Krajeski v. Krajeski

2025 UT App 19
THE UTAH C OURT OF APPEALS
TAMI K RAJESKI ,
Appellee,
v.
DAVID L. K RAJESKI ,
Appellant.
Opinion
No. 20230174-CA
Filed February 13, 2025
Third District Court, Silver Summit Department
The Honorable Teresa Welch
The Honorable Richard E. Mrazik
No. 194500172
Julie J. Nelson and Aaron R. Harris,
Attorneys for Appellant
Bart J. Johnsen, Nicole A. Salazar-Hall, and Sarah
Jenkins Dewey, Attorneys for Appellee
JUDGE D AVID N. M ORTENSEN authored this Opinion, in which
JUDGES R YAN D. TENNEY and JOHN D. LUTHY concurred.
MORTENSEN, Judge:
¶1 	After entering their marriage with significant premarital
assets, David and Tami Krajeski divorced nine years later. Unable
to resolve the terms of their divorce, David and Tami1 went to
trial, which resulted in a significant number of findings of fact and
conclusions of law. Among the many decisions rendered, the
district 	court 	determined 	that 	much 	of 	David’s 	premarital
separate property had been transformed into marital property
1. To avoid confusion, we use the parties’ given names because
they share a common surname.

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through commingling. In addition, the district court awarded
Tami significant alimony, largely as an attempt to allow her to
purchase a house much like she had prior to the marriage, using
a Zillow estimate to substantiate her claim and an expense
spreadsheet prepared by her lawyer’s paralegal, both of which
David challenged on evidentiary grounds. Finally, Tami was also
awarded attorney fees, and David challenges the legal basis of
that award. In large measure, we agree with David that the district
court erred or exceeded its discretion in many of these rulings.
Accordingly, we reverse and vacate the judgment (decree) and
remand the case for further proceedings consistent with this
opinion.
BACKGROUND
The Marriage
¶2 	David and Tami married in 2010, each coming to the union
with significant premarital assets. Tami had investment accounts;
a house in Park City, Utah; and a house in St. George, Utah.
David’s wealth was greater, coming largely from two businesses
he had started years before: Park City Design Coalition (Design
Coalition) and DJK Properties LLC (DJK Properties). David had
retired from Design Coalition in 2008, at which point he stopped
taking 	draws 	from 	the 	company 	but 	did 	not 	dissolve 	the
company. Design Coalition was eventually closed and its assets
liquidated in 2014, with the proceeds (approximately $200,000)
being transferred to an account that belonged to David—account
#0410. DJK Properties, a property management company that
remains in business, has no employees but contracts with other
parties to find tenants, collect rent, and handle tenant issues for
the properties it owns. While David asserts that his involvement
with DJK Properties was “not on a day-to-day basis,” he was
involved in reviewing leases, meeting with an accountant and
property manager as necessary, signing checks, and authorizing

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payments. David did not receive a “salary” from DJK Properties;
instead, he took, in his words, “draws as needed to pay for [his]
lifestyle.” David also had other premarital property, including a
house in Peoa, Utah; a lot in Durango, Colorado; and several
retirement and investment accounts.
¶3 	Upon marriage, Tami moved out of her Park City residence
and into the Peoa house. In 2013, Tami sold the Park City house
and placed the proceeds in her own account. Tami and David
would occasionally winter at Tami’s St. George house. During the
marriage, 	David 	and 	Tami 	purchased 	another 	house 	in 	St.
George—the Ledges property—which was later sold, with some
of the proceeds being deposited into account #0557.2 Those funds
were then used to purchase another piece of property in Park
City—the Glenwild lot. Also during the marriage, David and
Tami opened account #1199, which was a joint account used by
the parties for the deposit of tax refunds.
¶4 	David and Tami separated in August 2019, and Tami filed
for divorce shortly thereafter. After the separation, David opened
another account, #1019, into which he deposited funds from the
2. David maintains that he alone funded the Ledges property by
using money from account #0410 and taking out mortgages on his
Peoa house and the Ledges lot. However, he acknowledges that
the mortgage on the Ledges lot was secured through another
account that Tami owned, but he asserts that “Tami did not
contribute any of her own money from that account towards
mortgage payments on the Ledges property or improvements to
that property.”

Krajeski v. Krajeski
20230174-CA 	4 	2025 UT App 19
sale of various items purchased during the marriage, including
proceeds from the sale of the Glenwild lot.3
The Divorce
A. 	Division of Financial Accounts, Investments, and Real
Property
¶5 	In the divorce proceedings, the parties’ property and
accounts were divided in various ways. We mention here only the
division of property relevant to the disputes on appeal.
1. 	Accounts #0557 and #9699
¶6 	David argued that these accounts represented his separate
income and were not marital. But the district court found that
David “earned income during the marriage that was distributed
for marital needs.” Specifically, the court found credible the
testimony of Tami’s expert that David’s earnings during the
marriage, which were reported on the parties’ joint tax returns,
were deposited into these accounts and the parties assumed the
tax liabilities related to these earnings. The court also found
credible the testimony offered by David’s expert that the parties
received a tax benefit from filing a joint return by pairing David’s
3. For the benefit of the reader, we provide this table of the
accounts referenced in this opinion:
Account No. 	Description
#0410, #9297,
#9567, #9568
Investment accounts; largely treated as one
account during the divorce proceedings
#9553 	DJK Properties account
#0557, #9699 	Marital expense accounts
#1199 	Marital tax refund account
#1019 	Post-separation account for proceeds from
sale of marital property

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income with Tami’s losses. As to the source of David’s income, the
district court found that David worked “approximately 20 hours
per week managing DJK [P]roperties” in a variety of capacities.
From this finding, the court concluded that David’s income from
DJK 	Properties 	was 	not 	passive, 	and 	the 	court 	was 	“not
persuaded that [David’s] management of DJK [P]roperties during
the marriage involved no work.” Moreover, the district court
found significant that “trial evidence indicated that monies from
these accounts were used for marital expenses.” The district court
also found that some funds from the sale of the Ledges property,
which had been “financed and developed during the marriage,”
had been deposited into account #0557. Based on these findings,
the court concluded that David’s earnings during the marriage
were marital income and that the “income in these accounts [was]
commingled and lost its separate identity.”
2. 	Account #9553
¶7 	Before trial, the district court entered an order declaring the
entity DJK Properties and its debt as David’s separate property.
However, the district court distinguished DJK Properties, which
belonged to David as separate property, from account #9553,
which was owned by DJK Properties. While DJK Properties as an
entity was not marital property, the district court found credible
the testimony of Tami’s expert that account #9553 contained
“marital 	funds 	that 	were 	earned 	during 	the 	marriage 	and
declared 	on 	the 	[parties’] 	joint 	tax 	returns.” 	It 	based 	this
conclusion on evidence that the cash balance in this account
“increased from $193,703 in December 2017 to $490,613 in June
2020, reflecting the increase in cash in the account due to [David]
decreasing his draws from DJK Properties.” Based on David’s
decision to leave marital funds that he was entitled to receive in
account #9553, the district court concluded that the account
included 	marital 	income—and 	was 	thus 	presumably
commingled—and should be “appropriately categorized as a
marital asset.” Notably, the district court did not find that David’s

