2024 UT App 102

THE UTAH COURT OF APPEALS

JOHN DINSDALE HILLAM,

Appellee,

v.

TARA HILLAM (LOVELAND),

Appellant,

v.

DUSTIN HANCOCK,

Appellee.

Opinion

No. 20220488-CA

Filed July 18, 2024

Second District Court, Farmington Department

The Honorable David J. Williams

No. 174700031

Bart J. Johnsen and Alan S. Mouritsen,

Attorneys for Appellant

Julie J. Nelson, Attorney for

Appellee John Dinsdale Hillam

Joshua L. Lee, Attorney for

Appellee Dustin Hancock

JUDGE RYAN D. TENNEY authored this Opinion, in which 

JUDGES DAVID N. MORTENSEN and JOHN D. LUTHY concurred.

TENNEY, Judge:

¶1 John Hillam and Tara Hillam were married in 2000.1 John 

filed for divorce in 2017, and John and Tara then spent several 

1. Tara changed her last name to Loveland while the case was 

proceeding below. Because the parties shared a last name for 

(continued...)
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20220488-CA 2 2024 UT App 102

years litigating various questions relating to their divorce, most of 

which concerned the proper distribution of their assets. The 

district court issued findings of fact and conclusions of law in 

December 2021 that resolved all remaining issues.

¶2 Tara now appeals several of the district court’s rulings. We 

decide the various issues as follows:

• Tara first raises several challenges to the court’s conclusion 

that, as part of this divorce, it could not divide certain 

assets that John had placed in an irrevocable trust (the 

Trust) during the marriage. We reject two of Tara’s 

challenges for lack of preservation, and we reject a third on 

the merits.

• Also related to the Trust, Tara claims that the district court 

abused its discretion when it concluded that John had not 

dissipated marital assets by placing them into the Trust. 

We conclude that the court erred in its analysis of two of 

the dissipation factors, so we remand this matter for the 

court to reconsider the dissipation question in light of the 

principles set forth below. 

• Finally, separate from the Trust issues, Tara argues that the 

court erred by not awarding her half of a stock payout that 

John had received after he filed for divorce. On this issue, 

we conclude that there was no abuse of discretion. 

much of the case, we’ll follow our usual practice and refer to both 

of them by their first names, with no disrespect intended by the 

apparent informality.
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20220488-CA 3 2024 UT App 102

BACKGROUND2

The Marriage and John’s Employment

¶3 John and Tara married in June 2000, and they had three 

children between 2001 and 2005. Except for occasional 

hairdressing jobs, Tara stopped working once the parties had 

children. John “earned the vast majority of the household income”

during the marriage.

¶4 In August 2010, John started working for Maverik, Inc. His 

compensation consisted of two components: (i) salary and 

(ii) deferred compensation, under which John shared in a portion 

of the company’s profits and which the parties have referred to 

during the litigation as “stock options” or “stock payouts.”3 “In 

2. As explained in more detail below, this appeal challenges both 

(i) a ruling granting summary judgment on the issue of the 

validity of the Trust and (ii) findings of fact and conclusions of 

law that were entered after a bench trial on other matters. “When 

reviewing a rule 56(c) motion for summary judgment, we recite 

the facts in the light most favorable to the non-moving party.” 

Johnson v. Hermes Assocs., Ltd., 2005 UT 82, ¶ 2, 128 P.3d 1151.

“Following a bench trial, we recite the facts from the record in the 

light most favorable to the findings of the trial court and present 

conflicting evidence only as necessary to understand issues raised 

on appeal.” State v. Schroeder, 2023 UT App 57, n.4, 531 P.3d 757 

(quotation simplified). 

3. The parties acknowledged at trial that the references to “stock” 

were something of a misnomer given that they did not signify 

John’s ownership in the company. But since this appeal does not 

deal with any other stock-like financial assets, we do not delve 

into the technical functions of the financial products at issue and 

will instead simply mirror the terms used by the parties when 

referring to the deferred compensation program.
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20220488-CA 4 2024 UT App 102

2010 and 2011, Maverik granted [John] 1000 shares of stock 

options.” The deferred compensation scheme changed in 2012 

such that John received “stock payouts” between the years 2013 

to 2017. The district court later found that the payouts made from 

2013 to 2016 “presumably were used for marital expenses.” John 

received a stock payout in 2017 after he had initiated divorce 

proceedings, and that payout, which was for about $570,000, was 

placed into John’s personal bank account.

John Counsels with an Attorney and Creates a Trust

¶5 In late 2012, John consulted with an attorney (Attorney) for 

two purposes. The first was that John and Tara were experiencing 

marital difficulties, so John sought assistance “with the 

negotiation of a postnuptial agreement.” John later testified that 

the couple’s marital difficulties during that period “were no 

different than what they had experienced in earlier portions of the 

marriage,” though he acknowledged that Tara had “threatened 

divorce” somewhere around that time. In spite of John’s 

discussions with Attorney about a postnuptial agreement, the 

couple didn’t execute such an agreement.

¶6 John’s second purpose in consulting with Attorney was to 

discuss the potential creation of a trust. John and Tara had 

discussed creating a trust before John met with Attorney, and

Tara understood that “other Maverik executives who were 

starting to retire were . . . establish[ing] trusts as a means of saving 

money on the taxes of a stock buy-back.” John asked Tara to meet 

with Attorney “regarding the formation of the trust.” Though 

Tara would later testify that “she did not feel she had a choice in 

the matter,” she also testified that “she trusted [John] and trusted 

that he was doing what was in the best interest of the family.” 

¶7 Tara met with Attorney “on one or perhaps two 

occasions,” during which they discussed “the assets used to fund 

the trust.” While it is not clear the extent to which Tara 
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20220488-CA 5 2024 UT App 102

understood which assets would ultimately fund the Trust, “she 

knew that marital assets of some kind would be used to form what 

she believed was a ‘family trust.’” The district court later found 

that Tara “was not provided any draft documents to review” but 

that, even so, Tara did not “object[] to the formation of the trust” 

at the time that it was created.

¶8 The Trust (formally, the John D. Hillam 2012 Irrevocable 

Trust) was finalized on November 27, 2012. The Declaration of 

Trust and Agreement (the Trust Agreement) listed John as settlor, 

with Dustin Hancock as trustee (the Investment Trustee). The 

listed beneficiaries included, among others, John, John’s 

“spouse,” and John’s “children.” The Trust Agreement named 

Tara as the “spouse,” but it then defined the term by providing:

All references to [John’s] spouse are to Tara Hillam. 

However, if [John] and [John’s] spouse divorce after 

the date of this Trust Agreement, then as of the date 

the divorce is effective, the terms “spouse” and 

“[John’s] spouse” shall no longer refer to Tara

Hillam, and for all purposes of this Trust 

Agreement[,] . . . she shall be deemed to have died 

on the divorce’s effective date.

As to the Trust’s other terms, we note (for purposes of this appeal) 

that the Trust Agreement contained a spendthrift clause, a 

provision designating its situs and choice of law as Nevada, and 

various terms rendering the Trust irrevocable.

