Brown v. Brown

2020 UT App 146
THE UTAH C OURT OF APPEALS
J ERRY V. BROWN,
Appellant,
v.
YVONNE A. BROWN,
Appellee.
Opinion
No. 20190543
Filed October 29, 2020
Fourth District Court, Provo Department
The Honorable Derek P. Pullan
No. 154403120
Julie J. Nelson, Troy L. Booher, and Alexandra
Mareschal, Attorneys for Appellant
Ron W. Haycock Jr., S. Spencer Brown, and
Scarlet R. Smith, Attorneys for Appellee
J UDGE G REGORY K. ORME authored this Opinion, in which
J UDGES R YAN M. HARRIS and D IANA HAGEN concurred.
ORME, Judge:
¶1 	Jerry V. Brown appeals the district court’s determination
in this divorce proceeding that his dental practice was marital
property and that his ex-wife, Yvonne A. Brown, was therefore
entitled to half its value. Jerry1 also appeals the district court’s
award 	of 	$96,409.72 	to 	cover 	pre-decree 	expenses 	Yvonne
incurred over nearly a two-year period while the divorce was
1. Because the parties share the same surname, we refer to them
by their first names, with no disrespect intended by the apparent
informality.

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pending. We reverse in part, affirm in part, and remand for
revision of the divorce decree.
BACKGROUND
¶2 	In 1986, Jerry purchased a dental practice and building.
By 1996, he had completely paid off the purchase price. During a
portion of this ten-year period, Jerry was married to his first
wife, with whom he had four children. After Jerry and his first
wife divorced, Jerry and Yvonne married in 1996. Yvonne had
also been married previously and brought three children into the
marriage. In 1999, Jerry and Yvonne had a child together. They
divorced in 2011 but remarried approximately one year later.
¶3 	Soon after their first marriage to each other, Yvonne
began working at the practice. After about a month, however,
Jerry and Yvonne decided that it was not a good fit. They
determined that Yvonne should stay home and care for their
blended family from then on, but she occasionally filled in at the
practice on an emergency basis. Regardless of the hours Yvonne
worked, the practice paid her a monthly salary, depositing her
paycheck into Jerry and Yvonne’s joint bank account.
¶4 	During both his marriages to Yvonne, Jerry kept the
practice’s accounts separate from the couple’s joint accounts.
Jerry testified that he did not “at any time . . . put personal funds
from [his] personal account or [their] marital accounts into [the
practice].” And Yvonne testified that Jerry was “controlling with
finances” and threatened to fire his employees if they discussed
the practice’s finances with her. Yvonne’s sister, who worked at
the practice, testified that Jerry kept the finances “quiet” and
would not discuss them with Yvonne. She further testified that
whenever Yvonne would “come to the office, he’d empty the
cashbox and walk across the street and deposit all of the money
into the bank.”
¶5 	In addition to drawing his regular salary, Jerry paid
expenses 	attributable 	to 	the 	marriage, 	such 	as 	the 	couple’s

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20190543 	3 	2020 UT App 146
mortgage payments, vehicle payments, insurance bills, travel
expenses, and other obligations, using funds from the practice’s
account. Jerry also deposited $6,000 from the practice’s account
into the couple’s joint account each month, which Yvonne used
to pay household expenses. But because Yvonne did not have
access to any other bank accounts, if she needed extra money,
she “had to ask for it, and usually it became very heated because
[Jerry] controlled all of [the] finances.”
¶6 	In 2002, Jerry and Yvonne built an $860,000 home that
came with a $5,722 monthly mortgage obligation. Around this
time, Jerry also renovated the practice’s building and financed it
solely by a loan secured by the building, which resulted in a
$4,000 	monthly 	payment 	that 	he 	paid 	from 	the 	practice’s
revenue. Yvonne testified that the practice’s new debt affected
the family’s lifestyle, income, activities, and travel. She further
explained that they “had to make a lot of sacrifices financially at
the time to offset [the] income” that stayed in the practice instead
of being used to supplement the available marital funds. And
around 2004 or 2005, Jerry attempted to open a second office to
expand 	the 	practice, 	which 	proved 	unsuccessful. 	This
investment, too, was funded solely by the practice.
¶7 	After 	the 	couple’s 	first 	divorce 	and 	their 	subsequent
remarriage in 2012, Yvonne began attending school to become an
esthetician and eventually obtained her master’s degree in that
field. Jerry paid for her schooling from the practice’s revenue. In
2013, Yvonne opened a spa at the practice, for which Jerry added
three rooms to the practice’s building. This new spa company
was a separate entity from the practice and had a separate bank
account. Jerry testified that he spent “well over $200,000” of the
practice’s 	revenue 	on 	spa 	equipment 	to 	help 	Yvonne 	get
established.
¶8 	In June 2015, the couple separated again. Around this
time, Yvonne started another spa company in a different location
and moved all the equipment that Jerry had purchased with
funds 	from 	the 	practice 	to 	this 	new 	location. 	After 	this

