                 IN THE SUPREME COURT OF THE STATE OF IDAHO

                                        Docket No. 45277

VERONIKA O. PAPIN,                                   )
                                                     )          Pocatello, September 2019 Term
        Plaintiff-Respondent,                        )
                                                     )          Opinion filed: December 20, 2019
v.                                                   )
JERRY A. PAPIN,
                                                     )          Karel A. Lehrman, Clerk
                                                     )
        Defendant-Appellant.                         )

       Appeal from the District Court of the Seventh Judicial District of the State of
       Idaho, Bonneville County. Dane H. Watkins, Jr., District Judge.

       The decision of the district court is affirmed in part and reversed in part and
       remanded for further proceedings.

       Smith Woolf Anderson & Wilkinson, PLLC, Idaho Falls, for Appellant. Marty
       Anderson argued.

       Banks Gaffney & McNally, Idaho Falls, for Respondent. John E. Cutler argued.

             _______________________________________________

MOELLER, Justice


       This is an appeal originating from a complex divorce between Jerry and Veronika Papin.
Jerry appeals from the Bonneville County district court’s decision, which affirmed in part the
judgment of the magistrate court dividing the marital estate. On appeal, Jerry argues that the
district court erred in affirming several of the magistrate court’s rulings, including: (1) its
holding that the marriage settlement agreement was invalid; (2) its holding that the community
was entitled to reimbursement for the funds expended towards the mortgage and property taxes
on Jerry’s separate property home; (3) its characterization of certain property as either separate
or community; (4) its valuation of certain property; (5) its award of spousal maintenance to
Veronika; and (6) its award of attorney fees to Veronika. For the reasons stated below, we affirm
in part, reverse in part, and remand for further proceedings.




                                                 1
                        I.        FACTUAL AND PROCEDURAL BACKGROUND
            Jerry and Veronika were married on June 3, 2003, when they were thirty-seven and
twenty-nine years old, respectively. Throughout the marriage, the parties resided in Jerry’s
separate property home in Idaho Falls, Idaho. The parties have one child together, J.P., born on
April 11, 2010.
            Veronika was born in the Czech Republic and moved to Idaho Falls in 2003 after having
visited a few times. Czech is Veronika’s first language, but she understands four other languages,
including English. While married to Jerry, Veronika worked part time at an art gallery in Idaho
Falls making minimum wage.
            Jerry was born in the United States and has lived in Idaho Falls since 1986. After leaving
the Navy in 1991, Jerry began his career as an investment manager. Jerry affiliated his business
with IDS Financial Services Inc. (IDS Financial), becoming an independent contractor with the
firm. In 1995, IDS Financial changed its name to American Express Financial Advisors
(American Express), and in 2005, American Express changed its name to Ameriprise Financial
Services, Inc. (Ameriprise). Following the name change, Ameriprise updated its tax policy,
thereby allowing Ameriprise affiliated investment managers, such as Jerry, to have their own
distinct tax identity. In response, Jerry created Jerry Papin Support Services, LLC (JPSS).
            On August 31, 2011, Jerry sold his “Business and Assets” to Brinton Webb, another
Ameriprise affiliated investment manager. Jerry and Webb executed an Agreement for Purchase
and Sale of the Ameriprise Franchise of Jerry A. Papin, Jr. (Purchase and Sale Agreement) to
document the terms of the sale to Webb. 1 The Purchase and Sale Agreement provided that Jerry
would sell to Webb his “Business and Assets, as they exist,” for $504,000. The “Assets”
included Jerry’s “client base,” which consisted of approximately 250 clients with approximately
$45,000,000 in total assets under management (AUM).
            On the same day, Jerry and Webb executed the Amendment to the Agreement for
Purchase and Sale of Practice (the Amendment). The Amendment explained that Jerry could
“solicit clients of the Business . . . to move some or all of their accounts from [Webb’s]
Ameriprise [business] to [Jerry]’s new Industry business.” The parties agreed that Jerry would
limit the amount of AUM leaving Webb’s Ameriprise business to no more than $12,500,000.