Krajeski v. Krajeski
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decision to refrain from taking draws deprived the marriage of
needed resources, with the inference being that the parties had
other means to meet their needs. In addition, the district court did
not find that Tami contributed in any way to DJK Properties.
3. 	Accounts #0410, #9297, #9567, and #9568
¶8 	The district court found that these accounts had earnings
distributed to David from Design Coalition “during the [parties’]
marriage in 2014” and contained funds from account #1199, the
joint account opened for anticipated tax refund deposits. The
court found the testimony of Tami’s expert credible, and, in turn,
concluded that “there were several transfers between these four
accounts 	that 	resulted 	in 	the 	funds 	in 	the 	accounts 	being
commingled with marital funds from an accounting perspective,
and the funds in the accounts losing their separate identity.”
4. 	Other Investments and Real Property
¶9 	Based on its finding that account #0557 was marital due to
commingling, the court concluded that several other business
ownership interests David had acquired using funds from that
account were also marital and should be equitably divided
between the parties.4
¶10 	The district court determined that the St. George house was
Tami’s separate property because she had acquired it prior to the
marriage. And it concluded that David’s separate real property
consisted of the Peoa house, the lot in Durango, and the property
owned by DJK Properties. The sole piece of marital real property
4. David contends that accounts #0410, #9297, and #9568 were
used for these investments. Because the court had determined
these accounts were also marital due to commingling, the court’s
conclusion that the ownership interest was marital would remain
the same without regard to which account was used.

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was the Glenwild lot. The court concluded that it was marital
property because money from Tami’s bank account was used to
“fund a portion” of the Ledges property, which was sold with the
proceeds deposited into account #0557; and money from that
account was used to purchase the Glenwild lot, making it marital
property.
B. 	Alimony
¶11 	Tami sought alimony. The district court calculated her
monthly income from all sources, including imputed income, to
be $4,943. But based on Tami’s testimony, the court found her
monthly expenses to be $17,694.45, which the court deemed
“reasonable and credible in light of the marital standard of
living.” 	Key 	to 	the 	court’s 	alimony 	calculation 	was 	Tami’s
testimony that she desired “to purchase a house in Park City that
[was] comparable to the one that she had during the marriage so
that she [could] be close to family members and friends.” Tami
supported her alimony claim amount through her testimony, a
financial 	declaration 	with 	an 	accompanying 	spreadsheet
prepared by a paralegal in her attorney’s office, and several
printouts 	from 	Zillow 	showing 	houses 	approximating 	her
premarital Park City house that she sold in 2013. Tami anticipated
that her mortgage would be $8,186 based on the values listed on
Zillow for Park City houses comparable to her premarital Park
City house.
¶12 	Based on this evidence, the district court determined that
Tami’s needs exceeded her income and awarded Tami $12,751.45
per month in alimony.
C. 	Attorney Fees
¶13 	Prior to trial, the district court ordered David to pay
$50,000 in advance to Tami to cover attorney fees, noting that it
would require her to repay the fee advancement if it later

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determined that she had the ability to pay or that none of the
disputed assets were marital. On the later finding that the
disputed assets were marital, the court decided that Tami did not
need to repay the fee advancement.
ISSUES AND STANDARDS OF REVIEW
¶14 	First, David contends that the district court abused its
discretion 	when 	it 	determined 	certain 	assets 	were 	marital
property rather than separate property. We “review a district
court’s factual findings in this regard for clear error, and we
review for abuse of discretion its ultimate determination of
whether a particular item is separate or marital property.” Thorup
v. Thorup, 2024 UT App 93, ¶ 14, 554 P.3d 329; see also Godfrey v.
Godfrey, 2024 UT App 156, ¶¶ 34, 57, 560 P.3d 151 (reviewing a
district court’s determination that a business was marital property
deferentially under the abuse of discretion standard); Lindsey v.
Lindsey, 2017 UT App 38, ¶ 26, 392 P.3d 968 (“We generally defer
to a trial court’s categorization and equitable distribution of
separate property and uphold its determinations in that regard
unless 	a 	clear 	and 	prejudicial 	abuse 	of 	discretion 	is
demonstrated.” (cleaned up)); Thompson v. Thompson, 2009 UT
App 101, ¶ 10, 208 P.3d 539 (“Trial courts are in the best position
to determine whether property is marital or separate, and we
defer to their findings of fact unless clearly erroneous.”).5
5. While both parties posit that this alleged error should be
reviewed for abuse of discretion, both simultaneously suggest
that “whether property is marital or separate is a question of law,
which we review for correctness.” See Brown v. Brown, 2020 UT
App 146, ¶ 13, 476 P.3d 554 (cleaned up); see also Liston v. Liston,
2011 UT App 433, ¶ 5, 269 P.3d 169 (“[W]hether property is
marital or separate is a question of law . . . .”). We think the
(continued…)

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correctness standard somewhat misses the mark by painting the
scene with too broad a brush.
Insofar as we can tell, correctness as the standard of review
for determination of property being marital or separate finds its
origin in Jefferies v. Jefferies, 895 P.2d 835 (Utah Ct. App. 1995), an
opinion dating from a period when Utah appellate courts began
focusing their attention on articulating standards of review with
greater precision. See id. at 836 (“Whether a 401(a) plan can be
considered marital property is a question of law, which we review
for correctness.”); see also State v. Pena, 869 P.2d 932, 935–36 (Utah
1994) (recognizing the shift to better articulating standards of
review), abrogated on other grounds as recognized by USA Power, LLC
v. PacifiCorp, 2016 UT 20, 372 P.3d 629. But even in the immediate
years after Jeffries, there appears to have been some reticence to
view this issue as purely legal. See Bradford v. Bradford, 1999 UT
App 373, ¶ 11, 993 P.2d 887 (“This issue primarily presents a
question of law; therefore, we review the trial court’s legal
conclusions concerning the nature of property for correctness.”
(emphasis added)). 	And 	during 	subsequent 	years, 	we 	have
moved to a more nuanced standard of review that embraces not
only correctness and abuse of discretion, but also one of limited
deference for mixed questions of law and fact. We recognized this
circumstance in Godfrey v. Godfrey, 2024 UT App 156, 560 P.3d 151,
where we acknowledged that this “court has inconsistently
articulated the standard of review to be applied when reviewing
a trial court’s determination that property is marital or separate.”
Id. ¶ 34 n.5. Indeed, some opinions have treated the determination
of the district court in this regard deferentially, reviewing it for an
abuse of discretion, see, e.g., Thorup v. Thorup, 2024 UT App 93,
¶ 14, 554 P.3d 329; Lindsey v. Lindsey, 2017 UT App 38, ¶ 26, 392
P.3d 968; Thompson v. Thompson, 2009 UT App 101, ¶ 10, 208 P.3d
539, while others embrace the older correctness standard, see, e.g.,
(continued…)

