Fischer v. Fischer

2021 UT App 145
THE UTAH COURT OF APPEALS
GARY LEE F ISCHER ,
Appellant,
v.
M ELISSA K AY F ISCHER ,
Appellee.
Opinion
No. 20200557-CA
Filed December 30, 2021
Seventh District Court, Moab Department
The Honorable Don Torgerson
No. 184700047
Steve S. Christensen and Clinton R. Brimhall,
Attorneys for Appellant
K. Andrew Fitzgerald, Attorney for Appellee
JUDGE GREGORY K. O RME authored this Opinion, in which
JUDGES JILL M. POHLMAN and R YAN M. HARRIS concurred.
ORME, Judge:
¶1 	Gary Lee Fischer challenges the district court’s division of
the marital estate in the parties’ divorce decree, which awarded
Melissa Kay Fischer the marital home, a vehicle, and profits from
a business that Gary operated.1 Gary also challenges the court’s
denial of his post-trial motion for a new trial regarding the
division of a savings account Melissa first disclosed at trial. We
affirm 	in 	part, 	reverse 	in 	part, 	and 	remand 	for 	further
proceedings consistent with this opinion.
1. Because the parties share the same surname, we refer to them
by their first names, with no disrespect intended by the apparent
informality.

Fischer v. Fischer
20200557-CA 	2 	2021 UT App 145
BACKGROUND2
¶2 	Following a nearly 29-year marriage, Gary and Melissa
separated on April 8, 2018. Gary filed for divorce approximately
two months later. The case proceeded to trial in June 2019. The
main 	issues 	at 	trial 	involved 	the 	division 	of 	various 	bank
accounts, personal property, vehicles, the marital home, and an
insurance business Gary had started during the marriage with
Melissa’s help.
¶3 	At trial, the parties testified regarding their assets. During
cross-examination of Melissa, Gary learned for the first time that
Melissa had an American Express bank account with a balance
of $50,000. Melissa testified that she set up the account in “early”
2019, long after the parties had separated. She explained that the
account was started with money from her share of various
accounts she co-owned with Gary and that she was able to get
the balance to $50,000 because she “worked so hard to save”
money after they separated. Gary did not then inquire further
regarding this account.
¶4 	After hearing all the relevant testimony, the court made
an oral ruling from the bench, determining that Gary’s business
was established using marital funds. It ruled, however, that
because the business “is the equivalent of a professional degree,
what you would expect to see with a solo practitioner, attorney
or accountant, or a doctor in solo practice,” it had “to value this
2. “On appeal from a bench trial, we view the evidence in a light
most favorable to the trial court’s findings, and therefore recite
the 	facts 	consistent 	with 	that 	standard, 	and 	we 	present
conflicting evidence to the extent necessary to clarify the issues
raised on appeal.” Nakkina v. Mahanthi, 2021 UT App 111, n.2,
496 P.3d 1173 (quotation simplified).

Fischer v. Fischer
20200557-CA 	3 	2021 UT App 145
asset 	minus 	any 	goodwill 	component.”3 	The 	court 	then
explained that
the balance of the [business] bank account as of
today is $5,000. [Melissa] is entitled to one-half of
that amount. Additionally, it is apparent from the
tax returns that the business has made a profit in
excess of its expenses and [Gary’s] salary. Net
profit 	has 	been 	$2,144 	per 	month 	consistently
through 2017, and [Gary] testified that it’s been
constant since then. Accordingly, that profit is a
profit of this asset, and so 14 months worth of that
profit, [Melissa’s] share is $15,008.
So the asset is marital in the sense that it was
established during the marriage and it was an asset
to be considered in dividing, but the Court finds
that there’s no future equity share that is divisible,
and so other than those monetary amounts, the
Court awards the interest in the LLC to [Gary] 100
percent, 	and 	I 	certainly 	understand 	that 	it’s
frustrating. We help our spouses be successful, and
they take our great ideas and they incorporate
them into their business, and we give input to their
endeavors, 	but 	in 	the 	end, 	I’m 	bound 	by 	the
existing law, which says that this isn’t a marketable
asset unless he’s running it, and . . . so that’s the
basis for that finding.
3. In Sorensen v. Sorensen, 839 P.2d 774 (Utah 1992), our Supreme
Court held that “[i]t would not be equitable to require” a
husband who was a sole practitioner “to pay his wife part of the
value ascribed to the goodwill, because the goodwill of a sole
practitioner is nothing more than his or her reputation for
competency[.]” Id. at 775.

