2019 UT App 155



### T HE 

### U TAH 

### C OURT OF 

### A PPEALS

R OBBEN A NN O LDROYD

, Appellant,

v.

F ARRELL L YNN O LDROYD

, Appellee.

Opinion

No. 20180257

‐ CA

Filed September 26, 2019

Second District Court, Morgan Department

The Honorable Noel S. Hyde

No. 134500028

Brent D. Wride and Bryant McConkie, Attorneys

for Appellant

Brian E. Arnold and Lauren Schultz, Attorneys

for Appellee

J UDGE M ICHELE M. C HRISTIANSEN F ORSTER authored this Opinion,

in which J UDGES K ATE A PPLEBY and D AVID N. M ORTENSEN

concurred.

CHRISTIANSEN FORSTER, Judge:

¶1 Robben Ann Oldroyd (Wife) appeals the district court’s

determination that Farrell Lynn Oldroyd (Husband) was entitled

to an equitable interest in property she acquired prior to the

parties’ marriage. We reverse and remand for further

proceedings.

BACKGROUND

¶2 This case previously came before us in Oldroyd v. Oldroyd

( Oldroyd I ), 2017 UT App 45, 397 P.3d 645. At that time, WifeOldroyd v. Oldroyd

20180257

‐ CA 2 2019 UT App 155 challenged the district court’s determination that Husband had

acquired a premarital interest in a home constructed prior to

their marriage and titled in her name. Id. ¶¶ 2, 5.

¶3 We vacated the award and remanded for the district court

to make additional findings disclosing “the steps by which the

district court reached its ultimate conclusion.” Id. ¶¶ 5, 11.

Although courts have discretion to grant one spouse an

equitable portion of premarital property belonging to another

spouse in certain circumstances, see Lindsey v. Lindsey

, 2017 UT

App 38, ¶ 33, 392 P.3d 968, the district court had not made

findings regarding any of those circumstances. Instead, it

concluded that Husband had “acquired a separate premarital

interest in the improvements on the property.” Oldroyd I

, 2017

UT App 45, ¶ 4 (quotation simplified). Yet the court did not

articulate “what legal theory gave” Husband a premarital

interest in the property as opposed to an equitable interest in a

portion of a premarital asset belonging to Wife. Id. ¶ 8. Thus, we

were “unable to trace with accuracy the steps by which the

district court reached its ultimate conclusion that [Husband] had

obtained a premarital interest in the house.” Id. ¶ 11 (emphasis

added).

¶4 On remand, the court made additional findings regarding

Husband’s contribution to the value of the home. The court

found that Wife had contributed $350,000 toward the out

‐ of

‐ pocket costs of constructing the home and that “[t]he value of

the specialized expertise and labor provided” by Husband,

which included providing “the vast majority of supervision and

conceptual direction for the construction of the home,” “was

equivalent to the value of [Wife’s] financial contributions to the

home’s construction,” i.e., $350,000. 1 The court further found that

1. At trial, a general contractor called as an expert witness for

Wife estimated that he would have charged approximately

$804,000 to build the home in 1997.Oldroyd v. Oldroyd

20180257

‐ CA 3 2019 UT App 155 Husband “conferred upon [Wife] the benefit of his unique and

specialized knowledge and skills in constructing the

. . . home,”

that Wife “was aware of and appreciated the unique and

substantial benefit being conferred upon her,” and that

permitting Wife “to retain the benefit of [Husband’s] knowledge

and skills without granting [Husband] equal value in the home

would unjustly enrich” Wife. Based on these findings, the court

determined that the parties “should each be awarded a 50%

premarital interest” in the home based on a theory of unjust

enrichment. Wife again appeals the district court’s decision.

ISSUE AND STANDARD OF REVIEW

¶5 Wife asserts that the district court erred in recognizing a

50% premarital interest for Husband based on unjust

enrichment. “We review the district court’s legal conclusions for

correctness, and will reverse its factual findings only if they are

clearly erroneous.” 438 Main St. v. Easy Heat, Inc.

, 2004 UT 72,

¶ 49, 99 P.3d 801.

ANALYSIS

¶6 Wife asserts that the district court erred in awarding

Husband a premarital interest based on unjust enrichment,

because that theory was neither pleaded nor tried by consent.

Husband maintains that his pleadings adequately asserted an

unjust enrichment claim and that, even if they did not do so

explicitly, Wife was aware of the claim and defended against it

at trial, thereby impliedly consenting to its consideration. We

agree with Wife.

¶7 First, Husband’s pleadings cannot be construed as

asserting an unjust enrichment claim. The pleadings alleged that

Husband “has exerted hours and money into the home,

including trade work,” and that he “should be awarded a sumOldroyd v. Oldroyd

20180257

‐ CA 4 2019 UT App 155 certain from [Wife’s] equity in the home for all the work he has

completed on the home, and for value of his trade work that he

has performed for investment on the marital home.” This is not a

claim for a premarital interest in property based on unjust

enrichment or any other theory but a claim for an equitable

award of a portion of Wife’s premarital asset. 2 See Lindsey v.