1
    Jerry A. Papin, Jr. refers to Jerry Papin, the appellant in this matter.


                                                                2
Should Jerry procure more than that, he would have to reduce the purchase price by five percent
for each increment of $1,000,000 in excess of $12,500,000.
       The very next day, Jerry executed an operating agreement with Melissa Davis, forming
Straight Line Investment Group, LLC (Straight Line), a Nevada corporation. Jerry and Melissa
each owned a fifty percent interest in Straight Line. One month later, Jerry amended the
Certificate of Organization for JPSS, changing the name to Straight Line Investment Group, LLC
(Straight Line (Idaho)).
       On November 16, 2011, Jerry informed Webb that he would be transferring $16,900,000
in AUM—i.e., $4,400,000 above the permitted $12,500,000—to his new business, Straight Line.
As a result, Jerry reduced the purchase price of $504,000 by twenty five percent. Accordingly,
Webb was only required to pay Jerry $378,000 for the sale of the business.
       Two years later, Jerry prepared a document entitled: A Covenant Affirming the Separate
Business Property of Melissa Davis and Jerry A. Papin, Jr. (the Covenant). The Covenant
provides in part:
       Straight Line Investment Group, LLC, a business formed under the laws of the
       state of Nevada, as an evolution and continuation of the Investment management
       and financial advisory business, established in 1991, previously owned by Jerry
       A. Papin, Jr. exclusively, was contemplated, designed and has thereafter operated
       as [Jerry and Melissa’s] separate property in proportion to their respective
       ownership interests.
The Covenant further provides that the spouses of Jerry and Melissa affirm that Straight Line
“has been and remains the separate property of [Jerry and Melissa]”; that the spouses do not have
and never will have “any lawful right or claim to the intellectual or real property, revenue,
proceeds, set-asides, investments, equity or any other thing of value of [Straight Line]”; and that
the spouses forever disclaim and waive “all rights, title, and interest which may be vested in
either or both of us by virtue of our respective marriages to the Partners in and to all revenues,
proceeds, property, assets and other things of value of [Straight Line]” and “any subsequent
finding by a jurisdictional authority of any community property or other joint interest.” Melissa’s
husband, Adam Davis, signed the Covenant on October 24, 2013, and Veronika signed the
Covenant on November 4, 2013. Neither Jerry nor Melissa signed the Covenant.
       On August 13, 2014, after more than eleven years of marriage, Veronika filed for divorce
on the grounds of extreme cruelty or, in the alternative, on the grounds of irreconcilable




                                                3
differences. Jerry requested that the magistrate court grant the divorce on the grounds of adultery
or, in the alternative, on the grounds of irreconcilable differences.
       Veronika challenged the validity of the Covenant by moving for summary judgment.
Veronika argued that the Covenant is not a “binding or valid premarital agreement pursuant to
I.C. § 32-916, et seq. and in accordance with leading Idaho case law.” In response, Jerry filed a
cross-motion for summary judgment, arguing that the Covenant is a “valid post marital
agreement” and Veronika is not entitled to claim any interest in Jerry’s separate property
business. The magistrate court granted summary judgment in favor of Veronika, holding that the
Covenant was not a valid marriage settlement agreement because (1) it was signed by only one
spouse when Idaho Code section 32-917 requires both spouse’s signatures and (2) it is
unconscionable. The court also held that the Covenant was not an “instrument of conveyance”
because there was no specific language of conveyance as required by Idaho Code section 32-
906(2). Finally, the court held that the Covenant was not a valid agreement as between Veronika
and Adam, i.e., the signatories, for lack of consideration.
       Trial commenced on July 1, 2015, and on October 19, 2015, the magistrate court entered
its Memorandum Decision. Relevant to this appeal, the court made the following findings: (1)
neither party met their burden of proving fault grounds for divorce; (2) community funds were
used to pay down the mortgage and property taxes on Jerry’s separate property home in the
amount of $70,000 and $13,797.80, respectively; (3) the proceeds from the sale of the business
are presumed to be community property because Jerry could not trace his separate property; (4)
Straight Line is community property because it was started during the marriage; (5) the MPCU
joint checking account and all investment accounts are community property because the accounts
consist of either the proceeds from the sale of Jerry’s business or community income; (6)
Veronika is entitled to an award of temporary spousal maintenance; and (7) Veronika is entitled
to two-thirds of her requested attorney fees.
       Veronika filed a motion for attorney fees and costs, requesting $89,202.57 in attorney
fees and $9,787.94 in costs. The magistrate court issued its Memorandum Decision Re:
Attorney’s Fees, awarding Veronika all of her costs and part of her fees. As for costs, the court
awarded Veronika $1,714.19 as costs as a matter of right and $8,073.75 as discretionary costs.
As for attorney fees, the court reduced the requested amount by $5,447.50 based on Jerry’s
objections to which Veronika failed to respond. The court also reduced the amount by



