Background
Christopher and Trishna Paulson married in 1992 after executing a premarital agreement governed by California law. The agreement declared that virtually all property acquired during the marriage would be the acquiring spouse’s separate property — with the sole exception that cash salary would be community property. Trishna entered the marriage with approximately $1.8 million in stock in the Koosharem Corporation. During twenty-six years of marriage, she sold portions of that stock for over $21 million and made additional real estate investments. The parties’ household expenses consistently outran their combined cash salaries, and Trishna regularly deposited separate funds into the joint account to cover the shortfall.
After Trishna filed for divorce in 2018, the litigation became highly protracted. Trishna filed sixteen partial summary judgment motions seeking rulings that particular properties were her separate property. The trial court granted all sixteen, employing “exhaustion tracing” — the inference that because cash salaries never covered household expenses, any assets purchased through the joint account must have come from Trishna’s separate deposits — where direct tracing was not possible.
Christopher sought alimony and attorney fees. On alimony, he disclosed a financial expert seven days after the close of fact discovery, but the disclosure listed only general topics (“the Jones Utah alimony factors,” “the parties’ gross and net incomes”) without identifying specific opinions or case-specific data. Trishna did not request an expert report or depose the expert — a strategic choice to preserve her motion for sanctions — but three weeks later Christopher sent her a full expert report anyway. The trial court struck the expert and granted summary judgment against Christopher on alimony. On attorney fees, the trial court found Christopher had access to approximately $1.2 million during the divorce by including Trishna’s payments of Christopher’s living expenses, the imputed rental value of the marital home, funds Christopher had already spent, and funds he was ordered to return to Trishna. It also ruled that the premarital agreement barred any fee award because Trishna’s separate property could not be used to satisfy Christopher’s obligations. Christopher appealed.
The Court’s Holding
Affirmed in part, reversed in part. Judge Christiansen Forster, writing for a unanimous panel, affirmed the property division, transmutation, and recusal rulings, but reversed the expert exclusion, the resulting alimony summary judgment, and the attorney fees denial.
Expert disclosure — deficiency: Christopher’s disclosure violated URCP 26 by listing only “broad, conclusory statements” about testimony topics without identifying actual opinions or the case-specific facts the expert would rely on. The court applied RJW Media Inc. v. Heath, 2017 UT App 34, to retained experts, rejecting the argument that RJW Media’s specificity requirement is limited to non-retained experts. The rule’s requirement for a “brief summary of the opinions to which the witness is expected to testify” is equally stringent for both categories; if anything, the standard is somewhat more flexible for non-retained experts.
Expert disclosure — harmlessness (REVERSED): Despite the deficiency, the trial court exceeded its discretion in finding the failure harmful. Christopher had provided a full expert report within three weeks — giving Trishna both options she would ordinarily have under URCP 26 (report and deposition) — and Christopher also offered to allow her to depose the expert. As the court explained in Al-Imari v. UDOT, 2026 UT App 15, ¶ 44, a disclosure violation is harmless if it has been “completely ameliorated” before the court rules. When Trishna strategically declined to exercise her available options, there was nothing to cure through exclusion. With no trial date set and COVID-era delays pushing trial to June 2022, there was ample time to accommodate any additional discovery Trishna needed. The court reversed the expert exclusion and the resulting alimony summary judgment.
Attorney fees — premarital agreement (REVERSED): The trial court’s ruling that the premarital agreement barred a fee award under Utah Code § 81-1-203(1) was an overly broad reading of the agreement. Section 81-1-203(1) authorizes attorney fees to “enable” a spouse to defend the divorce action; such an award does not reclassify Trishna’s separate property or apply community property law. The agreement’s separate-property and debt-limitation clauses were designed to “define the respective rights of each in and to the property of the other” and “limit the application of the community property laws” — not to eliminate a spouse’s access to the court’s equitable fee-shifting power in litigation.
Attorney fees — available funds calculation (REVERSED): The trial court’s $1.2 million “available funds” figure was inflated by items that did not represent money Christopher could actually use to pay attorney fees: (1) amounts Trishna paid on Christopher’s behalf for his living expenses — those funds discharged his obligations and were never in his hands; (2) the rental value of the marital home — that value satisfied his housing need but was not liquid cash; and (3) funds Christopher was under court order to repay to Trishna. The court reversed and remanded for the trial court to recalculate Christopher’s financial need without these items.
Property division and transmutation: All affirmed. Exhaustion tracing is a valid methodology when the evidence establishes that the parties’ cash salaries did not cover their household expenses, making additional Trishna-sourced deposits the necessary funding source for asset purchases. On transmutation, the court applied California law (as required by the agreement’s choice-of-law clause) and confirmed that merely titling property in joint names does not constitute an express written declaration that property has been reclassified. California’s transmutation statute requires a writing “expressly stat[ing] that the character or ownership of the property at issue is being changed.”
Judicial recusal: Affirmed. A judge’s former attorney-client relationship with a different lawyer at opposing counsel’s firm does not create an appearance of bias once that relationship has ended, consistent with Utah Judicial Ethics Advisory Committee Informal Opinion No. 99-9 (1999).
Key Takeaways
- Utah Rule of Civil Procedure 26’s expert disclosure specificity requirements — as articulated in RJW Media — apply equally to retained and non-retained experts; a disclosure listing only general topics without specific opinions does not satisfy the rule.
- An expert disclosure deficiency is harmless if it was “completely ameliorated” before the court rules: where the disclosing party promptly provided a full report and offered deposition access, the opposing party cannot manufacture harm through a strategic election not to exercise its remedies.
- A premarital agreement’s separate-property and debt-limitation clauses cannot categorically waive a spouse’s right to attorney fees under Utah Code § 81-1-203(1); that statute’s fee-shifting power is equitable and independent of property classification.
- When calculating funds “available” to a spouse for attorney fees purposes, courts may not include: (a) funds paid by the other spouse to cover the requesting spouse’s living expenses; (b) the rental value of the marital home; or (c) funds the requesting spouse was under court order to return to the other spouse.
- Joint titling of property does not satisfy a California-law premarital agreement’s transmutation clause, which requires a writing expressly declaring that the character of the property is being changed.
Why It Matters
Paulson v. Paulson carries significant practical implications for Utah family law practitioners on multiple fronts. The expert-disclosure holding confirms that practitioners cannot satisfy URCP 26 with general topic statements for retained experts — a trap for counsel who assume that providing a full report shortly after a disclosure makes the underlying disclosure adequate. The harmlessness counterweight is equally important: if the deficiency is fully remedied before the court rules, and the opposing party had all its normal discovery options available, exclusion is difficult to sustain. Practitioners representing the opposing party should think carefully before making a strategic choice to forgo those options, because that choice can undermine a subsequent sanctions motion.
The attorney fees rulings will be particularly consequential in high-asset divorces governed by premarital agreements. The court’s holding that § 81-1-203(1) operates independently of property-classification agreements ensures that a less-wealthy spouse is not priced out of contested divorce litigation even where a premarital agreement comprehensively defines property rights. The articulation of what cannot count as “available funds” — excluding living expenses paid by the other spouse, imputed rental value, and ordered-repayment amounts — provides concrete guidance for trial courts and fills a gap in Utah domestic law. Practitioners should carefully scrutinize available-funds calculations in divorce fee motions for these commonly overinclusive items.