Ball v. Ball

2025 UT App 200

THE UTAH COURT OF APPEALS

NATALIE BALL,
Appellee,
v.
TIMOTHY ALEXANDER BALL,
Appellant.

Opinion
No. 20240286-CA
Filed December 26, 2025

Fourth District Court, Provo Department
The Honorable Christine S. Johnson
No. 214400001

Trevor Casperson, Attorney for Appellant
Emily Adams and Mikayla Irvin,
Attorneys for Appellee

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

CHRISTIANSEN FORSTER, Judge:

¶1 Timothy Alexander Ball appeals the district court’s award
of certain marital property to Natalie Ball in the parties’ divorce
decree. He also contests the court’s denial of his request for
attorney fees pursuant to rule 68 of the Utah Rules of Civil
Procedure. We agree that the court exceeded its discretion by
miscalculating the appropriate amount of the offset it awarded to
Natalie 1 for the marital funds dissipated by Timothy, and we
therefore reverse and remand this case on that narrow issue. As

1. Because the parties share a surname, we refer to them by their
given names, with no disrespect intended by the apparent
informality.
Ball v. Ball

to the request for attorney fees, however, the court did not exceed
its discretion in denying Timothy’s request for fees, and we
therefore affirm this ruling.

BACKGROUND

¶2 Timothy and Natalie were married in February 1999.
During their marriage, they had four children together. Also
during their marriage, Timothy engaged in “admitted[ly]
inappropriate relationships [with other women through] what he
terms . . . ‘pen pal’ websites,” spent “over $50,000 in marital
funds” on these websites, and “actively concealed this activity
from [Natalie] for at least three years.” Eventually, one of these
relationships was discovered and “serv[ed] as the catalyst for
[Natalie] to file for divorce.”

¶3 The parties separated in October 2020, and Natalie filed her
petition for divorce in December 2020. In her petition, Natalie
sought “sole legal and physical custody of the minor children,”
“$2,068 per month in child support,” $2,000 per month in alimony
“for a period of the length of the marriage,” “possession of the
marital home,” and all the equity in the marital home.

¶4 Timothy eventually filed a settlement offer under rule 68
of the Utah Rules of Civil Procedure, offering Natalie joint legal
and physical custody of the children, $674 per month in child
support, $1,200 per month in alimony for ten years, and 10% of
the equity in the marital home (Timothy asserted that the home
was the property of his father and that the couple was “entitled to
20% of the total equity”). Natalie did not accept the settlement
offer.

¶5 The case proceeded to trial, and the court thereafter
entered written findings and conclusions and a divorce decree. In
the divorce decree, Timothy was granted sole legal custody of the
children as well as primary physical custody, while Natalie was
awarded parent-time. Natalie was ordered to pay $512 per month
in child support.

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¶6 As to alimony, the district court found that Natalie had
monthly expenses that exceeded her monthly income, leaving her
with “an unmet need of $1,188.73 per month.” The court then
found that Timothy had monthly income that exceeded his
monthly expenses by $418 per month. Based on those findings,
the court awarded Natalie alimony of $400 per month.

¶7 Concerning the marital home, the court found that
Timothy’s father did not own the property as had been argued by
Timothy. The court also found “unpersuasive” Timothy’s
assertion that his father was “meant to be repaid” funds given to
the couple for the home. Thus, the court ordered that the home be
sold and the equity in the home be split equally between Timothy
and Natalie. However, the court made some “reallocation” of
Timothy’s portion of the equity to satisfy certain amounts that
Natalie was awarded in the division of the parties’ personal
property and assets.

¶8 The largest of these offsets, by far, concerned the money
Timothy had spent on dating websites while married to Natalie.
The court found that Timothy “admitted to spending $54,003.42
in marital funds on Dating Sites” and “admitted to actively
concealing these charges from [Natalie].” The court determined
that this was “a dissipation of marital assets,” that Natalie “should
not have suffered the consequences” of these actions, and that,
accordingly, Natalie “should be awarded $54,003.42 from
[Timothy’s share] of the equity in the home for his dissipation of
the marital assets.”

¶9 Timothy thereafter filed a motion pursuant to rule 59 of the
Utah Rules of Civil Procedure requesting that the district court
amend the divorce decree to, among other things, award Natalie
an offset of only half of the $54,003.42 of dissipated funds. He
argued that “pursuant to the presumption in divorce cases,”
Natalie would be entitled to only half of the total funds, reasoning
that “if that money had been saved in an account instead,
[Natalie] would have only be[en] entitled to 50% of it.” He
asserted that the court made no explanation as to “why this is an

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exceptional circumstance” that would allow a departure from the
general presumption that marital property be split equally, and
he additionally argued that if the court intended to award Natalie
the full percentage as “a punishment,” “such a reasoning [was]
not a valid basis to rebut the presumption of equal distribution.”

