2023 UT App 111

THE UTAH COURT OF APPEALS

SUSAN JEANNE CLARK,

Appellee,

v.

RICHARD LEE CLARK,

Appellant.

Opinion

No. 20210713-CA

Filed September 28, 2023

Fourth District Court, Heber Department

The Honorable Jennifer A. Brown

No. 184500153

Karra J. Porter and Kristen C. Kiburtz,

Attorneys for Appellant

Julie J. Nelson, Attorney for Appellee

JUDGE AMY J. OLIVER authored this Opinion, in which JUDGES

MICHELE M. CHRISTIANSEN FORSTER and RYAN D. TENNEY

concurred.

OLIVER, Judge:

¶1 Richard Lee Clark appeals from the district court’s decision 

following a two-day divorce trial. Clark challenges several aspects 

of the court’s ruling, including a discovery sanction for his failure 

to timely disclose his trial exhibits under rule 26 of the Utah Rules

of Civil Procedure; findings relating to his claim that his ex-wife, 

Susan Jeanne Clark, dissipated the marital estate; and the court’s 

division of the marital property. We affirm the district court’s 

ruling with the exception of one aspect of the district court’s 

marital property determination, which we vacate and remand for 

additional findings. 
Clark v. Clark

20210713-CA 2 2023 UT App 111

BACKGROUND

¶2 Richard and Susan1 married in 2002, when Richard was in 

his sixties and Susan was in her fifties. Richard was retired from 

military service and from employment as an attorney with the 

Department of Justice. Susan owned a wallpaper business when 

she met Richard but quit working shortly after they married. For 

the next six years, Richard and Susan lived off Richard’s 

retirement income from both the Army and the Department of 

Justice.

¶3 In 2008, Richard came out of retirement to work for a

government contractor in Afghanistan, where he lived for thirtyeight months. During that time, Richard’s retirement and 

employment income of $814,627 was deposited into a joint 

account that Susan controlled. Richard returned home to find 

“probably about $100,000 . . . had been saved” in the joint bank 

account—much less than he expected—yet he said nothing to 

Susan at that time.

¶4 Three years after his return, Richard moved into the 

basement of the marital home. The following year, in 2016, Susan 

transferred approximately $78,000 from their joint account into 

her personal account, prompting Richard to confront her about 

what he viewed as missing money from his time in Afghanistan.

Two years later, in 2018, Susan filed for divorce. Shortly 

afterward, Richard purchased a Harley-Davidson motorcycle 

with financing, which he paid off in 2020. 

¶5 At the time of their divorce, Richard and Susan owned two 

real properties—a condo in Norfolk, Virginia (Mooring Drive),

and a home in Kamas, Utah (Ross Creek). Richard had purchased 

Mooring Drive before the marriage for approximately $205,000. In 

1. Because the parties share the same surname, we refer to them

by their first names, with no disrespect intended by the apparent 

informality.
Clark v. Clark

20210713-CA 3 2023 UT App 111

2003, Richard added Susan to the title of Mooring Drive, which 

allowed her to vote at the condominium association’s meetings 

and to join the board. The following year, Richard and Susan used 

equity loans on Mooring Drive to finance the purchase and 

construction of Ross Creek. From 2009—when Susan moved to 

Utah and Richard was in Afghanistan—until June 2019, Richard 

rented Mooring Drive out to others and the revenues were 

deposited into his separate account that was designated to pay for 

the property’s expenses.

¶6 During their marriage, the parties took out an equity loan 

on Ross Creek that matured, along with one of the equity loans 

from Mooring Drive, in 2019. With the divorce still pending, 

Susan agreed to refinance Ross Creek’s mortgage to pay off the 

two equity loans that were due, but only if Richard would 

stipulate that Mooring Drive and Ross Creek were marital 

property and were subject to equitable division in their pending 

divorce. Richard agreed, and the parties stipulated that “the Ross 

Creek and Mooring Drive properties shall remain marital 

property and shall be subject to equitable division in the parties’ 

divorce notwithstanding that the Ross Creek home and Mooring 

Drive property will no longer be jointly titled.”

¶7 In April 2019, the Mooring Drive tenants’ lease expired. 