                                                  4
$48,372.60 for payments already received from community funds. Finally, the court reduced the
amount by one-third, or $15,056.80, because Veronika only prevailed in part. Accordingly, the
court held that Jerry was required to pay Veronika a total of $30,113.61 in attorney fees and
costs. The court entered the Final Decree of divorce on January 29, 2016.
       Jerry appealed both memorandum decisions and the Final Decree to the district court.
After oral argument, the district court entered its Memorandum Decision and Order Re: Appeal.
The district court affirmed the magistrate court’s decision on a majority of the issues, but
remanded the following issues: (1) the determination of the appropriate allocation and
distribution of the Eastern Idaho Credit Union Account; (2) the determination of the appropriate
allocation and distribution of the Ameritrade Account; (3) reconsideration of certain evidence
under the proper burden of proof to determine the amount the community is entitled to for
reimbursement for the payment of principal and taxes on Jerry’s separate residence; (4) the
determination of whether any potential tax liability stemming from the 2011 sale of the business
should be divided substantially equally; and (5) the determination of expert witness fees as a
discretionary cost. Jerry timely appealed.
                               II.    STANDARD OF REVIEW
       The standard for reviewing a district court’s decision when it acts in its intermediate
appellate capacity continues to be the source of some confusion. See Losser v. Bradstreet, 145
Idaho 670, 672, 183 P.3d 758, 760 (2008). However, in Pelayo v. Pelayo, 154 Idaho 855, 303
P.3d 214 (2013), we clarified the standard:
              When this Court reviews the decision of a district court sitting in its
       capacity as an appellate court, the standard of review is as follows:
           The Supreme Court reviews the trial court (magistrate) record to
           determine whether there is substantial and competent evidence to support
           the magistrate’s findings of fact and whether the magistrate’s conclusions
           of law follow from those findings. If those findings are so supported and
           the conclusions follow therefrom and if the district court affirmed the
           magistrate’s decision, we affirm the district court’s decision as a matter of
           procedure.
       Bailey v. Bailey, 153 Idaho 526, 529, 284 P.3d 970, 973 (2012) (quoting Losser v.
       Bradstreet, 145 Idaho 670, 672, 183, P.3d 758, 760 (2008)). Thus, this Court does
       not review the decision of the magistrate court. Id. “Rather, we are ‘procedurally
       bound to affirm or reverse the decisions of the district court.’ ” Id. (quoting State
       v. Korn, 148 Idaho 413, 514 n. 1, 224 P.3d 480, 482 n. 1 (2009)).




                                                5
       Prior to Losser, when this Court reviewed a district court acting in its appellate
       capacity the standard of review was: “when reviewing a decision of the district
       court acting in its appellate capacity, this Court will review the record and the
       magistrate court’s decision independently of, but with due regard for, the district
       court’s decision.” Losser, 145 Idaho at 672, 183 P.3d at 760. After Losser, this
       Court does not directly review a magistrate court’s decision. Id. Rather, it is
       bound to affirm or reverse the district court’s decision. See Bailey, 153 Idaho at
       529, 284 P.3d at 973; Korn, 148 Idaho at 415 n. 1, 224 P.3d at 482 n. 1.
Pelayo, 154 Idaho at 858–59, 303 P.3d at 217–18. Accordingly, we will review the district
court’s decision to determine whether it correctly addressed the issues raised on appeal.
                                       III.    ANALYSIS
   A. The marriage settlement agreement.
       Jerry contends that the district court erred in affirming the magistrate court’s finding on
summary judgment that the Covenant was not a valid marriage settlement agreement. According
to Jerry, the Covenant is a valid marriage settlement agreement because it was executed in
accordance with the law and properly conveys any interest Veronika may have in Straight Line
to Jerry, including all revenue. Veronika contends that the Covenant is not a valid marriage
settlement agreement because Jerry is not a party to it, it lacks “mutuality and consideration,”
and it was not executed in accordance with the law.
       “On appeal from the grant of a motion for summary judgment, this Court employs the
same standard as used by the [lower court] originally ruling on the motion.” Intermountain
Forest Mgmt., Inc. v. Louisiana Pacific Corp., 136 Idaho 233, 235, 31 P.3d 921, 923 (2001).
Summary judgment is proper “if the movant shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.” I.R.C.P. 56(a).
       Where the parties have filed cross-motions for summary judgment relying on the
       same facts, issues and theories, the parties effectively stipulate that there is no
       genuine issue of material fact that would preclude the district court from entering
       summary judgment. Davis v. Peacock, 133 Idaho 637, 640, 991 P.2d 362, 365
       (1999) (citations omitted). However, the mere fact that both parties move for
       summary judgment does not in and of itself establish that there is no genuine issue
       of material fact. Kromrei v. AID Ins. Co., 110 Idaho 549, 551, 716 P.2d 1321
       (1986) (citing Casey v. Highlands Ins. Co., 100 Idaho 505, 507, 600 P.2d 1387,
       1389 (1979)). The fact that the parties have filed cross-motions for summary
       judgment does not change the applicable standard of review, and this Court must
       evaluate each party’s motion on its own merits. Stafford v. Klosterman, 134 Idaho
       205, 207, 998 P.2d 1118, 1119 (2000) (citing Bear Island Water Ass’n, Inc., v.
       Brown, 125 Idaho 717, 721, 874 P.2d 528, 532 (1994)).
Intermountain Forest Mgmt., Inc., 136 Idaho at 235, 31 P.3d at 923.