Krajeski v. Krajeski
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¶15 	Second, David asserts that the district court erred in setting
Tami’s alimony amount, arguing that it was unsupported by
sufficient evidence to prove Tami’s needs. “We review a district
court’s alimony determination for an abuse of discretion and will
not disturb its ruling on alimony as long as the court exercises its
discretion within the bounds and under the standards we have set
and has supported its decision with adequate findings and
conclusions.” Gardner v. Gardner, 2019 UT 61, ¶ 16, 452 P.3d 1134
(cleaned 	up). 	With 	respect 	to 	the 	admissibility 	of 	evidence
supporting the alimony award, two different standards of review
apply: “The first standard of review, correctness, applies to the
legal questions underlying the admissibility of evidence. The
second standard of review, abuse of discretion, applies to the trial
court’s decision to admit or exclude evidence.” Dierl v. Birkin, 2023
Fischer v. Fischer, 2021 UT App 145, ¶ 13, 505 P.3d 56; Brown, 2020
UT App 146, ¶ 13; Liston, 2011 UT App 433, ¶ 5.
Here, while in no way attempting to definitively resolve
the matter, we have followed the trend of those cases that regard
this issue as a mixed question that is more fact-like, giving rise to
a review of deference to the district court’s applications of the law
to the facts. See Randolph v. State, 2022 UT 34, ¶ 24, 515 P.3d 444
(“Fact-like mixed questions generally arise when a district court’s
application of a legal concept is highly fact dependent and
variable. Or when the factual scenarios presented are so complex
and varying that no rule adequately addressing the relevance of
all these facts can be spelled out. For this reason, we review fact-
like mixed questions deferentially.” (cleaned up)). We do not need
to definitively decide this nuanced question here because we
conclude that the district court’s analysis does not withstand
scrutiny under any of these standards. But we leave open the
prospect of more definitively deciding this question in some
future case in which it is briefed by the parties and material to our
appellate decision.

Krajeski v. Krajeski
20230174-CA 	11 	2025 UT App 19
UT App 6, ¶ 15, 525 P.3d 127 (cleaned up), cert. denied, 527 P.3d
1107 (Utah 2023).
¶16 	David’s final challenge is that the district court abused its
discretion in awarding Tami attorney fees. While “we review the
district court’s award or denial of fees for abuse of discretion,” an
“award based on insufficient factual findings is an abuse of
discretion and requires remand.” Dahl v. Dahl, 2015 UT 79, ¶ 168,
459 P.3d 276. And, as relevant here, when a district court
misunderstands or misapplies the law, it abuses its discretion. See
Johnson v. Johnson, 2014 UT 21, ¶ 24, 330 P.3d 704 (“[T]he district
court applied the wrong legal standard, and in so doing, abused
its discretion.”); see also Featherstone v. Schaerrer, 2001 UT 86, ¶ 41,
34 P.3d 194 (“[T]he court abused its discretion by applying the
wrong legal standard in determining the costs and attorney fees
. . . .”).
ANALYSIS
I. Property Division
¶17 	David first argues that the district court “misunderstood
and misapplied Utah law when it concluded that a significant
amount 	of 	David’s 	premarital, 	separate 	property 	was
commingled.” We agree with David.
¶18 	In Utah, “the presumption is that marital property will be
divided equally while separate property will not be divided at all.
Married persons have a right to separately own and enjoy
property, and that right does not dissipate upon divorce.” Lindsey
v. Lindsey, 2017 UT App 38, ¶ 32, 392 P.3d 968 (cleaned up).
“Marital property is ordinarily all property acquired during the
marriage, whenever obtained and from whatever source derived.
Separate property, in contrast, is typically a spouse’s premarital
property or property received by gift or inheritance during the

Krajeski v. Krajeski
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marriage.” DeAvila v. DeAvila, 2017 UT App 146, ¶ 15, 402 P.3d
184 (cleaned up).
¶19 	However, separate property is not absolutely insulated
from division upon divorce. See Lindsey, 2017 UT App 38, ¶ 33
(“Separate 	property 	is 	not 	totally 	beyond 	a 	court’s 	reach.”
(cleaned up)). “Three circumstances have been identified under
Utah law as supporting an award of separate property at the time
of divorce. These exceptions are when separate property has been
commingled; when the other spouse has augmented, maintained,
or 	protected 	the 	separate 	property; 	and 	in 	extraordinary
situations 	when 	equity 	so 	demands.” 	Id. 	The 	district 	court
determined that the first of these circumstances is at issue here.
We recently addressed the nature of commingled property:
Separate property will be considered commingled
when it has been mixed in with marital assets to
such a degree that it is no longer reasonably possible
to distinguish between the separate and marital
property. On the other hand, if the marital and
premarital interests are still reasonably capable of
being 	traced 	and 	identified, 	then 	the 	separate
property retains its separate nature and will not be
considered commingled.
Thorup v. Thorup, 2024 UT App 93, ¶ 24, 554 P.3d 329 (cleaned up).
Thus, “this inquiry often turns on whether the property’s separate
identity can still be traced or accounted for,” with the relevant
question 	being 	“whether 	the 	property 	at 	issue 	became 	so
commingled that it could not be segregated from the marital
estate.” Id. (cleaned up). Put another way, “separate property may
be 	considered 	commingled 	if 	it 	becomes 	inextricably 	and
untraceably intertwined with marital assets.” Id.; see also Dahl v.
Dahl, 2015 UT 79, ¶ 143, 459 P.3d 276 (“[P]remarital property may
lose its separate character where the parties have inextricably
commingled it with the marital estate . . . .”).

Krajeski v. Krajeski
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¶20 	We conclude that the district court abused its discretion in
determining 	that 	David’s 	separate 	premarital 	assets 	were
commingled and had been transformed into marital assets. We
address the separate groupings of the accounts and property in
turn.
A. 	Account #9553
¶21 	David takes issue with the district court’s reasoning that
because he reduced his draws from DJK Properties in 2018 and
2019, account #9553 became marital. David argues that the court’s
approach was “doubly wrong” because “David’s reducing his
draws did not render the account marital, and even if it did, no
basis exists for awarding Tami a marital share of the entire
account.” We agree with David that the district court’s analysis
was flawed.
¶22 	The district court relied on Keyes v. Keyes, 2015 UT App 114,
351 P.3d 90, which indeed stated, in the district court’s words, that
“keeping salary or distributions artificially low may be a basis for
awarding the other spouse an interest in business assets to which
he 	or 	she 	may 	otherwise 	not 	be 	entitled.” 	Based 	on 	this
proposition, the court concluded the entirety of account #9553 was
a marital asset because it contained income David was entitled to
receive. The district court, however, misread Keyes to reach this
conclusion; simply put, the opinion does not provide the support
the district court read into it. If anything, Keyes compels a contrary
conclusion.
¶23 	In Keyes, this court remanded a matter for a trial court to
enter more detailed findings to support awarding an interest in
the inventory of one spouse’s business to the other spouse. Id.
¶ 31. The wife in Keyes had presented evidence that (1) she had
helped the business acquire some equipment and (2) the business
acquired inventory during the course of the marriage. Id. ¶ 5.
Based on this evidence, the trial court awarded the wife one-half

Krajeski v. Krajeski
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of the interest in the business’s inventory. Id. The Keyes court
acknowledged that an award of an interest in a business might
arise if one spouse “was reinvesting money into the business that
should properly have benefited the marriage, for example, by
keeping [that spouse’s] salary or distributions artificially low.” Id.
¶ 30. But based on the facts that the underlying business was
separate property and the inventory in question was purchased
using business resources, this court concluded that the trial
“court’s findings lack[ed] sufficient detail and enough subsidiary
facts to disclose the steps by which the ultimate conclusion was
reached.” Id. (cleaned up).
¶24 	Here, we encounter an analogous situation to that in Keyes.
The draws that David did not take belonged to DJK Properties,
which was separate property. And it is obviously true that DJK
Properties acquired the money that David did not take during the
course of the marriage. We are not persuaded that Keyes supports
the conclusion that merely leaving money in the account renders
that account marital. Keyes focused on the wife’s assertion that she
contributed personally to the entity, an assertion entirely missing
in this case. Moreover, there was never any evidence presented
that the money David did not take in draws in 2018 and 2019 was
needed in the marriage. That the money left in the business
“should properly have benefited the marriage” was identified as
a crucial factor in in Keyes. See id. But here, the district court made
no attempt to address how the money David left in DJK Properties
would have benefited the marriage if it had been distributed or if
the marriage suffered as a result of being deprived of that income.
Indeed, there is no finding that the marriage suffered in any way
by this action. It could have been just as likely that the parties
relied on some other resources or that they simply didn’t require
these draws to meet their needs. In this sense, as David points out,
account #9553 was more akin to a premarital trust fund that one
spouse might withdraw money from to pay for marital luxuries.
That the spouse should choose in some years to leave money in

