Dutcher v. Dutcher

2025 UT App 21

THE UTAH COURT OF APPEALS

DAVID THOMAS DUTCHER,
Appellant,
v.
AUDREY PARK DUTCHER,
Appellee.

Opinion
No. 20230332-CA
Filed February 21, 2025

Third District Court, West Jordan Department
The Honorable Chelsea Koch
No. 204904573

Troy L. Booher, Taylor P. Webb, and
Dean Andreasen, Attorneys for Appellant
Harry Caston, Attorney for Appellee

JUDGE GREGORY K. ORME authored this Opinion, in which
JUDGES MICHELE M. CHRISTIANSEN FORSTER and RYAN D. TENNEY
concurred.

ORME, Judge:

¶1 David Thomas Dutcher appeals the district court’s decree
of divorce awarding his former wife, Audrey Park Dutcher, a
portion of a brokerage account while also including line items for
retirement and investment contributions in its alimony
calculation. He also challenges the court’s refusal to set aside the
parties’ stipulation regarding the value of the marital home. While
we affirm the court’s valuation of the marital home, we reverse
the court’s alimony award and remand that matter for
recalculation.
Dutcher v. Dutcher

BACKGROUND

¶2 David and Audrey 1 were married for 24 years, during
which time they amassed “a substantial amount of wealth,”
including a brokerage account worth around $2 million at the
time of their divorce and the marital home. David and Audrey
have four children, three of whom were minors when David
petitioned for divorce in August 2020. Custody of the children
was hotly contested, and the parties eventually stipulated to the
appointment of a parent-time evaluator (Evaluator).

¶3 When Evaluator submitted her report, her
recommendation for overnight stays for David fell short of the
statutory minimum. Apparently, as a matter of trial strategy,
David decided to cross-examine Evaluator about this error rather
than present a rebuttal expert witness. But five days before trial,
realizing her mistake, Evaluator emailed the parties an amended
report that increased David’s overnights.

¶4 The issues certified for trial included custody, alimony,
and the valuation of the marital home. Audrey and David had
each obtained appraisals of the home, but in Audrey’s pre-trial
memorandum, she noted, “Pursuant to the appraisal conducted
by [David’s appraiser], the home has a present value of $1.7
million.” David also submitted proposed findings of fact stating,
“The parties stipulate that the marital home has a value of $1.7M.”

¶5 A bench trial began in December 2021. David testified
about the parties’ brokerage account and reiterated the $1.7
million appraisal value of the marital home. He testified that the
parties deposited and withdrew from the brokerage account but
that they had not made significant contributions to the account
until 2014, making substantial deposits in 2016, 2017, and 2018
when his “compensation was abnormal.” At the time of trial, the

1. Per our usual practice, because the parties share a surname, we
refer to them by their first names, with no disrespect intended.

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brokerage account balance was $1,940,285. He also testified about
his proposed division of the parties’ assets, wherein one of them
would receive the marital home and a portion of the brokerage
account while the other would receive the balance of the account
to purchase a new home and retain what was left of his or her
account share. He proposed that under either arrangement, he
should be left with $100,000 from the brokerage account and
Audrey should receive $452,374. And he urged that he should
receive the marital home. He also calculated Audrey’s monthly
expenses at $5,645 per month, including a $500 monthly
contribution to her retirement. But with her imputed income,
investment income, and child support, David calculated that
Audrey would receive $9,449 per month—more than enough to
cover her expenses without alimony.

¶6 An accountant (Accountant) David hired to summarize the
parties’ standard of living and to opine on the distribution of
assets also testified about David’s proposed division. Accountant
testified that he had calculated the average return on the
brokerage account to be 16.99% over the last five years. He
testified that the rate had “been higher than that, but in prior
years, it was lower.” And he noted that the parties had used the
account to both deposit and withdraw money. He testified that
under either of David’s proposed divisions of assets, with David
receiving $100,000 from the account, he would likely receive
$1,019 per month in investment returns. He also testified that with
Audrey receiving $452,374 from the brokerage account, she
would likely receive $4,611 per month in returns. But Accountant
acknowledged that there was “no guarantee” on these returns.