                                                 6
          i.    The magistrate court did not err in raising the issue of consideration sua sponte
                because it provided the parties with adequate notice and an opportunity to
                respond.
       Jerry contends that the magistrate court improperly raised sua sponte several issues
regarding the validity of the Covenant during the hearing on the parties’ motions for summary
judgment because he was not provided with adequate notice and an opportunity to respond.
Veronika contends that the magistrate court did not raise any issues sua sponte because Jerry
placed the legitimacy of the Covenant at issue when he filed a cross-motion for summary
judgment asserting its validity.
       Generally, “[t]he [lower] court may not grant summary judgment on a ground raised sua
sponte.” Sales v. Peabody, 157 Idaho 195, 201, 335 P.3d 40, 46 (2014). However, this is not a
blanket rule:
              We do not suggest that summary judgment may never be entered by a
       court sua sponte or on grounds other than those raised by the moving party. . . .
       [I]n such event, the party against whom the judgment will be entered must be
       given adequate advance notice and an opportunity to demonstrate why summary
       judgment should not be entered.
Mason v. Tucker and Assoc., 125 Idaho 429, 432, 871 P.2d 846, 849 (Ct. App. 1994).
       Here, Veronika filed a motion for summary judgment seeking to invalidate the Covenant.
Veronika argued that the Covenant was not a valid marriage settlement agreement because there
was no meeting of the minds and it is unconscionable. Jerry objected and filed a cross-motion for
summary judgment, asking the magistrate court to find that the Covenant was a “valid post
marital agreement.” During the hearing on both motions, the magistrate court expressed its
concern that the parties had not addressed several issues relating to the validity of the Covenant:
               [Magistrate court]: And as I read through -- in preparation for today, I read
       through a great deal of the information with regards to the summary judgment
       motion. And I had some screaming issues that neither of you have addressed.
               ....
               [Magistrate court]: And so what I have in the -- in the briefing and in the
       documents doesn’t begin to cover the issues that at least seem to me -- for
       example, it’s referred to as a marital settlement agreement by -- at least by Ms.
       Gaffney.
               I know she referred to it as that, and I think that that’s probably a
       description that is not uncomfortable for you, Mr. Anderson, in talking about it in
       those terms.
               And yet it’s not a marital settlement agreement because it’s not an
       agreement between these parties. It’s an agreement ostensibly between Mrs. Papin
       and the husband of Mr. Papin’s business partner.