¶9 On the same day the Trust was finalized, John transferred 

his rights in the 1,000 shares of Maverick stock options that he had 

received in 2010 and 2011 to the Trust as a gift, and those options 

were valued at $350,000.
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20220488-CA 6 2024 UT App 102

Divorce Proceedings

¶10 John filed for divorce in January 2017. What followed was, 

as later described by the district court, a “high conflict” multi-year 

divorce case. We recount just the proceedings from the district 

court that are relevant to this appeal.

¶11 John and Tara appeared before a domestic relations 

commissioner in March 2017, after which the commissioner 

entered temporary orders (the Temporary Orders). The 

Temporary Orders allotted custody and parent-time, assigned 

temporary alimony and child support, and awarded certain 

property for the duration of the divorce proceedings. Notably, the 

Temporary Orders “imputed” John with a gross monthly income 

of $29,792.

¶12 In November 2017, the parties met for a so-called “4-903 

Settlement Conference” (the Settlement Conference).4 At that 

conference, the commissioner bifurcated the divorce proceedings, 

mostly for purposes of reserving certain issues that had arisen 

regarding the Trust for future proceedings. But the corresponding 

order also reserved “[a]ll other objections or issues not addressed 

below.” It emphasized that “[b]y entering this partial order, 

neither party has, or intends to, abandon any agreement or 

stipulation reached and placed on the record following the 4-903 

Settlement Conference.” This order superseded the Temporary 

Orders and entered new amounts for child support and alimony 

payments, but it did not detail what income figures those 

determinations were based on.

4. This type of proceeding is held in conjunction with a “custody 

evaluation,” and it “provide[s] the court with information it can 

use to make decisions regarding custody and parenting time 

arrangements that are in a child’s best interest.” Utah R. Jud. 

Admin. 4-903(1). 
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20220488-CA 7 2024 UT App 102

¶13 The next month, Tara submitted a proposed Bifurcated 

Decree of Divorce. The district court apparently believed that the 

terms contained in this proposal had been agreed to by both 

parties, so it soon signed and entered this as the Bifurcated Decree 

of Divorce (the First Decree). John almost immediately filed a 

motion under rule 60(b) of the Utah Rules of Civil Procedure,

wherein he asked the court to set aside the First Decree. In this 

motion, John alleged that the parties had not actually agreed to its 

terms and that Tara had engaged in “objectionable conduct” by 

submitting the proposed decree to the court.

¶14 Around the same time, John filed an amended divorce 

petition (the Amended Petition). The Amended Petition added a 

new claim in which John requested a declaration from the court 

that the Trust was valid and enforceable. The Investment Trustee

was notified of this and was subsequently involved in 

proceedings on behalf of the Trust. Tara later answered the 

Amended Petition, and in her answer, she denied that the Trust 

was valid or enforceable.

¶15 The court later set aside the First Decree, and in December 

2018, it entered an Amended Bifurcated Decree (the Second 

Decree) that reflected a stipulation by the parties. The Second 

Decree reiterated many of the same terms concerning custody, 

parent-time, child support, alimony, and the division of property

that were present in the First Decree, but it now included a 

broader list of reserved issues. Specifically, it outlined that “the 

main remaining issue is a complex trust issue,” and it also 

reserved the allocation of attorney fees, as well as “issues, 

objections, and defenses” raised following the Settlement 

Conference. The Second Decree established the “valuation date 

for marital and/or trust property” as June 13, 2018.
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20220488-CA 8 2024 UT App 102

The Trust’s Motion for Summary Judgment 

¶16 In March 2020, the Investment Trustee filed a motion for 

summary judgment on the portion of the Amended Petition 

relating to the Trust. The Investment Trustee asked the court to 

rule that “the undisputed facts demonstrate that the Trust is valid 

and enforceable, and is not subject to division as part of the 

divorce.” As part of this motion, the Investment Trustee noted 

that, a month earlier, John had renounced his rights in the Trust 

as both settlor and beneficiary. In light of this renunciation, the 

Investment Trustee argued that John no longer had any “right to 

receive any Trust proceeds.” From this, the Investment Trustee

argued that the Trust’s assets were no longer the property of John

or Tara, so those assets were not subject to equitable division in 

the divorce proceedings.

¶17 Tara opposed the Investment Trustee’s motion. Tara 

argued that the Trust was not validly created because it was 

“initially funded by an invalid conveyance” and that John “had 

no right to unilaterally convey the sole asset of the Trust.” In 

passing, she then simply asserted that because the “Trust is 

invalid, [John] had nothing to renounce rights to.”

¶18 The district court granted the Investment Trustee’s motion 

for summary judgment. The court first ruled that questions about 

the creation of the Trust were governed by Nevada law and that, 

under Nevada law, the Trust was validly created. But the court 

then ruled that remaining questions, such as those about its 

enforceability or administration, were governed by Utah law. 

Turning to the various questions raised by the parties about the 

potential division in this divorce case of the Trust’s assets, the 

court first concluded that the stock options that had been placed 

into the Trust were marital property but that the “law precludes 

consideration of what may have been a marital asset that was 

placed in an irrevocable [t]rust.” In the court’s view, since a “titleholder has the power to dispose of [marital] property during the 
Hillam v. Hillam

20220488-CA 9 2024 UT App 102

marriage as he or she sees fit, and without consent of the other 

spouse, or even over the disapproval of the other spouse,” Tara 

could not show the Trust was improperly funded since the stock 

options were in John’s name at the point of transfer. Of some note 

for this appeal, the court further observed that Tara had “not 

made a claim that public policy would override the Utah Uniform 

Trust Code if the Trust [was] deemed valid and irrevocable.” 

Since Tara failed to show how the Trust’s assets qualified as 

divisible for purposes of this divorce, the court granted summary 

judgment in favor of the Investment Trustee.5

Trial and the Third Divorce Decree

¶19 The court later held a three-day bench trial to address the 

issues left unresolved by the Second Decree. The parties litigated 

a number of issues. Of note for this appeal, Tara raised two 

particular issues. First, she argued that although the court had 

previously ruled that it could not divide the assets in the Trust, it 

should still award her (as part of its division of the marital estate) 

half of the value of the Trust’s assets because John had allegedly 

dissipated marital assets when he first placed the stock options 

into the Trust. Second, Tara asked the court to award her half of 

the 2017 stock payout because the proceeds had been generated 

during the marriage.

¶20 In response, John denied that the transfer of stock options 

into the Trust qualified as dissipation. John also argued that the 

5. The district court certified this as a final order pursuant to rule 

54(b) of the Utah Rules of Civil Procedure. Tara then appealed. 

On appeal, we concluded that the rule 54(b) certification was 

flawed and thus dismissed the appeal. See Hillam v. Hillam, 2022 

UT App 24, ¶¶ 15–20, 507 P.3d 380. But we expressly 

contemplated that Tara could still challenge the district court’s 

summary judgment ruling in an appeal from a final judgment in 

the divorce case. Id. ¶ 25.
Hillam v. Hillam

20220488-CA 10 2024 UT App 102

court should not award Tara half of the value of the 2017 stock 

payout because that value had previously been accounted for as 

income during earlier proceedings in the case.

