Ward v. McGarry 2021 UT App 51

2024 UT App 169

THE UTAH COURT OF APPEALS

SARA WARD,
Appellant,
v.

MEREDITH MCGARRY,
Appellee.
Opinion
No. 20230365-CA
Filed November 15, 2024
Third District Court, Salt Lake Department
The Honorable Richard D. McKelvie

No. 134901200

Angilee K. Dakic, Attorney for Appellant
Julie J. Nelson, Martin N. Olsen, and Beau Olsen,

Attorneys for Appellee

JUDGE MICHELE M. CHRISTIANSEN FORSTER authored this Opinion,
in which JUDGES DAVID N. MORTENSEN and RYAN M. HARRIS

concurred.
CHRISTIANSEN FORSTER, Judge:
¶1 This case involves a child support award in a paternity
action. In an earlier appeal of this case between Sara Ward and
Meredith McGarry, this court vacated the district court’s child
support award and remanded the matter to the district court for
additional factual findings. See Ward v. McGarry, 2021 UT App 51,
¶ 12, 491 P.3d 970. Following a three-day trial on remand, the
district court entered a new order awarding child support. Ward
now appeals that award, arguing it was improper for multiple
reasons. In addition, Ward challenges the court’s decision not to
sanction McGarry. For the reasons set forth below, we affirm the
district court in all respects.

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BACKGROUND
The Prior Appeal

¶2 Ward and McGarry have one child together. The two have
been involved in a paternity action regarding that child since
2013. Although they have resolved custody issues relating to the
child, they were unable to reach an agreement regarding child
support. Ward has continuously complained that McGarry has
refused to provide a complete financial disclosure and verification
of his income. At one point, the parties engaged in settlement
negotiations and exchanged settlement offers pursuant to rule 68
of the Utah Rules of Civil Procedure. Ultimately, the parties were
unable to reach an agreement.
¶3 Thereafter, in March 2020, the parties appeared before a

domestic relations commissioner to address various non-
dispositive motions then pending before the court. The

commissioner did not address these motions, however, and
instead entered an order captioned “Final Order Re Child
Support,” wherein the commissioner imputed McGarry’s
monthly income at $30,000 and recommended that McGarry pay
Ward child support arrears and attorney fees and costs. Ward
objected to the commissioner’s recommendation, but the district
court summarily denied the objection and countersigned the
commissioner’s recommendation, making it the final order of the
court.
¶4 Ward appealed, arguing that “the district court erred in
approving the commissioner’s recommendation and summarily
denying her objection without adequate findings and without a
trial or other evidentiary hearing.” Ward v. McGarry, 2021 UT App
51, ¶ 6, 491 P.3d 970. We agreed with Ward and accordingly
vacated the court’s order and remanded the matter for further
proceedings. Id. ¶ 12. On remand, the district court conducted a
three-day trial to determine the parties’ incomes for purposes of

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calculating child support and to address other issues, including
Ward’s request for sanctions.
The Trial

¶5 McGarry is self-employed at Iron Mountain, LLC (Iron
Mountain), a construction company that he partially owns. Ward
is employed at a bank. Given the nature of the parties’
employment, the bulk of the trial was devoted to determining
McGarry’s income.
¶6 To that end, during the course of the trial, McGarry
testified on his own behalf, called multiple witnesses, and
introduced documents—including his 2020 tax return, which was
the last available return at the time of trial—as evidence. Based on
the evidence presented, Ward argued in closing that the district
court should calculate McGarry’s income by starting with the
income listed on his tax return and then “add[ing] back” three
things that should not have been deducted from gross receipts:
(1) McGarry’s wife’s (Wife) salary from Iron Mountain; (2) Wife’s
distribution from McGarry Land and Livestock, Inc. (McGarry
Land);1 and (3) ranching losses and additional depreciation
related to a ranch in Idaho (the Ranch) purchased by Iron
Mountain.
¶7 In its written ruling issued after the trial, the district court
first declined Ward’s request to add back to McGarry’s income the
three things she proposed should be included. The court made
specific factual findings addressing each component of Ward’s
1. McGarry Land is a holding company that owns 25% of Iron
Mountain. McGarry Land is owned equally by McGarry and
Wife. Thus, Wife’s distribution from McGarry Land represents a
12.5% ownership interest in Iron Mountain. And because Wife
and McGarry are equal owners of McGarry Land, McGarry’s
ownership interest in Iron Mountain is the same as Wife’s—12.5%.

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proposed formula and explained why it had elected not to add
these things back. Then, the court calculated McGarry’s income
using his 2020 tax return. That return showed that McGarry
received a $52,000 salary from Iron Mountain and a $167,406
distribution from McGarry Land (flowing from a 12.5%
ownership interest in Iron Mountain). Based on this, the court
determined that McGarry’s yearly income was $219,406, or
$18,284 per month.2
¶8 After making this determination, however, the district
court announced that it was not setting McGarry’s monthly
income at $18,284 but that it would instead impute McGarry’s
monthly income at $32,318 per month. The court reached this
higher amount by accepting a proposal put forth by McGarry
during the trial to include Wife’s distribution from McGarry Land
in his income (thus including the entire distribution from Iron
Mountain rather than the half of that distribution the court
determined McGarry was entitled to). The court made clear that
“but for [McGarry’s] agreement to count [Wife’s] distribution, [it]
would not have counted that income,” but it concluded that it
would accept McGarry’s imputation because the court would
“not interfere with [McGarry’s] decision to accept an imputation
of income that [was] well in excess of that which [was] found by
the Court.” (Emphasis added.)
¶9 Because Ward’s appellate challenge primarily involves the
district court’s factual findings concerning the three things she
unsuccessfully argued the court should add back to calculate
McGarry’s income, we summarize the evidence presented at trial
as well as the court’s corresponding factual findings related to
each of those things.

