Merrill v. Merrill

2024 UT App 125

THE UTAH COURT OF APPEALS

LUTISHA MERRILL,
Appellee,
v.
JOHN RICHARD MERRILL,
Appellant.

Amended Opinion ∗
No. 20210785-CA
Filed September 6, 2024

Third District Court, Silver Summit Department
The Honorable Teresa L. Welch
No. 194500031

Luke A. Shaw and Jill L. Coil,
Attorneys for Appellant
Julie J. Nelson, Attorney for Appellee

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

LUTHY, Judge:

¶1 John Richard Merrill appeals from the district court’s final
order resolving issues related to his divorce from Lutisha Merrill.

∗ This Amended Opinion replaces the Opinion in Case No.
20210785-CA issued on July 11, 2024. After that opinion issued,
the appellee filed a petition for rehearing, and we called for a
response. We grant the petition and issue this revised opinion to
reflect our conclusion on rehearing that the issue addressed in
part II.C of our Analysis was not preserved for appellate review.
Merrill v. Merrill

John 1 challenges several of the court’s decisions related to its
calculation of the parties’ incomes, its determination of Lutisha’s
reasonable expenses, its alimony award, and its valuation and
division of the marital estate. We affirm most of the district court’s
challenged decisions. On the issue of Lutisha’s tax rate, however,
we vacate the district court’s decision and remand the case for
additional proceedings consistent with this opinion.

BACKGROUND

The Marriage

¶2 Lutisha and John were married in 2001 and had twins
together in 2007. Lutisha filed for divorce in 2019.

The Parties’ Employment and Incomes

¶3 During their marriage, the parties were able to sustain a
comfortable standard of living through their substantial incomes.
Lutisha has significant experience in advertising and radio
advertising sales. From 2011 to 2014, she worked as the vice
president of sales for a large media company, earning an average
of $168,730.00 annually. In 2014, she left that position and formed
her own business, 360 Touch LLC (360 Touch), a “full-service
advertising agency.” As part of her business practice, Lutisha paid
for expenses, including advertising for her clients, on a business
credit card that earned frequent flyer miles, which resulted in her
earning between 1.5 million and 1.8 million miles during both
2019 and 2020. In the years leading up to the COVID-19 pandemic,
360 Touch grew significantly; however, with the onset of the
pandemic in 2020, the business “experienced a 37% decline in

1. As is our practice, because the parties share the same last name,
we refer to them by their first names, with no disrespect intended
by the apparent informality.

20210785-CA 2 2024 UT App 125
Merrill v. Merrill

revenue,” and Lutisha’s income “declined 42%” from the prior
year.

¶4 John was employed at the time of trial as the chief financial
officer of a publicly traded software company. He had a base
annual salary of $225,000.00, with quarterly bonuses of up to 50%
of his salary. His contract at the time of trial also provided for
nearly $100,000.00 worth of restricted stock shares, a third of
which was set to vest in each of May 2020, May 2021, and May
2022.

The Family Homes

¶5 The parties owned two homes that were purchased during
their marriage—their primary home in Park City (the Park City
property) and a vacation home in Coalville (the Coalville
property). Upon separation, Lutisha remained in and maintained
the Park City property while John maintained the Coalville
property, although he also rented an apartment in Park City to
live closer to the children. According to Lutisha, at the time John
moved out of the Park City property, the parties “knew that the
home desperately needed a new roof . . . , new carpet . . . , [and]
new interior paint . . . and that the exterior wood was rotted and
needed to be replaced.” The court found that Lutisha paid for the
roof to be replaced in May 2020 at a cost of $18,380.00.

The Parties’ Financial Declarations

¶6 As the parties prepared for trial, they provided various
financial declarations. Lutisha’s final amended financial
declaration listed current monthly expenses totaling $26,489.57
and marital monthly expenses of $27,183.89. Relevant to this
appeal, these expenses included line items for minimum credit
card payments ($1,322.50), additional credit card payments
($2,000.00), personal loan payments ($970.00), real estate
maintenance ($1,792.84), food and household expenses
($4,580.70), clothing expenses ($229.83), entertainment/travel

20210785-CA 3 2024 UT App 125
Merrill v. Merrill

expenses ($696.84), health care expenses ($1,054.67), and divorce
legal fees ($5,375.20). John’s final amended financial declaration
listed his current monthly expenses at $21,518.85 and marital
monthly expenses of $30,973.02. His declaration included a line
item for monthly legal expenses of $3,233.66.

The Divorce Trial

¶7 Trial was held remotely in May and June of 2021. 2 The
parties agreed to rely on prepared declarations from Lutisha and
John in place of direct examination, while still allowing for a real-
time opportunity for cross-examination of each party.

Lutisha’s Testimony

¶8 Lutisha’s testimony was presented first. As to her income,
she testified regarding the pandemic’s negative impact on 360
Touch and some of the steps she had taken to try to mitigate that
impact. She testified, “[A]ny time that’s not taken by a client with
a specific project, I now spend cold-calling and working on the
business.” She estimated that at the time of trial she was “cold-
calling 30 minutes to an hour every day.” She also explained that
shortly before the pandemic, her full-time assistant reduced her
hours to part time and that although Lutisha had intended to hire
a second part-time assistant, she did not do so. Additionally, she
identified the following actions she took to mitigate the impact of
the pandemic on her business: “I also closed my office, which was
very difficult for me. I enjoyed having an office. And I worked
with my different vendors to decrease what I was paying them as

2. Prior to trial, in September 2020, the parties entered into a
stipulation that “resolved the issues of child custody, parent time,
number of overnights for purposes of calculating child
support . . . , payment of the children’s expenses, the claiming of
the children on taxes, and other more minor issues.” None of these
issues are relevant to this appeal, and we therefore do not discuss
them further.

20210785-CA 4 2024 UT App 125
Merrill v. Merrill

far as subscription services, those types of things. I’ve done
everything possible to create revenue while managing my
expenses.” As to the possibility of returning to a radio sales
manager position similar to the position she had before forming
360 Touch, Lutisha said that such jobs “don’t exist anymore.” She
explained, “I have spoken to all of the general managers of the
different radio companies in town, and their current situation is
they’re actually getting rid of sales managers. They are
terminating people because of the situation their companies are in
due to COVID.”

¶9 Lutisha testified that she had struggled to pay her expenses
during the pandemic and that her economic situation had forced
her to take out a personal loan of $100,000.00 to make ends meet.
She testified, “That money went to pay my personal expenses. My
mortgage, my car, my food, utilities. It went to pay for
everything.”

John’s Testimony

¶10 John’s testimony was presented next. Regarding his
income, John testified about his employment agreement. He
acknowledged his $225,000.00 base annual compensation as well
as the potential for quarterly bonuses. And he said that although
he considered the stock shares to be part of his compensation
package, he did not “rely on those numbers in planning [his] life,”
explaining, “I know that . . . whether it’s stock options or restricted
shares, there is a vesting period and a holding period and you
can’t sell those shares until sometime in the future.”

Lutisha’s Expert Evidence

¶11 Each party also presented the testimony of a financial
expert, along with prepared financial expert reports, to help
establish income amounts for the parties. Lutisha’s expert had
determined Lutisha’s income from 360 Touch by calculating her
average monthly incomes for both 2019 and 2020, “presenting the

20210785-CA 5 2024 UT App 125
Merrill v. Merrill

two calculations . . . to show the impact of the COVID-19
pandemic on [Lutisha’s] earnings.” Those calculations showed an
average monthly income in 2019 of $19,555.00 and an average
monthly income in 2020 of $10,316.00. Lutisha’s expert concluded:

COVID-19 has had a significant negative impact on
360 Touch and the Advertising Agencies industry.
360 Touch’s sales in 2020 decreased by 37.43 percent
compared to 2019. Our analysis of 360 Touch’s 2020
sales shows that many of the Company’s clients
have significantly decreased their marketing
spending compared to historical expenditures.
[Lutisha] informed us that this decrease is caused by
decreased demand caused by uncertainty from the
impacts of COVID-19. [Lutisha’s] assertion is
consistent with industry data . . . .

Lutisha’s expert then quoted from a nationwide report stating that
“[r]evenue for the Advertising Agencies industry is anticipated to
decline 10.2 percent in 2020 due to reductions in ad spending” and
that “[h]igh levels of uncertainty tend to reduce consumer and
business spending.” Lutisha’s expert’s report also included
calculations showing growth projections for 360 Touch. The
calculations showed a 25% loss in 2021, 20% growth in 2022, and
2.4% growth thereafter.