¶21 The court subsequently issued findings of fact and 

conclusions of law, followed by a Supplemental Bifurcated Decree 

of Divorce (the Third Decree). With respect to the dissipation and 

2017 stock payout issues, the court ruled as follows. 

¶22 Dissipation. On the alleged dissipation of marital assets, 

the court considered the five factors described in Rayner v. Rayner, 

2013 UT App 269, ¶ 19, 316 P.3d 455 (numerals added): “(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.”

• On the first factor, the court concluded that the “corpus of 

the Trust” was “indisputably marital property.” The court 

recognized that “the parties were experiencing marital 

strife” at the time the Trust was created, but it thought it 

“unclear whether any marital problems that were being 

experienced at the time were different than marital 

problems the parties had experienced prior to October 

2012.” But the court then found that it was “undisputed” 

that the purpose of the Trust was “to avoid tax 

consequences,” which it regarded as a legitimate marital 

purpose, and it further found that “neither party ha[d]

received any direct benefit from the Trust”—i.e., that 

neither of them had “requested or received any 

distribution from the Trust.” From all this, it concluded 

that the first factor weighed against dissipation.
Hillam v. Hillam

20220488-CA 11 2024 UT App 102

• The court concluded that the second factor also weighed 

against dissipation because, although the “parties had not 

created a trust prior” to this one, they had previously done 

“what they could do to avoid tax consequences.”

• On the third factor, the court determined that the 

magnitude of depletion was a neutral factor because,

although the funds were no longer available to Tara, they 

still existed within the Trust and “continue[d] to grow.”

• On the fourth factor, the court again acknowledged that 

John and Tara were having marital problems at the time of 

the Trust’s formation, but it nevertheless concluded that 

“those issues apparently resolved because the parties’ 

separation did not occur until approximately five years 

later.” As a result, it concluded that this factor weighed

against dissipation.

• Finally, the court concluded that the fifth factor “weigh[ed] 

heavily” against dissipation. The court was not convinced 

by Tara’s characterization that the Trust “was created 

clandestinely and against her wishes,” instead finding that 

there was “no evidence that . . . details were hid” from Tara 

and that “she did not take affirmative action to learn” 

about the Trust’s details either.

In short, because the court concluded that none of the factors 

weighed in favor of dissipation, it rejected Tara’s request for a 

determination that John had dissipated marital assets.

¶23 Stock payout. The court also rejected Tara’s request for a 

division of the 2017 stock payout as part of the marital estate. In 

explaining this decision, the court found that at the temporary 

orders hearing, John had agreed “to be imputed a higher income 

to account for the 2017 stock payout.” As a result, it found that 

John had been “required to pay more in alimony and child 

support than he otherwise would have had to pay,” and it further 
Hillam v. Hillam

20220488-CA 12 2024 UT App 102

found that John had remained current on those payments. The 

court referenced the figures calculated in both the Temporary 

Orders and the Settlement Order in conjunction with this finding. 

The court then concluded that, “in equity,” it would not award 

any of the 2017 stock payout to Tara because “the evidence 

indicates that the parties already agreed on how this payout 

should be addressed.”

ISSUES AND STANDARDS OF REVIEW

¶24 Tara appeals the Third Decree and “all subsidiary orders,” 

including the ruling granting the Investment Trustee’s request for 

summary judgment. In response to Tara’s appeal, the Investment 

Trustee has filed a brief and presented argument on the issues 

relating to the summary judgment ruling, while John has briefed 

and presented argument on the issues relating to the distribution 

of the marital estate.

¶25 With respect to the summary judgment ruling relating to 

the Trust, Tara raises several challenges to the court’s conclusion 

that it could not divide the assets in the Trust as part of its division 

of the marital estate. The question of whether a district court 

“appropriately granted summary judgment is a question of law,” 

and in assessing that decision, we review the court’s “legal 

conclusions for correctness.” 11500 Space Center LLC v. Private Cap.

Group Inc., 2022 UT App 92, ¶ 33, 516 P.3d 750 (quotation 

simplified). The question of whether a trust is valid also presents 

“a legal question, which we review for correctness.” Wittingham,

LLC v. TNE LP, 2020 UT 49, ¶ 13, 469 P.3d 1035 (quotation 

simplified).

¶26 Tara next challenges the court’s determination (entered 

after trial) that John did not dissipate marital assets when he 

transferred stock options into the Trust. We’ve previously treated 

a district court’s ruling on a dissipation question as being part of 
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20220488-CA 13 2024 UT App 102

its ruling about how to value the marital estate. See, e.g., Clark v. 

Clark, 2023 UT App 111, ¶¶ 25–26, 537 P.3d 633; Wadsworth v. 

Wadsworth, 2022 UT App 28, ¶¶ 37, 39, 507 P.3d 385, cert. denied, 

525 P.3d 1259 (Utah 2022); Rayner v. Rayner, 2013 UT App 269, ¶ 4, 

316 P.3d 455. So viewed, 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.” Clark, 2023 UT App 111, ¶ 18 (quotation 

simplified). “Legal errors, such as the incorrect interpretation of a 

statute or the application of an improper legal standard, are 

usually an abuse of discretion.” State v. Forbush, 2024 UT App 11, 

¶ 21, 544 P.3d 1 (quotation simplified), cert. denied, -- P.3d -- (Utah 

2024). And to the extent that any of the court’s discretionary 

decisions turned on subsidiary factual determinations, “we defer 

to the trial court’s underlying findings of fact, which shall not be 

set aside unless clearly erroneous.” Marroquin v. Marroquin, 2019 

UT App 38, ¶ 12, 440 P.3d 757 (quotation simplified).

¶27 Finally, Tara challenges the court’s decision not to award 

her half of the 2017 stock payout. This, too, constitutes a challenge 

to the court’s division of the marital estate. As a result, the district 

court possesses “considerable discretion” in making this decision, 

“its actions enjoy a presumption of validity,” and we will disturb 

the court’s decision “only if there [was] a misunderstanding or 

misapplication of the law indicating an abuse of discretion.” Clark, 

2023 UT App 111, ¶ 18 (quotation simplified).

ANALYSIS

I. Issues Relating to the Trust

¶28 Tara argues that the stock that John placed into the Trust 

should have been divided as part of the marital estate, and she 
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20220488-CA 14 2024 UT App 102

gives us three primary grounds for reaching this result. For the 

reasons set forth below, we decline to address two of these 

grounds because they are unpreserved. We conclude that Tara at 

least arguably preserved a third ground, but we reject this 

argument because it is foreclosed by the district court’s 

unchallenged findings.6

A. Creditor Rights Under Section 75-7-505

¶29 As noted, John was the settlor of the Trust. Tara now 

argues that, because John and Tara were contemplating divorce 

when the Trust was created, Tara became his creditor. As a result, 

Tara claims that she is authorized to “reach the maximum amount 

that can be distributed to or for the settlor’s benefit” (in this case, 

the full value of the Trust) under Utah Code section 75-7-505(2)(a). 