2. All dollar amounts have been rounded for convenience.

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Wife’s Salary from Iron Mountain

¶10 McGarry’s brother (Brother), who is currently the majority
shareholder of Iron Mountain as well as its chief executive officer,
testified that Wife is an employee of the company. As an employee
of the company, Wife earns a yearly salary in the same amount as
McGarry, which was $52,000 in 2020.
¶11 McGarry likewise testified that Wife is employed by Iron
Mountain. He explained that although Wife is a full-time
employee of a local school district, she is also “an officer of [Iron
Mountain], and she helps [him] with [his] office work,” while he
is “out in the field most of the time.” Wife’s W-2 from 2020 was
admitted along with McGarry’s W-2 from that same year. The
documents showed that Wife’s salary from Iron Mountain that
year was the same as McGarry’s.
¶12 Based on this evidence, the district court found that Wife
“is substantially and separately employed by Iron Mountain and
that her compensation will not be attributed to [McGarry].”
McGarry’s Effective Ownership Interest in Iron Mountain
¶13 McGarry testified that he founded Iron Mountain in 2003
with his ex-wife, who he was then married to. At the time Iron
Mountain was formed, McGarry and his ex-wife each owned a
50% share of the company. A few years later, in 2006 or 2007,
McGarry and his ex-wife relinquished 50% of the company to
Brother, thus leaving McGarry and his ex-wife 50% of the
company. In 2012, McGarry and his ex-wife divorced. Pursuant to
their divorce decree, the value of Iron Mountain was divided
equally between McGarry and his ex-wife. This division was
ultimately accomplished through an equalization payment;
McGarry was granted the entire 50% ownership interest in Iron
Mountain, and he was ordered to pay his ex-wife $150,000 in
equalization.

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¶14 McGarry testified that his divorce greatly impacted him
financially. In 2013, after his divorce had been finalized, McGarry
and Brother “discussed” a proposal for Iron Mountain to assume
McGarry’s equalization debt. McGarry explained that under this
proposal, Iron Mountain would assume his equalization
payments in exchange for half of his 50% interest in the company.
As part of the deal, Brother would gain the option to purchase
these shares by forgiving the amount owed to him for the
equalization payments made by the company. That option was to
remain “through [2015], when the equalization was final.”
Brother exercised the option and purchased half of McGarry’s
shares, leaving McGarry with 25% of Iron Mountain and Brother
as the majority shareholder.
¶15 Brother’s testimony on the subject was consistent with
McGarry’s. Brother testified that he first began working for Iron
Mountain “around 2008.” At the time he joined the company, he
was a 50% owner. Brother explained that the ownership
percentages shifted when he “exercised an option to buy an
additional 25 percent of the company” from McGarry. Although
Brother did not remember “the exact year” the transfer had
occurred, he testified that in “November or December of 2012,” he
and McGarry made an agreement that Brother would have the
option to purchase half of McGarry’s shares. However, at the time
the option was formed, Brother was not allowed to exercise it.
When Brother was eventually allowed to exercise the option, he
chose to do so, leaving McGarry with 25% of Iron Mountain. Iron
Mountain’s corporation documents, which were entered into
evidence at trial, reflect that the change in ownership took place
in 2016.
¶16 Lastly, the district court heard testimony regarding
McGarry Land. McGarry testified that all the distributions from
Iron Mountain are paid directly to McGarry Land and then
distributed equally between McGarry and Wife.

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20230365-CA 7 2024 UT App 169
¶17 The attorney who drafted McGarry Land’s articles of
incorporation testified that the company “became an entity” in
August 2016. The attorney explained that it is “strictly typical” for
larger companies to create holding companies because they
provide “a lot of advantages,” including “tax advantages” and
“liability protection.”
¶18 Based on the foregoing evidence, the district court
calculated McGarry’s effective ownership of Iron Mountain at
12.5%, finding as follows:
[McGarry Land] is a holding company that is owned
exclusively by [McGarry] and [Wife]. [Iron
Mountain], in turn, is owned 75 percent by [Brother]
. . . and 25 percent by [McGarry Land]. [McGarry]
and [Wife] each own 50 percent of [McGarry Land].
The court made a separate finding specifically addressing the
change in ownership between McGarry and Brother:
[McGarry] and [Brother] once were equal 50 percent
owners of Iron Mountain . . . . [McGarry] sold one
half of his 50 percent share, or 25 percent of the total
shares of that company, to [Brother] for $150,000 in
January of 2016. The Court finds that this was an
arms-length transaction that was not entered into in
an effort to transfer income or to conceal financial
resources. Indeed, it was made because [McGarry]
reportedly needed that money in order to facilitate
a property settlement with his earlier divorce.
Ranching Losses and Additional Depreciation