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20190543 	4 	2020 UT App 146
separation, Jerry and Yvonne continued to engage in financial
transactions. Jerry had refinanced the practice’s building in May
2015 and obtained $200,000, which he was solely responsible for
repaying, and gave half—$100,000—to Yvonne. For a time, he
continued to deposit $6,000 a month into a bank account for
Yvonne. Jerry also kept making monthly payments of $2,200 on a
laser he had purchased in 2015 for Yvonne’s business until it was
paid off in March 2019, even though Yvonne had agreed to make
the payments. Jerry also continued to help Yvonne by investing
over $120,000 in her new spa company. Jerry testified that he did
this because he was “hoping that [they] might be able to work
things out because [finances were their] biggest problem,” and
he hoped that those issues would be resolved if her business
became profitable.
¶9 	In June 2017, Jerry and Yvonne realized that reconciliation
was no longer a possibility and decided to divorce once again.
Jerry made two more deposits of $6,000 in June and July into a
personal 	account 	for 	Yvonne, 	and 	in 	August 	he 	deposited
another $4,500. From September through December he deposited
only $2,500 a month, and he did not deposit any money from
January through July 2018. The court then ordered Jerry, starting
in 	August 	2018, 	to 	pay 	Yvonne 	temporary 	alimony 	in 	the
amount of $1,607 per month,2 which Jerry paid until trial in
April 2019.
¶10 	After trial, the court entered its findings of fact and
conclusions of law, dividing the marital estate and deciding
other issues pertinent to the divorce. Only two parts of those
findings and conclusions, which were later folded into the
divorce decree, are relevant to this appeal. First, the court ruled
2. Following trial, the district court found that this amount was
too low “because Jerry had significantly understated his income”
and ruled that Jerry’s actual ability to pay was $2,687 per month.
The court established this amount as alimony going forward.
The court’s alimony determination is not at issue in this appeal.

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that “[b]ecause marital funds were expended for the benefit of
[the practice, it] was converted from Jerry’s separate property to
marital property.” The court based this ruling on its finding that
[o]n two occasions, Jerry decided to use income
from [the practice] to reinvest in the practice. First,
in 	2004 	or 	2005 	Jerry 	opened 	a 	second 	dental
office. . . . 	Opening 	that 	office 	required 	capital.
Accordingly, through [the practice], Jerry secured a
loan. The monthly payment on the loan was $2,000.
The . . . office was a failed venture. . . . Jerry used
income from [the practice] to pay for this failed
expansion, 	thereby 	decreasing 	the 	funds 	he
routinely pulled from [the practice] to pay marital
expenses as he routinely had done.
Second, in 2003 during the first marriage Jerry
decided to renovate the [practice’s building]. The
renovation required capital. Jerry used available
funds from [the practice] as well as a loan to pay
for the renovation. . . . The monthly payment was
$4,000. This monthly obligation left less money for
Jerry to pull from [the practice] to pay for marital
expenses as he routinely had done. According to
[Yvonne], the renovation debt reduced the family
income and [a]ffected “what we did and how we
traveled.” [3]
3. In view of the brief hiatus between the parties’ two marriages,
corresponding to only one year in a twenty-three-year period
when the parties were otherwise married, in adjudicating their
second divorce, the district court essentially evaluated their
circumstances as though they were parties to a single continuous
marriage. In this atypical circumstance and on the facts of this
case, this approach seems entirely reasonable, the parties appear
(continued…)