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the trust fund would not transform the trust fund into marital
property.
¶25 	Our decision in Brown v. Brown, 2020 UT App 146, 476 P.3d
554, further supports our conclusion that the district court’s
reasoning was flawed. In Brown, the lower court had determined
that the husband’s dental practice had been converted from
separate property to marital property because “marital funds
were expended for the benefit of the practice.” Id. ¶ 10 (cleaned
up). The lower court based this ruling on its finding that the
husband had “on two occasions . . . decided to use income from
the practice to reinvest in the practice.” Id. (cleaned up). The lower
court concluded that this diversion of income back into the
practice decreased the funds the husband was able pull from “the
practice to pay marital expenses as he routinely had done.” Id.
(cleaned up). In addition, the lower court found that reinvesting
in the practice reduced marital income and affected the way the
couple traveled. Id.
¶26 	On appeal, the husband argued the lower court erred in
concluding that the practice, which had unquestionably been his
separate property at the outset of the marriage, “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.” Id.
¶ 15. We agreed with the husband and reversed the ruling of the
lower court, which had reasoned that “the practice was converted
to a marital asset because funds that were normally diverted from
the practice to cover family expenses were instead retained to
build the practice.” Id. ¶ 18. We explained, “[The] 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 . . . .” Id. ¶ 19. We concluded that this
was “true even though [the husband] at times reduced the
amount of money that left the practice to help fund the family’s

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expenses.” Id. Thus, we determined that “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.” Id.
¶27 	While Brown was on a slightly different footing from the
case at hand because it was analyzed as a contribution case rather
than a commingling case, see id. ¶ 16, the principle it articulated—
that a one-way flow of money does not convert the source of that
money 	into 	a 	marital 	asset—applies 	here.6 	David 	received
distributions from DJK Properties, an entity declared as separate
property. He used those distributions for marital expenses. But he
did not take distributions in 2018 and 2019. This mere fact did not
create a backflow of marital property into DJK Properties that
transformed the account in which that money remained into
marital property (whether through contribution or commingling)
because—just as in Brown—no money from a marital source ever
went into account #9553 to be commingled with or to augment
DJK Properties’ assets. Thus, based on our reasoning in Brown
alone, we have no trouble concluding that the district court
abused its discretion when it deemed account #9553 to be marital.
B. 	Accounts #0557 and #9699
¶28 	Because 	David 	deposited 	distributions 	from 	DJK
Properties into accounts #0557 and #9699, the nature of his work
with that company was central to the district court’s decision
about whether these accounts were marital or separate property.
On appeal, David argues that the district court erred when it
6. Indeed, the Brown court applied commingling principles as an
analog in its contribution analysis. See Brown v. Brown, 2020 UT
App 146, ¶¶ 20–21, 476 P.3d 554. In addition, because the district
court in the present case appears to have perhaps conflated the
contribution 	and 	commingling 	exceptions 	throughout 	its
analysis, we find it necessary to refer to both exceptions.

Krajeski v. Krajeski
20230174-CA 	17 	2025 UT App 19
labeled distributions DJK Properties made to David as his earned
income. David asserts that the district court ignored evidence that
he 	was 	retired 	and 	relied 	on 	contractors 	to 	perform 	DJK
Properties’ work. We agree with David. On review, the great
weight of the evidence (indeed all the evidence that could be
properly considered) does not support the district court’s findings
and conclusions. The district court wrongly relied on a statement
that was not in evidence, and the district court once again
inappropriately concluded that using funds for marital expenses
from an account holding separate property transformed those
separate funds into a marital asset.
¶29 	In 	his 	direct 	testimony, 	David 	asserted 	that 	his
involvement 	in 	DJK 	Properties 	had 	“never 	been 	a 	time-
consuming endeavor,” but he acknowledged that it involved
regularly 	reviewing 	leases 	with 	a 	real 	estate 	broker 	and
commercial tenants, meeting with an accountant and property
manager, signing checks, and authorizing payments. It was from
this level of involvement that the court concluded that the money
distributed from DJK Properties was not passive income, and it
was 	“not 	persuaded 	that 	[David’s] 	management 	of 	DJK
[P]roperties during the marriage involved no work.” Thus, when
David received distributions from DJK Properties during the
marriage and used that money to fund his and Tami’s lifestyle—
as the district court saw it—he “earned income during the
marriage that was distributed for marital needs” and the accounts
that money was in became marital property.
¶30 	Insofar as a district court’s conclusions rely on its factual
findings, this court will reverse if those findings are “against the
clear weight of the evidence, or if we otherwise reach a definite
and firm conviction that a mistake has been made.” Ashby v. State,
2023 UT 19, ¶ 46, 535 P.3d 828 (cleaned up). In other words, we
reverse a district court’s rulings and remand a matter if “it is not
clear from the district court’s findings that it considered” all the
evidence and “fully evaluate[d] that evidence.” See Twitchell v.

Krajeski v. Krajeski
20230174-CA 	18 	2025 UT App 19
Twitchell, 2022 UT App 49, ¶ 19, 509 P.3d 806. “There must be
adequate factual findings to reveal how the court reached its
conclusions and to establish that the court’s judgment or decree
follows logically from, and is supported by, the evidence. The
touchstone of adequate findings is that they are sufficiently
detailed and include enough subsidiary facts to disclose the steps
by which the ultimate conclusion on each factual issue was
reached.” Keyes, 2015 UT App 114, ¶ 29 (cleaned up).
¶31 	Here, 	the 	district 	court’s 	determination 	that 	the
distributions David received from DJK Properties represented
earned income was flawed because it was unsupported by the
evidence. 	Both 	parties 	testified 	that 	David 	was 	retired.
Furthermore, David testified as follows about DJK Properties:
The company has no employees; rather, it uses a real
estate broker to find potential tenants, an outside
accountant to track and handle tenant and building
finances as well as collect rent, and an outside
property management company to handle all tenant
issues, repairs, and maintenance.
Historically, 	I 	have 	been 	involved 	in 	DJK
[Properties] operations, but not on a day-to-day
basis; rather, I review leases with my real estate
broker and the commercial tenants and meet with
the 	accountant 	and 	property 	manager 	when
necessary 	to 	receive 	reports, 	sign 	checks, 	and
authorize payments. My involvement has never
been a time-consuming endeavor.
In addition, David testified that he had “never received a salary
from DJK Properties; rather, since [he] created DJK Properties, [he
had] taken draws as needed to pay for [his] lifestyle.” This means
that the money David received from DJK Properties was not
remuneration in exchange for work he completed on behalf of the