                                                 7
                 So it’s not a marital settlement agreement. He’s not a party to it.
                 ....
                 [Magistrate court]: Whether she understood the agreement, that’s a
        question of fact. But those aren’t the only issues. And especially when it’s -- it’s
        an agreement between Mrs. Papin and somebody else who isn’t a party to this
        litigation.
                 [A]nd where is the consideration to make that agreement binding?
        After voicing its concerns, the magistrate court continued the hearing to allow the parties
an opportunity to brief any additional issues relating to the validity of the Covenant. The parties
had approximately one month to supplement their motions, and both took the opportunity to do
so. In her supplemental memorandum, Veronika alleged that the Covenant was not a valid
marriage settlement agreement because it was not signed by both spouses and it does not convey
anything to Jerry, but merely attempts to affirm the separate nature of the business.
        In its decision on summary judgment, the magistrate court ultimately found that the
Covenant was not a valid marriage settlement agreement because it was not signed by both
spouses and it was unconscionable. The court also found that the Covenant was not an
“instrument of conveyance” because it did not contain specific language of conveyance. Finally,
the court found that the Covenant was not a valid agreement as between Veronika and Adam
because it lacked consideration.
        On intermediate appeal, Jerry argued that the magistrate court improperly raised several
issues sua sponte, including the issues that were addressed in Veronika’s supplemental
memorandum as well as the additional issues of consideration, conveyance, and disclosure that
were never raised by Veronika. The district court held that the only issue that was raised sua
sponte was the issue regarding consideration, but it was not improper for the magistrate court to
do so because the parties had notice and an opportunity to brief the issue. We agree with the
district court.
        As to the issue of disclosure, we hold that Jerry raised the issue himself when he filed a
cross-motion for summary judgment asking the court to find that the Covenant was a “valid post
marital agreement.” To have a “valid post marital agreement,” the Covenant would have to be
valid, which includes disclosing all pertinent information within each party’s knowledge. “The
marital relationship imposes the high duty of care of a fiduciary on each of the parties. This duty
continues until the moment of the marriage’s termination.” Golder v. Golder, 110 Idaho 57, 60,
714 P.2d 26, 29 (1986).



                                                 8
        This fiduciary duty extends to the parties’ negotiations leading to the formation of
        the property settlement agreement during marriage, and requires, at least, a
        disclosure by both parties of all information within their knowledge regarding the
        existence of community property and of pertinent facts necessary to arrive at a
        reasonable valuation of the property. Like a business partner, each spouse is free
        to adopt a position favorable to himself or herself regarding the property’s
        valuation, its inclusion in the community, or other such issues. They are not free,
        however, to resolve such issues unilaterally by concealing the very existence of
        particular items or amounts of property.
Id. (emphasis added) (quoting Compton v. Compton, 101 Idaho 328, 336, 612 P.2d 1175, 7783
(1980)). “When such an agreement is attacked the husband has the burden of clearly showing
that it was fair in every particular.” Sande v. Sande, 83 Idaho 233, 238, 360 P.2d 998, 1001
(1961) (quoting Hay v. Hay, 40 Idaho 159, 169, 232 P. 895, 897 (1924)). Accordingly, because
Jerry himself asked the magistrate court to uphold the validity of the Covenant, the court did not
raise the issue of disclosure sua sponte.
        As to the issue of conveyance, we similarly hold that Jerry raised the issue himself. In his
supplemental reply to his cross-motion for summary judgment, Jerry cited to section 32-906(2)
and asserted that “the Covenant property [sic] conveys Veronika’s interest, if she had one, to
Jerry in the business enterprises together with all revenue derived therefrom.” During the
continued hearing on the motions for summary judgment, Veronika asserted that section 32-
906(2) is inapplicable because, according to the Covenant itself, Veronika is not conveying
anything; both the title and language of the Covenant explain that Veronika is merely affirming
the separate nature of the business. Jerry rebutted Veronika’s argument by asserting that the
Covenant “is clearly a conveyance.” Accordingly, the magistrate court did not raise the issue of
conveyance sua sponte.
        Finally, as to the issue of consideration, we hold that the magistrate court did in fact raise
that issue sua sponte. Nevertheless, it was not error for the court to do so because it provided the
parties with both notice—by identifying the issue during the hearing on the motions for summary
judgment—and an opportunity to address the issue—by offering the parties additional time to
supplement their briefing. Therefore, although the magistrate court sua sponte raised the issue of
consideration, it was not error for the court to do so. Accordingly, we affirm the district court on
this issue.
          ii.   The district court erred in affirming the magistrate court’s finding that the
                Covenant was procedurally invalid on the alternate grounds that it did not contain
                the grantee’s mailing address.