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20190543 	6 	2020 UT App 146
¶11 	Second, 	the 	court 	ruled 	that 	Yvonne 	was 	entitled 	to
$96,409.72 in “pre-decree reasonable monthly expenses.” The
court 	based 	this 	amount 	on 	the 	extent 	to 	which 	Yvonne’s
reasonable expenses from June 2017 until April 2019—found by
the court to be $9,464.45 per month—exceeded her monthly
income, i.e., the amounts Jerry made available to her, her own
earned income, and the amount she received from the sale of a
laser. Specifically, it found that
[Yvonne’s] 	monthly 	shortfall—for 	which 	she
should have had access to marital funds but did
not—can be calculated.
⦁ For the two months from June and July 2017,
[Yvonne’s] 	monthly 	income 	was 	$8,839.92, 	her
earned income plus the $6,000 Jerry paid to her.
Her monthly expenses exceeded her income by
$624.53 	each 	month, 	for 	a 	total 	shortfall 	of
$1,249.00.
⦁ For August 2017, [Yvonne’s] monthly income was
$7,339.92, her earned income plus the $4,500 Jerry
paid to her. Her monthly expenses exceeded her
income by $2,124.53, the total shortfall for that
month.
⦁ For the four months from September to December
2017, [Yvonne’s] monthly income was $5,339.92,
her earned income plus the $2,500 Jerry paid to her.
Her monthly expenses exceeded her income by
$4,124.53 	each 	month, 	for 	a 	total 	shortfall 	of
$16,489.12.
(…continued)
to have acquiesced in it during the course of this proceeding,
and neither party challenges it on appeal.

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20190543 	7 	2020 UT App 146
⦁ For the seven months from January to July 2018,
[Yvonne’s] 	monthly 	income 	was 	$2,839.92, 	her
earned income. Her monthly expenses exceeded
her income by $6,624.53 each month, for a total
shortfall of $46,371.71.
⦁ For the ten months from August 2018 to April
2019, [Yvonne’s] income was $4,446.92, her earned
income plus the $1,607 paid to her by Jerry. Her
monthly 	expenses 	exceeded 	her 	income 	by
$5,017.53 	each 	month, 	for 	a 	total 	shortfall 	of
$50,175.30.
⦁ Prior to the decree, [Yvonne] sold one of the
lasers for $10,000.00 and used this money to pay
her monthly expenses.
¶12 	Jerry appeals.
ISSUES AND STANDARDS OF REVIEW
¶13 	Jerry raises two issues. First, he asserts that the district
court erred when it determined that the practice had become a
marital asset. “[W]hether property is marital or separate is a
question of law,” which we review for correctness. Liston v.
Liston, 2011 UT App 433, ¶ 5, 269 P.3d 169.
¶14 	Second, Jerry contends that the district court erred in
ordering him to pay Yvonne $96,409.72 in expenses incurred by
her during the pendency of the divorce proceeding that were not
covered by her income and marital funds. We review property
decisions 	and 	alimony 	awards 	with 	considerable 	deference,
reversing only where the district court has exceeded the sound
exercise of its discretion. See Hartvigsen v. Hartvigsen, 2018 UT
App 238, ¶ 4, 437 P.3d 1257.