Krajeski v. Krajeski
20230174-CA 	19 	2025 UT App 19
company; rather, the money was in the form of distributions
that he would have received irrespective of his management
activity. The district court received testimony to this effect on
the nature of these distributions from DJK Properties from
David’s 	expert. 	He 	explained 	that 	the 	distributions 	were
“investment 	income 	that 	an 	individual 	receives 	for 	an
investment 	in 	which 	they 	didn’t 	actively 	and 	materially
participate,” which means that “they weren’t the driving force
behind generating the revenue, they weren’t the driving force
[behind] 	the 	day-to-day 	management 	of 	the 	asset 	or 	the
investment.” Accordingly, the expert described the distributions
from 	DJK 	Properties 	as 	“passive 	income 	from 	[David’s]
premarital . . . company.”
¶32 	Rather than relying on this trial evidence, the district court
appeared 	to 	rely 	on 	a 	declaration—referenced 	by 	Tami 	in
closing 	argument—that 	David 	made 	early 	in 	the 	divorce
proceedings in which he stated that he continued “to work
approximately 20 hours per week managing” DJK Properties. But
Tami never sought to admit this declaration as evidence, and
David 	was 	never 	cross-examined 	about 	its 	apparent
inconsistency with his trial testimony. Indeed, David objected
that Tami was not allowed, “after completion of trial and the
close of evidence,” to “present materials outside of the trial
record by simply referring to materials on the docket.” And
then to compound matters, the district court appears to have
relied on this extra-record reference in drafting its findings of
fact and conclusions of law, where it explicitly quoted David’s
declaration that he worked “approximately 20 hours per week
managing” DJK Properties. But the district court abused its
discretion in doing so because it was required to rely on the
evidence presented at trial to make its findings of fact. After all,
it’s axiomatic that a court cannot rely on evidence that has
not been properly presented. See Kunzler v. Kunzler, 2008 UT
App 263, ¶ 17, 190 P.3d 497 (“It is . . . axiomatic that a trial
court cannot use statements . . . that were never properly

Krajeski v. Krajeski
20230174-CA 	20 	2025 UT App 19
admitted into evidence at trial as support for a factual finding.”);
see also Dahl v. Dahl, 2015 UT 79, ¶ 121, 459 P.3d 276 (“District
courts must . . . enter findings of fact establishing that the court’s
judgment or decree follows logically from, and is supported by,
the evidence.” (cleaned up)); Butler, Crockett & Walsh Dev. Corp. v.
Pinecrest Pipeline Operating Co., 909 P.2d 225, 231 (Utah 1995);
Acton v. J.B. Deliran, 737 P.2d 996, 999 (Utah 1987) (“The findings
of fact must show that the court’s judgment or decree follows
logically from, and is supported by, the evidence.” (cleaned up));
Smith v. Smith, 726 P.2d 423, 426 (Utah 1986); cf. Taylor v. State,
2012 UT 5, ¶ 31, 270 P.3d 471 (“It is axiomatic that the jury’s
verdict must be based on evidence received in open court and not
from outside sources.” (cleaned up)). Thus, the district court
abused its discretion in determining that these two accounts were
marital because that determination relied on evidence that was
not admitted at trial and ignored contradictory evidence that was
admitted at trial.
¶33 	The district court also found that “[c]redible trial evidence
indicated that monies from these accounts were used for marital
expenses.” To the extent that the district court relied on evidence
that money from these accounts benefited the marital estate to
reach its conclusion that these accounts were marital property, it
further abused its discretion. To be clear, the use of separate
property—which 	is 	what 	the 	properly 	admitted 	evidence
indicated the distributions from DJK Properties were—for the
benefit of the marital estate does not transform the source of that
separate property into marital property. The premise that using
one 	spouse’s 	separate-property 	bank 	accounts 	for 	marital
expenses converts those bank accounts into marital property is,
simply put, legally incorrect. As we explained above, this point is
clear enough from our jurisprudence. See Brown v. Brown, 2020 UT
App 146, ¶ 19, 476 P.3d 554 (“But this one-way flow did not
convert the source of that money . . . into a marital asset.”); Hall v.
Hall, 	858 	P.2d 	1018, 	1021–23 	& 	n.1 	(Utah 	Ct. 	App. 	1993)

Krajeski v. Krajeski
20230174-CA 	21 	2025 UT App 19
(recognizing 	that 	a 	spouse’s 	inheritance 	remained 	separate
property even though it was used for marital expenses).
¶34 	The district court also appears to have been swayed by the
fact that the distributions from DJK Properties were reported on
the couple’s joint tax returns in reaching its conclusion that these
accounts were marital. The district court stated that it received
testimony that filing jointly benefited the marriage by allowing
the couple “to claim a refund for which they otherwise would not
have qualified.” Again, applying the principle laid out in Brown,
we fail to see how this fact is relevant to the determination that
accounts would be converted into marital assets. In short, that the
distributions from DJK Properties were reported on the couple’s
joint tax returns and may have thereby benefitted the marital
estate has no bearing on whether the two accounts in question
here were marital.
¶35 	Finally, the district court received testimony that some
funds from the sale of the Ledges property were deposited into
account #0557. The Ledges property, the court noted, had been
“jointly 	financed 	and 	developed 	during 	the 	marriage,”
presumably rendering it marital property. The court summarized
the testimony of the experts about this matter as follows:
[Tami’s expert] credibly testified that the funds lost
their 	individual 	identity 	when 	the 	funds 	were
deposited into the account. And although [David’s
expert] traced the cash deposits into the account, he
did 	not 	account 	for 	the 	withdrawals 	from 	the
account or how the funds were spent. [David’s
expert] conceded that the funds are “commingled”
from an accounting perspective, and that he could
not identify which dollars are which in the account.
The Court also finds that the fact [David’s expert]
had to prorate the account demonstrates that the

Krajeski v. Krajeski
20230174-CA 	22 	2025 UT App 19
funds are commingled and have lost their separate
identity.
From this testimony, the court concluded that account #0557 was
commingled and had lost its separate identity. This conclusion
may have been misguided.
¶36 	That an accountant resorts to proration to identify the
relative ownership of funds in an account does not necessarily
mean that funds are untraceable such that they have become
commingled. Indeed, proration has long been accepted as a
standard for identifying and allocating an asset that includes
marital and separate funds. See Woodward v. Woodward, 656 P.2d
431, 433–34 (Utah 1982) (relying on proration for the division of
retirement benefits). On remand, the district court should revisit
this conclusion to determine whether, on the basis of proration,
the funds from the sale of the Ledges property are traceable or
whether they have indeed been commingled.7
C. 	Accounts #0410, #9297, #9567, and #9568
¶37 	David argues that he held accounts #0410, #9297, #9567,
and #9568 long before marrying Tami and that the district court
erred in concluding that these accounts were all marital. The court
concluded 	that 	these 	accounts 	were 	marital 	due 	to 	three
circumstances: (1) they contained earnings distributed to David
from Design Coalition during the marriage; (2) they contained
funds from account #1199, which was a joint account opened
during the parties’ marriage; and (3) based on the testimony of
Tami’s expert, several transfers resulted in the funds being
commingled with marital funds and the funds in the accounts
7. Of course, if the Ledges property is determined to be separate,
see infra ¶ 42, this analysis will need to be adjusted accordingly.