¶10 The district court denied Timothy’s motion to amend the
divorce decree on this point, reasoning as follows:

The Court had awarded one hundred percent of
those funds to [Natalie] and this was based on the
testimony of [Timothy] during trial indicating that
he did not believe that [Natalie] should be
responsible for those funds. That is what this ruling
was in essence based on. This was not an intent to
punish or take any punitive measures against
[Timothy], rather this was based on what he
represented.

What has now been suggested by [Timothy]
is that perhaps that’s not what he meant, but that he
meant for it to be divided in whole, the entire
amount divided 50/50 between the two parties. So
that he would be responsible for his part of the loss
and [Natalie] would be responsible for the other half
of the loss.

The Court declines to do that for the reasons
that were stated. [Timothy] indicated that he
believed that it was proper that he did not intend for
[Natalie] to be responsible for the money that he lost
by his own failures. It was his acknowledgement
that he had squandered that money.

For that reason the Court had found that it
was justified for [Timothy] to be responsible for the
. . . funds that were taken out of the account for his

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Ball v. Ball

online dating relationships. That is still supported
based on [Timothy’s] own testimony.

¶11 Timothy also filed a motion requesting “that attorney fees
be awarded on the basis that the Rule 68 [settlement] offer clearly
represented a greater value than what was ordered in the Decree”
to Natalie. The district court denied Timothy’s motion. While the
court stated that rule 68 “allows fees if permitted by law,” the
court also observed that “fees as permitted by law for establishing
an order are limited” and are “based on need, ability to pay, and
reasonableness.” The court then reasoned that because Natalie
had been “found to be financially in need” and did not “have the
ability to pay the amount of fees that [Timothy was] asking for
under Rule 68,” an award of fees was not warranted under that
rule.

¶12 Timothy thereafter timely appealed these determinations.

ISSUES AND STANDARDS OF REVIEW

¶13 Timothy argues that the district court erred by awarding
Natalie an offset for the full amount of $54,003.42 of the dissipated
funds. He argues that, instead, she should have been awarded an
offset equal to only half of that amount. “In divorce actions, a
district court is permitted considerable discretion in adjusting the
financial and property interests of the parties, and its actions are
entitled to a presumption of validity.” Gardner v. Gardner, 2019 UT
61, ¶ 18, 452 P.3d 1134 (quotation simplified). “Accordingly, we
will reverse only if (1) there was a misunderstanding or
misapplication of the law resulting in substantial and prejudicial
error; (2) the factual findings upon which the award was based
are clearly erroneous; or (3) the party challenging the award
shows that such a serious inequity has resulted as to manifest a
clear abuse of discretion.” Id. (quotation simplified).

¶14 Timothy also argues that the district court erred in denying
his request for attorney fees under rule 68 of the Utah Rules of

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Civil Procedure. “Trial courts have broad discretion in awarding
attorney fees. Where the trial court may exercise broad discretion,
we presume the correctness of the court’s decision absent a clear
abuse of discretion.” Mark v. Mark, 2009 UT App 374, ¶ 7, 223 P.3d
476 (quotation simplified). Similarly, “[o]ur review of [factual]
findings is highly deferential and we will reverse the district court
only if its findings are clearly erroneous.” Dahl v. Dahl, 2015 UT
79, ¶ 173, 459 P.3d 276.

ANALYSIS

I. The Dissipated Marital Funds

¶15 Timothy argues that the district court erred in awarding
Natalie an offset equal to the total funds dissipated by him on
dating websites. Timothy concedes “that it was his fault that the
$54,003.42 was lost” and that “Natalie should not be responsible
for its loss,” but he argues that “[t]he court went too far” in
awarding Natalie an offset equal to the full amount of those
marital funds as opposed to an offset equal to half of that amount. 2
We agree.