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20190543 	8 	2020 UT App 146
ANALYSIS
I. The Practice
¶15 	Jerry argues that the district court erred in concluding
that 	the 	practice—which 	was 	unquestionably 	his 	separate
property at the outset of his marriage to Yvonne—became a
marital asset based solely on the fact that practice funds were
frequently used to cover family expenses and, at times, the
amount of this marital subsidy was reduced to help expand the
practice. “The presumption is that marital property will be
divided equally while separate property will not be divided at
all.” Lindsey v. Lindsey, 2017 UT App 38, ¶ 32, 392 P.3d 968.
“Married persons have a right to separately own and enjoy
property, and that right does not dissipate upon divorce.” Id.
“The general rule is that equity requires that each party retain
the separate property he or she brought into the marriage,
including any appreciation of the separate property.” Dunn v.
Dunn, 802 P.2d 1314, 1320 (Utah Ct. App. 1990). “However,
separate property is not totally beyond a court’s reach in an
equitable property division.” Elman v. Elman, 2002 UT App 83,
¶ 19, 45 P.3d 176 (quotation simplified). Utah law has identified
three circumstances that support an award of separate property
to the other spouse. Lindsey, 2017 UT App 38, ¶ 33. These
circumstances 	are: 	(1) 	“when 	separate 	property 	has 	been
commingled” with marital property; (2) “when the other spouse
has 	augmented, 	maintained, 	or 	protected 	the 	separate
property”—otherwise known as the contribution exception; and
(3) “in extraordinary situations when equity so demands.” Id.
¶16 	Here, the court did not rule that the practice had been
commingled4 	with 	marital 	property, 	or 	that 	this 	was 	an
4. We agree that the practice never became a marital asset under
the theory of commingling because Jerry kept the practice’s
accounts and the couple’s personal accounts separate at all
times. No money ever came back to the practice once it entered
(continued…)

Brown v. Brown
20190543 	9 	2020 UT App 146
extraordinary 	situation. 	Rather, 	it 	concluded 	that 	the
contribution exception applied. The contribution exception may
be satisfied in three ways: (1) “when one spouse brings assets
into the marriage and the other spouse’s prudent investment of
those 	assets 	substantially 	increases 	their 	value”; 	(2) 	“when
marital funds are expended or marital debt is incurred for the
benefit of one spouse’s separate property”; or (3) potentially,
“when one spouse works for a business owned by the other
spouse but is not paid a wage or salary.” Id. ¶ 35 (quotation
simplified).
¶17 	Here, the first contribution variant does not apply because
it is undisputed that Yvonne did not play a role in investing the
practice’s assets to substantially increase their value. The third
variant is likewise inapplicable because although Yvonne did
work at the practice for a time, she was paid a monthly salary for
that work and, indeed, she was paid that salary even when she
did not work. Rather, the court relied on the second variation of
the contribution exception when it ruled, “Because marital funds
were expended for the benefit of [the practice, it] was converted
from 	Jerry’s 	separate 	property 	to 	marital 	property.” 	This
determination was erroneous because it is clear from the record
that no marital funds were ever used to benefit the practice; the
flow of funds was only in the opposite direction.
¶18 	To reach its conclusion, the court determined that money
that stayed within the practice became marital property simply
because Jerry, having previously been more amenable to using
money from the practice to pay for family expenses, reduced the
amount of those transfers to help fund expansion of the practice.
The court reasoned that the practice was converted to a marital
(…continued)
the parties’ personal and joint accounts. Thus, it is clear that the
practice was never commingled with marital property, even
though practice funds were made available, when Jerry saw fit,
to subsidize the marital estate.

Brown v. Brown
20190543 	10 	2020 UT App 146
asset 	because 	funds 	that 	were 	normally 	diverted 	from 	the
practice to cover family expenses were instead retained to build
the practice. This premise does not satisfy the contribution
exception because the practice was at all times a separate asset,
and the flow of money went in only one direction: from the
practice’s accounts to the personal and joint accounts of Yvonne
and Jerry. Once this money left the practice and entered these
accounts, that money then became marital property.5 Cf. Keiter v.
Keiter, 2010 UT App 169, ¶ 19, 235 P.3d 782 (“[E]arned income
from 	employment 	or 	from 	rendering 	professional 	services
during a marriage falls within the usual definition of marital
property.”).
¶19 	But this one-way flow did not convert the source of that
money, 	i.e., 	the 	practice, 	into 	a 	marital 	asset. 	The 	practice
therefore never lost its separate character because no money
from a marital source was ever used for the benefit of the
practice, even though the converse was true. Cf. Schaumberg v.
Schaumberg, 875 P.2d 598, 603 (Utah Ct. App. 1994) (holding that
because husband used a marital loan to “maintain and augment”
a business asset, that “changed [the asset’s] character from a
personal asset to a marital asset”). And this is true even though
Jerry at times reduced the amount of money that left the practice
to help fund the family’s expenses. Given that Yvonne’s work at
the 	practice 	was 	financially 	compensated—indeed,
overcompensated—the only way that the practice in this case
could have become a marital asset is if money from Yvonne’s
and Jerry’s personal and joint accounts had been regularly used
to shore up the practice or the parties took out a marital debt to
fund the practice. See Lindsey, 2017 UT App 38, ¶ 35. Cf. Keiter,
2010 UT App 169, ¶ 24 (holding that a husband’s personal and
medical practice’s accounts were “inextricably commingled” and
both were marital assets because the husband deposited his
salary into both accounts and paid for business and personal
5. The district court considered Jerry’s historical use of business
funds to pay marital expenses in calculating alimony.