Fischer v. Fischer
20200557-CA 	4 	2021 UT App 145
¶5 	Regarding the tangible marital assets, the court found that
there was $292,285 equity in the home, resulting in a share of
$146,142.50 for each party. The court nevertheless awarded the
home to Melissa, explaining that Gary’s share of the equity
would be “used to offset the other property awards in this case.”
The court also allocated a vehicle worth $25,000 to Melissa. The
court awarded Gary four vehicles and a trailer. The first three
vehicles were valued at $29,600, $17,833, $51,450. The fourth
vehicle, which still had money owing on it, had $4,000 in equity.
The 	trailer 	was 	valued 	at 	$8,000. 	The 	court 	additionally
distributed to Gary jewelry, art, and other personal property
having a combined value of $57,590. The court valued all these
assets “as of the date of divorce.”
¶6 	With respect to the parties’ joint bank accounts, the court
decided that it would be more appropriate to divide these
accounts as they stood at the time of the parties’ separation
rather than at the time of divorce. The court stated that it did this
because it was the clearest picture of what the
parties’ asset actually was. Since then, they’ve each
gone on to either save money [or spend money].
She saved money. It appears he spent money. So
that seemed to be the fairest division of the cash
accounts . . . given how long the separation has
been, over a year.
¶7 	The court also ordered that Melissa’s retirement accounts,
valued as of the date of divorce, be split equally between the
parties. The court determined that the American Express account
was not divisible in the divorce because it was Melissa’s separate
property. The court then concluded that “if my math is correct,
that should leave a wash on all of the property.”
¶8 	In response to this ruling, Gary filed a post-trial motion,
in which he argued that the court’s division of marital assets was
“not equal.” He asserted that the court awarded a total of

Fischer v. Fischer
20200557-CA 	5 	2021 UT App 145
$396,793 in marital assets to Melissa, which included (1) the
home at $292,285, (2) half the business account at $2,500, (3) half
the profits from the business from the time of separation to the
time of divorce at $15,008, (4) a vehicle at $25,000, (5) half the
balance in two bank accounts existing at the time of separation at
$12,000, and (7) the American Express account at $50,000.4 Gary
then argued that the court awarded him only $197,981 in marital
assets consisting, of (1) half the business account at $2,500, (2)
half the profits from the business from the time of separation to
the time of divorce at $15,008, (3) the four vehicles valued at a
total 	of 	$102,883, 	(4) 	the 	trailer 	at 	$8,000, 	(5) 	the 	personal
property items at $57,590, and (6) half of the two bank accounts
at $12,000. Gary asserted that, as a result, Melissa received
$198,812 more than he did—$148,812 once the $50,000 American
Express Account is subtracted from Gary’s calculation. See supra
note 4. In essence, Gary’s position was that the court’s math was
in fact quite wrong when it mused that, “if my math is correct,
that should leave a wash on all of the property.”
¶9 	The 	court 	subsequently 	issued 	a 	written 	order
memorializing its findings and rulings at trial. In that order,
regarding the award of the marital home to Melissa, the court
conceded that
[a]lthough the Court endeavored to equally divide
the assets in the case, with [Gary] receiving the
majority of high-value personal property to offset
his share of equity in the home, the final division of
property does not equally divide the value in the
4. As previously explained, the district court categorized the
American Express account as Melissa’s separate property, a
disposition we affirm. See infra ¶¶ 17–18. Accordingly, it should
not be considered in evaluating the propriety of the court’s
distribution of marital property.