¶12 Lutisha’s expert also calculated an average monthly
income for John in both 2019 and 2020. In addition to John’s
wages, this calculation relied on various company-related
benefits, such as 401(k) contributions, health savings account
contributions, and vested common stock. Lutisha’s expert
testified that it was important to include the vested stock in John’s
income “[b]ecause it’s wealth that’s generated through his work
effort.” The result was an average monthly income of $25,922.00
in 2019 and $27,708.00 in 2020.

20210785-CA 6 2024 UT App 125
Merrill v. Merrill

¶13 Lutisha’s expert testified generally as to the type of stock
issued to John, unregistered restricted common stock shares
(RSUs):

They have additional limitations on trading when
the shares are held by an affiliate or an insider like
[John]. So in order to sell those shares, you have to
hold them for a certain period of time, but you also
have to submit forms that indicate your intent to
sell, and then . . . depending on what the limitations
are on selling shares of a particular company that
you own shares in, you may have to hold those
shares for additional periods.

However, when asked, Lutisha’s expert was not able to elaborate
on the specific restrictions applicable to John’s stock, responding,
“Well, it really varies significantly from one company to another
and one stock program to another. And so . . . there aren’t general
parameters that I could give you. But RSUs that I’ve seen vary
dramatically as to how the insiders can trickle shares into the
stock market.”

¶14 During cross-examination, Lutisha’s expert was
questioned as to whether, “based upon standard practice in [his]
profession,” he counts frequent flyer miles “as a monetary value
when computing income.” Lutisha’s expert responded, “I don’t,
no.”

John’s Expert Evidence

¶15 John also retained a financial expert. In March 2020, John’s
expert had conducted a valuation analysis of 360 Touch. This
analysis had projected that for 2020, 360 Touch “would have over
$2,000,000 in revenue . . . and would generate $176,000 in salary
to [Lutisha], plus another $37,000 in net income to [Lutisha].”
However, John’s expert acknowledged at trial that by the 2021
trial dates, actual 2020 numbers were known and instead showed

20210785-CA 7 2024 UT App 125
Merrill v. Merrill

that the real “results for 360 Touch in 2020 were just under $1.6
million in revenue,” a “$121,000 payroll to [Lutisha],” and “a
small net loss.” He conceded that “in hindsight,” it appeared that
his projection for 2020 was probably “overstated by over 43
percent.”

¶16 John’s expert provided another report in March 2021,
which specifically addressed Lutisha’s earning potential. This
analysis relied on an industry research report 3 of advertising
agencies in 2020—a report “related to the advertising industry as
a whole”—to project a “monthly net income after taxes . . . of
$13,774 for 2020, and $14,466 for 2021.” Upon cross-examination,
John’s expert acknowledged that his information was “not
specific to 360 Touch’s customer base,” that he was not “aware of
the impact political advertising had on the advertising world in
2020” (a factor with potential to have had an outsized impact on
such data in an election year, like 2020), and that he did not “have
any data on single-person advertising agencies in Utah and the
impacts the pandemic ha[d] had on those agencies.”

¶17 Unlike Lutisha’s expert, John’s expert did include Lutisha’s
frequent flyer miles in his analysis of her earnings, explaining that
although frequent flyer miles may not have “an actual cash
value,” they “could be turned into . . . personal spending or
business spending so they actually have a value.” He also
considered the level of rewards in this case to not be “typical”
because he had not previously “seen this level of rewards . . .
where someone is able . . . to amass this amount of $1.5 million in
spending on a credit card.” However, when questioned as to the
standard in his profession, he conceded that monetizing frequent

3. This report was created by IBISWorld, which describes itself as
a global company that “provides trusted industry research on
thousands of industries worldwide.” IBISWorld’s Story,
IBISWorld, https://www.ibisworld.com/company/our-story/
[https://perma.cc/N3PY-Z77A].

20210785-CA 8 2024 UT App 125
Merrill v. Merrill

flyer miles as income was “typically . . . not done.” And on cross-
examination he also conceded that he usually follows this
standard and does not “typically include rewards points in the
valuation of income.”

The Post-trial Proceedings

¶18 After the conclusion of the trial, the district court issued its
Findings of Fact and Conclusions of Law and Order. Lutisha
thereafter filed a motion to reconsider and amend the findings,
requesting changes to the court’s order to address alleged
inconsistencies therein and requesting additional findings
regarding the court’s property division. John responded to that
motion and also counter-requested “correction or
reconsideration” of a number of items, highlighting various
“other discrepancies” in the court’s order. After holding a
clarification hearing, the court entered an Amended Findings of
Fact and Conclusions of Law and Order. The court then entered
its Decree of Divorce.

¶19 The district court’s amended order was forty-two pages
long and addressed a multitude of issues. We confine our
recitation here to only those issues relevant to this appeal.

The Court’s Determination of the Parties’ Incomes

¶20 First, the court determined the gross monthly income for
each party. The court reviewed the testimony presented by both
experts and then found that “[Lutisha’s expert’s] analysis and
opinion regarding [Lutisha’s] income [was] more credible than
[was John’s expert’s].” The court explained that this was because
John’s expert had relied on national projections as opposed to
more localized data, had made projections based on data from an
election year without knowing the impact of political advertising
on such data, had relied on financial information compiled by
John as opposed to the actual financial records of Lutisha and 360
Touch, and had made extrapolations predicting Lutisha’s income

20210785-CA 9 2024 UT App 125
Merrill v. Merrill

that ultimately significantly overstated Lutisha’s actual income
for 2020. Thus, the court adopted Lutisha’s expert’s income
calculation and set Lutisha’s monthly gross income at $10,316.00.

¶21 As to John’s argument that a higher income should be
imputed to Lutisha based on her historical earnings, the court
determined that John had not shown that Lutisha was voluntarily
underemployed or that, with reasonable effort, she could be
earning more. The court found that John did not present
testimony regarding what jobs were locally available to an
individual with Lutisha’s background, and the court found
credible Lutisha’s assertions that the type of marketing positions
she had held previous to starting her own business were no longer
available and that she had made reasonable efforts to maintain
her income in the face of pandemic-related challenges.

¶22 As to John’s gross income, the district court again relied on
Lutisha’s expert’s testimony, “which was based on [John’s]
wages, bonuses, 401(k) contributions, Section 125 Benefits,[4]
Health Savings Account Contributions, Group Term Life
Insurance Benefit and Vested Common Stock” to determine a
monthly gross income amount of $27,708.00. Although John had
argued that, at least for purposes of calculating child support, the
stock should not be considered as part of his gross monthly
income, the court disagreed. The court reasoned that John’s
“employment contract and work/payment history indicate[d] that
[John] regularly receives stock options and bonuses as part of his
regular income/compensation” and that “including [John’s]
bonuses and regularly received stock options as part of his income
is consistent with the sources of income as outlined in Utah Code

4. Lutisha’s expert explained these benefits as follows: “They are
generally the purchased cafeteria plan benefits. They’re just a
selection of benefits that the IRS allows employers to offer to their
employees on a pretax basis.”

20210785-CA 10 2024 UT App 125
Merrill v. Merrill

§ 78B-12-203(1).” See generally Utah Code § 78B-12-203(1) (defining
“gross income” for purposes of the Utah Child Support Act).

The Alimony Order

¶23 Next, the district court addressed alimony. The court
initially recognized that the following facts were indicative of the
parties’ standard of living during the marriage: “the family
traveled regularly, they maintained a second home, they enjoyed
outdoor activities (and had recreational vehicles to do so), they
dined out regularly, they had a nanny to care for the children, they
skied at Deer Valley and Park City Mountain Resort, and they
contributed to retirement savings.” As a result, the court accepted
John’s marital monthly expenses figure of $30,973.02. Based on
these facts, the court determined that, with the exception of the
line items for monthly legal expenses, the parties’ listed expenses
were “reasonable in light of the marital standard of living and in
light of [the other party’s] monthly needs.” With the removal of
the attorney fees expenses (and an adjustment to John’s child
support expense due to a change in the ordered child support
amount), Lutisha was left with a total monthly expense amount
of $21,114.80, and John was left with a total monthly expense
amount of $19,118.19.