In response, however, the Investment Trustee first argues that 

Tara failed to preserve this argument. The Investment Trustee 

also argues that Tara is wrong on the merits. We decline to 

consider the merits of Tara’s assertion because we agree with the 

Investment Trustee that this presents a distinct issue that was not 

preserved below.

¶30 “Under our adversarial system, the parties have the duty 

to identify legal issues and bring arguments,” and if they fail to 

raise an issue at the appropriate time, “they risk losing the 

6. The Trust Agreement had a choice-of-law provision stating that 

the Trust was governed by the Spendthrift Trust Act of Nevada.

But even so, we agree with the district court that, with the 

exception of questions relating to the creation of the Trust, Utah 

law applies to questions regarding the enforcement of its terms.

See Dahl v. Dahl, 2015 UT 79, ¶ 27, 459 P.3d 276 (“Because Utah has 

a strong policy of equitable distribution of marital assets, we 

decline to enforce the Trust’s choice-of-law provision on the 

grounds that doing so would deny the district court the ability to 

achieve an equitable division of the marital estate.”).
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opportunity to have the court address that issue.” State v. Johnson, 

2017 UT 76, ¶ 14, 416 P.3d 443. “An issue is preserved for appeal 

when it has been presented to the district court in such a way that 

the court has an opportunity to rule on it.” Id. ¶ 15 (quotation 

simplified). “To provide the court with this opportunity, the issue 

must be specifically raised by the party asserting error, in a timely 

manner, and must be supported by evidence and relevant legal 

authority.” Horne v. Horne, 2022 UT App 54, ¶ 10, 511 P.3d 1174 

(quotation simplified). “Although new arguments, when brought 

under a properly preserved issue or theory, do not require an 

exception to preservation, an argument based upon an entirely 

distinct legal theory is a new claim or issue and must be separately 

preserved.” True v. Utah Dep’t of Transp., 2018 UT App 86, ¶ 32, 

427 P.3d 338 (quotation simplified). 

¶31 The “two primary considerations underlying” the 

preservation rule are “judicial economy and fairness.” Patterson v. 

Patterson, 2011 UT 68, ¶ 15, 266 P.3d 828. “Our preservation rule 

promotes judicial economy in that it, among other things, 

encourages parties to resolve their controversies at the trial level, 

allows the trial judge to correct errors at the trial level, establishes 

a comprehensive record for appeal, and helps alleviate the 

otherwise heavy burden on appellate courts.” Kelly v. Timber Lakes 

Prop. Owners Ass’n, 2022 UT App 23, ¶ 32, 507 P.3d 357 (quotation 

simplified); see also Patterson, 2011 UT 68, ¶ 15 (concluding that the 

rule furthers judicial economy, in part, by ensuring that the 

district court is given the “opportunity to address the claimed 

error, and if appropriate, correct it,” thereby “avoid[ing]

unnecessary appeals and retrials” (quotation simplified)). And 

the preservation rule also promotes fairness between the parties 

in the sense that “if no objection was made in the trial court, the 

adverse party would not be compelled to overcome the objection 

by presenting a rebuttal, providing an alternative argument, 

establishing an alternative defense, or introducing new evidence 

in an effort to overcome such an objection.” Kelly, 2022 UT App 
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20220488-CA 16 2024 UT App 102

23, ¶ 32 (quotation simplified). “By extension, that party would be 

restricted from introducing new evidence, defenses, and factual 

arguments in an appellate court in order to rebut or defend an 

unpreserved issue.” Id. (quotation simplified).

¶32 Here, we conclude that Tara’s assertion regarding the 

potential applicability of Utah Code section 75-7-505(2)(a) 

presents “an entirely distinct legal theory” that needed to be 

preserved below. True, 2018 UT App 86, ¶ 32 (quotation 

simplified). 

¶33 Consider first the nature of Tara’s proposed theory. In her 

brief, Tara argues that “[w]ith respect to an irrevocable trust . . . a 

creditor may reach the maximum amount that can be distributed 

to or for the settlor’s benefit.” To support this, she relies on Utah 

Code section 75-7-505(2)(a). And her proposed application of this 

particular statute to this case turns on several proposed 

subsidiary conclusions. First, Tara argues that she is a creditor; to 

support this, Tara cites caselaw suggesting that “a debtor-creditor 

relationship is created between husband and wife once divorce is 

threatened.” See Porenta v. Porenta, 2017 UT 78, ¶ 19, 416 P.3d 487;

Bradford v. Bradford, 1999 UT App 373, ¶¶ 14–16, 993 P.2d 887.

Next, Tara argues that although John renounced his rights as a 

settlor and beneficiary of the Trust, this renunciation was invalid. 

But in making this argument, Tara advances a series of arguments 

based on language from the Trust Agreement, Utah caselaw, 

Nevada trust law, and even federal property law. From this, she 

argues that John never validly renounced his rights to assets

within the Trust and that she remains his creditor.

¶34 This is a fairly intricate theory, and it turns on a 

combination of statutes and cases and contractual language that 

involves several distinct analytical frameworks. Given this, we 

conclude that this theory presents an issue, not an argument, and 

it therefore needed to be preserved below.
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20220488-CA 17 2024 UT App 102

¶35 Reviewing the record, we agree with the Investment 

Trustee that this issue was not preserved. It’s true that the district 

court grappled with the overarching question of “whether or not 

the corpus of the Trust [was] marital property.” It’s also true that

Tara included citations to Dahl v. Dahl, 2015 UT 79, 459 P.3d 276,

in her pleadings below, and Dahl did explore the interplay of 

marital estate distribution and trust law, see id. ¶¶ 22–27. But 

Tara’s arguments at the summary judgment stage focused on two 

particular theories: first, that the Trust was not “validly created” 

because marital assets were placed into the Trust “without 

[Tara’s] knowledge or consent”; and second, that, even if the Trust 

was validly created, Tara’s “entitlement to her fair share of the 

marital assets” and John’s “inequitable conduct” provided the 

court with sufficient justification to reform the Trust in such a way 

that she should receive a share of the stock options that were now 

owned by the Trust.