                                                  9
       The magistrate court found that the Covenant was not a valid marriage settlement
agreement because it was signed only by Veronika, thereby failing to satisfy the requirements of
Idaho Code section 32-917. On intermediate appeal, the district court upheld the magistrate
court’s finding on alternative grounds. The district court held that, although section 32-917 only
requires the grantor’s signature, it further requires the inclusion of the grantee’s mailing address,
which the Covenant lacks.
       On intermediate appeal, the district court may affirm a magistrate court’s decision that is
based upon an erroneous legal theory if an alternative legal basis can be found to support the
decision. See, e.g., Campbell v. Parkway Surgery Ctr., LLC, 158 Idaho 957, 966, 354 P.3d 1172,
1181 (2015) (“The district court was permitted to affirm the magistrate court’s judgment on the
correct legal theory if the magistrate’s legal basis for supporting its judgment was incorrect.”).
Thus, we must initially determine whether the district court correctly determined that section 32-
917 only requires the grantor’s signature and the grantee’s mailing address.
       “The interpretation of a statute is a question of law over which this Court exercises free
review.” Webb v. Webb, 143 Idaho 521, 525, 148 P.3d 1267, 1271 (2006). In Idaho, property
rights of husband and wife are governed by Chapter 9, Title 32, Idaho Code, “unless there is a
marriage settlement agreement entered into during the marriage containing stipulations contrary
thereto.” I.C. § 32-916. Section 32-917 provides that “[a]ll contracts for marriage settlements
must be in writing, and executed and acknowledged or proved in like manner as conveyances of
land are required to be executed and acknowledged or proved.” Idaho Code section 55-601
addresses how conveyances of land are to be executed and acknowledged or proved: “A
conveyance of an estate in real property may be made by an instrument in writing, subscribed by
the party disposing of the same, or by his agent thereunto authorized by writing. The name of the
grantee and his complete mailing address must appear on such instrument.”
       In Chavez v. Barrus, we addressed the issue of whether a marital property settlement
agreement is required to contain formalized language of conveyance to be a valid settlement
agreement. 146 Idaho 212, 220, 192 P.3d 1036, 1044 (2008). In doing so, we began by
recognizing that certain minimum requirements must be met when assigning the interests in the
marital homestead through a settlement agreement:
       “All contracts for marriage settlements must be in writing, and executed and
       acknowledged or proved in like manner as conveyances of land are required to be
       executed and acknowledged or proved.” I.C. § 32-917. The general rule for


                                                 10
       conveyances of land states: “A conveyance of an estate in real property may be
       made by an instrument in writing, subscribed by the party disposing of the same,
       or by his agent thereunto authorized by writing. The name of the grantee and his
       complete mailing address must appear on such instrument.” I.C. § 55-601; see
       also I.C. § 9-503 (stating that transfers of real property must be in writing).
Id. We held that the agreement between the husband and wife satisfied the requirements
of section 32-917 without specifying which of the requirements had been satisfied. We now take
the opportunity to do so.
       First, it is an absolute requirement that the marriage settlement agreement be in writing.
See I.C. § 32-917 (“All contracts for marriage settlements must be in writing . . . .”); I.C. § 55-
601 (“A conveyance of an estate in real property may be made by an instrument in writing . . .
.”). Second, only the grantor, i.e., the conveying spouse, is required to sign the settlement
agreement. See I.C. § 55-601 (explaining that the instrument of conveyance need only be
“subscribed by the party disposing of the same.”). Third, the settlement agreement must contain
the mailing address of the grantee spouse, but only if the property that is being conveyed is real
property. This requirement, found in section 55-601, is only necessary for conveyances of real
property because the address of the grantee is needed for property tax purposes. This holding is
also supported by the language found in section 32-917, which provides that marriage settlement
agreements need only be “executed and acknowledged or proved in like manner as conveyances
of land are required to be executed and acknowledged or proved.” (Emphasis added). “Like” is
defined as “[e]qual in quantity, quality, or degree; corresponding exactly” or “[s]imilar or
substantially similar; of much the same nature.” LIKE, Black’s Law Dictionary (11th ed. 2019).
We interpret the Legislature’s use of the phrase, “in like manner as conveyances of land,” to only
refer to the acts of executing, acknowledging, and proving the agreement. The address
requirement would only apply to “conveyances of land.” Thus, the grantee’s mailing address is
only necessary in a marriage settlement agreement when title to real property is being conveyed
or modified.
       Looking to the marriage settlement agreement in this case, we hold that it satisfies the
procedural requirements of section 32-917, and is therefore, procedurally valid. First, the
Covenant satisfies the requirement that it be in writing. Second, the Covenant satisfies the
requirement that it be signed by the grantor spouse. The Covenant was signed by Veronika (as
well as Adam Davis) and notarized by a notary public. Veronika is the grantor because she is the
one conveying property—i.e., any interest she may have in Straight Line. Thus, as between