2. Natalie argues that “Timothy has failed to provide a complete
transcript of the parties’ two-day divorce trial and has thus failed
to provide an adequate record on appeal.” She points to rule 11 of
the Utah Rules of Appellate Procedure, which provides that “[i]f
the appellant intends to argue on appeal that a finding or
conclusion is unsupported by or is contrary to the evidence, the
appellant must include in the record a transcript of all evidence
relevant to such finding or conclusion.” Utah R. App. P. 11(c)(2).
But Timothy accepts the district court’s factual findings
regarding the concessions he made at trial about Natalie not being
responsible for the $54,003.42 loss, as well as the court’s implicit
finding that he agreed he should be 100% responsible for that loss.
The real issue underlying Timothy’s argument is what amount of
(continued…)

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¶16 “In Utah, marital property is ordinarily divided equally
between the divorcing spouses. After identifying property as
marital, the court must consider whether there are exceptional
circumstances that overcome the general presumption that
marital property be divided equally.” Beverlin v. Beverlin, 2025 UT
App 72, ¶ 26, 572 P.3d 428 (quotation simplified). And “if such
exceptional circumstances warrant an unequal division of the
marital property, the district court must memorialize the
exceptional circumstances in detailed findings.” Id. (quotation
simplified). Further, “when a court finds that a spouse has
dissipated marital assets, the court should calculate the value of
the marital property as though the assets remained. As a result,
when the court conducts its equitable distribution of the marital
property, the other spouse should receive a credit for his or her
share of the assets that were dissipated.” Goggin v. Goggin, 2013
UT 16, ¶ 49, 299 P.3d 1079 (footnote omitted). And the amount of
that credit (or offset) should ordinarily be half of the dissipated
marital funds, not the entire amount. See id. ¶ 46 (agreeing with
the appellant’s argument “that although he dissipated marital
funds, half of those funds were his, and accordingly, he should
only be accountable to [the respondent] for her share”).

¶17 The district court determined that the $54,003.42 Timothy
spent on dating websites was marital property. But the court
awarded Natalie an offset of that full amount, reasoning that she
“should not have suffered the consequences of [Timothy’s]
actions.” Although the court also made reference to Timothy
“actively concealing these charges from [Natalie],” the court later
clarified in its decision on the rule 59 motion that the award of the
full amount of the dissipated funds was not made with “an intent
to punish or take any punitive measures against [Timothy].”
Instead, the court repeatedly reiterated that the decision to award

an offset to the already-divided marital property is necessary to
make him 100% responsible for that loss. We may review such an
argument without reference to the entire trial transcript, and in
this particular instance Timothy was not required to provide the
whole trial transcript as part of the record on appeal.

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Ball v. Ball

an offset of the full amount “was based on the testimony of
[Timothy] during trial indicating that he did not believe that
[Natalie] should be responsible for those funds” that he lost. Thus,
the court set forth findings clearly stating the reasoning behind
Natalie’s award—that Timothy had agreed Natalie should not be
responsible for the $54,003.42 in lost marital funds.

¶18 But the problem here resides in the fact that the district
court’s ultimate award to Natalie of an offset of the full $54,003.42
goes beyond its stated intent of assuring that Natalie is not
responsible for the loss of the marital funds. The court was simply
incorrect that accepting Timothy’s request to award an offset of
half that amount would mean the loss would be “divided” and
Timothy “would be responsible for his part of the loss and
[Natalie] would be responsible for the other half of the loss.” On
the contrary, requiring that Timothy pay—from his portion of the
equity in the marital home—half of the $54,003.42 to Natalie
would make her whole, bringing her portion of the marital
property equal to what it would have been if Timothy had never
used the funds and the funds had instead remained in the
couple’s bank account to be split upon divorce. And requiring
Timothy to pay half of the total amount to Natalie would increase
Natalie’s award of marital property by $27,001.71 and decrease
Timothy’s award by $27,001.71, resulting in Timothy receiving
$54,003.42 less than Natalie and, thus, him bearing the entirety of
the loss of the dissipated funds (and Natalie being reimbursed for
the full amount of the loss). 3 The awarding of an offset equal to
the full amount of funds, on the other hand, left Natalie with a
larger award of marital property than she would have received
had the funds never been dissipated in the first place, and we see
nothing in the court’s order indicating an intent to provide Natalie
a windfall in this way. Thus, we determine that the court exceeded
its discretion by miscalculating this award, and we therefore

3. Indeed, this result would be equivalent to awarding Natalie
$54,003.02 of marital property off the top and then proceeding to
equally divide the remining marital property between the parties.

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reverse the award and remand the case so that the award may be
accordingly adjusted.