Richard decided he could only offer the tenants a month-tomonth lease until his divorce was over. When the tenants declined 

to renew and moved out in June, Richard withdrew $30,000 from 

the joint bank account, claiming that he needed the funds to cover 

Mooring Drive’s expenses. After a hearing, the court entered 

temporary orders in December 2019, permitting Richard to access 

equity in Ross Creek to pay off debt on Mooring Drive but

denying his “request for financial relief based on the loss of rental 

income because [Richard] ha[d] not made any attempt to secure 

new renters.”

¶8 Trial was originally scheduled for June 2020, but when the 

COVID-19 pandemic hit and courts were required to hold bench 
Clark v. Clark

20210713-CA 4 2023 UT App 111

trials virtually, Richard declined to proceed with a virtual trial,

and it was continued without a date. In February 2021, the court 

held a pretrial scheduling conference and rescheduled the trial for 

May 2021. The court’s pretrial order stated the parties must 

produce pretrial disclosures on or before April 26, 2021, pursuant 

to rule 26(a)(5)(B) of the Utah Rules of Civil Procedure.

¶9 Richard missed the deadline. A week after it passed, he 

requested a continuance to hire trial counsel. Richard had been 

representing himself as a pro se litigant despite being eighty-four

years old and not having practiced law since 1988. According to 

Richard, health issues arose that made him “no longer physically 

and mentally capable of representing” himself. The court granted 

the motion, rescheduling the trial for June. The new deadline for 

pretrial disclosures became May 24, but Richard did not submit 

his pretrial disclosures until June 10—eleven days before trial.

¶10 The two-day trial began with Susan’s objection to Richard’s 

untimely pretrial disclosures. Susan contended that Richard had 

“ample opportunity” to produce his pretrial disclosures given the 

multiple continuances of the trial. In response, Richard claimed 

his failure to meet the disclosure deadline was harmless because 

he had previously produced as discovery responses the 339 pages 

of financial documents—including check registers, paystubs from 

2008 to 2009, and bank account information from 2011 to 2012—

that he sought to admit as exhibits 2 through 8. Yet Richard did

not file certificates of service for those responses, and neither 

party’s counsel could confirm whether Richard had previously 

sent the documents in exhibits 2 through 8 to Susan, leaving the 

district court with only Richard’s testimony to support the claim 

that he had previously disclosed the exhibits. The district court 

sustained Susan’s objection as to exhibits 2 through 8, excluding 

them from trial.

¶11 Both Susan and Richard testified at trial. Susan testified 

Richard had transferred $30,000 from their joint account to his 

personal account in June 2019 and contended she was entitled to 
Clark v. Clark

20210713-CA 5 2023 UT App 111

half of that amount. Susan also testified about her exhibits that

provided recent balances in her bank and retirement accounts. 

¶12 On cross-examination, Susan admitted she had not looked 

for work and was unemployed despite the court’s urging in 2020 

for her to seek employment. Richard then peppered Susan about 

numerous expenditures during his time in Afghanistan, to which 

Susan replied that it “was a number of years ago” and she “ha[d] 

no recollection at all” of the transactions. Susan did state, 

however, that when Richard left for Afghanistan, she recalled 

they “had very large credit card balances” that Richard instructed 

her “to start paying off” while he was away.

¶13 First testifying as Susan’s witness, Richard answered 

questions about some of the marital property. He testified about 

a recent appraisal of Mooring Drive that valued it at $390,000, his

three life insurance policies that all list Susan as the beneficiary, 

and his purchase of the Harley-Davidson in May 2019. Susan then 

introduced a pleading Richard had filed with the court in 

November 2019 that stated, in relevant part, he had “owned three 

motorcycles, selling the last one when [he] moved to Norfolk,” 

but he has “never ridden a Harley-Davidson.” Richard replied 

that he had “misstated the fact,” both in that pleading and at a 

hearing the same month when he told the court he did not own a 

Harley-Davidson. Richard testified he should receive threefourths of the equity in Mooring Drive because he purchased it 