¶36 The district court’s reasoning directly responded to these 

two arguments. On the first, which the court described as a 

“narrow” argument, the court concluded that “even when 

property titled in the name of one spouse is considered marital 

property, the title-holder has the power to dispose of that 

property during the marriage as he or she sees fit, and without 

consent of the other spouse, or even over the disapproval of the 

other spouse.” From this, the court deemed the Trust to be “valid 

and enforceable.” On the second, the court declined Tara’s 

invitation to reform the Trust because application of that equitable 

remedy requires evidence of mutual mistake or ignorance 

coupled with fraud, and the court did not find sufficient evidence 

of those conditions. Based on these determinations, the court 

concluded that while the stock options were marital property, 

they were not subject to equitable distribution because marital 

property placed in an irrevocable trust “is no longer considered 

marital property subject to equitable distribution, but rather, the 

trust is a separate entity.”
Hillam v. Hillam

20220488-CA 18 2024 UT App 102

¶37 We see no place in Tara’s pleadings or in the court’s 

analysis where anyone invoked Utah Code section 75-7-505(2)(a), 

which provides the analytical foundation for the issue Tara is 

presenting on appeal. Although formal citation to a particular 

statute might not always be required to preserve an issue, it 

would be the usual and presumptive starting place if an assertion 

is predicated on a particular statute. Without such a citation, Tara 

would have at least been required to present this “distinct legal 

theory,” Johnson, 2017 UT 76, ¶ 14 n.2, to “the district court in such 

a way that the court [had] an opportunity to rule on it,” id. ¶ 15

(quotation simplified). But we see no place where she made the 

particular debtor-creditor argument that she’s now making on 

appeal. We therefore regard it as unpreserved. And as a result, we 

decline to consider it.7

7. At oral argument, Tara suggested that her reliance on Dahl 

below was, itself, enough to preserve this new issue given the 

alleged similarity between her proposed issue and the issues 

considered by the supreme court in that case. We disagree. In 

Dahl, the supreme court held that although the wife in question 

was not a named settlor of the trust, she retained the rights of a 

settlor because she had contributed her interests in the marital 

property to the trust. 2015 UT 79, ¶¶ 27, 36–37. The supreme court 

then determined that, under Utah law, the trust was a revocable 

trust because the trust agreement reserved the right of settlors to 

amend any terms of the trust. Id. ¶ 29. From these conclusions, the 

supreme court analyzed the wife’s “rights in relation to a revocable

trust” under Utah Code section 75-7-605(2). Id. ¶¶ 33, 38 

(emphasis in original). And the supreme court then concluded 

that because the wife was a settlor of what it now regarded as a 

revocable trust, the wife had the right to “revoke that portion of 

the [trust] funded with either her separate or marital property.” 

Id. ¶ 38.

(continued...)
Hillam v. Hillam

20220488-CA 19 2024 UT App 102

B. Public Policy

¶38 Tara next asks us to conclude that the Trust is void as being 

against public policy. In support of this assertion, Tara points to 

the two factors that Utah courts consider when determining 

whether a contract violates public policy: “(1) whether the law or 

legal precedent has declared that the type of contract at issue is 

unlawful and absolutely void, and (2) whether the contract 

harmed the public as a whole—not just an individual.”

Wittingham, LLC v. TNE LP, 2020 UT 49, ¶ 24, 469 P.3d 1035

(quotation simplified).

¶39 We have no difficulty concluding that Tara again presents 

a distinct issue that needed to be preserved, as opposed to an 

argument that didn’t. Of particular note, the first factor requires 

Tara to identify the law or laws that have “declared” that “type of 

contract” to be “unlawful and absolutely void.” Id. (quotation 

simplified); see also WDIS, LLC v. Hi-Country Estates Homeowners 

Ass’n, 2022 UT 33, ¶ 41, 515 P.3d 432 (“Because a statement of 

public policy must be clear and free from doubt, a case in which

we invalidated particular restrictive covenants without a broader 

This is not what Tara is arguing here. Unlike the analysis 

set forth in Dahl, Tara is not arguing that she had become a settlor

of the Trust, nor is she arguing that the Trust had become 

revocable and that she therefore had rights to its assets under 

Utah Code section 75-7-605(2). Rather, Tara is asserting that she 

had rights to its assets as a creditor under an entirely different 

statutory scheme (Utah Code section 75-7-502(2)(a)). We therefore 

regard Tara’s theory on appeal as a distinct legal theory from that 

which the supreme court considered in Dahl. And while we don’t 

foreclose the possibility that some court that is properly presented 

with this issue in the future may (or may not) find some analytical 

support in Dahl, we hold here that Tara’s reliance on Dahl below 

was not sufficient, without more, to preserve the creditor-based 

issue that she seeks to raise in this appeal.
Hillam v. Hillam

20220488-CA 20 2024 UT App 102

statement that such covenants are categorically void and 

incapable of ratification is insufficient.” (quotation simplified)); 

Eagle Mountain City v. Parsons Kinghorn & Harris, PC, 2017 UT 31, 

¶ 15, 408 P.3d 322 (“A contract will be held to violate public policy 

only where it violates a well-defined and dominant policy.” 

(quotation simplified)). And again, the second factor requires 

Tara to show how this particular contract harmed the public, as 

opposed to harming just her. Wittingham, 2020 UT 49, ¶ 24. 

¶40 Tara didn’t present such a theory below. When Tara asked 

the court to invalidate the Trust during the litigation regarding 

the Investment Trustee’s summary judgment motion, she did not 

identify any law that expressly forbade the transfer of marital 

assets to an irrevocable trust, nor did she assert that the Trust 

Agreement harmed the public as a whole. Indeed, the district 

court itself pointed this out in its order granting summary 

judgment, noting that “Tara ha[d] not made a claim that public 

policy would override the Utah Uniform Trust Code if the Trust 

is deemed valid and irrevocable.” Because this is an unpreserved 

issue, we decline to consider it.8

8. With respect to both the creditor issue and the public policy 

issue, Tara suggests that, even if these issues are unpreserved, we 

should still address them on the merits because the principles of 

judicial economy and fairness would not be undermined were we 

to do so.

It’s true that these interests support our preservation rule 

generally. And it’s also true that our “waiver and preservation 

requirements are self-imposed and are therefore doctrines of 

prudence rather than jurisdiction.” State v. Johnson, 2017 UT 76, 

¶ 12, 416 P.3d 443 (quotation simplified). But as discussed above, 

the preservation rule itself is designed to protect interests of 

judicial economy and fairness by, among other things, 

incentivizing parties to raise issues in the first instance in the 

(continued...)
Hillam v. Hillam

20220488-CA 21 2024 UT App 102

C. Transfer Made in Contemplation of Divorce

¶41 Finally, Tara asks us to adopt something of a new common 

law rule under which assets that are placed by a spouse into a 

trust during a marriage can be equitably distributed in a 

subsequent divorce if the transfer was effectuated “in 

contemplation of divorce or with the intent of impairing marital 

rights.” 

¶42 As with the creditor and public policy issues discussed 

above, the Investment Trustee asserts that this issue was not 

preserved. But unlike those issues, there is some reason to think 

that this issue was preserved. In her opposition to the motion for 

summary judgment, Tara argued that “one spouse is not entitled 

to shield marital assets from another spouse by use of a trust,” and 

she further complained that John acted “without [her] knowledge 

or consent and with the clear intent to deprive her of her interest 

in marital property.”