¶7 Before the second day of trial, David filed a motion seeking
to designate and call an expert witness to rebut Evaluator’s
amended report and trial testimony. Once trial began that day,
David alerted the court to the motion, noting it was “highly
atypical” but asserting there were “atypical facts” warranting it.
David’s counsel argued that because Evaluator’s original

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recommendation did not meet the statutory parameters for joint
physical custody, he initially planned to file a motion with the
court explaining the error with an eye to disqualifying the report
rather than calling a rebuttal expert. But, David argued, now that
Evaluator had amended her report, he needed to change his
strategy and call a rebuttal expert to testify about custody.
Counsel indicated that the expert witness he sought to call was
not available to testify that day but “would make herself available
as needs be.” The court granted the motion and continued the trial
to allow David to procure the rebuttal expert’s testimony.

¶8 Due to scheduling conflicts, the trial did not resume until
May 2022, some five months later. David informed the court that
“both parties ha[d] updated a number of exhibits,” including an
“updated appraisal” of the marital home that valued it at $1.975
million, as opposed to the December 2021 valuation of $1.7
million. David sought to admit the updated appraisal with no
objection from Audrey. David testified that he was asking the
court to value the home based on this new appraisal. But he did
not ask the court to set aside the prior stipulation. During her
testimony, Audrey acknowledged that the home had been
reappraised at a higher value, but she also opined that David’s
appraiser’s “numbers have always been artificially high.”

¶9 After trial, the court issued findings of fact and conclusions
of law. The court declined to impute the returns on the brokerage
account as income for either party, reasoning that “income earned
on investments is unpredictable and would require” the court “to
speculate with regard to earnings for every future month or year.”
Further, the court noted that dividing the account would “impact
the income earned from the account” and that each party would
receive a different percentage and would have “a different ability
to invest going forward.” And the court stated that because “the
parties have traditionally used the investment account as a
savings account and pulled from it only for limited purposes,” it
would be inequitable to treat the returns as income. The court also

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noted “the disparity in the parties’ ability to earn,” “the parties’
financial ability to invest any money in the future,” and “the fact
that the parties have lost hundreds of thousands of dollars in their
investment accounts during only the pendency of this case.” Thus,
the court concluded that “[n]othing presented at trial” inspired
confidence “in assigning a specific amount of potential monthly
income to the assets each will receive in the property division.”
The court awarded Audrey the marital home and $556,737.50
from the brokerage account, with David receiving the balance
from the brokerage account, $1,363,457.50, with which to
purchase a new home while leaving him a balance in the account,
depending on how much he used to buy the home.

¶10 In addressing alimony, the court found Accountant’s
“analysis helpful” but indicated it was “not persuaded that the
lifestyle analysis summary is completely representative of the
marital lifestyle” and declined to adopt David’s proposal of
Audrey’s needs. The court chose to include $1,117 for retirement
contributions and $1,823 for investment contributions in Audrey’s
monthly expenses for purposes of calculating alimony. It chose to
value the marital home at $1.7 million, noting “the parties
stipulated” to the value on the first day of trial and although
David had submitted a new appraisal of $1.975 million, the parties
had not stipulated to this new appraisal. The court also faulted
David for the continuance of the trial, “for the sole purpose of
allowing his newly designated rebuttal expert to testify with
regard to parent-time,” and found it would be “inequitable to set
aside a stipulation that was addressed the first day of trial, prior
to David’s request to continue the trial, for a reason unrelated to
the value of the home.”

¶11 David filed a motion asking the court to amend its findings
under rule 52 of the Utah Rules of Civil Procedure. He challenged
the court’s decision not to include the returns from the brokerage
account as income for purposes of calculating alimony, the
inclusion of investment and retirement contributions as part of

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Dutcher v. Dutcher

Audrey’s monthly expenses in calculating alimony, and the “stale
valuation” of the home as of December 2021 rather than as of May
2022.

