplified). As noted earlier, the district court
made a factual finding that the purpose of the Trust was to avoid
certain tax consequences. The court then echoed this finding in its
analysis of the first dissipation factor, finding that it was
“undisputed that the Trust was formed to avoid tax consequences
when the beneficiaries withdrew funds from the Trust.” These
findings do indeed suggest that the assets were spent for
legitimate marital purposes.

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¶48 On appeal, Tara suggests that John’s intent was really “to
remove the assets from the marital estate.” But to challenge the
court’s contrary finding, Tara would have to show that it is clearly
erroneous, and to carry her burden of persuasion, she would need
to marshal the supporting evidence. See Cecala, 2021 UT App 141,
¶ 30. She has not done so. In light of this unrebutted finding, we
perceive no abuse of discretion in the court’s conclusion that,
because the Trust was formed to avoid tax consequences, the first
factor did not support a dissipation determination.

B. Historical Practices

¶49 The second factor looks to the “parties’ historical
practices.” Wadsworth, 2022 UT App 28, ¶ 69 (quotation
simplified). Here, the district court first noted that John and Tara
“had not created a trust prior” to this one, although it also noted
that they did create a different trust a short time later. Based on
the fact that they had not previously created a trust, Tara argues
that the second factor should have weighed in favor of
dissipation.

¶50 By focusing exclusively on the couple’s earlier history with
trusts, Tara interprets this factor too narrowly. The district court
also found that John and Tara had done “what they could do to
avoid tax consequences related to the income that [John] brought
into the marriage,” that John and Tara had taken “other actions to
avoid tax consequences (such as prepaying taxes, paying taxes
quarterly, etc.),” and that they “appear[ed] to always be
concerned with tax consequences regarding [John’s] income.” In
light of these additional findings, we agree with the district court
that the “historical practices” in question could include the
couple’s broader historical practice of trying to minimize their tax
obligations. Because the court’s additional findings confirm that
the Trust was created for that very purpose, we see no abuse of
discretion in the court’s conclusion that the second factor weighed
against dissipation.

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C. The Magnitude of Any Depletion

¶51 The third factor looks to the “magnitude of any depletion.”
Id. (quotation simplified). Here, the district court found that while
“the marital assets that formed the corpus of the Trust are not
available to [Tara] and, therefore, for her, are 100% depleted,”
they otherwise “still exist.” From this, the court concluded that
this factor did not weigh “for or against” dissipation. We disagree
with the analytical framework that the court used in evaluating
this factor.

¶52 The court’s analysis begs the question: what’s the “asset”
at issue in a dissipation analysis that’s conducted in a divorce
case? Here, the district court viewed the “asset” as being just the
stocks themselves. But we’ve previously recognized that
dissipation occurs when a spouse “seriously depleted the marital
estate.” Shepherd v. Shepherd, 876 P.2d 429, 433 (Utah Ct. App. 1994)
(emphasis added); cf. Wadsworth, 2022 UT App 28, ¶ 72 (looking
to whether the spouse had transferred the asset in question “out
of the marital estate”). And it makes sense that this factor should
focus on any depletion of value to the marital estate (as opposed
to just looking to any depletion in value of a particular item). For
example, suppose that, in contemplation of a potential divorce, a
spouse surreptitiously transferred all of the funds from the
couple’s joint bank account into an account that only that spouse
controlled. In such a situation, no one would seriously dispute
that this transfer weighed in favor of a dissipation determination,
even if the money itself still existed within the other, non-marital
account.

¶53 The district court thus erred by looking to whether the
stock options (or their value) still exist in the abstract. Rather, in
considering this factor, the court should have considered the
magnitude of any depletion to the marital estate.

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Hillam v. Hillam

D. The Timing of the Challenged Action

¶54 The fourth factor looks to “the timing of the challenged
actions in relation to the separation and divorce.” Wadsworth, 2022
UT App 28, ¶ 69 (quotation simplified).

¶55 There’s some reason to think this factor could have gone
either way. As Tara points out, the record indicates that the
parties were having marital difficulties at the time that the Trust
was created. After all, one of the two reasons that John went to see
Attorney was to seek assistance “with the negotiation of a
postnuptial agreement,” and John apparently did so because of
the parties’ ongoing marital difficulties. Given that John created
the Trust a short time later and then transferred the stock options
into it, the timing of the transfer might suggest that it was at least
in contemplation of a potential separation or divorce, thus
supporting a dissipation determination.

¶56 But on the other hand, we’ve framed this factor as looking
to the “timing of the challenged actions in relation to the separation
and divorce.” Id. (emphasis added, quotation otherwise
simplified). Taking this framing at face value, and viewing the
trial testimony against it, the district court concluded that “while
it appears that some marital problems existed at the time of the
creation of the Trust, those issues apparently resolved because the
parties’ separation did not occur until approximately five years
later.” The court thus concluded that this factor “weigh[ed]
against a finding of dissipation.”