before the marriage. Unable to provide a figure for what the 

property was worth when he married Susan, Richard claimed that 

“the[] prices have gone up and gone down a great deal” since their 

marriage, but his best guess was that Mooring Drive appreciated 

from $205,000 to $350,000 between 2000 and 2002. Richard 

continued to do some impromptu math on the stand to clarify 

how much equity he felt he was owed, asserting that since 

Mooring Drive was recently appraised at $390,000 and had been 

worth $350,000 in 2002—by his best guess—there is $40,000 of 

equity for them to divide, but then he admitted such valuation “is 

something I’m just not knowledgeable about.”
Clark v. Clark

20210713-CA 6 2023 UT App 111

¶14 As his own witness, Richard testified about Susan’s alleged 

dissipation during his time in Afghanistan. Richard’s excluded 

exhibits went to the issue of dissipation, so without the financial 

documents from that period, Richard sought to prove Susan 

“dissipated money while [he] was in Afghanistan” through his 

testimony about his earnings and typical expenses during that 

time frame. Using the excluded exhibits to refresh his recollection, 

Richard estimated their monthly expenses before he left were 

approximately $10,000 to $11,000. Richard also challenged 

Susan’s testimony about credit card balances, claiming that “there 

weren’t any large credit card balances before [he] left.” 

¶15 At the conclusion of trial, the district court asked both 

parties to submit proposed findings of fact and conclusions of law

in lieu of closing arguments. After issuing an oral ruling, the 

district court memorialized its decision in written findings of fact 

and conclusions of law. The court found that Richard’s 

“testimony was insufficient to establish his [dissipation] claim” 

and that Richard had “failed to meet his burden of demonstrating 

dissipation.” The court also found “problems with the credibility 

of both parties,” specifically finding that Susan’s “credibility was 

lacking with regards to the dissipation issue” and Richard’s 

“credibility was lacking with regards to his motorcycle purchase.”

Susan was awarded Ross Creek’s equity, and Richard was 

awarded Mooring Drive’s. The court awarded Susan $2,500 per 

month in alimony and an offset of $43,474 (from Richard’s 

purchase of the Harley-Davidson and his $30,000 withdrawal 

from the joint account) “to achieve an equitable division of the 

estate.” The court found Richard “withdrew $30,000 from the joint 

account without [Susan’s] knowledge or consent and deposited it 

into his own personal account,” but it made no findings as to how

Richard spent the $30,000. 

ISSUES AND STANDARDS OF REVIEW

¶16 Richard raises three main issues for our review. First, 

Richard challenges the district court’s exclusion of his exhibits for 
Clark v. Clark

20210713-CA 7 2023 UT App 111

his failure to comply with rule 26(a)(5) of the Utah Rules of Civil 

Procedure. A district court “has broad discretion regarding the 

imposition of discovery sanctions,” and when we apply “the 

abuse of discretion standard to the district court’s imposition of a 

particular sanction, we give the district court a great deal of 

latitude.” Bodell Constr. Co. v. Robbins, 2009 UT 52, ¶ 35, 215 P.3d 

933 (cleaned up).

¶17 Second, Richard contends the district court erred in its 

application of the burden of proof on Richard’s dissipation claim. 

A district court’s “allocation of the burden of proof is . . . a 

question of law that we review for correctness.” Salt Lake City 

Corp. v. Jordan River Restoration Network, 2018 UT 62, ¶ 20, 435 P.3d 

179. 

¶18 Finally, Richard challenges the district court’s division of

the property, including the court’s finding that the marital estate 

included Mooring Drive and the Harley-Davidson, and its 

decision to deduct from the marital estate the $30,000 Richard

withdrew from the parties’ joint account. A district court “has 

considerable discretion considering property division in a divorce 

proceeding, thus its actions enjoy a presumption of validity,” and 

“we will disturb the district court’s division only if there is a 

misunderstanding or misapplication of the law indicating an 

abuse of discretion.” Beckham v. Beckham, 2022 UT App 65, ¶ 6, 511 

P.3d 1253 (cleaned up).

ANALYSIS

I. Pretrial Disclosures

¶19 Richard asserts the district court abused its discretion in 

excluding his exhibits 2 through 8 for failure to comply with rule 

26(a)(5) of the Utah Rules of Civil Procedure because he 

“produced the documents that comprised the exhibits” during 

discovery and any “technical non-compliance with that rule” was 

“harmless.” We disagree.
Clark v. Clark

20210713-CA 8 2023 UT App 111

¶20 Rule 26 governs “disclosure and discovery” in civil matters 

and requires parties to provide “a copy of each exhibit, including 

charts, summaries, and demonstrative exhibits, unless solely for 

impeachment, separately identifying those which the party will 

offer and those which the party may offer . . . . at least 28 days 

before trial.” Utah R. Civ. P. 26(a)(5). A party who fails to timely 

disclose exhibits “may not use the undisclosed witness, 

document, or material at . . . trial unless the failure is harmless or 

the party shows good cause for the failure.” Id. R. 26(d)(4). A 

district court “has broad discretion in selecting and imposing 

sanctions for discovery violations under rule 26,” and “appellate 

courts may not interfere with such discretion unless there is either 

an erroneous conclusion of law or no evidentiary basis for the 

district court’s ruling.” Wallace v. Niels Fugal Sons Co., 2022 UT 

App 111, ¶ 26, 518 P.3d 184 (cleaned up), cert. denied, 525 P.3d 1267 

(Utah 2023). 