Fischer v. Fischer
20200557-CA 	6 	2021 UT App 145
marital home. Nevertheless, the Court believes the
division is equitable, based on all circumstances in
the case.
[Gary] would like the home sold, with the
cash divided equally. But the costs of sale would
likely deplete most of the difference in the equity
division. Neither party would benefit from those
lost funds and [Melissa] would be left without a
home. Additionally, although the Court awards
[the business to Gary], it is apparent that [Melissa]
significantly contributed to making [the business] a
success. Her contribution to the business is not
quantifiable. But the overall division of property
and 	assets 	in 	this 	case 	is 	equitable, 	when 	the
business is considered.
The court also determined that the American Express account
would be awarded to Melissa as her separate property because it
had been initially funded with her share of sums from marital
accounts, 	then 	enhanced 	with 	post-separation 	deposits. 	The
court also reiterated that it valued “the cash accounts as of the
date of separation” because “[a]fter separation, [Gary] spent
significant money and incurred substantial debt” and “[g]iven
the length of separation, the value at the time of separation
provides for the most equitable division of the cash accounts.”
The court then reaffirmed its oral ruling regarding the remainder
of its award.
¶10 	Gary 	subsequently 	filed 	another 	motion, 	this 	time
requesting a new trial under rule 59(a) of the Utah Rules of Civil
Procedure on the American Express account issue. He asserted
that Melissa had “disclosed at trial and not before that she had a
$50,000 American Express savings account” and that he “was
genuinely surprised by this trial disclosure.” He claimed that he
“should have had the opportunity to investigate this account

Fischer v. Fischer
20200557-CA 	7 	2021 UT App 145
and 	trace 	its 	origin 	to 	determine 	whether 	[Melissa’s]
representations about it were accurate.”
¶11 	The district court denied Gary’s motion in another written
order. It stated that “with reasonable diligence, [Gary] could
have discovered the account before trial but did not utilize the
discovery process to his advantage.” It additionally stated that
“[Gary] 	did 	not 	object 	at 	trial 	to 	the 	introduction 	of 	the
information related to the account and [Melissa] testified that the
account was created after separation.”
¶12 	Gary appeals.
ISSUES AND STANDARDS OF REVIEW
¶13 	Gary raises three issues on appeal. First, he asserts that
the district court erred in determining that the American Express
account was Melissa’s separate property and in denying his
motion for a new trial on that issue. This issue implicates two
standards of 	review. 	First, 	“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
(quotation simplified). Second, “we review the decision to grant
or deny a motion for a new trial only for an abuse of discretion.”
State v. Loose, 2000 UT 11, ¶ 8, 994 P.2d 1237.
¶14 	Next, Gary challenges the court’s award to Melissa of
$15,008 of the business’s profits accrued during the fourteen
months from the time of the couple’s separation until trial. We
review the district court’s ruling on this issue for an abuse of
discretion. See Jones v. Jones, 700 P.2d 1072, 1074 (Utah 1985).5
5. Melissa asserts that the first and second issues Gary raises are
unpreserved. But because we rule in Melissa’s favor on both
(continued…)

Fischer v. Fischer
20200557-CA 	8 	2021 UT App 145
¶15 	Finally, Gary asserts that the court abused its discretion
when it awarded Melissa a disproportionate share of the marital
estate 	without 	providing 	findings 	that 	justify 	the 	unequal
division.6 “In a divorce proceeding, the trial court may make
(…continued)
issues, we need not grapple with their preservation. See State v.
Kitches, 2021 UT App 24, ¶ 28, 484 P.3d 415 (“If the merits of a
claim can easily be resolved in favor of the party asserting that
the claim was not preserved, we readily may opt to do so
without addressing preservation.”) (quotation simplified).
6. Melissa contends that this issue is also unpreserved. We
disagree. This was the central issue at trial. Immediately after the
court painstakingly laid out all the values of the marital assets it
was allocating to the parties in its oral ruling at trial, Gary
informed the court that, at “first glance, it looks like the math is
not correct” and asked the court whether it was “saying that
there is a $300,000 house asset and there’s $300,000 of personal
property 	that 	offset 	that?” 	The 	court 	responded, 	somewhat
confusingly, “I’m saying there is a $300,000 house asset. Between
the money that [Gary] owes for the business, let’s see. That may
be the—in the last count, that may be where . . . my math–so I’m
saying there’s a $292,285 equity in the house.” It is clear that
there was confusion about the division of the marital estate, and
Gary 	asserted 	that 	the 	court’s 	math 	underlying 	its
characterization of the allocation as a “wash” was “not correct.”
While Gary could have been more precise in his objection, it is
obvious from the district court’s later written rulings that it
understood there was disagreement on whether the division of
the marital estate was “equal,” and the issue was presented to
the court in such a way that it had an opportunity to rule on it,
and it did rule on it. See Wohnoutka v. Kelley, 2014 UT App 154,
¶ 4, 330 P.3d 762. In its decree, the court specifically detailed the
division 	of 	the 	marital 	estate, 	acknowledged 	the 	unequal
(continued…)

