Ashby v. Ashby

1 818 P.2d 538 (Utah 1991).
2010 UT 7
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
----oo0oo----
Gloria Hayley Ashby, 	No. 20080737
Plaintiff and Respondent,
v.
F I L E D
Dallen Ben Ashby,
Defendant and Petitioner. 	February 9, 2010
---
Fourth District, Provo Dep’t
The Honorable Steven L. Hansen
No. 060403522
Attorneys: 	Scott P. Card, Matthew R. Howell, Provo, for
plaintiff
David J. Hunter, Orem, for defendant
---
On Certiorari to the Utah Court of Appeals
DURRANT, Associate Chief Justice:
INTRODUCTION
¶1 	This case is before us on writ of certiorari to the
court of appeals and requires us to consider whether a divorcing
spouse may bring claims for (1) unjust enrichment based on her
support of her spouse’s educational efforts and (2) breach of
contract based on her promise to support her spouse’s education
efforts in exchange for the promise of a higher standard of
living in the future (a “student support contract”). 	We
determine that a divorcing spouse’s claim for unjust enrichment
based on support of a student spouse is barred by our rejection
of the remedy of equitable restitution in Martinez v. Martinez.1
But we hold that Martinez does not bar claims for breach of a
student support contract, and that such claims are permissible
provided they are brought within the divorce action.

No. 20080737 	2
BACKGROUND
¶2 	Gloria and Dallen Ashby were married on December 6,
1997, while Dallen was finishing his undergraduate studies at
Brigham Young University in preparation for applying to medical
school. 	While Dallen was completing his undergraduate education,
Gloria worked as the family’s primary financial provider. 	Gloria
contends that, during this time, she and Dallen entered into a
binding contract under which she agreed to support him while he
attended medical school in exchange for Dallen’s promise to
support “her at a certain level with the income he would earn as
the holder of a medical degree.”
¶3 	After Dallen obtained his undergraduate degree, he was
accepted into medical school at the University of St. Louis.
Gloria moved with Dallen to St. Louis and claims that this
required her to forego a lucrative business opportunity in Utah.
Dallen attended medical school in St. Louis from 2000 to 2004.
During his time in medical school, Dallen paid for his tuition
and books by taking out student loans that he is solely
responsible to repay. 	While Dallen attended school, Gloria
worked as an interior designer, and her income provided for most
of the couple’s day-to-day living expenses.
¶4 	Gloria and Dallen separated in May 2005, shortly after
Dallen began a one-year medical internship in St. Louis. 	Gloria
filed for divorce on October 11, 2005 in Utah. 	In addition to a
cause of action for divorce, her complaint included a breach of
contract claim based on the couple’s alleged support agreement.
¶5 	Gloria’s case was initially assigned to the Third
District. 	The district court bifurcated Gloria’s claims for
divorce and breach of contract. 	It entered a decree of divorce
on April 12, 2006 and reserved the breach of contract claim for
trial. 	Dallen then filed a motion to dismiss Gloria’s contract
claim. 	Gloria responded to Dallen’s motion and amended her
complaint to add a cause of action for unjust enrichment.
¶6 	Before the district court ruled on the motion to
dismiss, the case was transferred to the Fourth District. 	There,
Judge Howard, upon recommendation by Commissioner Patton,
dismissed Gloria’s contract and unjust enrichment claims for
improper joinder. 	Gloria then refiled her dismissed claims in a
separate action, assigned to Judge Hansen. 	Dallen again brought
a motion to dismiss. 	The district court granted Dallen’s motion,
ruling that Gloria’s contract claim violated the statute of