                                                11
Veronika and Jerry, only Veronika’s signature is required under section 32-917. Finally, because
the only property that is being conveyed is the interest Veronika may have in Straight Line—
which did not include any real property—Jerry’s mailing address, as the grantee, was not
required. Therefore, the Covenant satisfies all of the procedural requirements of section 32-917.
Accordingly, the district court erred in affirming the magistrate court’s finding that the Covenant
was procedurally invalid on the alternative grounds that it lacked the grantee’s mailing address.
          iii.   The Covenant is not a valid marriage agreement between Jerry and Veronika
                 agreement because it lacks consideration.
        The issue of consideration for the Covenant is difficult to analyze on appeal because both
lower courts considered the issue as between Veronika and Adam Davis, the two signatories to
the Covenant, rather than as between Veronika and Jerry. The magistrate court held that the
Covenant was invalid due to the lack of consideration. 2 The district court upheld the magistrate
court’s holding, explaining that “[n]o question of material fact existed that the Covenant was
unsupported by consideration between Veronika and Adam.”
        We affirm the district court, but not because of the lack of consideration between
Veronika and Adam. Although they were both signatories, the Covenant does not attempt to
address the respective rights of Veronika and Adam to each other. In other words, the rights
Veronika allegedly “affirmed” to Jerry were all to the benefit of Jerry, not Adam. Therefore, for
the Covenant to be a valid marriage settlement there must be consideration between Veronika
and Jerry. The evidence in the record firmly establishes that consideration is lacking as between
the parties to this appeal, i.e., Veronika and Jerry.
        “To be enforceable at law, an agreement must be supported by valid consideration.”
Weisel v. Beaver Springs Owners Ass’n, Inc., 152 Idaho 519, 526, 272 P.3d 491, 498 (2012). “To
constitute consideration, a performance or a return promise must be bargained for. A
performance or return promise is bargained for if it is sought by the promisor in exchange for his
promise and is given by the promisee in exchange for that promise.” Fischer v. Croston, 163
Idaho 331, 339, 413 P.3d 731, 739 (2018) (quoting Restatement (Second) of Contracts § 71
(1981)). “The party that asserts consideration is either lacking or has failed to support a written
agreement bears the burden of proving that fact by a preponderance of the evidence.” Weisel,
152 Idaho at 526, 272 P.3d at 498.

2
  As will be discussed later in this Opinion, the community had acquired an interest in the property which was the
subject of the Covenant.


                                                       12
         The Legislature has specifically provided that premarital agreements are enforceable
without consideration. See I.C. § 32-922 (“A premarital agreement . . . is enforceable without
consideration. . . .”). The Uniform Law Comments explain that the marriage itself is the
consideration. In addressing marriage settlement agreements, or post-marital agreements, the
Legislature could have included similar language in section 32-917, but chose not to do so.
Nevertheless, Jerry argues that this Court has not required consideration in the past for post-
marital conveyances. See, e.g., Barrett v. Barrett, 149 Idaho 21, 232 P.3d 799 (2010); Reed v.
Reed, 137 Idaho 54, 44 P.3d 1108 (2002); Bliss v. Bliss, 127 Idaho 170, 898 P.2d 1081 (1995);
Wolford v. Wolford, 117 Idaho 61, 785 P.2d 208 (1990); Hall v. Hall, 116 Idaho 483, 484, 777
P.2d 255, 256 (1989); Suchan v. Suchan, 106 Idaho 654, 682 P.2d 607 (1984). However, none of
these cases support Jerry’s argument. In fact, these cases support the opposite conclusion as most
of the settlement agreements contain some form of at least nominal consideration. 3 Accordingly,
we cannot hold that, similar to premarital agreements, marriage settlement agreements are
enforceable without any consideration. Accordingly, parties entering into a marriage settlement
agreement must follow the general rules of contract law, including the requirement of
consideration.
         Here, Jerry argues that the consideration was the business itself. Had Veronika and Adam
not signed the Covenant, then he and Melissa would not have entered into business with each
other in the first place. If the Covenant had been signed contemporaneously with the creation of
Straight Line, then this argument might be more persuasive. However, Jerry and Melissa started
Straight Line in September 2011 and the Covenant was not executed until the fall of 2013. By
then Jerry and Melissa had been in business together for over two years, so obtaining releases
from their spouses was clearly not a part of the agreement. Additionally, Jerry argues that,
without the Covenant, Jerry and Melissa would not have been able to increase their wages, which
was a direct benefit to Veronika and Adam. However, once again, Jerry increased his salary
before the execution of the Covenant. Moreover, Jerry explained all of this in an