¶21 Richard does not dispute that he failed to timely disclose 

exhibits 2 through 8. Instead, Richard argues he produced the 

documents in those exhibits to Susan in earlier discovery 

responses, so his failure to timely file pretrial disclosures was 

harmless, and he further argues that it was Susan’s burden to 

prove she had not received them. In response, Susan asserts it was 

Richard’s burden, not hers, to prove that he produced the 

documents earlier in discovery, and the failure to file his pretrial 

disclosures pursuant to rule 26(a)(5) was not harmless. We agree 

with Susan on both fronts. 

¶22 First, “the burden to demonstrate harmlessness or good 

cause is clearly on the party seeking relief from disclosure 

requirements.” Dierl v. Birkin, 2023 UT App 6, ¶ 32, 525 P.3d 127 

(cleaned up), cert. denied, 527 P.3d 1107 (Utah 2023). Second, 

Richard failed to carry his burden of demonstrating harmlessness. 

Although Richard “assured [his counsel] that he [had] produced 

records related to this 2008-to-2012 timeframe,” he did not file the 

required certificates of service. See Utah R. Civ. P. 26(f) (requiring

a party to file “the certificate of service stating that the disclosure, 
Clark v. Clark

20210713-CA 9 2023 UT App 111

request for discovery, or response has been served on the other 

parties and the date of service”). Thus, Richard failed to prove that 

the documents had previously been produced.

¶23 But even if he had proved prior production, excusing

pretrial disclosures if the documents were produced earlier in 

discovery would “eviscerate[] the rule that explicitly requires 

parties to” serve a copy of the documents they intend to use “in 

their case-in-chief at trial.” Johansen v. Johansen, 2021 UT App 130, 

¶¶ 19, 26, 504 P.3d 152 (rejecting argument to follow the spirit of 

rule 26 rather than “the plain language of rule 26” regarding 

pretrial disclosures); see also Utah R. Civ. P. 26(a)(5)(A)(iv) 

(requiring pretrial disclosure of “each exhibit” the party will or 

may offer at trial). And expecting a party to sort through 

hundreds, if not thousands, of pages of documents that were 

produced earlier by the other side during discovery and then 

expecting the party to predict which ones the opposing party 

might seek to admit at trial would be harmful and would violate 

the intent of rule 26.

¶24 Ultimately, “a court’s determination with respect to 

harmlessness . . . . is a discretionary call,” and our review of it “is

necessarily deferential.” Johansen, 2021 UT App 130, ¶ 11 (cleaned 

up). Thus, the district court was well within its “broad discretion” 

to exclude Richard’s exhibits 2 through 8 under these

circumstances. See Wallace, 2022 UT App 111, ¶ 26 (cleaned up).

II. Dissipation

¶25 Richard claims the district court erred in finding that he 

failed to meet the burden of proof on his dissipation claim. We 

disagree.

¶26 “The marital estate is generally valued at the time of the 

divorce decree or trial.” Goggin v. Goggin, 2013 UT 16, ¶ 49, 299 

P.3d 1079 (cleaned up). “But where one party has dissipated an 

asset,” the “trial court may, in the exercise of its equitable 

powers,” “hold one party accountable to the other for the 
Clark v. Clark

20210713-CA 10 2023 UT App 111

dissipation.” Id. (cleaned up). A court’s inquiry into a dissipation 

claim may consider “a number of factors,” such as “(1) how the 

money was spent, including whether funds were used to pay 

legitimate marital expenses or individual expenses; (2) the parties’ 

historical practices; (3) the magnitude of any depletion; (4) the 

timing of the challenged actions in relation to the separation and 

divorce; and (5) any obstructive efforts that hinder the valuation 

of the assets.” Wadsworth v. Wadsworth, 2022 UT App 28, ¶ 69, 507 

P.3d 385 (cleaned up), cert. denied, 525 P.3d 1259 (Utah 2022).