2 See Ashby v. Ashby, 2008 UT App 254, ¶ 15, 191 P.3d 35.
3 Id. ¶¶ 9-11.
4 Id. 	We note that Dallen has not contested the court of
appeals’ holding regarding the statute of frauds, apparently on
the assumption that it was outside the scope of the question on
which we granted certiorari. 	We believe that the issue does fall
within the scope of our grant and take this opportunity to note
that the court of appeals’ analysis was correct.
5 Id. ¶ 14.
6 Utah State Tax Comm’n v. Stevenson, 2006 UT 84, ¶ 19, 150
P.3d 521; Griffith v. Griffith, 1999 UT 78, ¶ 17, 985 P.2d 255.
3 	No. 20080737
frauds and that her unjust enrichment claim was barred by our
holding in Martinez.
¶7 	The court of appeals reversed the district court’s
dismissals. 2 	First, the court of appeals noted that the
procedural posture of the case prohibited dismissal based on the
statute of frauds. 3 	The court reasoned that, since Gloria had
not pleaded all the facts necessary to determine that the alleged
contract violated the statute of frauds, dismissal on that ground
was improper without further discovery. 4 	Second, the court
distinguished Gloria’s claims for breach of contract and unjust
enrichment from the equitable restitution claim we rejected in
Martinez, stating that “Martinez only bars self-standing
equitable allocations and not claims based on express contract or
unjust enrichment.” 5
¶8 	Dallen petitioned for certiorari review by this court,
which we granted to determine whether the court of appeals erred
in its assessment of the availability of claims for unjust
enrichment and breach of contract in the context of Dallen’s
motion to dismiss. 	We have jurisdiction pursuant to section 78A-
3-102(3)(a) of the Utah Code.
STANDARD OF REVIEW
¶9 	On certiorari, we review the court of appeals’ decision
to determine whether the court of appeals correctly reviewed the
decision of the district court. 6 	A district court should only
grant a motion to dismiss when a plaintiff is not entitled to
relief either “‘under the facts alleged or under any state of

7 Clark v. Deloitte & Touche LLP, 2001 UT 90, ¶ 14, 34 P.3d
209 (quoting Prows v. State, 822 P.2d 764, 766 (Utah 1991)).
8 	Id. ¶ 2.
No. 20080737 	4
facts they could prove to support their claim.’” 7 	Accordingly,
when determining whether to grant a defendant’s motion to
dismiss, a court must assume the truth of the allegations in the
pleadings and draw all reasonable inferences from those
allegations in favor of the plaintiff. 8
ANALYSIS
¶10 	The parties in this case dispute both the effect of
Martinez on Gloria’s claims and what conditions, if any, should
be placed on the enforcement of student support contracts between
divorcing spouses. 	We begin by assessing the impact of Martinez
on Gloria’s unjust enrichment and breach of contract claims. 	We
first conclude that the rationale underlying our rejection of
equitable restitution in Martinez is equally applicable to
Gloria’s claim for unjust enrichment. 	We determine, however,
that our decision in Martinez does not preclude Gloria’s contract
claim. 	Because we find that Martinez does not bar the
enforcement of student support contracts, we next analyze the
conditions under which student support contracts may be enforced
by divorcing spouses. 	We conclude that claims for breach of such
contracts are permissible, provided that they satisfy the normal
conditions imposed on postnuptial contracts and that such claims
are brought within the divorce action.
I. 	MARTINEZ PRECLUDES GLORIA’S CLAIM FOR UNJUST ENRICHMENT BUT
DOES NOT BAR HER BREACH OF CONTRACT CLAIM
A. 	Gloria’s Unjust Enrichment Claim Is Materially
Indistinguishable From a Claim for Equitable Restitution
¶11 	Gloria argues that Dallen has been unjustly enriched by
her efforts to support him during medical school and that she is,
therefore, entitled to be compensated for the value of the
benefit she conferred on him. 	Gloria asserts that her case is
distinguishable from Martinez because she, in contrast to the
plaintiff in Martinez, alleges the existence of an actual
contract. 	Although the presence of an actual contract casts
Gloria’s case in a somewhat different light from Martinez,
Gloria’s claim for unjust enrichment is nonetheless materially
indistinguishable from the claim for equitable restitution we
rejected in Martinez.

