2023 UT App 51

THE UTAH COURT OF APPEALS

SHAUN ROBERT ROTHWELL,

Appellee,

v.

JENEA ROTHWELL,

Appellant.

Opinion

No. 20210863-CA

Filed May 11, 2023

Fourth District Court, Provo Department

The Honorable Sean M. Petersen

No. 184401412

Julie J. Nelson, Mitchell J. Olsen Sr., and Mitchell J. 

Olsen Jr., Attorneys for Appellant

Aaron R. Harris, Thomas J. Burns, and Lacee M. 

Whimpey, Attorneys for Appellee

JUDGE MICHELE M. CHRISTIANSEN FORSTER authored this Opinion, 

in which JUDGES RYAN D. TENNEY and JOHN D. LUTHY concurred.

CHRISTIANSEN FORSTER, Judge:

¶1 This case arises from the same facts and circumstances 

outlined in Rothwell v. Rothwell, 2023 UT App 50, which also issues 

today. The sole question for our consideration in this case is 

whether the district court exceeded its discretion by staying the 

property distribution in Shaun and Jenea Rothwell’s divorce case

pending an appeal. We conclude that the district court did not 

and, accordingly, affirm the stay.
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BACKGROUND

¶2 The district court entered the parties’ Decree of Divorce on 

June 17, 2021. The court found that the marital estate had a value 

of approximately $28.5 million and divided it equally. Jenea was 

awarded cash and assets with a total value of $14,226,979. Shaun 

was awarded the parties’ marital businesses and other assets and 

investments. Following the district court’s ruling in the parties’ 

divorce case, Shaun filed a notice of appeal and moved the district 

court to stay the distribution of the marital estate pending the 

appeal. The court granted the stay. Because the parties’ marital 

businesses, which were awarded to Shaun, comprised the 

majority of the estate’s value, he has retained the bulk of the 

parties’ assets while his appeal has been pending. To protect 

Jenea’s interest in the marital assets, the district court ordered that 

“no assets, liquid or non-liquid, may be disposed of or otherwise 

encumbered pending the appeal.” It also required Shaun to 

deposit a total of $3.8 million cash with the court—$2.1 million at 

the time the stay was entered and additional amounts at the end 

of 2021, 2022, and 2023—to account for equalization payments he 

was required to make to Jenea.

ISSUE AND STANDARD OF REVIEW

¶3 “The decision to stay enforcement of a judgment is within 

the discretion of the reviewing court,” and we accordingly review 

its decision “for an abuse of discretion.” Utah Res. Int’l, Inc. v. Mark 

Techs. Corp., 2014 UT 60, ¶ 11, 342 P.3d 779 (quotation simplified).

ANALYSIS

¶4 Rule 62 of the Utah Rules of Civil Procedure allows a court 

to stay enforcement of an order while an appeal is pending if the 

appellant gives a “bond or other security,” Utah R. Civ. P. 62(b),

“in an amount that adequately protects the adverse party against 
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20210863-CA 3 2023 UT App 51

loss or damage occasioned by the stay and assures payment after 

the stay ends,” id. R. 62(h)(1). The purpose of such security is to

“preserve the status quo pending the outcome of the case.” See 

Hunsaker v. Kersh, 1999 UT 106, ¶ 8, 991 P.2d 67 (quotation 

simplified) (addressing the purpose of injunctions); see also

Diversified Holdings, LC v. Turner, 2002 UT 129, ¶ 39, 63 P.3d 686

(addressing the purpose of supersedeas bonds). Jenea asserts that 

the terms of the security the court ordered Shaun to post do not 

adequately ensure payment and distribution of her half of the 

marital estate after the stay ends or protect her from loss or 

damage resulting from the appeal.

1

1. Jenea also argues that a stay of property distribution is 

inappropriate in a divorce action because a divorce judgment 

differs from an ordinary judgment. She explains that unlike a 

typical judgment for compensatory damages addressed by rule 

62, a divorce judgment awards assets that already belonged to the 

party before the divorce. She argues that because the “status quo” 

during marriage was that “each party already legally owned half 

the assets and could use them as they wished,” staying a property 

distribution where one party has possession of the majority of the 

marital assets does not maintain the “status quo” because it “puts 

at least one party in a worse position than they would otherwise 

have been” in.

While we acknowledge that the impact of staying a divorce 

decree is somewhat different from the impact of staying a 

judgment for compensatory damages and recognize the 

unfortunate impact that a stay in this situation has in delaying at 

least one of the parties from moving on from the divorce with 

no—or at least reduced—financial ties to their ex-spouse, there is 

nothing in the plain language of rule 62 that limits its application 

to matters involving compensatory damages. In fact, the language 

suggests that a judgment for compensatory damages is only one 

of any number of judgments that may be subject to a stay. See Utah 

(continued...)
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20210863-CA 4 2023 UT App 51

¶5 With the exception of one unpreserved argument,2 none of 

the arguments Jenea has raised indicate that the terms of the 

security were inadequate to ensure she would be paid after the 

stay ends. The court’s injunction prohibited Shaun from disposing 

of or encumbering any of the marital assets. Given the parties’ 

large estate, this injunction, coupled with the supersedeas bond,

was adequate to ensure that the assets Jenea was awarded would 

be available to her after the stay.