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expenses from both accounts) (quotation simplified). Here, in
contrast, the court explicitly found, with our emphasis, that
“Jerry decided to use income from [the practice] to reinvest in the
practice.” 	Thus, 	the 	practice 	retained 	its 	separate 	character
because the money that became a marital asset after leaving the
practice never returned to the practice. Nor were other marital
assets used to subsidize the practice.
¶20 	Yvonne claims that Keiter, 2010 UT App 169, requires
affirmance of the district court’s decision. There, the husband’s
income from his medical practice, which income was a marital
asset, see id. ¶ 19, “would be deposited along with his separate
earnings 	into 	his 	personal 	account 	[and] 	medical 	practice
account . . . [t]hen, both business and personal expenses would
be paid from those accounts,” id. ¶ 24. Given this routine, the
Keiter court determined that both accounts were marital assets
because 	“they 	were 	‘inextricably 	commingled’ 	with 	both
separate and marital income.” Id. Yvonne claims that the same
scenario is present here because Jerry “deposited some income
into his joint account with [her], some into a personal bank
account, and some into [the practice’s] account [and] paid family
expenses from each account.” But the critical difference between
Keiter and the case at hand is that in Keiter the husband’s salary
was 	deposited 	into 	the 	medical 	practice’s 	and 	the 	marital
account, thus commingling the practice’s account with marital
funds, and he then used the funds from both accounts to pay for
both 	business 	and 	personal 	expenses, 	thereby 	using 	marital
funds to support and improve his separate property. That is
classic 	commingling, 	a 	theory 	that 	the 	district 	court 	here
correctly avoided. See supra ¶ 16 & note 4.
¶21 	Unlike in Keiter, Jerry never deposited his salary—marital
income—into the practice’s account, which would have thereby
“inextricably commingled” marital funds with separate funds.
See 	Keiter, 	2010 	UT 	App 	169, 	¶ 24 	(quotation 	simplified).
Furthermore, Jerry never used marital funds to pay for business
expenses, as was the case in Keiter. Rather, Jerry’s salary left the
practice’s account and entered his personal account or a marital

Brown v. Brown
20190543 	12 	2020 UT App 146
account and was never used to cover the practice’s expenses,
which the district court specifically found when it stated that
only the practice’s own assets were used to expand the practice.
And 	while 	personal 	expenses 	were 	often 	covered 	with
additional funds from the practice’s account, this was a one-way
flow—no marital funds were ever used to pay for business
expenses. 	The 	district 	court 	therefore 	erred 	in 	treating 	the
practice as a marital asset and awarding Yvonne a portion of the
value of the practice.
II. Pre-decree Expenses
¶22 	Jerry next 	argues that the district court exceeded its
discretion by ordering him to “reimburse [Yvonne] for almost all
of 	her 	claimed 	expenses 	during 	the 	twenty-two-month[6]
pendency of their separation.”
¶23 	“Prior to the entry of a divorce decree, all property
acquired by parties to a marriage is marital property, owned
equally by each party.” Dahl v. Dahl, 2015 UT 79, ¶ 126, 459 P.3d
276. “For this reason, it is improper to allow one spouse access to
marital funds to pay for reasonable and ordinary living expenses
while the divorce is pending, while denying the other spouse the
same access.” Id.
¶24 	Here, the district court ruled that, “[p]ursuant to the rule
articulated in Dahl, [Yvonne]—like Jerry—was entitled to access
marital funds to pay her reasonable monthly expenses incurred
while the divorce was pending.” The court then ordered Jerry,
who effectively had control of the marital funds, to pay Yvonne
6. Jerry refers to this period as twenty-two months but it is clear
that the time frame in question is actually twenty-three months.
This is calculated from the time the couple separated in June
2017 up until trial in April 2019. When including June 2017 and
April 2019 in the calculation, this is a twenty-three month
period.