¶12 While the court did amend its findings to correct certain
mathematical errors and to address other minor objections raised
by the parties, it declined to do so with regard to any of the issues
David raised. With respect to Audrey’s income, the court
concluded that Accountant’s estimated return rate “did not take
into consideration the specific divisions of the account pursuant
to the decree, nor the change in value after the decree, nor the
disparity in contributions going forward that would impact the
principal and returns.” The court noted that the brokerage
account returns were not “a reliable source of income” that the
court felt “confident would consistently provide for each party
over the next two decades.” The court also refused to amend its
findings regarding Audrey’s investment and retirement
contributions, concluding that “[b]oth parties testified that the
marital standard included contributing to savings monthly.”
Finally, the court reiterated that it had valued the marital home at
$1.7 million because the new appraisal, unlike the original
valuation, had not been stipulated to by the parties.

¶13 The court then entered the divorce decree in March 2023,
reflecting its amended findings. David appeals.

ISSUES AND STANDARD OF REVIEW

¶14 David challenges the district court’s award of alimony to
Audrey, arguing the court should have included the returns from
the brokerage account as income, or, in the alternative, should not
have included investment and retirement contributions as line
items in calculating her monthly expenses. He also argues the
court erred in valuing the marital home based on the parties’
stipulation. “The court’s valuation of the marital property, the
manner in which it distributed that property, and its alimony

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determination are all subject to the same standard of review.”
Rothwell v. Rothwell, 2023 UT App 50, ¶ 33, 531 P.3d 225 (quotation
simplified), cert. denied, 537 P.3d 1011 (Utah 2023). Namely, “in
divorce actions, a district court is permitted considerable
discretion in adjusting the financial and property interests of the
parties, and its actions are entitled to a presumption of validity.”
Id. (quotation simplified). “We can properly find abuse of the
district court’s discretion only if no reasonable person would take
the view adopted by the district court, that is, if a
misunderstanding or misapplication of the law resulted in
substantial and prejudicial error, if the court’s factual findings are
clearly erroneous, or if the award is so seriously inequitable as to
manifest a clear abuse of discretion.” Id. (quotation simplified).

ANALYSIS

I. Brokerage Account

¶15 David argues the district court abused its discretion in
excluding returns from the brokerage account in calculating
Audrey’s income for purposes of alimony. In the alternative,
should we disagree, David argues the court abused its discretion
in including line items for retirement and investment
contributions in the calculation of Audrey’s monthly expenses,
given the size of her share of the brokerage account. We agree that
the district court’s alimony calculation should have either
included the investment returns in calculating Audrey’s income
and included the line items for retirement contributions and
savings in evaluating her need for alimony, or instead it should
have excluded both.

¶16 “In determining whether a spouse should receive alimony,
the general rule is that a court should first take care of property
distribution.” Mintz v. Mintz, 2023 UT App 17, ¶ 51, 525 P.3d 534,
cert. denied, 531 P.3d 730 (Utah 2023). “Then, depending on how
the property distribution works out—especially considering

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income-generating property—the court considers whether
alimony will be necessary for a spouse to meet demonstrated
needs.” Id. “If a payee spouse has income-producing property, the
income from that property may properly be considered as
eliminating or reducing the need for alimony by that spouse.”
Rothwell v. Rothwell, 2023 UT App 50, ¶ 89, 531 P.3d 225 (quotation
simplified), cert. denied, 537 P.3d 1011 (Utah 2023).

¶17 Here, the district court declined to impute the returns from
the brokerage account as income for either party. The court
reasoned that “income earned on investments is unpredictable
and would require” the court “to speculate” about future returns.
The court noted that division of the account would affect its
returns and the parties would have “a different percentage of the
account going forward” and “a different ability to invest in the
account going forward.” The court also considered “the disparity
in the parties’ ability to earn,” “the parties’ financial ability to
invest any money in the future,” and the volatility of the market.
Thus, it declined to impute any additional income to Audrey
based on returns from her substantial share of the brokerage
account.