Fischer v. Fischer
20200557-CA 	9 	2021 UT App 145
such orders concerning property distribution and alimony as are
equitable. The trial court has broad latitude in such matters, and
orders distributing property and setting alimony will not be
lightly disturbed.” Id. (internal citation omitted).
ANALYSIS
I. American Express Account
¶16 	Gary asserts that the district court erred in determining
the American Express account was Melissa’s separate property
and in denying his motion for a new trial on that issue. Although
the marital estate is generally valued “at the time of the divorce,”
see Rappleye v. Rappleye, 855 P.2d 260, 262 (Utah Ct. App. 1993), a
district court, in its discretion, may determine that property
acquired post-separation, but before entry of a final divorce
decree, 	is 	separate 	property 	so 	long 	as 	this 	decision 	is
“supported by sufficiently detailed findings of fact that explain
the 	trial 	court’s 	basis 	for 	such 	deviation,” 	see 	Donnelly 	v.
Donnelly, 2013 UT App 84, ¶¶ 41, 45, 301 P.3d 6 (quotation
simplified). See also Shepherd v. Shepherd, 876 P.2d 429, 432–33
(Utah Ct. App. 1994).7
(…continued)
amount, and provided its justification for not dividing the estate
exactly 50/50. Thus, we have no qualms in concluding that the
issue regarding the equitable division of the marital estate was
preserved.
7. A district court’s separate property determination is generally
reviewed for correctness. See Brown v. Brown, 2020 UT App 146,
¶ 13, 476 P.3d 554. But a court is granted “broad discretion” to
value the estate, or a portion of the estate, at the date of
separation, thereby making the property the parties accumulate
(continued…)

Fischer v. Fischer
20200557-CA 	10 	2021 UT App 145
¶17 	Here, the court’s decision to categorize the American
Express account as Melissa’s separate property flowed logically
from its ruling on the parties’ joint bank accounts. In that ruling,
the 	court 	made 	specific 	findings 	supporting 	its 	decision 	to
adjudicate the bank accounts as of the date of separation rather
than at the time of divorce. It stated that it was doing so because
it “seemed to be the fairest division” due to the fact that, “[a]fter
separation, 	[Gary] 	spent 	significant 	money 	and 	incurred
substantial debt,” while Melissa saved money. Moreover, the
court relied on the length of the separation—some fourteen
months—during which both parties lived independently of one
another.8 Thus, given that the court decided to adjudicate the
(…continued)
from that point onward their separate property. Shepherd v.
Shepherd, 876 P.2d 429, 432–33 (Utah Ct. App. 1994).
8. Gary asserts that the district court’s decision to value the joint
bank accounts as of the time of separation allowed it “to sidestep
the issue of what should be done with the American Express
savings account, since Melissa claimed it was created after” they
separated. But this argument is unavailing because Gary does
not adequately confront the court’s ruling or demonstrate any
reversible flaw. See Duchesne Land, LC v. Division of Consumer
Prot., 2011 UT App 153, ¶ 8, 257 P.3d 441 (“Because Appellants
have not addressed the actual basis for the district court’s ruling,
they have failed to persuade us that the district court’s ruling
constituted error[.]”). Gary acknowledges that “[t]he district
court did provide findings” but nevertheless asserts that “the
sudden appearance of $50,000 could have a profound effect on
those findings and equities of the case.” He never actually
addresses the findings underpinning the equitable nature of the
court’s 	ruling, 	namely 	the 	notable 	disparity 	between 	his
post-separation spending and Melissa’s post-separation saving,
along with the length of the separation. Thus, we reject Gary’s
(continued…)