¶24 The court then determined that Lutisha’s net monthly
income of $7,846.00—the amount left of her gross monthly income
after considering her tax rate, “[b]ased upon [her] 2020 tax return”
of “19% federal and 4.95% state”—was insufficient to meet her
reasonable needs and left a monthly shortfall of $13,268.80. And
the court determined that John’s net monthly income after taxes
of $19,409.00 was sufficient to cover his expenses, leaving a
surplus of $290.81. The court then applied that surplus to
Lutisha’s shortfall and, thereafter, “[e]qualizing the poverty,”
split the remaining shortfall between the two parties. This
resulted in a monthly alimony amount of $5,529.31, which the
court ordered John to pay for five years, allowing Lutisha “to

20210785-CA 11 2024 UT App 125
Merrill v. Merrill

maintain the marital standard of living until the [m]inor
[c]hildren reach the age of majority, and . . . allow[ing] [Lutisha]
sufficient time to rehabilitate her income.”

The Property Division

¶25 The district court then moved to the task of dividing the
marital estate, valuing the estate as of the time of trial. As to real
property, the court awarded the Park City property to Lutisha and
the Coalville property to John. Regarding the furniture in the
homes, the court stated that because “credible trial evidence”
showed that the Park City property and the Coalville property
had “comparable items that are comparable in value,” it was
“reasonable and equitable” to award Lutisha the “furniture,
personal property, and the like” at the Park City property and to
award John the “furniture, personal property, and the like” at the
Coalville property.

¶26 The district court then awarded certain accounts and other
property to Lutisha and John respectively. Relevant to this appeal,
the court awarded the following to John: (1) two sets of stock
options received as compensation from his employer, one valued
at $99,198.00 and another valued at $99,996.75; (2) his 2021 first
quarter bonus of $28,125.00; (3) a “travel credit” of $15,426.57 for
a canceled trip to Bora Bora, with the court noting that although
John “received a refund for the travel, the refund is not reflected
anywhere else and thus should be included in the division of
property”; and (4) the furniture that John had somewhat recently
purchased for his Park City apartment, at a value of $26,318.86.

¶27 In dividing the marital estate, the district court declined
John’s request to award him reimbursement for half of the
$62,304.63 that he contended he spent on maintaining marital
property and paying related expenses. The court determined that
John “did not provide credible evidence that these were in fact
marital expenses,” and it identified examples of listed items that
“[did] not appear to be marital expenses,” such as “clothing

20210785-CA 12 2024 UT App 125
Merrill v. Merrill

purchases, contact lenses, Weller Recreation, and Marine
Products.”

¶28 The district court did, however, determine that the
$100,000.00 personal loan obtained by Lutisha was part of the
marital estate because the loan was used “to pay for legitimate
marital expenses.” In making this determination, the court
pointed to, among other things, Lutisha’s “financial condition at
that time” (when her income “had dropped significantly” and
John “was under-paying his child support obligations”) and the
parties’ “historical spending practices.”

¶29 The district court then divided the remaining marital
property and debts. Finally, the court ordered an additional
$102,243.09 equalization payment from John to Lutisha.

ISSUES AND STANDARDS OF REVIEW

¶30 John now appeals. He first challenges several components
of the district court’s calculation of the parties’ incomes. “Courts
have broad discretion to select an appropriate method of
assessing a spouse’s income, including determinations of income
imputation.” Bond v. Bond, 2018 UT App 38, ¶ 6, 420 P.3d 53
(cleaned up). When challenging an income determination,
“appellants bear a heavy burden, and we can properly find abuse
[of discretion] only if no reasonable person would take the view
adopted by the trial court.” Pankhurst v. Pankhurst, 2022 UT App
36, ¶ 13, 508 P.3d 612 (cleaned up).

¶31 John also challenges several of Lutisha’s expenses that the
district court found to be reasonable, the court’s method of
calculating alimony, and the court’s division of the marital
property. “In a divorce proceeding, the trial court may make such
orders concerning property distribution and alimony as are
equitable. The trial court has broad latitude in such matters, and
orders distributing property and setting alimony will not be

20210785-CA 13 2024 UT App 125
Merrill v. Merrill

lightly disturbed.” Olsen v. Olsen, 2007 UT App 296, ¶ 8, 169 P.3d
765 (cleaned up). “Therefore, we review [property distribution
and] alimony awards under an abuse of discretion standard.” Id.

ANALYSIS

I. The Parties’ Incomes

A. Imputation of Income to Lutisha

¶32 John argues that the district court abused its discretion in
determining Lutisha’s gross income. Specifically, he challenges
the district court’s refusal to impute wages beyond the $10,316.00
monthly income calculated by Lutisha’s expert.

¶33 As an initial matter, we note that in determining Lutisha’s
income, the district court referenced outdated law when it cited
Busche v. Busche, 2012 UT App 16, 272 P.3d 748, cert. denied, 280
P.3d 421 (Utah 2012), for the proposition that “[t]he court must
find that the spouse is voluntarily unemployed or
underemployed” before it may impute income. Id. ¶ 24. While
such a finding was a statutory prerequisite to imputing income
prior to 2007, “the current version of the Utah Code requires only
that the judge ‘enter[] findings of fact as to the evidentiary basis
for the imputation.’” Pankhurst v. Pankhurst, 2022 UT App 36, ¶ 14,
508 P.3d 612 (alteration in original) (quoting Utah Code § 78B-12-
203(8)(a)). “Thus, while voluntary unemployment or
underemployment may be relevant when considering whether a
party is concealing income or shirking in his or her efforts to earn
income, a finding of voluntary unemployment or
underemployment is not a prerequisite to imputing income.” Id.
(cleaned up). Instead, “the focus of the imputation analysis is on
the detailed findings of fact necessary to support a decision to
impute income rather than the ultimate fact or legal conclusion of
voluntary unemployment or underemployment.” Id. (cleaned
up).

20210785-CA 14 2024 UT App 125
Merrill v. Merrill

¶34 Notwithstanding the district court’s reference to the
outdated rule cited in Busche, the court’s analysis was ultimately
based on the correct concern—whether there was sufficient
evidence to support imputation of a higher income to Lutisha. The
court determined there was not because John presented no
evidence “as to the current salaries or job availability in the
prevailing market for persons with backgrounds similar to
[Lutisha’s] or what [Lutisha’s] employment capacity and earnings
potential would be in the prevailing markets in the community.”

¶35 Although John’s expert testified that Lutisha had a higher
income potential than what Lutisha’s expert testified to, the court
determined that John’s expert’s analysis was less credible than
Lutisha’s expert’s analysis because John’s expert “relied on
projections at the national level, but he had no data for single-
person advertising agencies in Utah and the impacts of COVID-
19 on a single-person agency.” The court also noted that the
national numbers on which John’s expert relied were election-
year numbers and that John’s expert “conceded that he had no
knowledge of the impact of political advertising on the media
industry numbers at the national level.” Additionally, the court
observed that John’s expert “relied on [John’s] self-created
spreadsheets for his financial analysis rather than on the actual
billing and financial records for 360 Touch and [Lutisha] from
2020.” Indeed, the court found that the revenue projections John’s
expert had made for 360 Touch for 2020 were “overstated by over
43% compared to the actual numbers” that were available for that
year.

¶36 The court determined that the income analysis of Lutisha’s
expert was more credible, as it was based on “income tax returns
for [Lutisha] and 360 Touch, and on accounting records for 360
Touch.” After analyzing these records, Lutisha’s expert opined
that “360 Touch has experienced a 37% decline in revenue since
2019, and that [Lutisha’s] income has declined by 42% from 2019.”
The district court also found that Lutisha “credibly testified that

20210785-CA 15 2024 UT App 125
Merrill v. Merrill

marketing jobs (like the one she held prior to starting 360 Touch)
are no longer available” and that she “provided credible
testimony that she made reasonable efforts to maintain her
income despite the negative impacts of the COVID-19 Pandemic
on 360 Touch.”