¶27 The burden of proof for dissipation initially falls on the 

party alleging it. See Parker v. Parker, 2000 UT App 30, ¶ 15, 996 

P.2d 565 (stating that a party seeking to assert dissipation must 

make an “initial showing of apparent dissipation”). The district 

court correctly concluded that Richard bore the “burden of 

demonstrating dissipation.” To meet the “initial showing of 

apparent dissipation,” the party alleging dissipation must first 

show evidence of dissipation. Id. ¶¶ 13, 15. Only after 

“present[ing] the trial court with evidence tending to show that 

[Susan] had dissipated marital assets” does the burden shift to 

Susan “to show that the funds were not dissipated, but were used 

for some legitimate marital purpose.” Id. ¶ 13. 

¶28 Richard’s documentary evidence on this issue had been 

excluded by the court, so the only evidence he presented was his 

testimony in 2021 that his income while in Afghanistan from 2008

to 2012 exceeded the estimated historical marital expenses from 

before 2008, some thirteen years earlier. Richard asserts that his 

testimony alone should suffice for an initial showing of 

dissipation. In Parker v. Parker, 2000 UT App 30, ¶ 15, 996 P.2d 565,

the husband “presented the trial court with evidence” that 

detailed how the wife had dissipated marital assets—exact 

beginning and ending balances for eight bank accounts, the 

marital expenses during the time in question, and specific checks 

the wife wrote to herself—thus shifting the burden to the wife. Id. 

¶ 13. But Richard, like the wife in Parker, only “testified in 
Clark v. Clark

20210713-CA 11 2023 UT App 111

conclusory and cryptic terms,” and thus “wholly failed to meet 

[his] burden.” Id. ¶ 14.

¶29 Therefore, the district court was well within its discretion 

to decide that Richard’s uncorroborated testimony about Susan’s 

spending that occurred many years before either party 

contemplated divorce2 was insufficient evidence to meet his 

initial burden of proving dissipation. Accordingly, the district 

court did not err in its finding that Richard failed to meet his 

burden of proof on the dissipation claim.

III. Marital Property

¶30 Richard presents three challenges to the district court’s 

division of the marital property. First, Richard asserts he is 

entitled to his premarital contribution to Mooring Drive. Second, 

he alleges the Harley-Davidson he purchased during the 

pendency of the divorce is his separate property. Third, Richard 

claims the court should not have deducted from the marital estate

the $30,000 that he withdrew from the joint account in June 2019.

2. Susan invites us to join some other states in drawing a brightline rule concerning the timing of a dissipation claim and limit 

pre-separation dissipation claims to those occurring (1) in 

contemplation of divorce or separation or (2) when the marriage 

is in serious jeopardy or undergoing an irretrievable breakdown.

Under our caselaw, the district court is empowered to consider 

the “timing of the challenged actions in relation to the separation 

and divorce” as one of several factors when determining 

“whether a party should be held accountable for the dissipation 

of marital assets.” Marroquin v. Marroquin, 2019 UT App 38, ¶ 33, 

440 P.3d 757 (cleaned up). We see no need to alter this approach. 

Assessing timing as one factor among many provides the greatest 

flexibility to the district court to consider all the circumstances in 

a particular case, and we believe the district court is in the best 

position to evaluate the importance of such evidence on a case-bycase basis.
Clark v. Clark

20210713-CA 12 2023 UT App 111

We affirm the district court’s decision on Richard’s first two 

challenges and vacate the decision on the third, remanding the 

matter for additional findings.

A. Mooring Drive

¶31 Although the district court awarded Richard the equity in 

Mooring Drive when it divided the marital estate, it did not also 

award Richard any premarital equity in the property for three 

reasons. First, it found that Richard “formally stipulated that Ross 

Creek and Mooring Drive were marital property subject to 

division in this divorce action.” Second, it found that “through a 

series of refinances, [Richard] transferred equity from Ross Creek 

to Mooring Drive, and paid expenses associated with both 

properties with marital funds.” Third, it found that Richard 

“formally conveyed the property to himself and [Susan] in 2003” 

when he added Susan’s name to the title. Because we affirm the 

district court’s decision not to award Richard any premarital 

equity on the basis of the parties’ stipulation, we do not address 

the other two reasons the district court relied upon.