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20190543 	13 	2020 UT App 146
for her expenses insofar as they exceeded the income she earned
plus amounts Jerry advanced while the divorce was pending.
The net amount, with a further offset for the value of a laser she
sold for $10,000, amounted to $96,409.72.
¶25 	Jerry argues that the district court improperly applied our
Supreme Court’s holding in Dahl. In that case, the Court held
that the district court erred in requiring the wife, who was not
living in the marital home and had no access to the marital estate
during the pendency of the divorce, to repay her ex-husband
money that he had paid her from the marital estate during
the course of the divorce proceedings for her living expenses.
Id. ¶ 125. The Court ruled that because these funds came from
the marital estate and were used to pay the wife’s pre-decree
living expenses, she was not obligated to repay the money.
Id. ¶¶ 128–129.
¶26 	Jerry argues that Dahl does not apply to this case and does
not “stand for the proposition that the spouse with access to the
marital estate must pay all of the other spouse’s living expenses
during the pendency of the divorce.” This argument reflects a
misunderstanding of Dahl. The point of Dahl is not that only one
spouse may have “access to the marital estate” but that both do,
and both are entitled to rely on it to cover their “reasonable and
ordinary living expenses” pending entry of the divorce decree.7
Id. ¶ 126.
¶27 	It is true that Dahl is on a slightly different footing than
this case. In Dahl, our Supreme Court held that the wife did not
7. 	Pursuant 	to 	Dahl, 	the 	marital 	estate 	must 	pay 	for 	the
“reasonable and ordinary living expenses” of each party during
the pendency of their divorce proceedings. Dahl v. Dahl, 2015 UT
79, ¶ 126, 459 P.3d 276. While Yvonne’s expenses during the
relevant period may seem high, Jerry has made no claim that
these expenses, as found by the district court, were unreasonable
in light of the marital standard of living.

Brown v. Brown
20190543 	14 	2020 UT App 146
have to repay the money she received from the marital estate,
rather than, as here, directing that the marital estate would cover
the shortfall in her expenses.8 The Court in Dahl explicitly stated,
“Prior to the entry of a divorce decree, all property acquired by
parties to a marriage is marital property, owned equally by each
party,” and “it is improper to allow one spouse access to marital
funds to pay for reasonable and ordinary living expenses while
the divorce is pending, while denying the other spouse the same
access.” 	Id. 	(emphasis 	added). 	It 	further 	elaborated 	that
“allowing both spouses equal access to marital funds during the
pendency of a divorce promotes the goal of a fair, just, and
equitable distribution of marital property.” Id. (emphasis added)
(quotation 	otherwise 	simplified). 	Thus, 	Dahl 	stands 	for 	the
proposition that both spouses are entitled to equal access to the
marital 	estate 	to 	fund 	their 	reasonable 	and 	ordinary 	living
expenses 	pending 	the 	divorce. 	In 	accordance 	with 	this
proposition, the district court appropriately ordered the marital
estate to reimburse the shortfall in Yvonne’s pre-decree living
expenses 	with 	reference 	to 	the 	expense 	level 	it 	deemed
reasonable, to the extent those expenses exceeded her earned
income, asset sale, and the diminishing amounts Jerry made
8. Jerry characterizes the district court’s order to reimburse
Yvonne for her monthly expenses as requiring him to pay it. But
Jerry mischaracterizes what the court actually did. Conceptually,
it did not order him to pay all her expenses but ordered the
marital estate to cover Yvonne’s expenses, an estate in which
Yvonne had equal share and to which she should have had equal
access. See id. Jerry further argues that he should have to pay
only half, at most, of the court’s pre-decree expenses award. This
argument is unavailing, however, because Jerry took control of
the marital estate to continue to cover his own expenses but
deprived Yvonne of that same benefit. Thus, Jerry is required to
cover the shortfall in Yvonne’s living expenses from the marital
estate, to which he deprived Yvonne access while their divorce
was pending.