¶37 John challenges the district court’s credibility assessments
and evidentiary findings, specifically arguing that Lutisha’s
testimony regarding the availability of marketing jobs “cannot be
taken as credible or as a basis for an implication that no jobs exist,”
that she “had not made good faith or reasonable efforts to mitigate
the loss of her income,” and that she operates her business
“without structure or good business practices.” But “[i]t is the
province of the trier of fact to assess the credibility of witnesses,
and we will not second-guess the trial court where there is a
reasonable basis to support its findings.” Reed v. Reed, 806 P.2d
1182, 1184 (Utah 1991); see also Utah R. Civ. P. 52(a)(4) (“Findings
of fact, whether based on oral or other evidence, must not be set
aside unless clearly erroneous, and the reviewing court must give
due regard to the trial court’s opportunity to judge the credibility
of the witnesses.”); Stonehocker v. Stonehocker, 2008 UT App 11,
¶ 27, 176 P.3d 476 (“The trial court considered conflicting
evidence on this point and rejected [the husband’s] explanation in
favor of [the wife’s]. We defer to the trial court’s assessment of the
credibility of this testimony.”). “If there is evidence supporting a
finding, absent a legal problem—a fatal flaw—with that evidence,
the finding will stand, even though there is ample record evidence
that would have supported contrary findings.” Lobendahn v.
Lobendahn, 2023 UT App 137, ¶ 27, 540 P.3d 727 (cleaned up). John
has shown no such fatal flaw. Instead, our review of the evidence
reveals a reasonable evidentiary basis supporting the district
court’s factual findings on this issue, and we therefore see no
abuse of discretion in the court’s refusal to impute a higher
income to Lutisha.

20210785-CA 16 2024 UT App 125
Merrill v. Merrill

¶38 John also argues that the district court should have
considered “expected growth” of 360 Touch. However, the
district court was of the opinion that the expected growth asserted
by John’s expert was not sufficiently supported, which is
understandable given that John’s expert projected an increase in
Lutisha’s income for 2020 that ended up being 43% higher than
the actual growth in Lutisha’s income for that year. And although
Lutisha’s expert testified that “[i]ndustry-wide the projection is
for growth,” he emphasized that this projection was, indeed, an
industry-wide projection and “not specific to [Lutisha’s]
company.”

¶39 John counters that even Lutisha’s expert “projected growth
of 20% starting in 2022” for 360 Touch and that such growth
“means that [Lutisha will] regain all her lost income by 2024.” But
the projection to which John refers first shows a 25% retraction in
2021. And although the projection does predict a 20% growth in
2022, it does not support John’s assumption that a 20% growth
rate would continue each year thereafter. Indeed, that projection’s
predicted growth rate for the following years was only 2.4%, not
a continued 20%.

¶40 In light of all this, the district court did not abuse its
discretion by declining to base its income calculations on such
varying and uncertain projections and instead leaving it to the
parties to seek modification of the court’s orders if either of their
incomes were to substantially change in the future. See Johnson v.
Johnson, 855 P.2d 250, 253–54 (Utah Ct. App. 1993) (reasoning that
“if a trial court knows that a party will be receiving additional
future income[,] it should make findings as to whether such
additional income will affect the alimony award,” but recognizing
that if future income is “too speculative at the time of trial,” the
court may delay that determination and a party can “bring a
modification proceeding at the appropriate time”). See generally
Utah Code § 30-3-5(11)(a) (“The court has continuing jurisdiction
to make substantive changes and new orders regarding alimony

20210785-CA 17 2024 UT App 125
Merrill v. Merrill

based on a substantial material change in circumstances not
expressly stated in the divorce decree or in the findings that the
court entered at the time of the divorce decree.”); id. § 78B-12-
210(9) (“A parent, legal guardian, or the [Office of Recovery
Services] may at any time petition the court to adjust the amount
of a child support order if there has been a substantial change in
circumstances. . . . [A] substantial change in circumstances may
include . . . material changes of 30% or more in the income of a
parent . . . .”).

B. Calculation of Lutisha’s Tax Liability

¶41 John contends that the district court’s calculation of
Lutisha’s tax liability was improper, resulting in a net income for
her that was lower than it should have been. The district court
found that “[b]ased upon [Lutisha’s] 2020 tax return, her tax rate
is 19% federal and 4.95% state.” John correctly observes, however,
that calculations based on Lutisha’s 2020 tax return show that she
actually paid an overall federal tax rate of approximately 13% and
an overall state tax rate of approximately 4.8% in 2020. Thus, John
asks for a “correction of the numbers to appropriately reflect the
underlying source” and a resulting correction to “the
corresponding calculations for alimony.”

¶42 Lutisha, on the other hand, defends the tax rates the district
court applied to her income. In doing so, she correctly observes
that when the standard federal tax rates for 2020 are applied to
her current gross monthly income as found by the district court,
the result is an overall federal tax rate of 19%; that Utah’s single-
person tax rate for 2020 was 4.95%; and that these rates match the
rates that the district court applied to her income. She also asserts
that although John is correct in his calculations based on numbers
derived from her 2020 tax return, the income number on that
return “included more than just her earnings”—“[i]t also included
$70,000 she withdrew from an IRA that year.” For these reasons,

20210785-CA 18 2024 UT App 125
Merrill v. Merrill

Lutisha asks us to affirm the district court’s application of a 19%
overall federal tax rate and a 4.95% state tax rate to her income.

¶43 In short, Lutisha presents a plausible basis for the tax rates
the district court actually applied to her income, but it is squarely
at odds with the stated basis for the rates the court said it would
apply to her income. And we are without a reasoned basis upon
which to resolve the inconsistency in the court’s ruling.
Accordingly, we vacate the court’s ruling as to the tax rates to be
applied to Lutisha’s gross income, and we remand the case for the
district court to clarify its ruling on this point and, if necessary, to
adjust its net income and alimony calculations accordingly. See
generally Wight v. Wight, 2011 UT App 424, ¶¶ 29–30, 268 P.3d 861
(remanding “for clarification” where an aspect of the trial court’s
ruling on division of the marital estate “appear[ed] to be
internally inconsistent” and the court of appeals was “unable to
determine which result the trial court intended”), cert. denied, 280
P.3d 421 (Utah 2012).

C. Non-inclusion of Lutisha’s Frequent Flyer Miles

¶44 John argues that the district court abused its discretion in
failing to account for the large number of frequent flyer miles that
Lutisha accrues each year. He argues that the court should have
included the value of the miles in her income or, at the very least,
used that value to reduce her expenses. We see no abuse of
discretion in the court’s treatment of the frequent flyer miles.

¶45 As for not including the frequent flyer miles in its
calculation of Lutisha’s income, this was consistent with the
testimony of each party’s financial expert. Lutisha’s expert
testified that “based upon standard practice in [his] profession,”
frequent flyer miles are not counted “as a monetary value when
computing income.” And while John’s expert did include the
frequent flyer miles in his earnings analysis, he conceded that he
does not “typically include rewards points in the valuation of
income.” Although John believes that the court should have

20210785-CA 19 2024 UT App 125
Merrill v. Merrill

treated Lutisha’s frequent flyer miles differently due to the
unusually high number of them, we decline to classify as an abuse
of discretion the court’s decision to adhere to the only generally
accepted accounting approach for which evidence was received,
even in this somewhat unusual situation. 5

¶46 Moreover, even if the frequent flyer miles were to be
classified as a source of income, Utah “caselaw directs district
courts to consider all sources of income when determining
alimony[;] it does not dictate that all sources of income be counted
as income received by a spouse for that purpose.” Eberhard v.
Eberhard, 2019 UT App 114, ¶ 21, 449 P.3d 202. A district court
retains “broad discretion to treat sources of income as the court
sees fit under the circumstances.” Id. Here, as Lutisha points out,
the frequent flyer miles were “not used to offset any of the
expenses [she] reported on her financial declaration or that the

5. John suggests that the district court improperly “refused to
allow [his expert to testify] on facts and circumstances of this case
that would warrant deviating from the standard practice in [the
expert’s] profession.” This statement mischaracterizes the court’s
action. The court only refused to allow testimony as to other cases,
not as to the circumstances of this case:
I don’t want [John’s expert] talking about other
cases that are not this case. What I want him to talk
about, though, is general principles that are applied
in his profession, in his expertise in terms of how
travel benefits would be incorporated, how they’re
incorporated, and how he applied those principles
to this case. So . . . I am permitting that. . . . But I’m
not going to permit him to talk about other cases . . .
because that is outside the scope.
Under this ruling, John’s expert was free to present general
principles for the treatment of frequent flyer miles when the
number of miles at issue is unusually high. Yet he provided no
such principles.