¶57 In Clark, one of the parties asked us to impose more rigidity
with respect to how district courts should view this factor, but we
declined the invitation. 2023 UT App 111, ¶ 29 n.2. We instead
expressed our view that “the district court is in the best position
to evaluate the importance of such evidence on a case-by-case
basis.” Id.

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Hillam v. Hillam

¶58 Here, we believe that the district court could have
concluded that the timing factor supported a dissipation
determination, given that the parties were experiencing marital
difficulties when the transfer occurred. But we also don’t believe
that the court was required to do so, given that the parties stayed
married for several more years and, also, the court’s additional
findings that there was an independent, tax-related purpose for
the creation of the Trust and the transfer in question. In light of
the discretion afforded to the district court, we see no basis for
reversing its conclusion that the fourth factor did not support a
dissipation determination.

E. Obstructive Efforts

¶59 The fifth factor looks to whether there were “any
obstructive efforts that hinder the valuation of the assets.”
Wadsworth, 2022 UT App 28, ¶ 69 (quotation simplified). The
district court concluded that this factor “weighs heavily in favor
of [John]” because “the evidence shows that, while [Tara] did not
know every detail pertaining to the Trust, that was because she
did not take affirmative action to learn those details and,
furthermore, there is no evidence that those details were hid from
[her].” In so ruling, the court suggested that it believed this factor
requires some affirmative obstructive action by the allegedly
concealing party. We disagree.

¶60 It’s true that “obstruction” often involves an affirmative
action that’s intended to conceal or hide something. See
Obstruction, Black’s Law Dictionary (12th ed. 2024) (defining
“obstruction” as “[t]he act of impeding or hindering something;
interference”); see also Goggin v. Goggin, 2013 UT 16, ¶¶ 10–15, 299
P.3d 1079 (referring to a party’s behavior as being “obstructionist”
where, among other things, the party frustrated attempts to access
documents on multiple occasions, provided voluminous and
irrelevant documents, and “stonewall[ed] and alter[ed] . . .
requested computer evidence” (quotation simplified)).

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Hillam v. Hillam

¶61 But context of course matters. Wadsworth, 2022 UT App 28,
¶ 74 (holding that the “mere failure to disclose [an] investment”
did “not mandate a finding” of obstruction). And here, we’re not
interpreting a particular statute (such as a criminal obstruction of
justice statute), wherein the term “obstruction” might have a
defined meaning that may or may not require an affirmative act.
Rather, we’re interpreting the phrase “obstructive efforts” as it
has been used in a common law test that applies to a divorce
action.

¶62 Viewed through the particular prism of how marriages
sometimes or even often operate—both in terms of trust
expectations and agreed-upon divisions of labor—we believe that
it sometimes might be possible for a spouse to impede or hinder
the other spouse’s awareness of something (even something
important) through half-truths or targeted omissions alone. If
supported by the facts and evidence, it thus might be possible for
a court to determine that half-truths or omissions qualify as
“obstructive efforts” for purposes of a dissipation analysis.

¶63 Here, the record does show that Tara was included in some
meetings in which John and Attorney discussed the formation of
the Trust with her, and it likewise shows that she could have
accessed and read the Trust Agreement or other documents
related to the Trust if she had made the effort. But the record also
indicates that Tara “was not provided any draft documents to
review . . . prior to this divorce case.” And of more importance, it
shows that she was told by John that the Trust was to be “a family
trust” for the purpose of “avoid[ing] tax consequences” and that
she was told that she was a beneficiary. It also shows that, while
John was apparently taking the lead on the creation of the Trust
and even making representations to her about it, Tara was not told
that her status as the “spouse” and beneficiary of what had been
described to her as a “family trust” would be nullified if the
parties ever divorced.

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Hillam v. Hillam

¶64 Like the other factors, this factor involves a case-specific
inquiry that’s best determined by the district court in the first
instance. And our disagreement with the district court is not
necessarily with the outcome of its resolution of this factor.
Rather, our disagreement is with the court’s apparent conclusion
that this factor can be satisfied only through affirmative
misstatements, as opposed to omissions that could have been
regarded as material—either in light of the couple’s past practices
generally or the particular circumstances of how they were
approaching the creation of the Trust. On remand, we leave it to
the district court to assess this factor anew in light of the principles
set forth above.

¶65 Turning to the broader question of whether John’s conduct
supported a dissipation determination, we likewise stress that
this ultimate determination is also best made in the first instance
by the district court. See, e.g., Clark, 2023 UT App 111, ¶ 29 n.2
(recognizing that “timing” is “one factor among many” and that
a district court has “flexibility” to “consider all the circumstances
in a particular case”); Wadsworth, 2022 UT App 28, ¶ 76
(concluding that although “the timing of the transfers could
provide circumstantial evidence of dissipation,” the court did not
abuse its discretion in rejecting the dissipation argument where
“the parties’ historical practices and the lack of additional
evidence suggesting obstructive intent . . . support[ed] the court’s
determination that the transfers were not dissipation”).