Krajeski v. Krajeski
20230174-CA 	23 	2025 UT App 19
losing their separate identity. We agree with David that the
district court’s approach was flawed.
¶38 	As 	to 	the 	funds 	distributed 	to 	David 	from 	Design
Coalition, the great weight of evidence at trial indicated that
they 	were 	a 	return 	on 	capital 	rather 	than 	earnings. 	These
funds were distributed in late 2014 when Design Coalition
closed down. Tami’s expert stated that it was “not conclusive,
in [his] opinion, as to whether or not those were earnings or
just return of capital.” David’s expert, on the other hand, testified
that David received about $200,000 back from Design Coalition
when it closed down. Given that this was less cash than the
company had at the time of the marriage, David’s expert said that
it was “reasonable to conclude” this amount represented a “return
on capital” and “not income.” The court clearly abused its
discretion 	in 	relying 	on 	Tami’s 	expert’s 	noncommittal 	and
uncertain opinion to find that David received earnings from
Design 	Coalition 	during 	the 	marriage, 	especially 	given 	the
testimony from David’s expert that those funds were a return on
investment of separate property. See generally Ashby, 2023 UT 19,
¶ 46 (“We will set aside a district court’s factual finding as clearly
erroneous only if it is against the clear weight of the evidence, or
if we otherwise reach a definite and firm conviction that a mistake
has been made.” (cleaned up)).
¶39 	As to the number of deposits made into these accounts,
David’s expert and Tami’s expert agreed that there were only two:
one from Design Coalition and one from account #1199. Given the
discrete nature of these deposits, the associated funds would
likely not be untraceable so as to render separate-asset accounts
#0410, 	#9297, 	#9567, 	and 	#9568 	marital 	assets 	through
commingling. 	Instead, 	they 	would 	be 	easily 	traceable, 	and
therefore, not sufficient to sustain a finding of commingling.
¶40 	Given the lack of evidentiary support for the finding that
the deposit from Design Coalition in 2014 represented earnings

Krajeski v. Krajeski
20230174-CA 	24 	2025 UT App 19
rather than a return on investment, we reverse the district court’s
determination that accounts #0410, #9297, #9567, and #9568 are
marital assets.
D. 	Other Investments and Property
¶41 	With regard to other investments and property being
marital, the district court’s conclusion that the funds used to
complete those transactions were marital assets led it to further
conclude that the assets obtained with those funds were also
marital property. And it is well-established that “marital property
ordinarily 	includes 	all 	property 	acquired 	during 	marriage,
whenever obtained and from whatever source derived.” Lindsey
v. Lindsey, 2017 UT App 38, ¶ 31, 392 P.3d 968 (cleaned up).
¶42 	However, if separate assets were actually used to complete
these transactions, then those newly purchased assets would not
be marital property. The presumption that property acquired
during 	marriage 	is 	marital 	property 	is 	rebuttable 	in 	some
circumstances. See In re Estate of Gorrell, 765 P.2d 878, 879 (Utah
1988) (“In the absence of proof of actual ownership, property in
the marital home is presumed to be held in a tenancy in common,
half by the husband, half by the wife. This presumption is
rebuttable 	and 	reflects 	the 	usual 	realities 	of 	the 	marital
relationship.” 	(cleaned 	up)). 	Given 	our 	serious concerns, 	as
detailed 	above, 	about 	the 	district 	court’s 	overall 	analysis
regarding the categorization of marital and separate assets, it
appears that the same flawed reasoning permeated the decisions
regarding the division of other investments and real property,
thus necessitating that we vacate and remand the court’s findings
and conclusions in this regard. Of primary concern on remand
will be the character of the funds (namely, marital or separate)
that were used to pay for the Ledges property and the Glenwild
lot. The district court appears to have based its conclusion that
this real property was marital on the commingling exception. The
court explained that the Glenwild lot was purchased using funds

Krajeski v. Krajeski
20230174-CA 	25 	2025 UT App 19
from account #0557, which were available due to the sale of the
Ledges property. But Tami testified that her financial contribution
to the Ledges property was limited to two mortgage payments
over approximately three years, with David assuming all the
other costs through loans secured by his separate assets. David
testified largely the same about the financial involvement of the
parties in the Ledges property.
¶43 	While the resolution of this issue is left to the district
court on remand, our review of the record seems to indicate
that the Ledges property (and, by extension, the Glenwild lot)
were acquired by David using his separate assets. In short,
these real estate transactions appear to be investments David
made using his separate premarital assets. If this is the case, it
really doesn’t matter if the “mere form” of David’s separate
property has changed. See Burt v. Burt, 799 P.2d 1166, 1169 (Utah
Ct. App. 1990). “Conversion from one investment medium to
another does not, by itself, destroy the integrity of segregation” or
the 	separate 	nature 	of 	one 	spouse’s 	property. 	Id. 	To 	hold
otherwise 	“would 	unreasonably 	discourage 	the 	prudent
investment” of separate assets. Id. “In order to preserve the
property’s separate character, the [owning spouse] would [if not
permitted to invest in different mediums] be required to maintain
the property in the same physical form in which it was received,
be it securities, real estate, or cash. The law does not require such
economic absurdity.” Id.
¶44 	Thus, if only David’s separate assets were used to purchase
real property or make other investments, that real property or
other investments would remain David’s separate property. On
remand, the determination of whether the other real property and
other investments at issue are marital or separate property will be
driven by the extent to which the money used to acquire them “is
readily traceable” as David’s separate property and “has not been
commingled.” Id.

Krajeski v. Krajeski
20230174-CA 	26 	2025 UT App 19
II. Alimony
¶45 	David next argues that the district court erred in setting
Tami’s alimony award because she failed to substantiate her
claims regarding the marital standard of living. David specifically
finds fault with (1) the district court’s admission of an “expenses
spreadsheet” prepared by a paralegal in the office of Tami’s
counsel “purporting to reflect marital spending and [Tami’s]
needs” accompanied by Tami’s failure “to provide the required
documentation to support her request for alimony” and (2) the
district court awarding Tami alimony for housing based on
amounts 	indicated 	on 	Zillow 	printouts 	that 	substantially
exceeded 	the 	monthly 	cost 	of 	housing 	incurred 	during 	the
marriage. Again, we agree with David.
¶46 	“Under Utah law, the primary purposes of alimony are:
(1) to get the parties as close as possible to the same standard of
living that existed during the marriage; (2) to equalize the
standards of living of each party; and (3) to prevent the recipient
spouse from becoming a public charge.” Miner v. Miner, 2021 UT
App 77, ¶ 14, 496 P.3d 242 (cleaned up). “A party seeking alimony
bears the burden of demonstrating to the court that the Jones
factors support an award of alimony.” Dahl v. Dahl, 2015 UT 79,
¶ 95, 459 P.3d 276. These factors, articulated in Jones v. Jones, 700
P.2d 1072 (Utah 1985), are “the financial condition and needs of
the recipient spouse, the recipient’s earning capacity, and the
ability of the payor spouse to provide support,” Fox v. Fox, 2022
UT App 88, ¶ 20, 515 P.3d 481 (cleaned up). “The most common
way for a party to satisfy this burden is for the party to provide
the court with a credible financial declaration and supporting
financial documentation to demonstrate that the Jones factors
support an award of alimony.” Wellman v. Kawasaki, 2023 UT App
11, ¶ 14, 525 P.3d 139 (cleaned up). Merely showing a “recollection
of . . . marital expenses” but providing “no financial declaration,
no supporting financial documentation, [or] no expert testimony”
is not enough. Dahl, 2015 UT 79, ¶ 108. Such “unsubstantiated