¶19 Brother testified that Iron Mountain’s main business is
construction, specifically installing rebar and post tension. In 2018
or 2019, based on an “idea” proposed by his accountant, Brother

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purchased the Ranch. Brother stated that the “purpose” of
acquiring the Ranch was to “diversify” and “build capital” by
“converting cash to something that will actually appreciate.” He
explained that the purchase was also driven by his desire to work
in an area he was “more familiar with,” noting that he had
previously worked on a ranch but was “not a rebar genius by any
means.” Brother affirmed that as Iron Mountain’s majority
shareholder, it was solely his decision to purchase the Ranch and
that he did not consult McGarry about the decision.
¶20 McGarry’s testimony about the purchase of the Ranch was
in line with Brother’s. He stated that while the Ranch was “[n]ot
necessarily” related to Iron Mountain’s rebar business, its purpose
was to provide Iron Mountain with “another source of income”
during the years when things were not “as good in construction.”
¶21 As to the current state of the Ranch, Brother acknowledged
that the property had yet to produce any income but had incurred
significant development expenses. He testified that at the time the
Ranch was purchased it “wasn’t producing” crops or livestock
because it was “undeveloped” but that since the purchase, Iron
Mountain had been actively working to develop the land. Brother
expressed a willingness to sell the Ranch, rather than to operate
it, if he could not make it profitable.
¶22 Brother and McGarry both testified that at the time of trial,
the only person living on the Ranch was their father. Their father
lived in his travel trailer and did not pay rent; however, he was
responsible for taking care of the livestock on the land. Brother
stated that he personally did not stay at the Ranch but that
McGarry occasionally spent weekends there with his children and
Wife. McGarry made a similar statement during his own
testimony.
¶23 Lastly, McGarry and Brother were questioned at length by
Ward’s counsel regarding several assets that had depreciated

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through Iron Mountain, including vehicles, trailers, side-by-sides,
and a four-wheeler. Brother testified that the “majority” of these
assets could be used both on and off the Ranch, that some of them
had actually been used off the Ranch, that Iron Mountain’s
employees routinely drove the vehicles, and that the depreciation
schedule for all of Iron Mountain’s assets was prepared by
Brother’s accountant. McGarry testified that he was not
responsible for purchasing any of the items and that he did not
use them for recreation. McGarry also stated that he did not
prepare the taxes for Iron Mountain and was not responsible for
its depreciation schedule.
¶24 The district court declined to include in Iron Mountain’s
income any losses or depreciation stemming from the Ranch and
made the following findings in support of its decision:
The Court finds that as a majority holder of
Iron Mountain, [Brother] is at liberty to unilaterally
make financial decisions on behalf of the
company . . . .
. . . The Court finds that [McGarry] does not
control investments, distribution of income, or any
substantial aspect of the financial operation of [Iron
Mountain]. . . . The Court finds that the purchase of
the [Ranch] that was directed by [Brother] on behalf
of Iron Mountain was a legitimate business
decision.
. . . The Court notes that [Ward] made much
of the fact that [the Ranch], although it’s been in the
possession of Iron Mountain for at least a few years,
has not generated any income and has taken a
considerable amount of expenses. . . . The Court
finds that the fact that the property has not
generated income in no way diminishes the notion

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20230365-CA 10 2024 UT App 169
that it was purchased for legitimate investment
concerns by Iron Mountain. And in any event, the
Court finds that [McGarry] did not have any hand
in that purchase, nor would he have the ability to
either facilitate that purchase or to resist the
purchase, because he was a minority shareholder in
Iron Mountain.

Sanctions

¶25 In a separate order, the district court denied Ward’s
request to sanction McGarry pursuant to rules 11 and 37 of the
Utah Rules of Civil Procedure for what Ward believed was
McGarry’s “significant and repeated delay of . . . refusing to
provide a full income disclosure.” The court reasoned as follows:
Although it appears that [McGarry] was dilatory in
providing some required records, the court cannot
find that the delay was an intentional effort to
undermine [Ward’s] ability to prepare for trial, nor
does the court find that [Ward] was materially
harmed by the untimely disclosures. Therefore, the
court declines to exercise its discretionary authority
to order sanctions against [McGarry].

ISSUES AND STANDARDS OF REVIEW

¶26 Ward now appeals, raising two issues for our review. First,
Ward challenges the district court’s determination of McGarry’s
income. “In reviewing child support proceedings, we accord
substantial deference to the district court’s findings and give it
considerable latitude in fashioning the appropriate relief. We will
not disturb that court’s actions unless the evidence clearly
preponderates to the contrary or there has been an abuse of
discretion.” Corn v. Groce, 2024 UT App 84, ¶ 20, 552 P.3d 245