Fischer v. Fischer
20200557-CA 	11 	2021 UT App 145
parties’ joint accounts as of the time of separation rather than at
the time of divorce, the general rule that all assets obtained
during the marriage are marital property did not apply, by
extension of this same logic, to the American Express account.
¶18 	The 	district 	court 	therefore 	did 	not 	err 	when 	it
determined that the American Express account was Melissa’s
separate property.9 It follows, then, that the court likewise did
(…continued)
challenge to the court’s decision valuing the cash accounts as of
the date of separation.
9. Even if the court erred in determining that the American
Express account was Melissa’s separate property, it is far from
clear 	that 	the 	court 	would 	have 	abused 	its 	discretion 	in
distributing the account in its entirety to Melissa in any event.
See Burt v. Burt, 799 P.2d 1166, 1172 (Utah Ct. App. 1990) (“Each
party is presumed to be entitled to . . . fifty percent of the marital
property. But rather than simply enter such a decree, the court
should then consider the existence of exceptional circumstances
and, if any be shown, proceed to effect an equitable distribution
in light of those circumstances[.]”); Hall v. Hall, 858 P.2d 1018,
1022 (Utah Ct. App. 1993) (“[O]nce a court makes a finding that a
specific item is marital property, the law presumes that it will be
shared 	equally 	between 	the 	parties 	unless 	unusual
circumstances, 	memorialized 	in 	adequate 	findings, 	require
otherwise.”). In light of the court’s specific findings that Melissa
was saving during the months after separation while Gary was
spending and accumulating substantial debt, the district court
would likely have acted within its discretion if it had concluded
that it would be categorically unfair to apply the general rule
and saddle Melissa with half the debt Gary incurred after they
separated, while requiring Melissa to split with Gary the account
she prudently accumulated on her own.

Fischer v. Fischer
20200557-CA 	12 	2021 UT App 145
not abuse its discretion in denying Gary’s motion for a new trial
on this issue. See State v. Loose, 2000 UT 11, ¶ 8, 994 P.2d 1237.
II. Business Profits
¶19 	Gary next contends that “the district court abused its
discretion when it determined that Melissa should be awarded
half of the ‘profits’ accrued by the business in the 14 months
prior to trial.” “In Utah, marital property is ordinarily divided
equally between the divorcing spouses and separate property,
which may include premarital assets, inheritances, or similar
assets, will be awarded to the acquiring spouse.” Olsen v. Olsen,
2007 UT App 296, ¶ 23, 169 P.3d 765. “The primary purpose of a
property division . . . is to achieve a fair, just, and equitable
result between the parties.” Riley v. Riley, 2006 UT App 214, ¶ 27,
138 P.3d 84 (quotation simplified).
¶20 	Gary essentially argues that there were no profits from
the business because all the money earned was simply his
income and any award to Melissa would therefore essentially be
alimony, which the district court had already determined neither
party needed. But Gary’s attempt to equate the profits with his
salary, or with alimony, is unavailing because the court found
that the net profits had “been $2,144 per month consistently
through 2017, and [Gary] testified that it’s been constant since
then.” The court also found, with our emphasis, that “[t]ax
returns show that, since separation, the business has made a
profit in addition to expenses and [Gary’s] salary.” And Gary has
not shown on appeal how these findings underpinning the
court’s ruling were erroneous. See State v. Thompson, 2020 UT
App 148, ¶ 20, 476 P.3d 1017 (“To successfully challenge a
district court’s factual findings on appeal, an appellant must
establish a basis for overcoming the healthy dose of deference
owed to factual findings, generally by identifying and dealing
with supportive evidence through the process of marshaling.”)
(quotation simplified). See also State v. Nielsen, 2014 UT 10, ¶ 40,