¶66 Because we have concluded that the court erred in its
assessment of two of the dissipation factors, we remand for the
district court to reconsider this question in light of the principles
set forth in this opinion. If the court concludes that John did
dissipate the marital estate, Tara “should receive a credit for . . .
her share of the assets that were dissipated.” Rayner v. Rayner,
2013 UT App 269, ¶ 20, 316 P.3d 455 (quotation simplified).

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III. The Stock Payout

¶67 Finally, separate from the issues relating to the Trust, Tara
argues that “the district court abused its discretion in declining to
award [Tara] her share of the $570,000 payout” that John received
in 2017, “while the parties were still married.” In Tara’s view, this
payout should have been treated as an asset (and, thus, should
have been divided as part of the marital estate), rather than as
income.

¶68 As noted above, however, a “district court has considerable
discretion considering property division in a divorce
proceeding,” and its actions “enjoy a presumption of validity.”
Clark, 2023 UT App 111, ¶ 18 (quotation simplified); see also
Rothwell v. Rothwell, 2023 UT App 50, ¶ 89, 431 P.3d 225, cert.
denied, 537 P.3d 1011 (Utah 2023) (holding that a district court had
“significant discretion” when determining whether to count
“income-producing property” as income or, instead, to treat it as
an asset). Indeed, Tara’s own framing reflects that the decision in
question here was discretionary, with Tara asking us to hold that
the “district court abused its discretion.”

¶69 In light of the particular circumstances of this case, we see
no abuse of discretion. In its posttrial ruling on this issue, the
district court acknowledged that John had received
“approximately $570,000” as a stock payout in 2017 and that John
had maintained control of those funds. But the court then credited
“evidence indicat[ing] that, during negotiations at the temporary
orders hearing,” John “agreed to be imputed a higher income to
account for the 2017 stock payout.” The court noted that, “[a]s a
result [of the] higher imputed income,” John “was required to pay
more in alimony and child support than he otherwise would have
had to pay” and that John “has remained current on all required
payments.” The court then concluded that, “in equity,” it would
not award any of the 2017 stock payout to Tara because “the

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evidence indicate[d] that the parties already agreed on how this
payout should be addressed.” (Emphasis added.)

¶70 In challenging this decision, Tara claims that “there is no
evidence that the parties intended to include the 2017 stock
payout of $570,000 in [John’s] imputed income at the Temporary
Orders phase.” But this is not correct. At trial, John acknowledged
under oath that he had “stipulated to a higher income amount at
the temporary orders hearing . . . to account for deferred
compensation.” In its ruling, the district court thus appears to
have credited this testimony.

¶71 Tara has not persuaded us that the court committed any
error in crediting that testimony, nor has she shown that the
temporary orders did not, in fact, impute a higher income to John
as a direct reflection of this stock payout. And with that as the
backdrop, we see no abuse of discretion in the court’s decision to
continue treating this as income for purposes of its final resolution
of this case. After all, the temporary orders in question were
entered in March 2017, and the posttrial ruling was entered in
December 2021. Thus, when the court ultimately ruled on this
issue after trial, two things were apparent: (1) Tara had previously
agreed that this payout should be treated as income, and (2) as a
direct result of that agreement, Tara had received higher alimony
payments and John had paid more in child support for almost five
years while the case was being litigated. If the court were to
reverse course at that point and treat this as an asset, this decision
could result in a series of new inequities. 10

10. As John points out in his brief, for example, he presented
evidence at trial indicating that, after receiving this payout, he
used a very large percentage of it to pay outstanding expenses,
many of which were marital expenses. Thus, if the district court
had accepted Tara’s invitation to change course and treat this
(continued…)

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¶72 Considering these particular circumstances, we conclude
that the court did not abuse its “considerable discretion,” Clark,
2023 UT App 111, ¶ 18 (quotation simplified), when it decided
that it would continue to honor the parties’ earlier agreement and
treat the stock payout as income, as opposed to treating it as an
asset. And from there, we further note that Tara’s challenge on
appeal was simply directed at how this payout should be treated
(i.e., whether to treat it as income or instead as an asset). Tara has
not separately attempted to demonstrate (much less with
adequate briefing) that, if the payout were properly treated as
income, the court erred in assessing its impact on John’s child
support or alimony obligations. As a result, she has not persuaded
us that there was any reversible error with respect to how the
court resolved this payout within the context of the couple’s
divorce.

CONCLUSION

¶73 Tara failed to preserve many of her issues relating to the
disposition of the Trust, and on the remaining issue her claim fails
on its merits. On the question of whether John’s transfer of stock
options into the Trust constituted dissipation, we remand for the
district court to reconsider two of the five factors and then issue a
new determination. And on the 2017 stock payout, we affirm the
decision of the district court.

payout as an asset, the ripple effects could have required the court
to also determine how much of that payout was even available to
be divided as an asset at all.

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