20210785-CA 20 2024 UT App 125
Merrill v. Merrill

court found to be her expenses.” The expense category for which
frequent flyer miles would almost certainly have been used to
offset expenses was Lutisha’s entertainment/travel expenses
category, and her declared monthly expenses for that category
amounted to $696.84. This amount was supported by financial
statements showing that Lutisha spent $10,452.60 out of pocket
over a fifteen-month period—for a monthly average of $696.84—
in the entertainment/travel category. Because this expense
amount accounted only for entertainment/vacation expenses that
Lutisha paid for out of pocket, her frequent flyer miles were
effectively used to reduce her expenses.

¶47 For both of the foregoing reasons, we determine that the
district court did not abuse its discretion in its treatment of
Lutisha’s frequent flyer miles.

D. Inclusion of Stock Grants in John’s Income

¶48 John contends that the district court abused its discretion
in calculating his gross income as well. The court determined
John’s monthly gross income to be $27,708.00. The court again
relied on Lutisha’s expert’s calculations in making this
determination, which calculations included amounts for John’s
vested RSUs. The court relied on Lutisha’s expert’s testimony that
“even if the stock received by [John] is restricted stock, it becomes
income in the year in which it vests.” The court also explained that
it was including the stock in its income calculation because
“[John’s] employment contract and work/payment history
indicate that [he] regularly receives stock options and bonuses as
part of his regular income/compensation.”

¶49 John contests the inclusion of the vested stock in the
calculation of his income. He contends that this inclusion was an
abuse of discretion because the example sources of “gross
income” listed in Utah Code section 78B-12-203(1) all have values
that “can be determined,” while the value of unliquidated stock

20210785-CA 21 2024 UT App 125
Merrill v. Merrill

“cannot be determined” until it is liquidated. 6 He also argues that
the inclusion of the vested stock in the calculation of his income
was an abuse of discretion because the stock “represents income
not actually realized” since he “does not have free access to trade
or liquidate the stock at the time of vesting.”

¶50 We first observe that “income” in this context is defined to
include “all gain derived from . . . labor,” Utah Code § 78B-12-
102(14)(b), and that “gross income” is defined to include
“prospective income from any source,” id. § 78B-12-203(1). Under
these definitions, the value of vested stock that a person is
anticipated to receive in exchange for labor falls squarely within
the statutory definition of gross income. John does not dispute
this point, as he concedes that the value of vested but
unliquidated stock “could fit in ‘prospective income from any
source.’”

¶51 We next observe that John is mistaken in his assertion that
the example sources of gross income listed in section 78B-12-
203(1) all have values that can be determined, while the value of
vested but unliquidated stock cannot be determined. One reason
John’s assertion is not correct is that bonuses and gifts—two
examples of gross income listed in section 78B-12-203(1)—might
themselves take the form of vested stock. More importantly,
“gross income” refers to “prospective income,” id. (emphasis
added), in other words, income that a person is anticipated to

6. Specifically, section 78B-12-203(1) says that “‘gross income’ . . .
may include salaries, wages, commissions, royalties, bonuses,
rents, gifts from anyone, prizes, dividends, severance pay,
pensions, interest, trust income, alimony from previous
marriages, annuities, capital gains, Social Security benefits,
workers’ compensation benefits, unemployment compensation,
income replacement disability insurance benefits, and payments
from ‘nonmeans-tested’ government programs.” Utah Code
§ 78B-12-203(1).

20210785-CA 22 2024 UT App 125
Merrill v. Merrill

receive in the future. Thus, as to every category of income—
wages, commissions, bonuses, dividends, capital gains, vested
stock, etc.—when a court calculates a person’s prospective
income, it is making a prediction, based on current data, of the
value the person will receive in the future. And as to every
category, the actual future value may end up being different from
the amount predicted. For this reason, the code allows for
adjusted alimony orders and new child support orders when
there is a substantial change between a party’s future income as
anticipated and the party’s future income as it turns out to be. See
id. §§ 30-3-5(11)(a), 78B-12-210(9). The fact that with stock there is
uncertainty both as to what its value will be when it is received in
the future and as to what its value will be when it is liquidated
thereafter does not convince us to require exclusion of stock
received in exchange for labor from gross income calculations. 7

¶52 John’s other assertion is that the inclusion of the vested
stock as part of his gross income was an abuse of discretion
because of the stock’s nonliquidity at the time of its vesting. At
one level, John’s point is well taken: because “the overarching aim
of a . . . [divorce] decree . . . is to achieve a fair, just, and equitable
result between the parties,” Dahl v. Dahl, 2015 UT 79, ¶ 25, 459
P.3d 276 (cleaned up), if the inclusion of a nonliquid asset as part
of a party’s income makes it unduly difficult or impossible for that
party to comply with a payment obligation calculated based on
his or her income, equity may require the exclusion of that asset
from the income calculation. But the burden of demonstrating that

7. John further argues that the stock grants in his case are only
guaranteed in the current contract term and may not be included
in future contracts with his employer. But here again, the fact that
income (in all its sources) might change in the future does not
impact the district court’s need to determine prospective income
based on data available at the time of divorce, and if John’s
compensation substantially changes in the future, modification
may be sought to address the change.

20210785-CA 23 2024 UT App 125
Merrill v. Merrill

the inclusion of a particular form of income in the income
calculation results in an inequity is on the party challenging the
income calculation. See Lamb v. Lamb, 2024 UT App 16, ¶ 39, 545
P.3d 273 (stating that “the party challenging” an award “adjusting
the financial and property interests of the parties” has the “heavy
burden” to show “that such a serious inequity has resulted as to
manifest a clear abuse of discretion” (cleaned up)). And here, John
has made an insufficient showing of inequity resulting from
inclusion of his RSUs as part of his gross income.

¶53 Although John points to Lutisha’s expert’s testimony that
the RSUs are “restricted in trading” and that there are “additional
limitations on trading when the shares are held by an affiliate or
an insider like [John],” Lutisha’s expert testified only in general
terms:

So in order to sell those shares, you have to hold
them for a certain period of time, but you also have
to submit forms that indicate your intent to sell, and
then . . . depending on what the limitations are on
selling shares of a particular company that you own
shares in, you may have to hold those shares for
additional periods.

Thus, his testimony was ultimately unhelpful to a determination
of what restrictions were in place in this case. In fact, when
questioned more specifically as to the restrictions generally in
effect for individuals in John’s circumstances, Lutisha’s expert
responded, “Well, it really varies significantly from one company
to another and one stock program to another. And so . . . there
aren’t general parameters that I could give you. But RSUs that I’ve
seen vary dramatically as to how the insiders can trickle shares
into the stock market.” To demonstrate a restriction on liquidity
sufficient to render the district court’s inclusion of the RSUs in
John’s income an abuse of discretion, John would need to direct
us to evidence showing what particular restrictions were placed

20210785-CA 24 2024 UT App 125
Merrill v. Merrill

on the RSUs he received. It is not enough for John to argue,
without more, that some restrictions apply. Accordingly, John has
failed to show that the district court abused its discretion in
relying on Lutisha’s expert’s calculation of John’s income,
including the vested restricted stock.

II. Lutisha’s Expenses

¶54 John argues that several of Lutisha’s expenses “are
unreasonably high, not actually incurred/or paid by other
resources . . . , or not ongoing after the divorce.” We address each
of the specifically challenged expenses in turn.

A. Additional Credit Card Payments

¶55 John first challenges Lutisha’s “additional credit card
payments” expense of $2,000.00. He argues that because Lutisha
“inferred that all of her expenses are paid via credit card,” this
“means additional payments on the card each month are going to
pay for other stated monthly expenses that are charged to that
card.” But that line item appears to address pre-existing credit
card debt and therefore would not be duplicative of other listed
expenses. John has pointed to no evidence to the contrary;
therefore, he has not demonstrated an abuse of discretion in the
court’s treatment of this expense.