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20230365-CA 11 2024 UT App 169
(quotation simplified). However, the district court’s
interpretation of a controlling statute “is a question of law that we
review for correctness.” ASC Utah, Inc. v. Wolf Mountain Resorts,
LC, 2010 UT 65, ¶ 11, 245 P.3d 184 (quotation simplified).
¶27 Second, Ward argues the district court erred in denying
her request for sanctions. “The standard of review for evaluating

the denial or imposition of rule 11 sanctions involves a three-
tiered approach: (1) findings of fact are reviewed under the clearly

erroneous standard; (2) legal conclusions are reviewed under the
correction of error standard; and (3) the type and amount of
sanctions to be imposed are reviewed under an abuse of
discretion standard.” Hess v. Johnston, 2007 UT App 213, ¶ 6, 163
P.3d 747 (quotation simplified), cert. denied, 186 P.3d 957 (Utah
2008). As to rule 37 sanctions, a district court is given “a great deal
of latitude in determining the most fair and efficient manner to
conduct court business.” Hull v. Wilcock, 2012 UT App 223, ¶ 36,
285 P.3d 815 (quotation simplified), cert. denied, 293 P.3d 376 (Utah
2012). However, before the court may apply rule 37 sanctions, it
must make “a factual finding that the party’s behavior merits
sanctions,” and “we will uphold any such finding unless it is
clearly erroneous.” Erickson v. Erickson, 2018 UT App 184, ¶ 11,
437 P.3d 370 (quotation simplified). “A factual finding is deemed
clearly erroneous only if it is against the clear weight of the
evidence when viewed in light of the entire record.” Golden
Meadows Props., LC v. Strand, 2011 UT App 76, ¶ 5, 249 P.3d 596
(quotation simplified), cert. denied, 263 P.3d 390 (Utah 2011).

ANALYSIS
I. Calculation of Income

¶28 Ward’s primary contention on appeal is that the district
court incorrectly calculated McGarry’s income for purposes of
child support. During her closing argument at trial, Ward argued

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20230365-CA 12 2024 UT App 169
that the court should determine McGarry’s gross income
pursuant to Utah Code section 78B-12-203.3 Because subsection
(4)(a) of that section allowed the court to deduct from gross
receipts only those expenses that were necessary for business
operation, she proposed a “straightforward formula and
calculation” for the court to follow when determining McGarry’s
income. That is, Ward asked the court to start with the income
listed on McGarry’s 2020 tax return and then “add back” to his
listed income three things that had been deducted that were not
necessary for business operation. The court ultimately declined
Ward’s request and instead calculated McGarry’s income
according to his tax documents, but then imputed a higherincome
figure to McGarry based on McGarry’s own stipulation.
¶29 Ward argues the district court’s decision to calculate
McGarry’s income in this manner was improper for two reasons.
First, she contends the court was not allowed to impute
McGarry’s income but was instead required to calculate it
pursuant to Utah Code section 78B-12-203(4). Second, she
contends that despite the court’s asserted failure to apply the
requisite statute, the court abused its discretion by making factual
findings to justify the award that are not supported by the
evidence. We begin by addressing the statutory provisions
controlling the determination of a parent’s gross income. After
determining that the court did not err in applying the statute, we
then turn to Ward’s specific challenges to the court’s factual
findings.

3. This statute has recently been amended and renumbered as
Utah Code section 81-6-203. Although the substance of the
amended statute remains largely unchanged, some of the
language is different. Compare Utah Code § 78B-12-203 (2022), with
id. § 81-6-203 (2024). In this opinion, we cite the version of the
statute in effect at the time the district court rendered its decision
without noting the year.

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A. Imputation of Income
¶30 Ward first asserts the district court committed legal error
by failing to properly apply the requisite statute to calculate
McGarry’s income. Specifically, she argues the court ignored Utah
Code section 78B-12-203(4), which directs how to determine the
gross income of an individual who is self-employed, but instead
imputed McGarry’s income based on his “unilateral stipulation.”
Ward misreads the statute and mischaracterizes the court’s
actions.
¶31 The Utah Child Support Act outlines the process by which
a district court must evaluate the income of a parent when
calculating child support. To begin, the court must determine the
“gross income” of a parent. See Utah Code § 78B-12-203(1). Gross
income may be calculated in a number of different ways. “Gross
income from self-employment or operation of a business shall be

calculated by subtracting necessary expenses required for self-
employment or business operation from gross receipts.” Id. § 78B-
12-203(4)(a). However, gross income may also include income

imputed to a parent, provided that certain requirements are met.
Id. § 78B-12-203(7)–(8). In “contested cases,” income may be
imputed only if “a hearing is held and the judge . . . enters findings
of fact as to the evidentiary basis for the imputation.” Id. § 78B-12-
203(8)(a).
¶32 Here, the district court ultimately elected to impute
McGarry’s income after calculating his self-employment income.
The court’s underlying decision to determine McGarry’s income
in this manner was not error. Pursuant to the statute, the court
was permitted to determine McGarry’s gross income in a number
of different ways, including through imputation. Because this is a
contested case, the court could properly impute McGarry’s
income only if it conducted a hearing and supported the
imputation with findings of fact detailing the evidentiary basis for
the imputation. See id. And that is precisely what happened here.

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The court held a hearing, made factual findings based on the
evidence presented at the hearing, and imputed income to
McGarry based on those findings.
¶33 As explained above, the district court began by looking at
the income listed on McGarry’s tax return. Based on that
document, the court determined that McGarry’s monthly income
was $18,284, and it entered factual findings in support of this
determination.