Fischer v. Fischer
20200557-CA 	13 	2021 UT App 145
326 P.3d 645 (“[A] party who fails to identify and deal with
supportive evidence will never persuade an appellate court to
reverse[.]”).
¶21 	Therefore, because Gary has not meaningfully addressed
the supportive evidence behind these findings, which findings
adequately explain the court’s ruling, we hold that the court did
not abuse its discretion in distributing the business profits as it
did.
III. Equitable Distribution of Assets
¶22 	Gary’s final argument is that the district court abused its
discretion when it awarded nearly $150,000 more of the real and
personal property comprising the marital estate to Melissa than
it did to him. Specifically, Gary asserts that “the district court
abused its discretion in two ways: it did not follow the guideline
that marital assets are to be split equally and it did not provide
adequate 	findings 	to 	support 	its 	departure 	from 	the 	equal
division presumption.” We agree.
¶23 	In dividing the marital estate in a divorce proceeding,
“[e]ach party is presumed to be entitled to . . . fifty percent of the
marital property.” Burt v. Burt, 799 P.2d 1166, 1172 (Utah Ct.
App. 1990). “But rather than simply enter such a decree, the
court 	should 	then 	consider 	the 	existence 	of 	exceptional
circumstances 	and, 	if 	any 	be 	shown, 	proceed 	to 	effect 	an
equitable distribution in light of those circumstances[.]” Id. Thus,
“once a court makes a finding that a specific item is marital
property, 	the 	law 	presumes 	that 	it 	will 	be 	shared 	equally
between the parties unless unusual circumstances, memorialized
in adequate findings, require otherwise.” Hall v. Hall, 858 P.2d
1018, 1022 (Utah Ct. App. 1993) (emphasis added). See Bradford v.
Bradford, 1999 UT App 373, ¶ 27, 993 P.2d 887 (“An unequal
division of marital property . . . is only justified when the trial
court memorializes in . . . detailed findings the exceptional

Fischer v. Fischer
20200557-CA 	14 	2021 UT App 145
circumstances 	supporting 	the 	distribution.”) 	(quotation
simplified).
¶24 	On 	appeal, 	both 	parties 	expend 	significant 	effort 	in
arguing how the court’s award of real and personal property
was either equitable or inequitable. We need not endeavor to
directly resolve this debate, however, because the court’s ruling
lacked adequate findings to support the disparate distribution.
Here, Melissa was awarded the entirety of the net value in the
home, $292,285, and a car valued at $25,000. In total, Melissa was
awarded $317,285. Gary, on the other hand, was awarded four
vehicles with a total value of $102,883, the trailer at $8,000, and
the other personal property items with a total value of $57,590.
Gary 	was 	therefore 	awarded 	$168,473. 	This 	left 	a 	$148,812
discrepancy in favor of Melissa.10
¶25 	Although 	the 	district 	court 	“has 	broad 	latitude” 	in
equitably distributing the marital estate, see Olsen v. Olsen, 2007
UT App 296, ¶ 8, 169 P.3d 765 (quotation simplified), it cannot
unequally divide that estate unless it “memorializes in adequate
findings” the “unusual circumstances” that justify doing so, Hall,
858 	P.2d 	at 	1022 	(emphasis 	added) 	(quotation 	otherwise
simplified). Here, the court unequally divided the marital estate
but 	did 	not 	enter 	adequate 	findings 	detailing 	the 	unusual
circumstances 	that 	justified 	such 	an 	award. 	The 	court’s
10. 	When 	making 	its 	oral ruling 	at 	trial, 	the 	district 	court
indicated that it was not intending to divide the estate unequally
when it stated that Gary’s share of the equity would be “used to
offset the other property awards in this case” and that “if my
math is correct, that should leave a wash on all of the property.”
Clearly the court’s math was not correct, and regardless of the
court’s intent, it did end up dividing the estate in a manner that
was nowhere near equal, and its subsequent efforts to rationalize
that unequal distribution were inadequate.

Fischer v. Fischer
20200557-CA 	15 	2021 UT App 145
justification 	for 	its 	disparate 	award 	is 	limited 	to 	three
observations.
¶26 	First, the court opined, without pointing to any evidence,
that the cost of selling the home would deplete any disparity that
might exist between the parties and benefit neither. In the
absence of evidence to this effect, this is purely speculative, and
we are hard-pressed to see how the commissions and other fees
in selling the home would be anywhere near large enough to
overcome 	the 	substantial 	discrepancy 	in 	the 	value 	of 	the
property awarded to each party. The court also rationalized the
disparity 	by 	concluding 	that 	Melissa 	would 	otherwise 	be
without 	a 	home, 	but 	presumably 	this 	would 	have 	been 	a
momentary event given her assets, her employment, and her
share of the sale proceeds. These are simply not the kind of
exceptional circumstances that would justify such a disparity. Cf.
Bradford, 1999 UT App 373, ¶ 27 (“In this case, the trial court’s
only finding justifying the award of the [entire] home to Mr.
Bradford 	was 	that 	‘the 	house 	and 	property 	is 	in 	fact 	not
partitionable as it contains a residence, road and river frontage.
If an interest were to be conveyed the house would have to be
refinanced or sold.’ This finding is insufficient, by itself, to
support 	an 	award 	of 	the 	marital 	home 	entirely 	to 	Mr.
Bradford.”) (footnote omitted). Indeed, district courts “often
order 	a 	sale 	of 	marital 	property 	and 	equitably 	divide 	the
proceeds between the parties” or “allow one spouse to ‘buy out’
the other spouse’s interest in marital property,” and the district
court here “made no adequate finding explaining why either of
these two remedies was not appropriate for the parties in this
case.” See id.
¶27 	Second, the court stated that while “the final division of
property does not equally divide the values in the marital
home,” it was nonetheless “equitable, based on all circumstances
in the case.” This is a conclusory statement and not a finding that
justifies 	the 	unequal 	distribution 	of 	marital 	assets. 	General