9 Martinez v. Martinez, 818 P.2d 538, 539 (Utah 1991).
10 Id. at 539-40.
11 Id.
12 Id. at 540-42.
13 Id. at 542.
14 Davies v. Olson, 746 P.2d 264, 268 (Utah Ct. App. 1987).
15 See Jeffs v. Stubbs, 970 P.2d 1234, 1245-46 (Utah 1998).
5 	No. 20080737
¶12 	Martinez, like the present case, arose out of a divorce
that occurred shortly after one spouse graduated from medical
school. 9 	The plaintiff in Martinez sought a share in the future
increased earnings from her spouse’s medical degree. 10 	While the
court of appeals declined the plaintiff’s invitation to treat the
medical degree as property subject to division, it nevertheless
allowed the plaintiff to recover under a theory of “equitable
restitution” based on contributions made to the family during the
spouse’s educational period. 11
¶13 	We reversed the court of appeals, declining to
recognize the remedy of equitable restitution because (1) it
treated marriage as “a venture akin to a commercial partnership,”
(2) recovery under the remedy would be “extraordinarily
speculative,” and (3) equitable restitution was “essentially
indistinguishable” from treating an advanced degree as marital
property. 12 	Although we recognized the equities involved in
student support situations, we reasoned that the concept of
alimony was broad enough to take the equitable concerns presented
in Martinez into account. 	We stated that “if one spouse’s
earning capacity has been greatly enhanced through the efforts of
both spouses during the marriage, it may be appropriate for the
trial court to make a compensating adjustment in dividing the
marital property and awarding alimony.” 13
¶14 	Unjust enrichment “is an action initiated by a
plaintiff to recover payment for labor performed in a variety of
circumstances in which that plaintiff, for some reason, would not
be able to sue on an express contract.” 14 	A claim for unjust
enrichment is an action brought in restitution, 15 and a
prerequisite for recovery on an unjust enrichment theory is the
absence of an enforceable contract governing the rights and
obligations of the parties relating to the conduct at issue. 	If
there were a contract, it, rather than the law of restitution,

16 Interbank Invs., LLC v. Eagle River Water & Sanitation
Dist., 77 P.3d 814, 816 (Colo. App. 2003) (“In general, a party
cannot recover for unjust enrichment by asserting a quasi-
contract when an express contract covers the same subject matter
because the express contract precludes any implied-in-law
contract.”).
17 Davies, 746 P.2d at 268.
No. 20080737 	6
would govern the parties’ rights and determine their recovery. 16
“Recovery under [unjust enrichment] presupposes that no
enforceable written or oral contract exists.” 17
¶15 	Accordingly, by the very nature of the cause of action,
Gloria’s claim for unjust enrichment is predicated on the
assumption that there is no enforceable contract between her and
Dallen. 	It is, then, essentially an alternative basis for
recovery in the event her contract claim fails. 	And because
Gloria’s unjust enrichment claim is premised on the nonexistence
of an enforceable contract between her and Dallen, it is, in
reality, nothing more than a rewording of the equitable
restitution claim we rejected in Martinez. 	Our rationale for
rejecting the equitable restitution claim in Martinez did not
hinge on the fact that the plaintiff had not alleged the
existence of an express contract. 	Accordingly, our reasoning
regarding the equitable restitution claim in Martinez is equally
applicable to Gloria’s claim for unjust enrichment in this case.
We therefore reverse the court of appeals and uphold the district
court’s dismissal of Gloria’s unjust enrichment claim.
B. 	Martinez Does Not Bar Claims for Breach of a Student Support
Contract
¶16 	Gloria contends that even if her unjust enrichment
claim does not survive Martinez, her contract claim should.
Since the plaintiff in Martinez did not allege the existence of a
student support contract with the student spouse, Gloria reasons
that our holding in Martinez did not speak to whether student
support contracts are enforceable. 	Dallen, in contrast, reads
Martinez as standing for a broad preclusion of all “claims
brought by a divorcing party who seeks a financial award outside
the context of alimony.”
¶17 	Gloria’s reading of Martinez is correct. 	Our decision
in that case dealt only with extracontractual equitable claims.
It did not speak to whether student support contracts between
divorcing spouses are enforceable. 	That issue is one of first
impression in Utah, and it is to this question we now turn.