4 However, the court then chose to depart from this
amount, electing to instead impute McGarry’s income at $32,318
per month, an amount that the court found was “well in excess
of” that which was supported by his tax return. The court made
specific factual findings to support this departure. The court
found that McGarry had expressed a “willingness” to have his
income imputed at the higher amount, and it recognized that the

4. Ward acknowledges the district court “entered findings of fact
as to the evidentiary basis for an award of $18,000 per month.”
However, she asserts the court’s finding of $18,284 was incorrect
because (1) the court had previously determined that McGarry’s
income was “at least” $20,833 per month and (2) evidence showed
that McGarry had purchased several items on his Iron Mountain
company credit card that he had not proven were reimbursed to
Iron Mountain. Neither challenge is availing. As to the first, Ward
fails to mention that the $20,833 sum was entered by default and
therefore does not create a meaningful datapoint or otherwise
demonstrate error now. And as to the second, Ward wholly
ignores the court’s multiple findings specifically related to
McGarry’s business credit card purchases. The court found that
“the use of credit cards, although it could be evidence of income,
does not equate income,” and that “the credit card purchases that
[Ward] is relying on in order to establish income were amounts
that were put on the credit card, but were immediately
reimbursed by other individuals.” Without challenging these
findings directly, Ward cannot prove error.

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higher amount was not random but was instead rooted firmly
within the evidence presented at trial. That is, the higher amount
represented the inclusion of Wife’s distribution from McGarry
Land. Therefore, the court’s imputation was amply supported by
“findings of fact as to the evidentiary basis for the imputation.”
Id.
¶34 Nevertheless, Ward asserts it was inappropriate for the
district court to take this approach because the court chose to
impute McGarry’s income at the amount he proposed. She argues
that allowing a court to impute income at whatever level the party
being imputed requests conflicts with Utah’s policy that children
have the right to be supported by their parents. See Hills v. Hills,
638 P.2d 516, 517 (Utah 1981) (stating that children’s right to
support from their parents “is not subject to being bartered away,
extinguished, estopped or in any way defeated by the agreement
or conduct of the parents”). She further notes that the issue of
unilateral stipulation was already addressed by this court in the
prior appeal of this case, where we determined that the district
court’s imputation was infirm because the court had merely
adopted McGarry’s proposed imputation without conducting an
evidentiary hearing or supporting the imputation with factual
findings. See Ward v. McGarry, 2021 UT App 51, ¶¶ 9–10, 491 P.3d
970. But the challenges Ward raises are not well taken at this
juncture. Critically, the district court’s current imputation was
determined following a hearing on remand and is supported by
factual findings. Moreover, the policy concern raised by Ward is
not implicated because the amount of income the court imputed
to McGarry was higher than the income it calculated based on
McGarry’s tax return.
B. Factual Findings Supporting the Award
¶35 Ward next asserts that in addition to failing to apply Utah
Code section 78B-6-203(4)(a), the district court also abused its
discretion in awarding child support because the amount of

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income it chose to impute to McGarry is inconsistent with the
evidence in the record. To that end, Ward challenges the court’s
factual findings concerning each of the three things she
unsuccessfully argued the court should “add back” into
McGarry’s income. Those things are (1) Wife’s salary from Iron
Mountain, (2) amounts resulting from McGarry having a greater
effective ownership interest in Iron Mountain, and (3) ranching
losses and additional depreciation. We address each of Ward’s
challenges in turn.
1. Wife’s Salary from Iron Mountain
¶36 At trial, Ward requested that the district court include in
McGarry’s income the salary earned by Wife from Iron Mountain.
The court declined Ward’s request, finding that Wife “is
substantially and separately employed by Iron Mountain.” Ward
contends that this finding is contrary to the evidence for three
reasons: (1) Wife is “employed full time” at another job; (2) the
work Wife does is “actually for McGarry Land,” not Iron
Mountain; and (3) a person in McGarry’s position should be
making significantly more than what he makes in salary from Iron
Mountain. None of the arguments raised by Ward demonstrate
that the court’s finding should be disturbed.
¶37 First, Ward has not articulated why Wife’s employment
with an entity other than Iron Mountain would have any
particular bearing on her ability to also be employed by Iron
Mountain. Indeed, the court did not find that Wife is solely
employed by Iron Mountain, just that she is separately employed
by the company, a point which was clearly illustrated during trial.
Of note, McGarry testified that though Wife is a full-time
employee of a local school district, she is also “an officer of [Iron
Mountain], and she helps [him] with [his] office work.” Likewise,
Brother testified that Wife is an employee of the company. Ward
has not pointed to any evidence contradicting this testimony.

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¶38 Second, Ward has not carried her burden to show that the
district court clearly erred in finding that Wife is employed by
Iron Mountain rather than McGarry Land. The court was
presented with ample evidence that Wife is an employee of Iron
Mountain. This evidence included testimony from McGarry and
Brother indicating that Wife works for Iron Mountain, as well as
Wife’s W-2 from Iron Mountain showing that she receives her
salary from the company in her own right. On appeal, Ward has
not put forth any conflicting evidence. Rather, her argument is
merely that the testimony offered by McGarry explaining what
Wife’s responsibilities at Iron Mountain entail was “vague.” This
is not enough to “overcome the healthy dose of deference owed
to factual findings.” Taft v. Taft, 2016 UT App 135, ¶ 19, 379 P.3d
890 (quotation simplified).5
¶39 Third, Ward’s contention that McGarry’s salary should be
higher is not persuasive. Ward asserts that a person in McGarry’s
position should be “making significantly more than the [amount]
he claims to be his salary” and that attributing both McGarry’s
and Wife’s salaries to McGarry would be “much more reasonable
considering the evidence.” But other than this bare assertion,
Ward did not present any evidence of what McGarry should be

5. In any event, even assuming the district court was incorrect in
finding that Wife is employed by Iron Mountain rather than by
McGarry Land, such error was harmless and is therefore not a
ground for reversal. See Huish v. Munro, 2008 UT App 283, ¶ 8, 191
P.3d 1242 (“Unless an appellant demonstrates that an error is
prejudicial, it will be deemed harmless and no appellate relief is
available.” (quotation simplified)). Regardless of which entity
employed her, there is sufficient evidence to support the court’s
finding that Wife’s income is attributable only to her.