B. Lutisha’s Personal Loan

¶56 As we discuss more fully below, as part of its property
division, the district court determined that Lutisha’s personal
loan was part of the marital estate. See infra ¶ 83. John argues that
because he was therefore “responsible for half the value of
[Lutisha’s] personal loan,” the court should have halved Lutisha’s
listed monthly expense for payment on this debt and shifted the
other half to his monthly expenses. However, it appears that this
issue was not preserved for our review. We do not see that the
issue was raised in any of the portions of the record John cites as

20210785-CA 25 2024 UT App 125
Merrill v. Merrill

having preserved it—including his counter-request for
reconsideration that asks for several other of Lutisha’s expenses
to “be scrutinized.” See generally Utah R. App. P. 24(a)(5)
(requiring an appellant to provide either “citation to the record
showing that the issue was preserved for review” or “a statement
of grounds for seeking review of an issue not preserved”).
“Parties are required to raise and argue an issue in the district
court in such a way that the court has an opportunity to rule on
it.” Issertell v. Issertell, 2020 UT App 62, ¶ 21, 463 P.3d 698 (cleaned
up). “When a party fails to raise and argue an issue in the district
court, it has failed to preserve the issue, and an appellate court
will not typically reach that issue absent a valid exception to
preservation.” Id. (cleaned up). Because no such exception is
argued here, we do not reach this issue.

C. Maintenance of the Park City Property

¶57 John contests Lutisha’s monthly expense of $1,792.84 for
“real estate maintenance.” He argues that this expense is
“inflated” because it was calculated based, in large part, on
$19,086.00 paid to a roofing company, $4,200.00 paid to a
fabrication and welding company, and $2,443.61 paid to a
plumbing company over a fifteen-month period—expenditures
that John contends will not be “ongoing expenses that [Lutisha]
will incur after the divorce.” Essentially, he contends that using
apparently one-time expenditures as the basis for a monthly
expense item is an abuse of discretion.

¶58 This argument, while not without force, also raises an issue
that was not preserved in the district court. In his post-trial
briefing, John stated that the amounts Lutisha claimed as monthly
expenses “should be scrutinized as follows.” He then presented a
chart that identified for scrutiny six of Lutisha’s monthly expense
line items, including the one for “Real Estate Maintenance.” As to
that line item, the chart noted in one sentence that while Lutisha’s
financial declaration “states that the marital expense or standard

20210785-CA 26 2024 UT App 125
Merrill v. Merrill

for real estate maintenance was [$]284,” it states a monthly real
estate maintenance expense for Lutisha of $1,792. Following his
chart, John asserted simply that the line items identified in the
preceding chart had been “padded for an alimony claim.”

¶59 “In order to preserve an issue for appeal,” the appellant
must have “presented [it] to the trial court in such a way that the
trial court ha[d] an opportunity to rule on that issue.” 438 Main St.
v. Easy Heat, Inc., 2004 UT 72, ¶ 51, 99 P.3d 801 (cleaned up).
“Merely mentioning an issue . . . without introducing supporting
evidence or relevant legal authority does not give the trial court
that opportunity.” Allen v. Allen, 2014 UT App 27, ¶ 19, 319 P.3d
770 (cleaned up). “Rather, to sufficiently raise an issue, even if
indirectly, it must at least be raised to a level of consciousness
such that the trial judge can consider it.” Id. (cleaned up). John’s
mere mention of the discrepancy between the marital monthly
real estate maintenance expense and Lutisha’s claimed monthly
real estate maintenance expense, coupled with the bare assertion
that this (and five other claimed expenses) had been “padded for
an alimony claim,” was insufficient to preserve the issue John
raises on appeal. While John asserts on appeal the legal theory
that using one-time expenditures as the basis for a monthly
expense item is an abuse of discretion, he never articulated that
theory to the district court. And while he has identified for this
court the specific evidence that supports his argument—i.e., three
apparently one-time expenses that Lutisha assertedly used to pad
her monthly real estate maintenance expense—he did not identify
this evidence for the district court. For these reasons, we conclude
that John did not preserve for our review the issue he raises
regarding Lutisha’s claimed monthly real estate maintenance
expense.

D. Food, Household Expenses, Clothing, and Travel

¶60 John also contests Lutisha’s monthly expense of $4,580.70
for “food and household supplies.” He argues that the district

20210785-CA 27 2024 UT App 125
Merrill v. Merrill

court’s “adoption of [his] represented marital expenses doesn’t
support the amounts represented by [Lutisha].” That is, he argues
that because the court adopted his calculation for total monthly
marital expenses, and because his calculated marital expense for
this specific category was $2,945.00, Lutisha’s significantly higher
asserted expense in this area is suspect and was not “properly
reviewed and scrutinized by the court.”

¶61 As an initial matter, we observe that John provides no
authority suggesting that one party’s listed expense for a given
category is automatically suspect when it is not in line with
another party’s calculated marital expense for that same category.
Indeed, our case law instructs that a district court need not make
a specific finding as to an overall marital expense amount, let
alone precise marital expense amounts, for various expense
categories. See Clarke v. Clarke, 2023 UT App 160, ¶ 57, 542 P.3d
935 (“There is usually no need for a trial court to make a separate
specific finding regarding the overall ‘marital standard of living’
as measured by the total amount of money spent each month by
the couple while they were married.” (cleaned up)). And although
the court in this case accepted as “reasonable” John’s monthly
marital expense amount of $30,973.02, the court made no such
finding concerning the marital expenses listed for any of the
specific expense categories. Moreover, we note that there is some
variation between the expense categories that John and Lutisha
employed and their decisions as to what expenditures belonged
in which categories. In fact, one of the arguments John raises is
precisely that—that certain amounts Lutisha categorized as
household expenses should have instead been categorized as
clothing and travel expenses.

¶62 Yet regardless of these variances between the parties’
financial declarations and how they categorized certain
expenditures, we are ultimately presented with a case where
(1) the court determined that the parties had enjoyed quite a
comfortable standard of living during the marriage and

20210785-CA 28 2024 UT App 125
Merrill v. Merrill

ultimately adopted as “reasonable” the overall monthly marital
expense of $30,973.02 provided by John and (2) Lutisha based her
declared expenses on fifteen months of actual charges made to her
accounts, and she provided the court with a document listing all
those charges and how she had categorized them. 8 Against this
backdrop, the court determined that after deducting the parties’
respective temporary legal expenses, their remaining expenses
($21,114.80 for Lutisha and $19,118.19 for John) were “reasonable
in light of the marital standard of living.” See id. ¶ 59 (explaining
that a court should “assess[] a party’s claimed line-item expenses
in light of” the marital standard of living, and explaining that the
“marital expenses” column on the parties’ financial declarations
is “to assist with this process” (cleaned up)). All considered, we
do not see a lack of supporting evidence for the district court’s
decision that these challenged expenses were reasonable. Nor do
we see any merit to John’s assertion that the court failed to
“properly review[] and scrutinize[]” those expenses.

8. John suggests that the court erred when it did not require more
evidence supporting Lutisha’s expenses and “did not find that
[Lutisha] met her burden to prove the marital standard of living
as required via Dahl v. Dahl, [2015 UT 79, 459 P.3d 276,] but instead
used [John’s] financial declaration to find [Lutisha’s] request
reasonable.” But Dahl does not “automatically require[] a court to
deny a request for alimony in the absence of documentation.”
Wadsworth v. Wadsworth, 2022 UT App 28, ¶ 101, 507 P.3d 385, cert.
denied, 525 P.3d 1259 (Utah 2022). “In fact, the [Dahl] court
explicitly acknowledged that the district court could have
imputed a figure to determine the wife’s financial need based
either on the husband’s records of the parties’ predivorce
expenses or a reasonable estimate of the wife’s needs.” Id. ¶ 102
(cleaned up). Therefore, we do not consider this argument further.

20210785-CA 29 2024 UT App 125
Merrill v. Merrill

E. Lutisha’s Medical Expenses

¶63 John argues that Lutisha’s “expense for health care should
be scrutinized as she failed to distinguish between what amounts
were for her and [what amounts were for] the children” and that
this is problematic because John is already required to reimburse
her for half of the children’s medical expenses. But again, similar
to his objection to Lutisha’s personal loan, see supra ¶ 56, this
particular objection to this line item is not even referenced in his
counter-request for reconsideration that identified several
expenses that he contended should “be scrutinized,” and John
does not cite any other portion of the record where this argument
was preserved. Accordingly, we do not reach this issue. See
Issertell v. Issertell, 2020 UT App 62, ¶ 21, 463 P.3d 698.