¶43 The Investment Trustee nevertheless asserts that these 

statements were insufficient to establish preservation. But we 

need not definitively decide whether Tara sufficiently preserved 

this issue. If “the merits of [the] claim can easily be resolved in 

favor of the party asserting that the claim was not preserved, we 

district courts (thereby allowing a speedier and less expensive 

resolution of cases), as well as by protecting the other party in the 

case from being confronted with an issue for the first time on 

appeal (and, as a result, being hamstrung in its ability to either 

respond or instead make tactical or strategic adjustments). For 

these and other reasons, we’ve recently held that the plain error 

exception to preservation is unavailable in most civil cases. See

Kelly v. Timber Lakes Prop. Owners Ass’n, 2022 UT App 23, ¶ 41, 507 

P.3d 357. We decline to accept Tara’s invitation to essentially 

create a new and potentially amorphous preservation exception 

here. 
Hillam v. Hillam

20220488-CA 22 2024 UT App 102

readily may opt to do so without addressing preservation.” State 

v. Kitches, 2021 UT App 24, ¶ 28, 484 P.3d 415 (emphasis omitted). 

And in practice, we’ve often done so where the preservation 

question is somewhat murky but the merits question is not. This 

is the case here.

¶44 Again, Tara’s proposed rule turns on the spouse’s reasons 

or intent for transferring the marital property. But the 

“determination of intent is a question of fact, which will only be 

reversed if the district court’s finding is clearly erroneous.” Bonnie 

& Hyde, Inc. v. Lynch, 2013 UT App 153, ¶ 13, 305 P.3d 196

(quotation simplified). In its posttrial findings of fact, the court 

observed that the “CPA for the couple while they were married 

. . . testified that such trusts are very common because they create 

estate tax savings—in essence, the formation of the trust removes 

any appreciation of the trust proceeds from the estate/death tax.”

The court further observed that Tara had “testified at the [t]rial 

that she understood that one of the benefits of the trust was to 

avoid tax consequences.” The court reiterated and relied on this 

testimony by Tara and the CPA later in its dissipation analysis, 

finding that it was “undisputed that the Trust was formed to 

avoid tax consequences when the beneficiaries withdrew funds 

from the Trust.”

¶45 Tara has not directly challenged this finding in her brief, 

much less carried her burden of establishing that it was clearly 

erroneous. In any event, to satisfy that burden of persuasion on 

this point, Tara would need to marshal the evidence, and we see 

nowhere in her brief where she has done so. See State v. Cecala, 

2021 UT App 141, ¶ 30, 502 P.3d 790 (“Failure to marshal does not 

result in procedural default, but a party challenging a factual 

finding . . . will almost certainly fail to carry its burden of 

persuasion on appeal if it fails to marshal.” (quotation 

simplified)). And this finding directly undermines Tara’s 

proposed resolution of this issue. After all, if the purpose of the 

Trust was to avoid tax consequences, then Tara would not be 
Hillam v. Hillam

20220488-CA 23 2024 UT App 102

entitled to relief even under her proposed rule. As a result, we 

conclude that, potential preservation concerns aside, Tara is not 

entitled to the requested relief.

9

II. Dissipation of Marital Assets

¶46 Tara next argues the district court erred in determining 

that John did not dissipate marital assets when he transferred the 

stock options to the Trust. Utah courts consider several factors in 

9. The Investment Trustee argues that because Tara has raised a 

“plethora of unpreserved arguments,” we should award the 

attorney fees that he incurred defending against this appeal. The 

Investment Trustee bases this request on rule 33(a) of the Utah 

Rules of Appellate Procedure, which states that “if the court 

determines” that an appeal was “either frivolous or for delay, it 

will award just damages, which may include . . . reasonable 

attorney fees . . . to the prevailing party.” For purposes of this rule, 

a “frivolous appeal” or brief “is one that is not grounded in fact, 

not warranted by existing law, or not based on a good faith 

argument to extend, modify, or reverse existing law.” Utah R. 

App. P. 33(b). “But parties seeking attorney fees under rule 33 face 

a high bar. The imposition of such a sanction is a serious matter 

and only to be used in egregious cases . . . .” Porenta v. Porenta, 

2017 UT 78, ¶ 51, 416 P.3d 487 (quotation simplified).

We reject this request. While we have concluded that two 

of Tara’s assertions presented unpreserved issues, Tara at least 

had colorable (albeit unpersuasive) reasons for asserting that she 

was advancing arguments, as opposed to issues (particularly with 

respect to her first assertion), and we thought the preservation 

question was close enough on her third assertion to warrant 

decision on the merits. On balance, we don’t believe that the 

portion of Tara’s brief to which the Investment Trustee responded 

rises to the level of egregiousness contemplated by rule 33(a).
Hillam v. Hillam

20220488-CA 24 2024 UT App 102

determining if dissipation of marital assets has occurred, 

including:

(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

(quotation simplified), cert. denied, 525 P.3d 1259 (Utah 2022). 

Although a district court’s determination regarding a dissipation

determination enjoys a “presumption of validity,” Dahl, 2015 UT 

79, ¶ 119 (quotation simplified), a district court abuses its 

discretion if it misapplies the law, see Clark v. Clark, 2023 UT App 

111, ¶ 18, 537 P.3d 633. As explained below, we see no error with 

respect to the court’s analysis of the first, second, and fourth

factors, but we do see legal error in the court’s analysis of the third 

and fifth factors.

A. How the Money Was Spent

¶47 The first factor looks to “how the money was spent, 

including whether funds were used to pay legitimate marital 

expenses or individual expenses.” Wadsworth, 2022 UT App 28, 

¶ 69 (quotation simplified). As noted earlier, the district court 

made a factual finding that the purpose of the Trust was to avoid 

certain tax consequences. The court then echoed this finding in its 

analysis of the first dissipation factor, finding that it was 

“undisputed that the Trust was formed to avoid tax consequences 

when the beneficiaries withdrew funds from the Trust.” These 

findings do indeed suggest that the assets were spent for 

legitimate marital purposes.
Hillam v. Hillam

20220488-CA 25 2024 UT App 102

¶48 On appeal, Tara suggests that John’s intent was really “to 

remove the assets from the marital estate.” But to challenge the 

court’s contrary finding, Tara would have to show that it is clearly 

erroneous, and to carry her burden of persuasion, she would need 

to marshal the supporting evidence. See Cecala, 2021 UT App 141, 

¶ 30. She has not done so. In light of this unrebutted finding, we 

perceive no abuse of discretion in the court’s conclusion that, 

because the Trust was formed to avoid tax consequences, the first 

factor did not support a dissipation determination.

B. Historical Practices

¶49 The second factor looks to the “parties’ historical 

practices.” Wadsworth, 2022 UT App 28, ¶ 69 (quotation 

simplified). Here, the district court first noted that John and Tara 

“had not created a trust prior” to this one, although it also noted 

that they did create a different trust a short time later. Based on 

the fact that they had not previously created a trust, Tara argues 

that the second factor should have weighed in favor of 

dissipation.