Krajeski v. Krajeski
20230174-CA 	27 	2025 UT App 19
testimony” does “not satisfy [the] burden of showing . . . financial
need.” Id.
¶47 	Here, as part of her testimony, Tami provided the district
court with an expenses spreadsheet prepared by a paralegal in the
office of her attorney. We acknowledge that there is nothing
wrong, per se, with a spreadsheet being prepared by a paralegal.
The 	fault 	in 	its 	admission 	here 	was 	the 	fact 	that 	it 	was
unaccompanied by the underlying documentation, Tami did not
separately 	provide 	the 	documentation, 	and 	Tami 	could 	not
answer basic questions about the summary. And when asked how
the spreadsheet was created, Tami’s counsel simply answered
that it was not an unusual practice and that his office did this “on
every case.” The district court then chose to admit the spreadsheet
“[b]ased upon the proffer” it had received. To be clear—there was
no “proffer” of evidence made by anyone for the court to accept.8
8. It should be noted that where a party insists that a witness
testify, a trial court may not proceed by proffer. Kawamoto v.
Fratto, 2000 UT 6, ¶ 9, 994 P.2d 187; see also Utah R. Civ. P. 43(a)
(“In all trials and evidentiary hearings, the testimony of a witness
must be taken in open court, unless otherwise provided by these
rules, the Utah Rules of Evidence, or a statute of this state.”). Still,
proceeding by proffer can be particularly efficient, and where
appropriate, 	parties 	should 	be 	encouraged 	to 	employ 	the
procedure. When evidence is going to be received substantively
by proffer, the proffering party states what the witness would
testify to if called (or what a document would show), and if the
opposing party consents, a court can accept the proffer. See Ashton
v. Ashton, 733 P.2d 147, 153 (Utah 1987) (providing an example of
making a proffer of evidence); see also Morrison v. Walker Bank
& Trust Co., 360 P.2d 1015, 1017 (Utah 1961); State v. Pirela, 2003
UT App 39, ¶ 17, 65 P.3d 307; Burrell v. Schlesinger, 459 So. 2d 1195,
1199 (La. Ct. App. 1984) (“A proffer is used to set forth the nature
(continued…)

Krajeski v. Krajeski
20230174-CA 	28 	2025 UT App 19
At most, Tami’s counsel explained the usual practice his law office
employed to create financial declarations in divorce cases. And,
indeed, the court relied on Tami’s counsel, with the court stating
on the record, “Counsel has testified what information was
given.” Of course, Tami’s counsel was not a sworn witness, and
anything counsel said could not be considered substantively as
evidence. Even if Tami’s counsel had been sworn in as a witness,
because he never said that he had reviewed the documentation
underlying the data in the spreadsheet, his representations still
would not have provided adequate foundation to admit the
spreadsheet. In short, there was no foundation laid for the
of the evidence . . . .”). As indicated, however, the opposing party
can insist that the witness take an oath and actually testify. See
generally R. Utah R. Evid. 603 (“Before testifying, a witness must
give an oath or affirmation to testify truthfully. It must be in a
form designed to impress that duty on the witness’s conscience.”).
When an opposing party agrees that the witness would so testify,
but objects to the admissibility of the statements, the trial court
can receive the proffer and rule on the objection. See id. R. 105 (“If
the court admits evidence that is admissible against a party or for
a 	purpose—but 	not 	against 	another 	party 	or 	for 	another
purpose—the court, on timely request, must restrict the evidence
to its proper scope and instruct the jury accordingly.”); cf. Willover
v. State, 70 S.W.3d 841, 847 (Tex. Crim. App. 2002) (“When a trial
judge is presented with a proffer of evidence containing both
admissible and inadmissible statements and the proponent of the
evidence fails to segregate and specifically offer the admissible
statements, 	the trial court 	may properly exclude 	all 	of 	the
statements.”). In this case, Tami’s counsel did not make a proffer;
rather, counsel made a statement not under oath.

Krajeski v. Krajeski
20230174-CA 	29 	2025 UT App 19
expenses spreadsheet, and the district court erred in admitting it
and relying on it as a basis for establishing alimony.9
¶48 	Of additional concern is the alimony amount awarded for
housing costs. This amount—nearly $8,200 per month—was for a
house “on the exact same street” as the house that Tami owned
before she married David. Not only did David object that this
amount was based on a Zillow estimate for a house other than the
one Tami had owned before the marriage, he also objected on the
basis that Tami’s estimated housing cost was based on “nothing
else” besides the Zillow documents. The district court erred in its
approach on this issue. While we agree with David that the
district court should have been more circumspect in its admission
of the Zillow printouts, their use is largely irrelevant in the case at
hand because the estimates, whatever their source, concerned a
house that had nothing to do with the “standard of living that
9. The best evidence rule requires the party seeking to prove the
contents of a document to introduce the document itself. See Utah
R. Evid. 1002. If the underlying records are “so numerous,
complex 	or 	cumbersome 	that 	they 	cannot 	be 	conveniently
examined by the fact trier, or it would materially aid the court and
the parties in analyzing such material,” the proponent of the
record may admit a summary under rule 1006 of the Utah Rules
of Evidence. See Sunridge Dev. Corp. v. RB & G Eng’g, Inc., 2013 UT
App 	146, 	¶ 	20, 	305 	P.3d 	171 	(cleaned 	up). 	But 	rule 	1006
nevertheless requires the proponent to “make the originals or
duplicates available for examination or copying, or both, by other
parties at a reasonable time or place.” Utah R. Evid. 1006. And “to
make the required showings, the proponent of a summary must
provide 	a 	competent 	witness 	to 	establish 	the 	necessary
foundation 	for 	the 	summary 	and 	the 	underlying 	records.”
Sunridge, 2013 UT App 146, ¶ 20. This is yet another way in which
the court exceeded its discretion in allowing the introduction of
the spreadsheet evidence.

Krajeski v. Krajeski
20230174-CA 	30 	2025 UT App 19
existed during the marriage.” See Miner, 2021 UT App 77, ¶ 14
(cleaned up).10
10. It’s not unheard of for courts to rely on Zillow estimates
produced by parties to establish the fair market value of a house
in divorce proceedings. See Lamb v. Lamb, 2024 UT App 16, ¶ 9
& n.3, 545 P.3d 273; Cox v. Cox, 2023 UT App 62, ¶ 40 & n.7, 532
P.3d 128. Setting aside questions we might have about the
advisability of the practice in some circumstances, the parties in
Cox and Lamb do not appear to have objected to using Zillow
estimates. Indeed, in Cox, it is clear that neither party challenged
the Zillow estimate as being improper. 2023 UT App 62, ¶ 41. But
that’s not the case here, and the district court should have been
more guarded in admitting the Zillow estimates—especially since
there was no foundation to support their admission. Of course,
“courts routinely allow owners to estimate the value of their
property unless it appears that the owner has no realistic idea of
its value.” State v. Christensen, 2014 UT App 166, ¶ 19, 331 P.3d
1128 (cleaned up). And we see no reason that Tami could not have
provided an estimate of the value of her prior house as of the time
she owned it and, in that connection, testified that she had
consulted Zillow to establish her estimate. But that’s not how
Zillow was used here. Instead, the district court admitted the
Zillow printouts themselves as independent evidence of the value
of a house other than the ones they referenced. By doing so, the
district court allowed Tami to validate her housing need by
directly invoking Zillow’s imprimatur without foundation. If
Zillow 	estimates—or 	valuations 	from 	similar 	websites—are
admitted 	as 	evidence 	of 	housing 	values, 	the 	data 	and
methodology underlying those estimates should be the subject of
expert testimony to verify their reliability. See Ledesma v. Nunez,
No. HHD-FA21-5070087-S, 2023 WL 7635195, at *2 n.1 (Conn.
Super. Ct. May 2, 2023) (“An opinion based on property value
(continued…)