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20190543 	15 	2020 UT App 146
available to her.9 At this point, while Jerry might be signing the
check, the adjustment is conceptually made from the marital
estate—not from funds that are his own separate property. See
supra note 8.
¶28 	Jerry further argues that the district court’s award should
have been offset by the $100,000 he gave Yvonne in May 2015,
the value of the equipment he bought for her spa business, the
$120,000 he additionally contributed to her business, and other
money that he transferred to her from the practice’s accounts.
This 	argument 	is 	unavailing. 	First, 	the 	equipment 	assisted
Yvonne in earning an income and paying her bills. That earned
income reduced the amount of Yvonne’s monthly shortfall. The
cost of that equipment cannot, years later, be used as an offset
against Yvonne’s pre-decree living expenses, especially where
Yvonne’s earned income already offset those expenses. Second,
because the majority of these transactions occurred before the
couple’s 	decision 	in 	2017 	to 	seek 	a 	divorce, 	it 	was 	not
unreasonable for the court to ignore these transactions when
making its award for living expenses after that decision was
made, as Yvonne was still entitled to the benefit of the marital
estate to help cover those living expenses, as was Jerry, up until
the divorce decree was entered.10
9. As explained above, see supra ¶ 11, once the decision was
made to divorce, Jerry initially channeled $6,000 in marital funds
per month to Yvonne, leaving a shortfall of only a little over $600
per month. When that allowance dropped to zero for seven
months in 2018, the monthly shortfall increased by more than
tenfold, to over $6,600.
10. There is, however, an expense that Jerry calls to our attention
that 	is 	on 	a 	different 	footing, 	namely 	the 	$2,200 	monthly
payment for a laser that he continued to make even after the
couple’s June 2017 decision to divorce, and which he continued
to pay until March 2019, as specifically found by the district
(continued…)

Brown v. Brown
20190543 	16 	2020 UT App 146
¶29 	The court did, however, make a simple calculating error
when it ruled that “[f]or the ten months from August 2018 to
April 2019, [Yvonne’s] income was $4,446.92, her earned income
plus the $1,607 paid to her by Jerry. Her monthly expenses
exceeded 	her 	income 	by 	$5,017.53 	each 	month, 	for 	a 	total
shortfall of $50,175.30.” Both parties agree that the time period
actually amounted to nine months, not ten. Thus, the award
corresponding to that period should be reduced by $5,017.53. On
remand, the district court needs to adjust its pre-decree expense
award accordingly.
CONCLUSION
¶30 	The district court erred in concluding that the practice
had become a marital asset because no marital funds were used
to enhance the practice and the practice had not otherwise lost
its character as a separate asset. Beyond a simple calculating
error and the apparent oversight detailed in note 10, however,
the court did not exceed its discretion in its pre-decree expense
(…continued)
court. 	It 	is 	undisputed 	that 	Yvonne 	agreed 	to 	make 	those
payments, but she did not do so. The court did not circle back
and deal with these payments when determining its award of
pre-decree expenses to Yvonne, even though the court allowed
an offset for the $10,000 Yvonne realized upon sale of another
laser that Jerry financed, which surely seems analogous. Jerry’s
argument that he should have had a further offset for half of the
payments made for this laser during the relevant period is
persuasive. (As explained above, and as consistent with the
district court’s approach, this offset would be only for the
payments made between the time the couple decided to divorce
in June 2017 and the time Jerry paid off the laser in March 2019.)
On remand, the court should deal with this loose end and
further adjust the award for Yvonne’s pre-decree expenses as
may be appropriate.

Brown v. Brown
20190543 	17 	2020 UT App 146
ruling that required the marital estate to cover the shortfall in
Yvonne’s reasonable living expenses, as found by the court,
because Yvonne had an equal right to the marital estate to pay
those expenses.
¶31 	We remand to the district court to amend its decree to
incorporate 	appropriate 	changes, 	in 	accordance 	with 	this
opinion.