7 	No. 20080737
II. 	WHILE UTAH RECOGNIZES A CLAIM FOR BREACH OF A STUDENT
SUPPORT CONTRACT BETWEEN DIVORCING SPOUSES, SUCH A CLAIM MUST BE
BROUGHT, AS A MATTER OF POLICY, WITHIN THE DIVORCE ACTION
¶18 	Dallen argues that, since the alleged contract between
him and Gloria involves matters “intrinsic to the marriage
relationship,” it is unenforceable because it lacks “a written
document with all the formalities necessary to bind the parties
and memorialize the terms and conditions of the agreement.” 	He
also contends that section 30-3-5 of the Utah Code, which
provides standards for alimony awards, provides the relief that
Gloria seeks and renders separate enforcement of her contract
claim both improper and unnecessary. 	Finally, Dallen asserts
that Utah’s strong public policy of protecting the institution of
marriage, as evidenced by our opinion in Martinez, would be
undermined if the alleged contract between him and Gloria were
enforced.
¶19 	Gloria responds by asserting that Dallen’s distinction
between intrinsic and extrinsic postnuptial contracts has no
basis in our case law, and that, even if it did, the distinction
should not be adopted because it is unworkable in practice. 	She
responds to Dallen’s arguments under section 30-3-5 by noting
that alimony is an inadequate substitute for relief available by
contract because, under contract, a party is entitled to “the
benefit of her bargain,” which might be “more than she might be
able to obtain under alimony.” 	Finally, Gloria disputes Dallen’s
policy arguments and contends that enforcing specific promises
between spouses would protect, rather than undermine, the
institution of marriage. 	We address each of Dallen’s arguments,
and Gloria’s responses, in turn.
A. 	Contracts Negotiated Between Spouses Are Enforceable So Long
as They Are Negotiated in Good Faith and Do Not Unreasonably
Constrain the District Court’s Equitable and Statutory Duties
¶20 	Dallen first asks us to draw a distinction between
“intrinsic” and “extrinsic” contracts between spouses. 	According
to Dallen, intrinsic spousal contracts are contracts dealing with
decisions that are commonplace to a marital relationship, such as
deciding how many children to have, which spouse will work, or
where to live. 	Dallen would define extrinsic spousal contracts,
in contrast, as contracts between spouses that do not arise from
the marriage relationship, but instead have a business purpose,
such as spousal partnership or employer-employee agreements.
Dallen argues that, while extrinsic spousal contracts can be

18 Beesley v. Harris, 883 P.2d 1343, 1351 (Utah 1994).
19 Reese v. Reese, 1999 UT 75, ¶ 25, 984 P.2d 987.
20 See id. ¶¶ 25-27 (examining whether coercion or
unconscionable contract terms warranted setting aside the spousal
contract).
No. 20080737 	8
enforced according to normal contract principles, intrinsic
spousal contracts require a writing and more definite terms.
¶21 	As Gloria correctly notes, Dallen’s distinction between
intrinsic and extrinsic spousal contracts has no support in our
case law. 	The governing principle in our law is that contracts
between spouses are enforceable and “generally subject to
ordinary contract principles” 18 so long as they are negotiated
“in good faith . . . and do not unreasonably constrain the
[divorce] court’s equitable and statutory duties.” 19 	The
analytical focus is not on the contract’s subject matter, but
rather on whether the contract was fairly negotiated and does not
result in an outcome so severely one sided that it prevents the
district court from fulfilling its equitable obligations. 20 	We
decline to adopt Dallen’s distinction and, instead, adhere to our
current rule. 	Accordingly, the mere fact that the alleged
contract between Gloria and Dallen covers matters that are, in
Dallen’s estimation, “intrinsic” to their marriage bears no
weight in our analysis.
B. 	Section 30-3-5 Neither Preempts Nor Justifies Refusing to
Enforce Gloria’s Contract Claim
¶22 	Dallen next argues that Gloria’s contract claim should
be dismissed because section 30-3-5 of the Utah Code precludes
the need for, and makes inappropriate, alternative civil
remedies. 	Although it is not completely clear, Dallen appears to
make two separate arguments under section 30-3-5. 	First, we
construe Dallen’s claim that section 30-3-5 “preclud[es] the
. . . propriety of alternative civil remedies” as an argument
that the statute preempts Gloria’s right to seek relief under
contract. 	Second, we read Dallen’s statement that section 30-3-5
“preclud[es] the need” for other civil remedies as an argument
that, even if Gloria’s contract claim is not preempted by section
30-3-5, we should decline to enforce it given the relief already
available by statute.
1. 	Section 30-3-5 Does Not Preempt Gloria’s Contract Claim