III. Alimony Calculation

¶64 John challenges the district court’s overall alimony award
as inequitable because the amounts of money left to each party
after John’s alimony payment are not equal. He argues that “the
court abused its discretion by awarding [Lutisha] any more than
half of the disposable income of the parties on a monthly basis.”
He points out that the total monthly amount available to Lutisha
is $15,876.31 (including her net income of $7,846.00, the child
support award of $2,501.00, and the alimony award of $5,529.31)
and the amount available to him is $9,571.56 (his net income of
$19,409.00 minus the amounts he must pay in child support and
alimony). We do not agree that the district court abused its
discretion as John contends.

¶65 A proper alimony assessment proceeds as follows:

First, the court should assess the needs of the
parties, in light of their marital standard of
living. . . . Next, the court should determine the
extent to which the receiving spouse is able to meet
[his or] her own needs with [his or] her own income.

20210785-CA 30 2024 UT App 125
Merrill v. Merrill

If the court determines that the receiving spouse is
able to meet all [of his or] her needs with [his or] her
own income, then it should not award alimony.

If the court finds, however, that the receiving
spouse is not able to meet [his or] her own needs, it
should then assess whether the payor spouse’s
income, after meeting his [or her] needs, is sufficient
to make up some or all of the shortfall between the
receiving spouse’s needs and income.

Rule v. Rule, 2017 UT App 137, ¶¶ 19–20, 402 P.3d 153 (cleaned
up). Should the court then encounter the common dilemma that
“the parties’ combined resources do not stretch far enough to
meet the legitimate needs of what are now two households rather
than one,” the court must apply an “equalization of poverty”
approach, ensuring “that when the parties are unable to maintain
the standard of living to which they were accustomed during
marriage, the shortfall is equitably shared.” Id. ¶ 20.

¶66 This is precisely the approach followed by the district
court. It first addressed Lutisha’s financial condition and needs,
determining that, after removing her temporary legal expenses,
her remaining expenses of $21,224.80 were “reasonable in light of
the marital standard of living and in light of [John’s] monthly
needs.” The court then subtracted from this amount Lutisha’s net
income and the ordered child support, arriving at a shortfall of
$10,767.80. The court also addressed John’s financial condition,
needs, and ability to pay. The court found, after also removing his
temporary legal expenses, that John’s remaining expenses of
$19,118.19 were “reasonable in light of the marital standard of
living and in light of [Lutisha’s] monthly needs.” Then the court
determined that John’s net income was sufficient to cover all his
expenses with a surplus of $290.81 to go toward Lutisha’s
shortfall. Finally, the court calculated the shortfall that would be
remaining after applying John’s surplus of $290.81 and,

20210785-CA 31 2024 UT App 125
Merrill v. Merrill

“[e]qualizing the poverty,” divided that remaining shortfall by
two. Thus, the court followed exactly the procedures required by
Utah law and did not abuse its discretion in arriving at the
resulting alimony amount.

¶67 John pushes back, arguing that “[u]nder no circumstances”
can the district court’s alimony award “be viewed as equitable”
because Lutisha will be left with a higher net income than he will
be left with. John argues that the more equitable result would be
“each party having 50% of the disposable income.” But
“equalization [of the parties’ standards of living] does not require
a court to award alimony so that each party is left with an equal
monthly income. Rather, it requires a court to divide the shortfall
of income equitably between the parties in light of each party’s
demonstrated needs as well as the other relevant circumstances in
the case.” Id. ¶ 21 (emphasis added) (cleaned up). Indeed, we have
previously vacated alimony awards for doing exactly what John
urges here—equalizing the money each party has at his or her
disposal instead of equalizing the shortfall. See Vanderzon v.
Vanderzon, 2017 UT App 150, ¶ 52, 402 P.3d 219 (“[B]ecause the
court had already determined that the expenses of each party
were reasonable, its decision to equalize income rather than
shortfall—even though [the wife’s] needs were greater than [the
husband’s]—appears to have left [the wife] to bear significantly
more of the burden of insufficient resources than [the husband].”);
Bakanowski v. Bakanowski, 2003 UT App 357, ¶ 12, 80 P.3d 153
(“Here, the trial court never determined [the wife’s] needs based
on the parties’ historical standard of living. Instead, the trial court
engaged in an effort to simply equalize income. In attempting to
equalize the parties’ income rather than going through the
traditional needs analysis, the trial court abused its discretion.”).
Thus, John’s argument on this point is unavailing.

20210785-CA 32 2024 UT App 125
Merrill v. Merrill

IV. Property Division

¶68 Finally, John challenges the district court’s treatment of
several pieces of marital property. We address each in turn.

A. John’s Stock Grants

¶69 John argues that because the district court included in
John’s income the value of the stock he received from his
employer, the court’s inclusion of that stock in the marital estate
as well amounted to “double-dipping.” We are unconvinced.
While the court considered the value of one year’s worth of vested
stock when it calculated John’s income, the purpose of that
calculation was to provide a prospective income number to serve
as a basis for determining alimony and child support awards
going forward. In contrast, the court included stock in the marital
estate because there was an existing accrual of stock that had
previously been given to John by his employer. The court
including one year’s worth of anticipated future stock receipts in
John’s prospective income and separately considering already-
accrued stock in its division of the marital estate is no different
from a court including a party’s anticipated salary in that party’s
prospective income and separately including in the marital estate
the already-paid salary remaining in the parties’ bank accounts
when it divides the marital estate. The court did not abuse its
discretion by considering the stock in both contexts.

¶70 John also argues that if any amount of already-received
stock is marital property, it should only be the vested portions of
stock. Yet John cites no authority indicating that it would be an
abuse of discretion for the court to treat granted but unvested
stock as part of the marital estate when the evidence is that the
stock will vest over a moderate term as a matter of course. “An
appellate court is not a depository into which parties may dump
the burden of their argument and research,” and John’s
inadequate briefing on this point “is by definition insufficient to
discharge [his] burden to demonstrate trial court error.” Andersen

20210785-CA 33 2024 UT App 125
Merrill v. Merrill

v. Andersen, 2015 UT App 260, ¶ 6, 361 P.3d 698 (per curiam)
(cleaned up).

¶71 John next argues that the values assigned to the stock
“were arbitrary and place [an] unreasonable risk on [John].” But
the values placed on the stock are the “current balance” values
given to the stock by John himself in his most recent financial
declaration, making those values anything but arbitrary. John’s
real point in this regard seems to be that because the value of the
stock will almost certainly change in the future, the court abused
its discretion by assigning it a present value for purposes of
summing and dividing the marital estate. However, the court’s
approach was no different from the one we routinely allow courts
to take with other marital assets—such as homes and vehicles—
that are valued as of the time of trial and then awarded to one
party as part of the division of marital property, despite the fact
that their value will almost certainly change. “The valuation of
marital property is necessarily a snapshot in time, and such a
moment does not consider the myriad situations in which the
value of the parties’ property might be positively or negatively
affected in the future.” Wadsworth v. Wadsworth, 2022 UT App 28,
¶ 97, 507 P.3d 385 (cleaned up), cert. denied, 525 P.3d 1259 (Utah
2022).

¶72 John also argues that the court did not “consider the tax
consequences of the asset,” if it is ever sold, when valuing the
stock and awarding it to John as part of the property division. Yet
it is not clear that John will ever liquidate the stock, and “we do
not generally expect courts to speculate about hypothetical future
tax consequences.” Id. (cleaned up).

¶73 Finally, John argues that the court should have mitigated
the future uncertainty of the stock values by “adopting a different
form of distribution,” such as dividing the vested stocks or
ordering John to liquidate the stock as it becomes available and
provide half the proceeds to Lutisha. But such an approach goes

20210785-CA 34 2024 UT App 125
Merrill v. Merrill

against the district court’s responsibility to “equitably distribute
[marital property] with a view toward allowing each party to go
forward with his or her separate life.” Marroquin v. Marroquin,
2019 UT App 38, ¶ 27, 440 P.3d 757 (cleaned up); see also Gardner
v. Gardner, 748 P.2d 1076, 1079 (Utah 1988) (“The purpose of
divorce is to end marriage and allow the parties to make as much
of a clean break from each other as is reasonably possible. An
award of deferred compensation which ties a couple together long
after divorce can frustrate that objective.”). We therefore cannot
say that the court’s determination to not delay the division of the
stock was an abuse of its discretion.

¶74 In sum, each of John’s arguments related to the stock grants
is unavailing. We see no abuse of discretion in the court’s
treatment of the stock.