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20230365-CA 18 2024 UT App 169
making.6 In contrast, McGarry put forth evidence demonstrating
that from 2014 to 2020 his salary from Iron Mountain has been
$1,000 per week, which evidence Ward has failed to engage with
on appeal. Therefore, because the court’s finding is “supported by
the evidence” and Ward has not identified “flaws in the evidence
relied on by the district court that rendered the court’s findings
clearly erroneous, we will not reverse.” Lobendahn v. Lobendahn,
2023 UT App 137, ¶ 31, 540 P.3d 727 (quotation simplified).
¶40 For all these reasons, Ward’s challenge to the district
court’s factual finding that Wife “is substantially and separately
employed by Iron Mountain” fails.
2. McGarry’s Effective Ownership Interest in Iron Mountain
¶41 Ward challenges the district court’s factual findings
regarding the percentage of McGarry’s effective ownership
interest in Iron Mountain. But Ward has again failed to meet her
burden of persuasion on this issue because she merely points to
potentially conflicting evidence that would support her position
while ignoring evidence that supports the challenged findings.
¶42 The district court found that in January 2016, McGarry sold
“25 percent of the total shares” of Iron Mountain to Brother in “an
arms-length transaction that was not entered into in an effort to
transfer income or to conceal financial resources” but was instead
“made because [McGarry] reportedly needed that money in order
to facilitate a property settlement with his earlier divorce.” The
6. Ward points to Brother’s statement at trial that he “distribute[s]
to [McGarry] a minimum of $15,000 each month” as evidence of
what a person in McGarry’s position earns. But Brother specified
that this monthly payment is a distribution payment, not a
payment toward McGarry’s salary; so Ward’s reliance on
Brother’s statement as establishing a reasonable salary is
misplaced.

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20230365-CA 19 2024 UT App 169
court further found that McGarry owns 50% of McGarry Land,
which owns the remaining 25% of Iron Mountain, thus giving
McGarry an effective 12.5% ownership interest in Iron Mountain.
¶43 Ward asserts these findings are not adequately supported
because the evidence upon which the district court relied was
“contradictory on multiple counts.” According to Ward, the
“disputed evidence” presented at trial “weighs more in favor of
[McGarry] still holding 50% ownership of Iron Mountain, as the
alleged transfer of 25% interest to [Brother] was in 2016—well into
the litigation of this case and well past the time of [McGarry’s]
divorce.” She then articulates two reasons that she believes the
evidence is in apparent contention with the court’s findings. First,
she asserts that McGarry provided inconsistent testimony
regarding the transfer of Iron Mountain shares to his ex-wife,

more specifically, that McGarry initially testified he gave his ex-
wife a share of Iron Mountain as part of their divorce settlement

in 2012 but that he later explained that he actually made
equalization payments to her each month until she was paid the
full equalization amount. Second, Ward points to Iron Mountain’s
corporate documents, which show that McGarry’s change of
ownership from 50% to 25% occurred in 2016, which was four
years after his divorce.
¶44 “The existence of conflicting evidence in the record is not
sufficient to set aside a district court’s findings.” Lobendahn v.
Lobendahn, 2023 UT App 137, ¶ 27, 540 P.3d 727. “The pill that is
hard for many appellants to swallow is that if there is evidence
supporting a finding, absent a legal problem—a fatal flaw—with
that evidence, the finding will stand, even though there is ample
record evidence that would have supported contrary findings.”
Kimball v. Kimball, 2009 UT App 233, ¶ 20 n.5, 217 P.3d 733
(quotation simplified). “The district court’s mission is to consider
and weigh all the conflicting evidence and find the facts.”
Lobendahn, 2023 UT App 137, ¶ 27 (quotation simplified).
“Credibility determinations are within the province of the trial

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20230365-CA 20 2024 UT App 169
judge, who is uniquely equipped to make factual findings based
exclusively on oral testimony due to his or her opportunity to
view the witnesses firsthand, to assess their demeanor and to
consider their testimonies in the context of the proceedings as a
whole.” Kidd v. Kidd, 2014 UT App 26, ¶ 34, 321 P.3d 200
(quotation simplified).
¶45 McGarry was questioned repeatedly at trial regarding the
transfer of his ownership interest in Iron Mountain. He explained
that after Brother became involved with Iron Mountain, McGarry
owned 50% of the company with his ex-wife, with each owning

an equal 25% share. Then, in December 2012, McGarry and his ex-
wife divorced. He explained that as part of the divorce settlement,