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20230174-CA 	31 	2025 UT App 19
¶49 	The 	fundamental 	problem 	with 	the 	district 	court’s
determination concerning the dollar amount of Tami’s housing
need is that it was made relative to Tami’s premarital house. The
district found the “increased monthly mortgage amount to be
reasonable because [Tami] testified that she will seek to purchase
a house in Park City that is comparable to the one that she had
during the marriage [11] so that she can be close to family members
and friends.” This may have been what Tami wanted, but using
her premarital house as the baseline to get there was error on the
court’s part. Among the purposes of alimony is “to get the parties
as close as possible to the same standard of living that existed
during the marriage.” Jensen v. Jensen, 2008 UT App 392, ¶ 9, 197
P.3d 117 (emphasis added) (cleaned up). Given that the purpose
of alimony is to approximate the marital standard of living, we are
hard pressed to understand why the district court sought to
restore Tami to her premarital standard of living. Just because
Tami wanted to live in Park City is not reason enough to create a
new standard favorable to her. Of course, Tami is free to live
where she wants, but the amount she should receive in alimony is
not determined by that desire but by the marital standard of
living. There is simply no legal basis to justify making this
estimation websites such as Zillow is no substitute for the expert
opinion of a certified real estate appraiser.”); see also Vasko v.
County of McLeod, 10 N.W.3d 482, 494 n.19 (Minn. 2024) (noting
that issues such as “price fluctuations highlight the hearsay and
foundation issues with relying on real estate website links at
trial”).
11. As we noted, Tami moved out of the Park City house upon her
marriage to David, and she subsequently sold that house and kept
the proceeds as her separate property. Thus, while she “had” the
Park City house “during” part of the marriage, it was not where
she and David lived and did not constitute the marital standard
of living insofar as housing was concerned.

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20230174-CA 	32 	2025 UT App 19
determination 	based 	on 	the 	value 	of 	a 	spouse’s 	premarital
residence.
¶50 	In contrast to the analysis the court undertook here—
namely, 	looking 	at 	Tami’s 	premarital 	house—the 	proper
consideration should have been to determine what the parties
spent for housing and were accustomed to during the marriage.
This analysis, if it had been undertaken, would have focused on
what Tami was accustomed to, insofar as a residence, in Peoa and,
perhaps, in St. George during the marriage. See Degao Xu v.
Hongguang Zhao, 2018 UT App 189, ¶ 24, 437 P.3d 411 (“It is not
an abuse of discretion for a trial court to calculate divorcing
spouses’ housing expenses by trying to determine what each
spouse would need to live in a home of the same size and value
as the marital home.”); see also Farnsworth v. Farnsworth, 2012 UT
App 282, ¶ 15, 288 P.3d 298 (“It is undisputed that [the spouse]
was accustomed to living in a single-family home on property
suitable for keeping horses, making that the appropriate measure
of her housing needs.”).
¶51 	Given these departures from Utah caselaw, we have no
trouble concluding that the district court abused its discretion in
calculating its award of alimony to Tami. Accordingly, we vacate
the alimony award and remand this matter to the district court so
that it may conduct a proper alimony analysis.
III. Attorney Fees
¶52 	David’s final claim is that the district court abused its
discretion by awarding Tami $50,000 in attorney fees. We agree
with him.
¶53 	Utah law “authorizes courts to award attorney fees and
costs in divorce cases if doing so would enable the other party to
prosecute or defend the action. Such an award must be based on
evidence of the receiving spouse’s financial need, the payor

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20230174-CA 	33 	2025 UT App 19
spouse’s ability to pay, and the reasonableness of the requested
fees.” Dahl v. Dahl, 2015 UT 79, ¶ 168, 459 P.3d 276; see also Utah
Code § 81-1-203(1)(a) (stating that in an action for dissolution of
marriage, “the court may order a party to pay the costs, attorney
fees, and witness fees, including expert witness fees, of the other
party to enable the other party to prosecute or defend the action”
(emphasis added)). But see id. § 81-1-203(2) (“In an action to enforce
an order of custody, parent-time, child support, alimony, or
division of property in a domestic case, the court may award costs
and attorney fees upon determining that the party substantially
prevailed 	upon 	the 	claim 	or 	defense.” 	(emphasis 	added)).
However, the “party requesting an award of fees has the burden
of providing such evidence.” Dahl, 2015 UT 79, ¶ 168; see also Utah
R. Civ. P. 102(a) (“In [a divorce] action . . . , either party may move
the court for an order requiring the other party to provide costs,
attorney fees, and witness fees, including expert witness fees, to
enable the moving party to prosecute or defend the action. The
motion shall be accompanied by an affidavit setting forth the
factual basis for the motion and the amount requested.”). In the
context of an attorney fees award in a divorce proceeding, “when
determining the financial need of the requesting spouse, we
generally look to the requesting spouse’s income, including
alimony received as the result of a divorce decree; the property
received via the property distribution award; and his or her
expenses.” Dahl, 2015 UT 79, ¶ 170 (cleaned up).
¶54 	Here, the district court appears to have been slightly
inexact about the standard for awarding fees. The $50,000 fee
award was granted pre-trial, which the court stated was “subject
to . . . being repaid” if the court found that Tami had the “ability
to pay or that nothing [was] marital.” Then, in its findings of facts
and conclusions of law, the court doubled down on this statement,
noting “that it would require [Tami] to repay the fee advancement
if it determined that she actually had the ability to pay or found
that none of the disputed assets were marital.” The court went on

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20230174-CA 	34 	2025 UT App 19
to decide that Tami did “not need to repay the prior attorney fee
advancement” because the court had found that “the disputed
assets were marital.” These statements miss the mark. As our
caselaw makes clear, the award of fees in a divorce action “must
be based on evidence of the receiving spouse’s financial need.” Id.
¶ 168 (cleaned up). The award has nothing to do with whether the
assets in dispute are marital. By considering whether Tami had
succeeded in showing the assets were marital, a decision we
substantively vacate with this opinion, the court essentially
analyzed the award of the fees under a prevailing-party standard.
Applying the prevailing-party analysis to fees in a divorce action
(as opposed to a post-divorce enforcement action) is simply
wrong.
¶55 	Tami’s 	obligation 	to 	repay 	the 	advanced 	fees 	is 	not
determined by whether the disputed assets were marital but by
evidence of her financial need, David’s ability to pay, and the
“reasonableness of the requested fees.” See id. (cleaned up).
Accordingly, we remand the matter of attorney fees to the district
court so that it may conduct the proper analysis to resolve this
question.
CONCLUSION
¶56 	We reverse and vacate the district court’s decisions that
David’s 	premarital 	property 	became 	marital 	through
commingling, its award of alimony, and its award of attorney
fees. We remand these matters for further consideration so that
the district court may resolve them in a manner consistent with
this opinion.