¶32 Richard and Susan stipulated that “the Ross Creek and 

Mooring Drive properties shall remain marital property and shall 

be subject to equitable division in the parties’ divorce,

notwithstanding that the Ross Creek home and Mooring Drive 

property will no longer be jointly titled.” Richard now claims that 

despite the language of the stipulation, he “never agreed that he 

should not be compensated for his premarital and separate 

contributions to Mooring Drive before the property became 

marital.” Furthermore, Richard argues, “nowhere in the 

stipulation did he agree that he was waiving his premarital equity 

in that property.”

¶33 Richard’s argument is flawed. “Parties to a divorce are 

bound by the terms of their stipulated agreement.” McQuarrie v. 

McQuarrie, 2021 UT 22, ¶ 18, 496 P.3d 44. And according to the 

“ordinary contract principles” that govern “contracts between 

spouses,” see Ashby v. Ashby, 2010 UT 7, ¶ 21, 227 P.3d 246 (cleaned 
Clark v. Clark

20210713-CA 13 2023 UT App 111

up), “if the language within the four corners of the contract is 

unambiguous, the parties’ intentions are determined from the 

plain meaning of the contractual language,” Green River Canal Co. 

v. Thayn, 2003 UT 50, ¶ 17, 84 P.3d 1134 (cleaned up). See also Mind 

& Motion Utah Invs., LLC v. Celtic Bank Corp., 2016 UT 6, ¶ 24, 367 

P.3d 994 (holding that “the best indication of the parties’ intent is 

the ordinary meaning of the contract’s terms”); Ocean 18 LLC v. 

Overage Refund Specialists LLC (In re Excess Proceeds from the 

Foreclosure of 1107 Snowberry St.), 2020 UT App 54, ¶ 22, 474 P.3d 

481 (holding that where the “contract is facially unambiguous, the 

parties’ intentions are determined from the plain meaning of the 

contractual language . . . without resort to parol evidence” 

(cleaned up)). 

¶34 Richard essentially argues that the district court erred 

when it refused to go beyond the stipulation’s language and infer 

his intention from what he omitted. But the district court was 

correct when it interpreted the parties’ intentions by what the 

plain language of the stipulation does say and not by what it does 

not. Therefore, the district court did not abuse its discretion when 

it abided by the parties’ stipulation and included Mooring Drive 

as marital property, “subject to equitable division.”

B. The Harley-Davidson

¶35 “Prior to the entry of a divorce decree, all property 

acquired by parties to a marriage is marital property, owned

equally by each party.” Dahl v. Dahl, 2015 UT 79, ¶ 126, 456 P.3d

276. Thus, the presumption is that property acquired during the 

pendency of a divorce is marital, not separate. Richard failed to 

rebut this presumption regarding the Harley-Davidson 

motorcycle he purchased because he failed to present evidence 

that he used separate funds.

¶36 Richard argued that he purchased the Harley-Davidson 

from separate, rather than marital, funds in his proposed findings 
Clark v. Clark

20210713-CA 14 2023 UT App 111

of fact and conclusions of law.3 To be clear, Richard does not assert 

that the Harley-Davidson is separate property because he 

purchased it after the parties separated or after Susan filed for 

divorce. Instead, he argues the only funds available to him to 

purchase the motorcycle came from his “separate premarital 

retirement income.” Richard’s argument fails for two reasons. 

First, Richard did not present evidence to support his argument

that the funds he used to purchase the motorcycle came from 

separate, not marital, funds. Instead, Richard essentially places 

his burden on the district court by asserting, on appeal, that 

“[t]here was no marital account identified by the district court

from which [Richard] could have made that purchase.” But 

Richard, not the court, bears the burden of identifying where the 

funds came from that he used to purchase the motorcycle.

¶37 Second, the district court found credibility problems with 

Richard’s testimony about the Harley-Davidson, concluding that 

Richard’s “credibility was lacking with regards to his motorcycle 

purchase.”4 A district court “is in the best position to judge the 

credibility of witnesses and is free to disbelieve their testimony” 

or “disregard such testimony if it finds the evidence self-serving 

and not credible.” Ouk v. Ouk, 2015 UT App 104, ¶ 14, 348 P.3d 

751 (cleaned up).