Lindsey

, 2017 UT App 38, ¶ 33, 392 P.3d 968.

¶8 Second, Husband has not pointed us to anything in the

trial record suggesting that the issue was tried by implied

consent. “When an issue not raised in the pleadings is tried by

the parties’ express or implied consent, it must be treated in all

respects as if raised in the pleadings.” Utah R. Civ. P. 15(b)(1).

“Implied consent to try an issue may be found where one party

raises an issue material to the other party’s case or where

evidence is introduced without objection, where it appears that

the parties understood the evidence is to be aimed at the

unpleaded issue.” Hill v. Estate of Allred

, 2009 UT 28, ¶ 48, 216

P.3d 929 (quotation simplified). But “when evidence is

introduced that is relevant to a pleaded issue and the party

against whom the amendment is urged has no reason to believe

a new issue is being injected into the case, that party cannot be

said to have impliedly consented to trial of that issue.” Id.

(quotation simplified).

2. In Oldroyd I

, we declined Husband’s invitation to construe the

district court’s decision as granting him an equitable interest in

Wife’s premarital property because the court’s findings did not

support such a determination: “[T]he district court did not rule

that the house was marital property that should be divided

unequally” and “did not purport to award an interest in [Wife’s]

separate property to [Husband] to achieve an equitable result.”

Oldroyd I

, 2017 UT App 45, ¶ 9 & n.5, 397 P.3d 645. “Rather, the

court determined that [Husband] had ‘acquired a separate

premarital interest’ in the house.” Id. ¶ 9.Oldroyd v. Oldroyd

20180257

‐ CA 5 2019 UT App 155 ¶9 Husband’s contribution to the value of the home was a

major issue at trial, and much evidence was presented by both

parties on this point. However, all of this evidence was relevant

to Husband’s equitable claim that his efforts on the home

entitled him to a portion of Wife’s premarital asset. There is

nothing inherent in this evidence that would have suggested to

Wife that the evidence was introduced to prove an unpleaded

unjust enrichment claim. And in fact, Husband represented the

opposite, explicitly acknowledging at trial that his opportunity

to assert unjust enrichment had passed, since more than eighteen

years had elapsed since the completion of the home. The fact that

any unjust enrichment claim was several years too late is the

reason Husband sought an equitable award of a portion of

Wife’s property as part of the divorce action. It was the court

that ultimately construed Husband’s claim as an assertion of a

premarital interest in Wife’s separate property and articulated it

as such in its order.

¶10 In Oldroyd I

, we concluded that the district court had

failed to “explain what legal theory gave rise” to Husband’s

premarital interest in the property and clarified, “[T]he court did

not discuss whether unjust enrichment, promissory estoppel,

quasi

‐ contract, or some other theory applied.” Oldroyd I

, 2017 UT

App 45, ¶ 8. While acknowledging that it also did not appear

that Husband had “identified to the court a particular theory

under which he was entitled to a premarital interest,” we left

open the possibility that there could be some legal theory under

which the court could reach such a conclusion. Id. Upon further

review, however, it is apparent that this is not the case. Husband

raised no contract, quasi

‐ contract, or equitable claim that he had

acquired a premarital interest in the home, and no such claim

was tried by consent. Further, by Husband’s own admission, it

does not appear that any such claim was available to him within

the statute of limitations. See Utah Code Ann. § 78B

‐ 2

‐ 307(1)

(LexisNexis 2018). Thus, the district court erred in determiningOldroyd v. Oldroyd

20180257

‐ CA 6 2019 UT App 155 that Husband had established a premarital interest in the

property.

¶11 Because the district court premised its ruling on the

conclusion that Husband had acquired a premarital interest in

the home, it did not rule on his equitable argument. On remand,

the court is not precluded from evaluating this argument, which

was specifically pleaded and tried. 3

CONCLUSION

¶12 Because a claim of unjust enrichment was neither pleaded

nor tried by consent, the district court erred in determining that

Husband had acquired a premarital interest in the home. We

therefore reverse and remand for further proceedings.

3. Previous cases addressing equitable division of premarital

assets have involved contributions made to those assets during

the course of the marriage. See, e.g.

, Lindsey v. Lindsey

, 2017 UT

App 38, ¶¶ 6–7, 13, 392 P.3d 968; Elman v. Elman

, 2002 UT App

83, ¶ 20, 45 P.3d 176. Thus, Utah courts have not had the

opportunity to assess the extent to which one spouse’s premarital

contributions to another spouse’s premarital assets may be

considered in the context of a divorce court’s equitable division

of property. However, Wife does not appear to have asserted

that the court was precluded from considering Husband’s

premarital contributions, and the parties’ presentation of

evidence at trial indicates that both were acting on the

assumption that Husband’s premarital contributions were

relevant to his equitable claim for a portion of Wife’s premarital

asset. We therefore assume, without deciding, that premarital

contributions may be relevant in assessing whether equity

requires division of a premarital asset.