the value of the business was divided equally between the
divorcing spouses. At that point, McGarry was granted the entire
50% ownership interest in Iron Mountain and was ordered to pay
his ex-wife a $150,000 equalization payment.
¶46 McGarry further testified that in 2013, after his divorce had
been finalized, he and Brother “discussed” an option under which
Brother would buy half of McGarry’s Iron Mountain shares so
that McGarry could satisfy his equalization debt. That option was
to remain “through [2015], when the equalization was final.” In
January 2016, Brother exercised the option and purchased half of
McGarry’s shares, leaving McGarry with 25% of Iron Mountain
shares. McGarry explained that his Iron Mountain share was
thereafter transferred to his holding company, McGarry Land,
which is owned equally by him and Wife, meaning that he and
Wife effectively each own 12.5% of Iron Mountain.
¶47 Based on this testimony, the district court’s findings that
McGarry Land owns 25% of Iron Mountain and that McGarry
owns 50% of McGarry Land are not clearly erroneous. McGarry’s
testimony provided the court with detailed information regarding
the ownership history of Iron Mountain. Although Ward implies
that McGarry was being less than truthful with his account of

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20230365-CA 21 2024 UT App 169
events, the fact remains that the court was confronted with the
witness before it and was entitled to assess his credibility. And
when considered in the context of the proceedings as a whole, the
inconsistencies Ward alleges do not in fact amount to
inconsistencies. McGarry continuously maintained that he was
ordered to divide the monetary value of Iron Mountain with his
ex-wife. That he originally indicated she was awarded her share
in the company but later explained the division was accomplished
through an equalization payment is not inconsistent; in both
scenarios, she received half of the value of the couple’s interest in
Iron Mountain.
¶48 Moreover, Ward has not specifically challenged the
portion of the district court’s finding where the court determined
that McGarry, as 50% owner of McGarry Land, is entitled to half
of McGarry Land’s Iron Mountain distribution (representing a
12.5% ownership interest in Iron Mountain). Although Ward’s
argument below focused on the division of McGarry Land’s
distribution between McGarry and Wife—with Ward taking the
position that the court should attribute to McGarry the entire
distribution rather than splitting it equally with Wife—on appeal,
Ward has seemingly abandoned this specific argument, choosing
instead to focus on the division of Iron Mountain’s ownership
between McGarry and Brother. In any event, even if Ward had
challenged this aspect of the court’s finding, it is unclear what
relief she would be entitled to given that the court ultimately
included Wife’s distribution in McGarry’s income per his
stipulation.
¶49 Finally, nothing in either McGarry’s testimony or the other
documents introduced at trial showing that McGarry’s change of
Iron Mountain ownership from 50% to 25% occurred in 2016 are
inconsistent with the district court’s finding that the transfer
occurred in 2016. Indeed, the evidence on this point is all
consistent and is entirely in line with the court’s finding.

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20230365-CA 22 2024 UT App 169
¶50 The district court’s findings regarding McGarry’s
ownership interest in Iron Mountain are not clearly erroneous.
Ward has not identified a “fatal flaw” with the evidence relied on
by the court, Kimball, 2009 UT App 233, ¶ 20 n.5 (quotation
simplified), and the existence of potentially conflicting evidence
is not enough to sustain her appellate burden.
3. Ranching Losses and Additional Depreciation
¶51 Lastly, Ward assails the district court’s factual findings
regarding Iron Mountain’s income. In particular, she takes issue
with the court’s determinations concerning the Ranch and the
depreciation of assets.
¶52 At trial, Ward asked the district court to add back to Iron
Mountain’s income deductions for ranching losses and additional
depreciation. She argued that while Iron Mountain was allowed
to deduct the Ranch’s operating losses from its income for tax
purposes, the court could not deduct these losses when
calculating Iron Mountain’s income for child support purposes.
Citing Utah Code section 78B-12-203(4)(a), she asserted that the
court was permitted to deduct only “necessary expenses” from
gross receipts, which she argued did not include the claimed
ranching losses. She also argued that Iron Mountain should not
be allowed to deduct the depreciation of certain equipment,
including vehicles and other machinery, because the equipment
was not necessary to operate Iron Mountain’s rebar business and
was instead purchased to be used on the Ranch for personal use
and recreation.
¶53 The district court declined to exclude any ranching losses
or claimed depreciation from Iron Mountain’s income. The court
found that Iron Mountain had purchased the Ranch as an
“investment” and that the purchase was “a legitimate business
decision.” Furthermore, the court found that McGarry does not
control the investments or financial operation of Iron Mountain;

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20230365-CA 23 2024 UT App 169
that the purchase of the Ranch was at the behest of Brother; and
that McGarry, as a minority shareholder in Iron Mountain, had no
way “to either facilitate or resist the purchase.”
¶54 Ward argues these findings are not detailed and are
contrary to the evidence. She first complains the district court did
not explain how the Ranch is a “necessary” business expense and
instead made an “irrelevant” finding that the purchase of the
Ranch was for “legitimate investment concerns by Iron
Mountain.” As was the case below, the crux of this argument is
that the court was required to evaluate whether the Ranch was a
“necessary” business expense under Utah Code section 78B-12-
203(4)(a). And Ward contends that, pursuant to that section, the
court could deduct the Ranch’s operating losses from its gross
receipts only if it determined that the Ranch was necessary for
Iron Mountain to operate. But, as we have already explained, the
court was not required to calculate McGarry’s income solely by
reference to section 78B-12-203(4)(a). See supra Section I.A.
¶55 Given the evidence presented at trial, we conclude the
district court’s factual findings about the Ranch are not clearly
erroneous. Regarding the purchase of the Ranch, McGarry and
Brother both testified that the purpose of Iron Mountain
purchasing the Ranch was to build capital and to diversify the
company’s portfolio. This testimony wholly supports the court’s
finding that the purchase was “a legitimate business decision.”
And given that Ward devotes all her energy to showing that the
purchase of the Ranch was not necessary, she makes no attempt
to address the court’s actual finding.
¶56 Ward also complains the district court’s finding that
Brother was responsible for purchasing the Ranch is contrary to
the evidence because the testimony at trial was that McGarry and
Brother jointly pursued the purchase. But Ward has not attempted
to marshal the evidence supporting the court’s finding.
Importantly, the court credited both McGarry’s and Brother’s