21 Utah Code Ann. § 30-3-5(8)(a)(vii) (2007).
22 Id. § 30-3-5(8)(e).
23 Gilger v. Hernandez, 2000 UT 23, ¶ 9, 997 P.2d 305
(“Determining whether a particular statute preempts other law of
inferior standing is essentially a question of legislative
intent.”).
9 	No. 20080737
¶23 	Section 30-3-5(8) provides standards for district
courts to employ when determining alimony awards and speaks
specifically to the issue of spousal student support. 	Dallen
contends that enforcing student support contracts would “take
away from the full meaning and effect of [section 30-3-5].”
Gloria responds by pointing out that nothing in section 30-3-5
says that the legislature intended alimony to be the exclusive
remedy between divorcing spouses and argues that an alimony award
is too speculative and uncertain to serve as an adequate
substitute for contractual remedies.
¶24 	Section 30-3-5 contains two provisions that speak to
the consideration of spousal support situations in alimony
proceedings. 	First, subsection 30-3-5(8)(a)(vii) states that the
district court shall consider “whether the recipient spouse
directly contributed to any increase in the payor spouse’s skill
by paying for education received by the payor spouse or allowing
the payor spouse to attend school during the marriage.” 21
Second, subsection 30-3-5(8)(e) provides as follows:
When a marriage of long duration
dissolves on the threshold of a major change
in the income of one of the spouses due to
the collective efforts of both, that change
shall be considered in dividing the marital
property and in determining the amount of
alimony. 	If one spouse’s earning capacity
has been greatly enhanced through the efforts
of both spouses during the marriage, the
court may make a compensating adjustment in
dividing the marital property and awarding
alimony. 22
¶25 	Determining whether a statutory provision preempts
alternative remedies is a question of legislative intent. 23 	The
mere fact that the legislature may have provided an avenue of
relief for a particular injury does not preclude alternative
methods of recovery for that same, or a similar, injury absent

No. 20080737 	10
some evidence that the legislature intended that its statutory
remedy be the sole avenue of relief.
¶26 	We agree with Gloria that there is nothing in the plain
language of section 30-3-5 suggesting that the legislature, in
directing district court judges to consider student spousal
support as part of fashioning an equitable alimony award,
intended to restrict spouses to alimony as the sole remedy in
student support situations. 	Rather, the plain language of
section 30-3-5 is unambiguous and simply makes clear that one
spouse’s support of their student spouse’s educational efforts is
properly considered as a factor in making the alimony
determination. 	It says nothing regarding prohibition of legal
remedies predicated on a student support contract. 	Accordingly,
we hold that Gloria’s breach of contract claim is not preempted
by section 30-3-5.
2. 	The Relief Available in Section 30-3-5 Does Not Justify
Refusing to Enforce Gloria’s Contract Claim
¶27 	Dallen next argues that, even if section 30-3-5 does
not preempt Gloria’s contract claim, it obviates the need for
enforcing student support contracts by providing the adequate
alternative remedy of alimony. 	And Dallen contends that the
availability of this remedy, coupled with the potentially harmful
effect that enforcing student support contracts would have on
communication between spouses, justifies declining to enforce
Gloria’s contract claim.
¶28 	Dallen’s argument is predicated on two assumptions that
we find either incorrect or unpersuasive. 	The first assumption
is that Gloria can be made whole, through alimony, from Dallen’s
alleged breach of contract. 	This is incorrect. 	While alimony
may provide a remedy for the type of injury Gloria alleges, it is
not necessarily a perfect substitute for the remedies available
under contract.
¶29 	For example, if Gloria were to prevail on her breach of
contract claim, she would be entitled to the damages necessary to
place her in the same position she would have been in had Dallen
tendered performance according to the contract’s terms. 	In other
words, she would be entitled to damages based on the alleged
contractual bargain--to be supported by Dallen at a standard of
living commensurate with the income normally obtained by a holder
of a medical degree. 	In contrast, any relief available through
alimony is within the discretion of the district court--both as
to the terms of an alimony award as well as the decision to award