¶38 In sum, as “property acquired during [the] marriage,” the 

Harley-Davidson is presumptively “marital property subject to 

equitable distribution.” Dahl, 2015 UT 79, ¶ 26. Richard bore the 

burden of proof to rebut the presumption that the funds he used 

to purchase the Harley-Davidson were not marital, and he 

presented no credible evidence to the district court to support that 

3. Because the district court directed the parties to submit 

proposed findings of fact and conclusions of law in lieu of closing 

arguments, Richard’s argument was preserved for our review.

4. Indeed, in its oral ruling, the court stated that Richard “lied to 

the Court about the purchase of the motorcycle.”
Clark v. Clark

20210713-CA 15 2023 UT App 111

position. Thus, the district court did not abuse its discretion by 

including the motorcycle in the marital estate. 

C. $30,000 Offset

¶39 Finally, Richard challenges the district court’s decision to 

include in the marital estate the $30,000 he withdrew from the 

joint account. The district court agreed with Susan that because 

Richard had made a unilateral withdrawal from the joint account 

during the pendency of the divorce, he should be held 

accountable for that withdrawal. Richard, on the other hand,

claims he used the money for marital expenses, paying costs 

associated with Mooring Drive. Susan argues the money could 

also have been spent on personal items including travel and 

motorcycle payments and accessories. “How the money was 

spent, including whether [the] funds were used to pay legitimate 

marital expenses or individual expenses,” Wadsworth v. 

Wadsworth, 2022 UT App 28, ¶ 69, 507 P.3d 385 (cleaned up), cert. 

denied, 525 P.3d 1259 (Utah 2022), is a critical question that needs 

to be resolved. 

¶40 Divorce cases often require district courts to make 

numerous findings of fact. And generally speaking, “for findings 

of fact to be adequate, they must show that the court’s judgment 

or decree follows logically from, and is supported by, the 

evidence” and such findings “should be sufficiently detailed and 

include enough subsidiary facts to disclose the steps by which the 

ultimate conclusion on each factual issue was reached.” Armed 

Forces Ins. Exch. v. Harrison, 2003 UT 14, ¶ 28, 70 P.3d 35 (cleaned 

up). Moreover, when it comes to the “unequal division of marital 

property,” a district court must “memorialize[] in . . . detailed 

findings the exceptional circumstances supporting the 

distribution.” Bradford v. Bradford, 1999 UT App 373, ¶ 27, 993 P.2d 

887 (cleaned up). “Without adequate findings detailing why [one 

spouse] should be entitled to such an unequal split of the marital 

estate, we cannot affirm the court’s award.” Fischer v. Fischer, 2021 

UT App 145, ¶ 29, 505 P.3d 56; see, e.g., Rothwell v. Rothwell, 2023 
Clark v. Clark

20210713-CA 16 2023 UT App 111

UT App 50, ¶ 57, 531 P.3d 225 (concluding that “we simply do not 

have enough information” to rule on whether the funds were 

marital or separate, “let alone to conclude that the district court

. . . erred”). 

¶41 We face the same dilemma here. The district court made no 

findings as to how Richard spent the $30,000. The written ruling 

merely states, “In June 2019, [Richard] withdrew $30,000 from the 

joint account without [Susan’s] knowledge or consent and 

deposited it into his own personal account.” “We will not imply 

any missing finding where there is a matrix of possible factual 

findings and we cannot ascertain the trial court’s actual findings.” 

Hall v. Hall, 858 P.2d 1018, 1025–26 (Utah Ct. App. 1993). Without 

“adequate findings” on whether Richard used the funds for 

marital expenses or not, “we cannot affirm,” nor properly review,

the court’s decision to offset the $30,000 against Richard in its 

division of the marital estate. See Fischer, 2021 UT App 145, ¶ 29. 

Therefore, we vacate this portion of the decision and remand the 

matter to the district court for it to enter findings on how the funds 

were spent. 

CONCLUSION

¶42 The district court did not abuse its discretion when it 

excluded Richard’s exhibits for failure to comply with rule 

26(a)(5) of the Utah Rules of Civil Procedure. The district court 

also did not err in its conclusion that Richard failed to meet the 

burden of proof for his dissipation claim nor did it abuse its 

discretion in how it divided the marital estate with respect to 

Mooring Drive and the Harley-Davidson. We vacate the district 

court’s decision to offset the $30,000 against Richard when it 

divided the marital estate and remand the matter for the district 

court to enter additional findings and to alter its conclusion as 

may be necessary.