¶18 In Rothwell, we concluded the district court did not abuse
its discretion in deciding not to impute income to one party based
on what she might earn “from investing her share of the marital
estate” because “[w]hile the property in question had the
potential to produce income if used in a particular way, there was
nothing to suggest that the property had historically been
income-producing.” Id. ¶ 90. See also Mintz, 2023 UT App 17, ¶ 59
(holding that the district court did not abuse its discretion in
failing to impute potential investment earnings as income where
“neither party considered investment income as income to be
spent or expended, but rather as a vehicle to increase savings and
net worth”) (quotation simplified). And in Eberhard v. Eberhard,
2019 UT App 114, 449 P.3d 202, we affirmed the district court’s
decision not to impute potential retirement income to one party

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where the rate of return was disputed. Id. ¶¶ 24, 26. But neither of
these scenarios is present here.

¶19 The district court noted that the parties had treated the
brokerage account as a savings account and had pulled from it
only on occasion. And Audrey did not present expert testimony
to refute Accountant’s testimony establishing an estimated return
rate of 16.99%. In declining to impute Audrey’s returns from the
brokerage account as income, the court anticipated her using
those returns as savings to re-invest. Fair enough. But it also
included additional line items for both retirement and investment
in calculating her expenses for purposes of alimony. We agree
with David that this “double-counting” exceeded the sound
exercise of the court’s discretion. See Sorensen v. Sorensen, 839 P.2d
774, 776 (Utah 1992) (stating that double counting “is condemned
in property division cases”).

¶20 On remand, the court may decide to either include the
returns from the brokerage account in its calculation of Audrey’s
income and include the line items in the alimony calculation or do
the opposite, declining to impute the returns as income but also
declining to include duplicative alimony line items. It may not do
both. 2

II. Marital Home

¶21 David argues the district court abused its discretion in
refusing to set aside the parties’ stipulation to the value of the
marital home. But we see no abuse of discretion here.

¶22 “Even when made on the record, a stipulation regarding
property division in a divorce proceeding is not necessarily

2. Audrey argues that because David brought his appeal “in bad
faith,” she should receive attorney fees incurred on appeal. But
because David prevails on this first issue, his appeal was
obviously not in bad faith, and Audrey’s request is denied.

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binding on the trial court” and is “only a recommendation to be
adhered to if the trial court believes it to be fair and reasonable.”
Jensen v. Jensen, 2008 UT App 392, ¶ 23, 197 P.3d 117 (quotation
simplified). “While the court need not necessarily abide by the
terms of the litigants’ stipulations regarding property
distribution, those stipulations should be respected and given
great weight.” Batty v. Batty, 2006 UT App 506, ¶ 2, 153 P.3d 827
(quotation simplified). And the parties themselves are “bound by
the terms of their stipulated agreement.” Clark v. Clark, 2023 UT
App 111, ¶ 33, 537 P.3d 633 (quotation simplified).

¶23 Although David was bound by the terms of the parties’
stipulation, he submitted an updated appraisal during the later
trial dates. And he did not formally ask the court to set aside the
prior stipulation. True, Audrey did not object to David’s
introduction of the new appraisal. Nor did she remind the court
of the stipulation. But that prior stipulation was fair and
reasonable, based on a professional appraisal. And the district
court properly gave it “great weight.” Batty, 2006 UT App 506, ¶ 2
(quotation simplified). Although it valued the marital home at the
time of the first set of trial dates rather than at the time the decree
was entered, as was done with the rest of the marital property, we
cannot say that “no reasonable person would take the view
adopted by the district court.” Rothwell v. Rothwell, 2023 UT App
50, ¶ 33, 531 P.3d 225 (quotation simplified), cert. denied, 537 P.3d
1011 (Utah 2023). The court therefore did not abuse its discretion
in valuing the marital home in accordance with the parties’
stipulation.

CONCLUSION

¶24 While providing that investment returns from the
brokerage account would not count as Audrey’s income and
simultaneously including additional line items in the alimony
calculation for retirement and investment contributions exceeded
the district court’s discretion, valuing the marital home in

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accordance with the parties’ stipulation did not. We thus remand
to the district court for recalculation of alimony in accordance
with this opinion.

¶25 Affirmed in part, and reversed and remanded in part.

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