II. Attorney Fees

¶19 Timothy argues that the district court erred in refusing to
award him his attorney fees. He argues that because he made a
settlement offer under rule 68 of the Utah Rules of Civil Procedure
and because, “on balance, the offer was more favorable than what
Natalie received at trial,” he should have been awarded attorney
fees. 4

¶20 Rule 68 provides, “If the adjusted award is not more
favorable than the [settlement] offer, . . . the offeree shall pay the
offeror’s costs incurred after the offer.” Utah R. Civ. P. 68(b). “The
Utah Supreme Court has construed this rule such that it applies
to taxable costs only. Attorney[] fees are not taxable as costs, but
may be awarded against an opposing party only if there is
contractual or statutory liability therefor.” Cox v. Cox, 877 P.2d
1262, 1270 (Utah Ct. App. 1994) (quotation simplified); accord
Alpha Partners, Inc. v. Transamerica Inv. Mgmt., LLC, 2006 UT App
331, ¶ 41, 153 P.3d 714.

¶21 Thus, when considering whether to award attorney fees,
the district court here appropriately turned to the statutory
provision addressing attorney fees in the divorce context, which
provided that the court may order one party to pay the attorney
fees of the other party “to enable the other party to prosecute or
defend the action.” Utah Code § 30-3-3(1) (2020) (current version
at Utah Code § 81-1-203(1)(a)). An award of attorney fees under

4. Natalie argues that this issue was not preserved for appeal. But
because this issue is easily resolved in her favor, we elect to
address it without first engaging in a preservation analysis. See
State v. Kitches, 2021 UT App 24, ¶ 28, 484 P.3d 415 (“[I]f the merits
of a claim can easily be resolved in favor of the party asserting that
the claim was not preserved, we readily may opt to do so without
addressing preservation.” (emphasis omitted)).

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this section “must be based on evidence of the financial need of
the receiving spouse, the ability of the other spouse to pay, and
the reasonableness of the requested fees.” LeFevre v. Mackelprang,
2019 UT App 42, ¶ 39, 440 P.3d 874 (quotation simplified). Here
the district court denied Timothy an award of attorney fees
because Natalie “was found to be financially in need” and did
“not have the ability to pay,” and Timothy specifically challenges
this assessment on appeal. 5

¶22 The district court’s determination regarding Natalie’s
inability to pay was based on the findings in the divorce decree of
her financial need. Those underlying findings establish that
Natalie had monthly expenses that exceeded her monthly income,
leaving her with “an unmet need of $1,188.73 per month.”
Although the court had awarded alimony of $400 per month
(from Timothy’s surplus), this still left Natalie with a monthly
shortfall of $788.73.

¶23 Timothy does not directly attack these underlying findings
but simply argues that “Natalie did in fact have sufficient
resources” to pay his attorney fees, pointing to the fact that she
was awarded half of the equity in the marital home, “over $61,000
in offsets,” and half of the parties’ bank account. 6 This argument
is unavailing. Our caselaw does not “mandate[] that the court
consider all the paying party’s assets, such as home equity, as
income” when addressing a party’s ability to pay; “rather, the

5. Although Timothy’s opening brief additionally argues that “the
attorney fee award under Rule 68 should not be subject to a needs
based analysis,” his reply brief clarifies that his appeal on the
attorney fees issue “only challenges this finding” regarding
Natalie’s ability to pay. We limit our analysis accordingly.

6. By far the largest offset was the $54,003.42 awarded to Natalie
for the dissipated funds discussed in Part I. And our resolution of
that issue will result in this awarded offset being cut in half, which
will significantly reduce the total amount of offsets awarded to
Natalie in any event.

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Ball v. Ball

matter is left to the court’s judgment.” Busche v. Busche, 2012 UT
App 16, ¶ 31, 272 P.3d 748. And in this case, considering the
significant ongoing gap between Natalie’s income and needs, we
cannot say the court clearly erred in determining Natalie “to be
financially in need” or that the court exceeded its considerable
discretion in determining that an award of attorney fees was not
warranted here. 7 We therefore affirm the district court’s denial of
Timothy’s request for attorney fees. 8

CONCLUSION

¶24 The district court miscalculated the amount of the offset
that would relieve Natalie from all responsibility for the
dissipated marital funds, and we therefore reverse and remand
this case for the district court to correct this award. But the court
did not exceed its discretion in denying Timothy’s request for
attorney fees, and we therefore affirm that determination.

7. Furthermore, we note that Timothy was unlikely to have fared
any better had the court taken these other awards into account.
This is because the vast majority of these awards came from
marital property that was split equally between the parties—the
equity in the marital home and the funds in the parties’ bank
account. Thus, aside from the few offsets established by the court
(which offsets will be substantially decreased as a result of this
appeal), the consideration of these awards would have increased
Timothy’s ability to pay his own fees as much as they would have
decreased Natalie’s financial need.

8. Because of our resolution on this issue, we also necessarily deny
Timothy’s request for an additional award of attorney fees on
appeal.

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