¶50 By focusing exclusively on the couple’s earlier history with 

trusts, Tara interprets this factor too narrowly. The district court 

also found that John and Tara had done “what they could do to 

avoid tax consequences related to the income that [John] brought 

into the marriage,” that John and Tara had taken “other actions to 

avoid tax consequences (such as prepaying taxes, paying taxes 

quarterly, etc.),” and that they “appear[ed] to always be 

concerned with tax consequences regarding [John’s] income.” In 

light of these additional findings, we agree with the district court 

that the “historical practices” in question could include the 

couple’s broader historical practice of trying to minimize their tax 

obligations. Because the court’s additional findings confirm that

the Trust was created for that very purpose, we see no abuse of 

discretion in the court’s conclusion that the second factor weighed

against dissipation.
Hillam v. Hillam

20220488-CA 26 2024 UT App 102

C. The Magnitude of Any Depletion

¶51 The third factor looks to the “magnitude of any depletion.” 

Id. (quotation simplified). Here, the district court found that while 

“the marital assets that formed the corpus of the Trust are not 

available to [Tara] and, therefore, for her, are 100% depleted,” 

they otherwise “still exist.” From this, the court concluded that 

this factor did not weigh “for or against” dissipation. We disagree 

with the analytical framework that the court used in evaluating 

this factor.

¶52 The court’s analysis begs the question: what’s the “asset” 

at issue in a dissipation analysis that’s conducted in a divorce 

case? Here, the district court viewed the “asset” as being just the 

stocks themselves. But we’ve previously recognized that 

dissipation occurs when a spouse “seriously depleted the marital 

estate.” Shepherd v. Shepherd, 876 P.2d 429, 433 (Utah Ct. App. 1994)

(emphasis added); cf. Wadsworth, 2022 UT App 28, ¶ 72 (looking 

to whether the spouse had transferred the asset in question “out 

of the marital estate”). And it makes sense that this factor should 

focus on any depletion of value to the marital estate (as opposed 

to just looking to any depletion in value of a particular item). For 

example, suppose that, in contemplation of a potential divorce, a 

spouse surreptitiously transferred all of the funds from the 

couple’s joint bank account into an account that only that spouse 

controlled. In such a situation, no one would seriously dispute 

that this transfer weighed in favor of a dissipation determination, 

even if the money itself still existed within the other, non-marital 

account.

¶53 The district court thus erred by looking to whether the 

stock options (or their value) still exist in the abstract. Rather, in 

considering this factor, the court should have considered the 

magnitude of any depletion to the marital estate. 
Hillam v. Hillam

20220488-CA 27 2024 UT App 102

D. The Timing of the Challenged Action

¶54 The fourth factor looks to “the timing of the challenged 

actions in relation to the separation and divorce.” Wadsworth, 2022 

UT App 28, ¶ 69 (quotation simplified).

¶55 There’s some reason to think this factor could have gone 

either way. As Tara points out, the record indicates that the 

parties were having marital difficulties at the time that the Trust 

was created. After all, one of the two reasons that John went to see 

Attorney was to seek assistance “with the negotiation of a 

postnuptial agreement,” and John apparently did so because of 

the parties’ ongoing marital difficulties. Given that John created 

the Trust a short time later and then transferred the stock options 

into it, the timing of the transfer might suggest that it was at least 

in contemplation of a potential separation or divorce, thus 

supporting a dissipation determination. 

¶56 But on the other hand, we’ve framed this factor as looking 

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

and divorce.” Id. (emphasis added, quotation otherwise 

simplified). Taking this framing at face value, and viewing the 

trial testimony against it, the district court concluded that “while 

it appears that some marital problems existed at the time of the 

creation of the Trust, those issues apparently resolved because the 

parties’ separation did not occur until approximately five years 

later.” The court thus concluded that this factor “weigh[ed] 

against a finding of dissipation.”

¶57 In Clark, one of the parties asked us to impose more rigidity 

with respect to how district courts should view this factor, but we 

declined the invitation. 2023 UT App 111, ¶ 29 n.2. We instead 

expressed our view that “the district court is in the best position 

to evaluate the importance of such evidence on a case-by-case 

basis.” Id.
Hillam v. Hillam

20220488-CA 28 2024 UT App 102

¶58 Here, we believe that the district court could have 

concluded that the timing factor supported a dissipation 

determination, given that the parties were experiencing marital 

difficulties when the transfer occurred. But we also don’t believe 

that the court was required to do so, given that the parties stayed 

married for several more years and, also, the court’s additional 

findings that there was an independent, tax-related purpose for 

the creation of the Trust and the transfer in question. In light of 

the discretion afforded to the district court, we see no basis for 

reversing its conclusion that the fourth factor did not support a 

dissipation determination.

E. Obstructive Efforts

¶59 The fifth factor looks to whether there were “any 

obstructive efforts that hinder the valuation of the assets.” 

Wadsworth, 2022 UT App 28, ¶ 69 (quotation simplified). The 

district court concluded that this factor “weighs heavily in favor 

of [John]” because “the evidence shows that, while [Tara] did not 

know every detail pertaining to the Trust, that was because she 

did not take affirmative action to learn those details and, 

furthermore, there is no evidence that those details were hid from 

[her].” In so ruling, the court suggested that it believed this factor 

requires some affirmative obstructive action by the allegedly

concealing party. We disagree.

¶60 It’s true that “obstruction” often involves an affirmative 

action that’s intended to conceal or hide something. See

Obstruction, Black’s Law Dictionary (12th ed. 2024) (defining 

“obstruction” as “[t]he act of impeding or hindering something; 

interference”); see also Goggin v. Goggin, 2013 UT 16, ¶¶ 10–15, 299 

P.3d 1079 (referring to a party’s behavior as being “obstructionist”

where, among otherthings, the party frustrated attempts to access 

documents on multiple occasions, provided voluminous and 

irrelevant documents, and “stonewall[ed] and alter[ed] . . . 

requested computer evidence” (quotation simplified)).
Hillam v. Hillam

20220488-CA 29 2024 UT App 102

¶61 But context of course matters. Wadsworth, 2022 UT App 28, 

¶ 74 (holding that the “mere failure to disclose [an] investment” 

did “not mandate a finding” of obstruction). And here, we’re not 

interpreting a particular statute (such as a criminal obstruction of 

justice statute), wherein the term “obstruction” might have a 

defined meaning that may or may not require an affirmative act. 

Rather, we’re interpreting the phrase “obstructive efforts” as it 

has been used in a common law test that applies to a divorce

action.

¶62 Viewed through the particular prism of how marriages 

sometimes or even often operate—both in terms of trust 

expectations and agreed-upon divisions of labor—we believe that 

it sometimes might be possible for a spouse to impede or hinder 

the other spouse’s awareness of something (even something 

important) through half-truths or targeted omissions alone. If 

supported by the facts and evidence, it thus might be possible for 

a court to determine that half-truths or omissions qualify as 

“obstructive efforts” for purposes of a dissipation analysis.