24 Utah Code Ann. § 30-3-5(1) (2007) (“When a decree of
divorce is rendered, the court may include in it equitable orders
relating to the children, property, debts or obligations, and
parties.” (emphasis added)).
25 See id. § 30-3-5(8) (setting out factors the court must
consider in determining an alimony award).
26 Id. § 30-3-5(8)(g) (“The court has continuing
jurisdiction to make substantive changes and new orders regarding
alimony based on a substantial material change in circumstances
not foreseeable at the time of the divorce.”).
27 See Reese, 1999 UT 75, ¶ 25.
11 	No. 20080737
alimony at all. 24 	Thus, even if the court decides that Gloria is
entitled to alimony, the amount of any award would be determined
by the district court in light of the equities and principles set
out in section 30-3-5 rather than the amount negotiated by
contract. 25 	And the court’s alimony award, unlike the legal
relief available by contract, would be subject to modification by
the district court under the continuing jurisdiction granted it
by section 30-3-5(8)(g). 26
¶30 	Dallen’s second assumption is that enforcing contracts
similar to his alleged contract with Gloria would cause
significant harm to the institution of marriage. 	Dallen’s
primary concern is that enforcing these contracts would chill
communication within marriage for fear that all “pillow talk” and
“the general complaint of ‘broken promises’ . . . would be
elevated to contract or commercial status” with the attendant
risk of liability.
¶31 	But agreements based solely on “pillow talk” or
“general complaint[s] of ‘broken promises’” would rarely, if
ever, rise to the level of enforceable contracts. 	In the event
one spouse brings a claim for breach of contract against another
based solely on these grounds, it would likely be disposed of on
summary judgment. 	Thus, normal contract requirements, not to
mention the more stringent standards imposed on postnuptial
agreements, 27 are sufficient to substantially allay Dallen’s
concerns. 	The mere fact that a spouse might assert an
unenforceable contract claim does not justify adopting a bright-
line rule that would eliminate a whole class of claims based on
legitimate contracts, seriously and deliberately negotiated,
simply because of their subject matter.

28 Utah Code Ann. §§ 30-3-5(8)(a)(vii), 30-3-5(8)(a)(iii),
30-3-5(8)(e).
29 Although we have in the past cautioned about “‘unduly
(continued...)
No. 20080737 	12
¶32 	Accordingly, because alimony does not provide an
adequate substitute remedy for suing on an enforceable student
support contract, and because we find that normal contract
principles substantially mitigate Dallen’s concerns about the
effect that enforcing such contracts would have on communication
between spouses, we decline Dallen’s invitation to refuse to
enforce student support contracts based on the mere possibility
that alimony may be available under section 30-3-5.
C. 	Any Existing Claim for Breach of a Student Support Contract
Must Be Brought Within the Divorce Action
¶33 	Although we conclude that a divorcing spouse is not
prohibited from attempting to enforce a student support contract,
we determine that, as a matter of policy, any then-existing claim
for breach of a student support contract must be brought within
the divorce action. 	Two considerations guide us to this
determination. 	First, as we have previously noted, postnuptial
spousal contracts are enforceable so long as they are negotiated
in good faith or do not unreasonably constrain the district court
in the performance of its equitable and statutory duties. 	Thus,
a student support contract with terms so unfair as to
unreasonably constrain a district court’s ability to do equity
between divorcing spouses is unenforceable under our well-settled
rule. 	The district court judge who presides over the divorce
proceeding, armed with a familiarity of the relationship between
the spouses and the equities of the situation, is in the best
position to determine whether a student support contract would be
unenforceable on this basis.
¶34 	Second, requiring claims for breach of student support
contracts to be asserted within the divorce action best serves
the interests of judicial economy and is most consistent with the
expressed legislative policy regarding spousal student support.
Contracts define the legal obligations of the parties, and thus,
when enforceable, set the boundaries within which the district
court’s equitable discretion must operate. 	Because the
legislature has expressly tasked the district courts with
consideration of spousal student support, 28 it would be imprudent
to empower a district court to grant an alimony award only to
have that award later frustrated by a legal determination of
contract rights in another action. 29 	Therefore, we hold that a