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20230365-CA 24 2024 UT App 169
testimony that Brother is the majority shareholder of Iron
Mountain and has the authority to make all financial decisions for
the company. And Brother stated that in exercising that authority
he unilaterally decided to purchase the Ranch without consulting
McGarry. Further, Brother testified he is solely in charge of the
depreciation schedule for all equipment, ranching or otherwise,
and he averred that he leaves it to his accountant to prepare such
schedules. All this testimony provides solid evidentiary support
for the court’s findings about the financial control of Iron
Mountain and McGarry’s inability to make any financial decisions
for the company on his own accord.
¶57 Because the court articulated well supported reasons not to
“add back” into Iron Mountain’s income any ranching losses or
other depreciation and Ward has not identified problems with the
evidence upon which the court relied, she has failed to carry her
burden to show that the court’s findings are clearly erroneous.

II. Sanctions

¶58 Ward next argues the district court abused its discretion by
declining her request to sanction McGarry. Her attack centers on
the court’s underlying factual finding, which she asserts is clearly
erroneous. Ward’s challenge fails, however, because she has not
marshaled the evidence supporting the court’s finding and has
therefore not carried her appellate burden of persuasion.
¶59 Prior to trial, Ward moved for sanctions pursuant to rules
11 and 37 of the Utah Rules of Civil Procedure “due to the
significant and repeated delay of [McGarry] refusing to provide a
full income disclosure.” The court declined Ward’s request,
finding that although McGarry was “dilatory in providing some
required records,” the delay was not “an intentional effort to
undermine [Ward’s] ability to prepare for trial.”

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20230365-CA 25 2024 UT App 169
¶60 On appeal, Ward contends the district court’s
characterization of McGarry being “dilatory” is “an
understatement” and that the court’s subsequent determination
that McGarry’s delay was not an intentional effort to
undermine Ward’s trial preparation “is ‘against the clear weight
of the evidence’ when viewed in light of the entire record.”
(Quoting Pennington v. Allstate Ins. Co., 973 P.2d 932, 937 (Utah
1998).) But Ward supports her position by merely accusing
McGarry of providing incomplete financial disclosures, and she
again does not grapple with the evidence supporting the court’s
finding.
¶61 Critically, Ward was unable to point the district court to
any statement of discovery issues she filed specifically targeting
any alleged inadequacies related to McGarry’s financial
disclosures or rule 26.1 disclosures, nor could she identify a record
cite for one when asked to do so during oral argument before this
court.7 Moreover, Ward does not acknowledge any of the
documentation McGarry did turn over during the litigation.
McGarry identified in his trial brief a long list of instances where
he filed financial declarations; updated financial declarations;
provided personal tax returns; and provided business financials,
including tax returns, credit card statements, and bank
statements. Because Ward has not marshaled any of this evidence,
let alone even attempted to do so, she has not carried her burden
of demonstrating that the court’s finding is clearly erroneous. As
a result, we cannot say that the court abused its discretion when
it declined Ward’s request for sanctions.

7. Ward filed one statement of discovery issues prior to trial. That
statement did not have to do with the adequacy of McGarry’s
financial disclosures. Instead, Ward sought “documents related to
all income, personal and business,” for the years 2010 through
2018.

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20230365-CA 26 2024 UT App 169

CONCLUSION

¶62 The district court did not abuse its discretion in
determining McGarry’s income. The court properly applied Utah
law, and the factual findings supporting its income imputation
are not clearly erroneous. Likewise, the court did not abuse its
discretion when it declined Ward’s request for sanctions because
the factual finding underlying that decision is not clearly
erroneous.
¶63 Affirmed.8

8. Ward requests an award of appellate attorney fees under rules
11 and 26.1 of the Utah Rules of Civil Procedure and under rule
33 of the Utah Rules of Appellate Procedure. Ward’s request
under each of these rules is misplaced. As an initial matter, this
court does not award attorney fees under the Utah Rules of Civil
Procedure; those fees are left to the discretion of the district court.
See Utah R. Civ. P. 11(c), 26.1(f). And fees are awarded under rule
33 when “a motion made or appeal taken under [the appellate
rules of procedure] is either frivolous or for delay.” Utah R. App.
P. 33(a). But Ward was the appealing party in this case, and her
suggestion that McGarry attempted to delay the appeal by
requesting two extensions of time to file his brief falls flat given
that she stipulated to the first request and she herself requested
additional time to file her reply brief. For these reasons, we
decline Ward’s request for fees.