¶6 Jenea suggests that the court’s injunction was inadequate 

to protect her interests because the value of the assets could 

change over time. But that is always true of assets subject to an 

R. Civ. P. 62(h) (outlining a presumptive formula for determining 

the amount of a bond for compensatory damages as an exception 

to the general rule that security should be “in an amount that 

adequately protects the adverse party against loss or damage 

occasioned by the stay and assures payment after the stay ends”).

Nevertheless, we observe that it may be desirable for the Supreme 

Court’s Advisory Committee on the Rules of Civil Procedure to 

consider amending rule 62 to address the unique circumstance of 

staying a divorce distribution pending appeal and attempt to at 

least mitigate the potential inequity of such a stay.

2. Jenea points out that the stay order did not include a provision 

addressing what would happen if Shaun were to die while the 

appeal is pending. However, Jenea does not appear to have raised 

this argument below, and even if she had, she does not develop 

this argument on appeal. We observe that, had Jenea asked for 

security to protect her against Shaun’s death, the court could 

have, and likely should have, taken steps to secure Jenea’s interest 

in the marital estate, such as a lien on the assets that would be 

enforceable against Shaun’s heirs. See Wadsworth v. Wadsworth, 

2022 UT App 28, ¶¶ 86–90, 507 P.3d 385, cert. denied, 525 P.3d 1259

(Utah 2022). However, Jenea did not ask for such security, and we 

therefore do not consider this issue further.
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20210863-CA 5 2023 UT App 51

injunction, and Jenea has failed to persuade us that the mere 

possibility that assets may depreciate precludes a court from 

entering an injunction to secure a party’s interest in an asset 

pending an appeal. She also argues that it was unfair that Shaun 

had a disproportionate ability to use and enjoy his share of the 

marital estate. While we are sympathetic to Jenea’s situation, we 

are ultimately not convinced that one party’s access to assets 

during a stay translates to a conclusion that the security provided 

for the stay is inadequate to protect the other party. Again, that 

will be the situation any time a stay is granted.

¶7 As to the question of whether the bond and injunction 

adequately protected Jenea from loss or damage that could result 

from an appeal, Jenea points to several “losses” she believes the 

stay has failed to prevent: loss of ability to go forward with her 

separate life, loss of ownership of assets and monies she was 

awarded in the divorce, loss of liquidity, loss of enjoyment, and 

loss of value.

¶8 While one of the goals of a divorce decree should be to 

allow the parties to go forward with their separate lives, see 

Wadsworth v. Wadsworth, 2022 UT App 28, ¶ 79, 507 P.3d 385, cert. 

denied, 525 P.3d 1259 (Utah 2022), that point does not impact the 

validity of the stay and the adequacy of the security to protect 

against loss. As a practical reality, neither party can move forward 

with their separate life until this matter is fully resolved.

¶9 As to Jenea’s alleged loss of ownership, loss of liquidity, 

and loss of enjoyment, we do not agree that under rule 62, as 

written, those are losses against which a stay must guard. Any 

stay will prevent at least one party, and likely both parties, from 

using or enjoying their property in the way that they would like. 

Like Jenea, Shaun is unable to sell or encumber the property. And 

if the court had denied Shaun’s request for a stay and required 

him to transfer property to Jenea pursuant to the terms of the 

divorce decree, this could have permanently deprived him of 
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20210863-CA 6 2023 UT App 51

property to which he would be entitled if he prevailed on appeal. 

This outcome would have been no more equitable than the shortterm limitation on Jenea’s ability to sell, invest, encumber, or 

otherwise use the assets she was awarded. And the losses Jenea 

identifies are not permanent—to the extent she prevails on appeal, 

she will eventually regain her ownership, use, and enjoyment of 

her property. While the value of those assets may be somewhat 

affected by the passage of time, it is just as likely that they will 

have appreciated as that they will have depreciated.

¶10 Finally, while a loss of value would certainly indicate that 

the stay did not adequately protect Jenea, she did not ask the court 

to include terms in the stay that would protect against such losses. 

On appeal, Jenea suggests that the district court should have 

included provisions in its injunction requiring Shaun to protect 

and maintain her assets and to refrain from “using” them in a 

manner that accelerates their depreciation. She points out, for 

example, that there is no requirement that Shaun continue to 

insure her real property. She also observes that Shaun has been 

able to use her property in a manner that may damage it or cause 

wear and tear—for example, by driving the vehicles she was 

awarded and letting their son and his friends live in a townhouse 

she owns. However, Jenea has pointed us to nothing indicating 

that she asked the district court to include restrictions on use

either before or after the stay was entered. So while we observe 

that such provisions would have certainly helped to guard Jenea

from losses or damage relating to her property, we cannot say that 

the district court exceeded its discretion in failing to include them.

CONCLUSION

¶11 Having reviewed Jenea’s arguments, we are not convinced 

that the district court exceeded its discretion in granting the stay 

on the terms that it did. Accordingly, we affirm.