¶63 Here, the record does show that Tara was included in some 

meetings in which John and Attorney discussed the formation of 

the Trust with her, and it likewise shows that she could have 

accessed and read the Trust Agreement or other documents

related to the Trust if she had made the effort. But the record also 

indicates that Tara “was not provided any draft documents to 

review . . . prior to this divorce case.” And of more importance, it 

shows that she was told by John that the Trust was to be “a family 

trust” for the purpose of “avoid[ing] tax consequences” and that 

she was told that she was a beneficiary. It also shows that, while 

John was apparently taking the lead on the creation of the Trust 

and even making representations to her about it, Tara was not told 

that her status as the “spouse” and beneficiary of what had been 

described to her as a “family trust” would be nullified if the 

parties ever divorced.
Hillam v. Hillam

20220488-CA 30 2024 UT App 102

¶64 Like the other factors, this factor involves a case-specific 

inquiry that’s best determined by the district court in the first 

instance. And our disagreement with the district court is not 

necessarily with the outcome of its resolution of this factor. 

Rather, our disagreement is with the court’s apparent conclusion 

that this factor can be satisfied only through affirmative 

misstatements, as opposed to omissions that could have been 

regarded as material—either in light of the couple’s past practices 

generally or the particular circumstances of how they were 

approaching the creation of the Trust. On remand, we leave it to 

the district court to assess this factor anew in light of the principles

set forth above.

¶65 Turning to the broader question of whether John’s conduct 

supported a dissipation determination, we likewise stress that 

this ultimate determination is also best made in the first instance 

by the district court. See, e.g., Clark, 2023 UT App 111, ¶ 29 n.2 

(recognizing that “timing” is “one factor among many” and that 

a district court has “flexibility” to “consider all the circumstances 

in a particular case”); Wadsworth, 2022 UT App 28, ¶ 76 

(concluding that although “the timing of the transfers could 

provide circumstantial evidence of dissipation,” the court did not 

abuse its discretion in rejecting the dissipation argument where 

“the parties’ historical practices and the lack of additional 

evidence suggesting obstructive intent . . . support[ed] the court’s

determination that the transfers were not dissipation”).

¶66 Because we have concluded that the court erred in its 

assessment of two of the dissipation factors, we remand for the 

district court to reconsider this question in light of the principles 

set forth in this opinion. If the court concludes that John did 

dissipate the marital estate, Tara “should receive a credit for . . .

her share of the assets that were dissipated.” Rayner v. Rayner, 

2013 UT App 269, ¶ 20, 316 P.3d 455 (quotation simplified). 
Hillam v. Hillam

20220488-CA 31 2024 UT App 102

III. The Stock Payout

¶67 Finally, separate from the issues relating to the Trust, Tara 

argues that “the district court abused its discretion in declining to 

award [Tara] her share of the $570,000 payout” that John received 

in 2017, “while the parties were still married.” In Tara’s view, this 

payout should have been treated as an asset (and, thus, should 

have been divided as part of the marital estate), rather than as 

income.

¶68 As noted above, however, a “district court has considerable 

discretion considering property division in a divorce 

proceeding,” and its actions “enjoy a presumption of validity.” 

Clark, 2023 UT App 111, ¶ 18 (quotation simplified); see also 

Rothwell v. Rothwell, 2023 UT App 50, ¶ 89, 431 P.3d 225, cert. 

denied, 537 P.3d 1011 (Utah 2023) (holding that a district court had 

“significant discretion” when determining whether to count 

“income-producing property” as income or, instead, to treat it as 

an asset). Indeed, Tara’s own framing reflects that the decision in 

question here was discretionary, with Tara asking us to hold that 

the “district court abused its discretion.”

¶69 In light of the particular circumstances of this case, we see 

no abuse of discretion. In its posttrial ruling on this issue, the 

district court acknowledged that John had received 

“approximately $570,000” as a stock payout in 2017 and that John 

had maintained control of those funds. But the court then credited 

“evidence indicat[ing] that, during negotiations at the temporary 

orders hearing,” John “agreed to be imputed a higher income to 

account for the 2017 stock payout.” The court noted that, “[a]s a 

result [of the] higher imputed income,” John “was required to pay 

more in alimony and child support than he otherwise would have 

had to pay” and that John “has remained current on all required 

payments.” The court then concluded that, “in equity,” it would 

not award any of the 2017 stock payout to Tara because “the 
Hillam v. Hillam

20220488-CA 32 2024 UT App 102

evidence indicate[d] that the parties already agreed on how this 

payout should be addressed.” (Emphasis added.)

¶70 In challenging this decision, Tara claims that “there is no 

evidence that the parties intended to include the 2017 stock 

payout of $570,000 in [John’s] imputed income at the Temporary 

Orders phase.” But this is not correct. At trial, John acknowledged 

under oath that he had “stipulated to a higher income amount at 

the temporary orders hearing . . . to account for deferred 

compensation.” In its ruling, the district court thus appears to 

have credited this testimony.

¶71 Tara has not persuaded us that the court committed any 

error in crediting that testimony, nor has she shown that the 

temporary orders did not, in fact, impute a higher income to John 

as a direct reflection of this stock payout. And with that as the 

backdrop, we see no abuse of discretion in the court’s decision to 

continue treating this as income for purposes of its final resolution 

of this case. After all, the temporary orders in question were 

entered in March 2017, and the posttrial ruling was entered in 

December 2021. Thus, when the court ultimately ruled on this 

issue after trial, two things were apparent: (1) Tara had previously 

agreed that this payout should be treated as income, and (2) as a 

direct result of that agreement, Tara had received higher alimony 

payments and John had paid more in child support for almost five 

years while the case was being litigated. If the court were to 

reverse course at that point and treat this as an asset, this decision 

could result in a series of new inequities.10

10. As John points out in his brief, for example, he presented 

evidence at trial indicating that, after receiving this payout, he 

used a very large percentage of it to pay outstanding expenses, 

many of which were marital expenses. Thus, if the district court 

had accepted Tara’s invitation to change course and treat this 

(continued...)
Hillam v. Hillam

20220488-CA 33 2024 UT App 102

¶72 Considering these particular circumstances, we conclude 

that the court did not abuse its “considerable discretion,” Clark, 

2023 UT App 111, ¶ 18 (quotation simplified), when it decided 

that it would continue to honor the parties’ earlier agreement and 

treat the stock payout as income, as opposed to treating it as an 

asset. And from there, we further note that Tara’s challenge on 

appeal was simply directed at how this payout should be treated 

(i.e., whether to treat it as income or instead as an asset). Tara has 

not separately attempted to demonstrate (much less with 

adequate briefing) that, if the payout were properly treated as 

income, the court erred in assessing its impact on John’s child 

support or alimony obligations. As a result, she has not persuaded 

us that there was any reversible error with respect to how the 

court resolved this payout within the context of the couple’s 

divorce.

CONCLUSION

¶73 Tara failed to preserve many of her issues relating to the 

disposition of the Trust, and on the remaining issue her claim fails 

on its merits. On the question of whether John’s transfer of stock 

options into the Trust constituted dissipation, we remand for the 

district court to reconsider two of the five factors and then issue a 

new determination. And on the 2017 stock payout, we affirm the 

decision of the district court. 

payout as an asset, the ripple effects could have required the court 

to also determine how much of that payout was even available to 

be divided as an asset at all.