B. John’s 2021 Bonus

¶75 John next argues that the district court should not have
included his bonus of $28,125.00 from the first quarter of 2021 as
a separate item in the marital estate. He asserts that the bonus had
already been deposited into his bank accounts that were subject
to equitable division and, therefore, that the bonus was essentially
counted twice. But as Lutisha points out, the total value of those
other accounts combined (approximately $3,400.00) was far less
than the bonus amount, suggesting that John had either spent the
bonus or not deposited it into those accounts as claimed. And
John has not shown that, if spent, the bonus was applied to marital
costs. Thus, we cannot say that it was an abuse of discretion for
the court to count the bonus as a separate item in the marital estate
and award it to him. 9

9. John raises a separate plain error argument with regard to his
bonus; however, “plain error review is not available in ordinary
civil cases unless expressly authorized by rule.” Kelly v. Timber
(continued…)

20210785-CA 35 2024 UT App 125
Merrill v. Merrill

C. John’s Travel Credit

¶76 In the fall of 2020, John booked travel to Bora Bora for
himself and the parties’ children for April 2021. The trip later had
to be canceled when Bora Bora was closed due to the COVID-19
pandemic. The court included the resulting travel credit of
$15,426.57 as part of the marital estate and awarded it to John as
part of the property division. The court’s reasoning was as
follows: “The [c]ourt notes that while [John] provided updated
bank statements at trial showing he received a refund for the
travel, the refund is not reflected anywhere else and thus should
be included in the division of property.”

¶77 John contests this award, arguing that the court’s reasoning
“does not make sense on its face.” He asserts that “the evidence
supports this credit being to an account [that] was subject to
equitable division at the time of trial”; in other words, because the
travel credit served to reduce the marital debt on the credit card,
the travel credit was already accounted for when the reduced
credit card debt was included in the equitable property division.
We disagree that this is what happened.

¶78 Although the district court could have provided a clearer
explanation, we understand the court to have recognized that
although John had provided an updated credit card statement at
the time of trial showing travel refunds, those refunds were not
reflected on the prior statements before the court, which the court
used to determine the assets and debts of the parties. Thus, it was
not the case that these travel refunds reduced the marital debt that
was before the court when it determined the assets and debts of

Lakes Prop. Owners Ass’n, 2022 UT App 23, ¶ 44, 507 P.3d 357; see
also Duffin v. Duffin, 2022 UT App 60, ¶ 36 n.7, 511 P.3d 1240
(applying this rule in a divorce case), cert. denied, 525 P.3d 1262
(Utah 2022). We therefore do not address this argument—or any
other plain error arguments—further.

20210785-CA 36 2024 UT App 125
Merrill v. Merrill

the parties. The numbers support this interpretation: the marital
debt on the credit card that was allocated to John was $44,484.00
on the statement that the court used when determining the assets
and debts of the parties, and the balance on that card as reflected
on the more recent statement, provided at trial, showed an
outstanding debt of only $29,202.72—a difference quite close to
the amount of the travel-related refund. Because the travel refund
was not reflected in the documents on which the court based its
property division, and because John received the refund after the
date of those documents, the court did not abuse its discretion by
separately including the amount of the travel-related refund as
marital property and allocating it to John.

D. John’s Furniture

¶79 John argues that the furniture at the Park City property
was worth more than the furniture at the Coalville property and,
therefore, that the district court abused its discretion in not
treating the $26,318.86 that John spent on new furnishings for his
primary residence (an apartment in Park City) as rectifying this
imbalance. Instead, the court determined that because “credible
trial evidence” showed that the Park City property and the
Coalville property had “comparable items that are comparable in
value,” it was “reasonable and equitable” to award Lutisha the
“furniture, personal property, and the like” at the Park City
property and to award John the “furniture, personal property,
and the like” at the Coalville property. The court thus considered
the $26,318.86 value of the newer furniture as a separate item of
marital property subject to division. John argues, however, that
“evidence presented to the court supports an equitable finding
that the property in each [party’s] possession and residences
awarded to them equally offset the other,” that is, that including
the value of the new furniture in John’s apartment “would be
sufficient to offset the difference in value” of the furniture located
at the other two properties.

20210785-CA 37 2024 UT App 125
Merrill v. Merrill

¶80 “Generally, district courts have considerable discretion
concerning property distribution in a divorce proceeding and
their determinations enjoy a presumption of validity.” Dahl v.
Dahl, 2015 UT 79, ¶ 119, 459 P.3d 276 (cleaned up). “[A]n appellate
court’s role is not to reweigh the evidence presented at trial but
only to determine whether the court’s decision is supported by
the evidence.” Barrani v. Barrani, 2014 UT App 204, ¶ 24, 334 P.3d
994. Here, John has provided no citation or argument showing
how the court’s decision was not supported by the evidence.
John’s briefing simply points out that the court was provided with
photographs “of both properties and the furniture therein” and
then asserts that “[t]he evidence presented to the court” was
sufficient to support a different finding. This bald assertion does
not convince us that the court’s decision was not supported by the
evidence before it. Thus, we see no abuse of discretion on this
point.

¶81 Additionally, John argues that even if the new furniture is
subject to division as marital property, there was no evidence that
the furniture “maintains the same value as it had at the time of
purchase more than eighteen months prior to trial.” Given,
however, that the court was presented with evidence that this
furniture was only eighteen months old and slightly used, and
given that John presented no evidence of its depreciated value, we
see no abuse of discretion in the court’s reliance on the purchase
price amounts to assess the value of the furniture.

E. John’s Requested Reimbursement of Marital Expenses

¶82 The district court refused to award reimbursement to John
for half of $62,304.63 that he claimed to have spent “maintaining
the marital property and expenses,” explaining that John “did not
provide credible evidence that these were in fact marital
expenses” and citing a few examples of listed expenses that were
non-marital, such as “clothing purchases, contact lenses, Weller
Recreation, and Marine Products.” John contests this

20210785-CA 38 2024 UT App 125
Merrill v. Merrill

determination, arguing, among other things, that his
documentation also showed payments toward maintenance of
marital property such as the mortgage, HOA fee, and insurance
on the Coalville property, as well as insurance on the parties’ boat
and certain ATVs. But each of John’s arguments on this point asks
us to reassess credibility and reweigh the evidence, something
that, again, we will not do, see Barrani v. Barrani, 2014 UT App 204,
¶ 24, 334 P.3d 994. And John’s general assertions do not
demonstrate that the court’s finding that the evidence John
provided was not “credible evidence” of marital expenses was not
supported by the evidence. We therefore see no abuse of
discretion in the court’s refusal to award the requested
reimbursement.

F. Lutisha’s Personal Loan

¶83 John contests the inclusion in the marital estate of the
$100,000.00 personal loan that Lutisha obtained to pay expenses
while the parties were separated. He argues that because “the
majority of the debt incurred and paid off with that loan were for
[Lutisha’s] attorney fees,” including the loan in the marital estate
is contrary to the district court’s requirement that the parties be
responsible for their own attorney fees. Although John overstates
Lutisha’s admission that her monthly expenses, including her
legal fees, may have been paid, in part, by the loan, the real issue
here is that John overstates the district court’s ruling on attorney
fees. The court’s order was as follows: “[B]oth [Lutisha] and [John]
are awarded financial and property assets in the division of the
marital estate in this divorce action . . . . Thus, because both
[p]arties have access to financial and property resources, the
[c]ourt now orders that each [p]arty shall pay for their own
attorney fees and costs.” (Emphasis added.) Thus, the court’s
requirement that each party bear his or her own legal fees was in
relation to those fees moving forward. We therefore see no conflict
in the court’s actions with regard to Lutisha’s personal loan and,
thus, no abuse of discretion.

20210785-CA 39 2024 UT App 125
Merrill v. Merrill

CONCLUSION

¶84 The district court enjoys broad discretion in addressing
issues of income, alimony, and property distribution. And, with
just one exception, John has not shown an abuse of that discretion.
That exception is the uncertainty regarding the tax rates to be
applied to Lutisha’s gross income. Thus, we generally affirm the
order but vacate the district court’s determinations on that one
issue. We remand that issue to the district court for clarification
and, if necessary, adjustment, recognizing that any adjustment to
that item may also necessitate adjustments to the ultimate
alimony award and child support award.

20210785-CA 40 2024 UT App 125