Fischer v. Fischer
20200557-CA 	16 	2021 UT App 145
comments about the equitability of an award are simply not
enough to overcome the presumption that marital property
should be “shared equally.” Hall, 858 P.2d at 1022.
¶28 	Finally, the court noted that although it awarded the
business to Gary, “it is apparent that [Melissa] significantly
contributed to making [the business] a success. Her contribution
to the business is not quantifiable. But the overall division of
property and assets in this case is equitable, when the business is
considered.” Once again, 	this is not a 	finding sufficient to
explain 	such 	a 	large 	departure 	from 	the 	presumptively
appropriate equal distribution of the marital estate. See Bradford,
1999 UT App 373, ¶ 27. The court found that the business had no
marketable 	value, 	and 	thus it 	is unclear 	how it 	quantified
Melissa’s contribution. Further, the court’s observations about
Melissa’s 	contributions 	do 	not 	demonstrate 	“exceptional
circumstances” that justify a nearly $150,000 difference in the
property awards to each party. See Burt v. Burt, 799 P.2d 1166,
1172 (Utah Ct. App. 1990).
¶29 	Without adequate findings detailing why Melissa should
be entitled to such an unequal split of the marital estate, we
cannot affirm the court’s award. We therefore remand the case to
the district court either (1) to make adequate findings specifically
detailing (and quantifying) the exceptional circumstances that
would justify the unequal distribution of the marital estate, or
(2) if such findings are not appropriate on this record, then to
equally distribute the marital estate.11
11. Melissa asks for attorney fees on appeal, asserting that Gary’s
appeal is meritless and brought without good faith. But because
Gary prevailed in part, her premise is incorrect, and we deny her
attorney fee request. See Tobler v. Tobler, 2014 UT App 239,
¶¶ 45–47, 337 P.3d 296.

Fischer v. Fischer
20200557-CA 	17 	2021 UT App 145
CONCLUSION
¶30 	The district court did not err in determining that the
American Express account was Melissa’s separate property or
exceed its discretion in awarding to her half of the profits the
business accrued from the time of separation until trial. The
court did err, however, in unequally dividing the marital estate
without 	entering 	adequate 	findings 	justifying 	that 	unequal
distribution. We therefore affirm in part and reverse in part, and
we 	remand 	to 	the 	district 	court 	for 	further 	proceedings
consistent with this opinion.

CERTIFICATE OF MAILING
I hereby certify that on the 30th day of December, 2021, a true and correct copy of the
attached OPINION was sent by standard or electronic mail to be delivered to:
STEVE S. CHRISTENSEN
CLINTON BRIMHALL
CHRISTENSEN LAW
SSC@CCPLAWYERS.COM
CRB@CCPLAWYERS.COM
KEITH ANDREW FITZGERALD
ATTORNEY AT LAW
ANDREWMOABLAWYER@ICLOUD.COM
HONORABLE DON TORGERSON
SEVENTH DISTRICT, MOAB DEPT
SEVENTH DISTRICT, MOAB DEPT
ATTN: ADRIENNE GARCIA/ LONI PAGE
GRAND COUNTY COURTHOUSE
moabscan@utcourts.gov
_______________________________________
Judicial Secretary
TRIAL COURT: SEVENTH DISTRICT, MOAB DEPT, 184700047
APPEALS CASE NO.: 20200557‐CA