29 (...continued)
complicat[ing]’” divorce proceedings with other claims between
the parties, see Walther v. Walther, 709 P.2d 387, 388 (Utah
1985) (quoting Lord v. Shaw, 665 P.2d 1288, 1291 (Utah 1983)),
the legislature’s express mandate that spousal student support be
considered in the alimony proceeding mitigates this concern when
it comes to student support contract claims.
30 We are not called upon to express, and do not express an
opinion as to whether, to be enforceable, a spousal support
contract that has not yet been breached must be alleged during
the divorce proceedings.
13 	No. 20080737
divorcing spouse who has a claim for breach of a student support
contract must bring the claim within the divorce proceeding
itself or it is waived. 30
¶35 	Finally, at this time we think it beneficial to offer
some direction to district courts addressing breach of student
support contract claims arising within the context of divorce
proceedings. 	When presented with such a claim, the district
court must first, prior to making any alimony determination or
other distribution of marital property, determine whether the
contract is enforceable. 	This requires a court to engage in the
normal analysis of enforceability under traditional contract law
as well as under the special rules applicable to pre- and
postnuptial contracts.
¶36 	If the court determines that the contract is
enforceable, then it should grant the legal remedy afforded by
the contract and subsequently determine alimony and distribute
the marital property in light of equitable principles and the
baseline set by the legal award. 	If, on the other hand, the
court determines the contract is not enforceable, whether for
failure to comply with ordinary contract requirements or because
it would unreasonably constrain the court’s statutory and
equitable obligations, the district court should then proceed to
determine alimony and property division consistent with its
statutory duties and the principles outlined in section 30-3-5.
In doing so, it may consider, as equitable factors, the parties’
arguments under the contract that proved unenforceable.
CONCLUSION
¶37 	Because we determine that Gloria’s claim for unjust
enrichment is materially indistinguishable from the claim for
equitable restitution we rejected in Martinez, we reverse the
court of appeals and reinstate the district court’s dismissal of

No. 20080737 	14
Gloria’s unjust enrichment claim. 	However, in light of our
determination that Gloria may bring her claim for breach of
contract against Dallen in the divorce action, and the fact that
she originally brought her claim as part of the divorce action,
we affirm the court of appeals’ reversal of the district court’s
dismissal of Gloria’s breach of contract claim. 	The court of
appeals stayed the divorce action pending our resolution of this
case. 	While the divorce action is not before us, we recognize
that our opinion may require the court of appeals to consolidate
this case with the divorce case and then remand the cases to the
district court. 	We leave those determinations to the court of
appeals to make in a manner not inconsistent with this opinion.
---
¶38 	Justice Wilkins, Justice Parrish, and Justice Nehring
concur in Associate Chief Justice Durrant’s opinion.
---
DURHAM, Chief Justice, concurring:
¶39 	After this court’s decision in Martinez v. Martinez,
818 P.2d 538 (Utah 1991), the legislature significantly amended
the statutes related to alimony in divorce cases. 	Subsection 30-
3-5(8)(a) (2007) of the Utah Code now provides that a court
“shall consider . . . the following factors in determining
alimony: . . . (vii) whether the recipient spouse directly
contributed to any increase in the payor spouse’s skill by paying
for education received by the payor spouse or allowing the payor
spouse to attend school during the marriage.”
¶40 	Thus, in keeping with other developments in the
understanding of support, see American Law Institute, Principles
of the Law of Family Dissolution: Analysis and Recommendations
§§ 5.04 cmt. b-d, 5.12 (2002), our legislature has acknowledged
an expanded function for alimony as “support plus compensation”
in appropriate circumstances. 	Proper attention to this aspect of
alimony as set forth in the statute would, in my view, eliminate
or decrease the need for reliance on quasi-contract theories of
recovery. 	Therefore, although I concur with the majority, I
would urge trial courts and counsel to consult the statutory
basis for recovery in these types of cases.
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¶41 	Justice Parrish and Justice Nehring concur in Chief
Justice Durham’s concurring opinion.