3
  See, e.g., Bliss, 127 Idaho at 174, 898 P.2d at 1085 (“[T]he deed unambiguously declares that it is ‘in consideration
of ONE DOLLAR and OTHER GOOD and VALUABLE CONSIDERATION.’ ”); Hall, 116 Idaho at 484, 777 P.2d
at 256 (“Where, as here, the consideration clause clearly recites that the transfer was made ‘For Value Received,’
parol evidence is not admissible to contradict the deed by attempting to show the transfer was in part a ‘gift’ rather
than ‘for value.’ ”); Suchan, 106 Idaho at 658, 682 P.2d at 611 (“NOW THEREFORE, for and in consideration of
the Sum of One ($1.00) Dollar in hand paid, and other valuable consideration . . . and also, in consideration of the
love and affection that each of said parties bears for the other, and the mutual benefits to be derived by the parties
hereto . . . .”).


                                                         13
acknowledgement between himself and Melissa, which was executed after Veronika filed for a
divorce and after she moved to set aside the Covenant as invalid. Jerry’s attempt to retroactively
recite consideration for the agreement is insufficient. The Covenant as it currently stands lacks
any consideration because Veronika agreed to give up or transmute any community interest she
may have had in the business in exchange for nothing.
       In sum, although the lower courts analyzed the consideration issue as between the
signatories, i.e., Veronika and Adam, the real question was whether consideration existed as
between the spouses, i.e., Veronika and Jerry. Based on our reasoning above, we hold that it did
not. Without consideration the Covenant is invalid and cannot be enforced by Jerry. Accordingly,
the district court did not err in affirming the magistrate court’s grant of summary judgment in
favor of Veronika as there is no genuine issue that the Covenant is not a valid marriage
settlement agreement because it lacks consideration. See BECO Const. Co., Inc. v. J-U-B
Engineers, Inc., 145 Idaho 719, 724, 184 P.3d 844, 849 (2008) (“It is well established that this
Court will use the correct legal theory to affirm the correct decision of a district court even when
it is based on an erroneous legal theory.” (quoting J.R. Simplot Co., Inc. v. Idaho State Tax
Comm’n, 120 Idaho 849, 853, 820 P.2d 1206, 1210 (1991))).
   B. The investment management business(es).
       Jerry has raised several issues regarding the lower courts’ characterization and valuation
of the investment management business as it has existed throughout the marriage. Jerry contends
that the district court erred in affirming the magistrate court’s finding that the investment
management business, as it existed in 2011, was community property. Jerry argues that this is
due to the lower courts’ failure to understand the nature of the business. Jerry also contends that
the district court erred in affirming the magistrate court’s finding that the proceeds from the 2011
sale of the business were community property. Finally, Jerry contends that the district court erred
in affirming the magistrate court’s characterization and valuation of Straight Line.
       “The characterization of property as either community or separate presents a mixed
question of law and fact.” Kawamura v. Kawamura, 159 Idaho 1, 3, 355 P.3d 630, 632 (2015).
“Although the manner and method of acquisition of property are questions of fact for the trial
court, the characterization of an asset in light of the facts found is a question of law over which
we exercise free review.” Id. “Whether a specific piece of property is characterized as
community or separate property depends on when it was acquired and the source of the funds



                                                14
used to purchase it. The character of property vests at the time the property is acquired.” Id. at 4,
355 P.3d at 633 (quoting Kraly v. Kraly, 147 Idaho 299, 303, 208 P.3d 281, 285 (2009)). “[A]ll
property owned by a spouse before marriage and property acquired after marriage with the
proceeds of separate property remain that spouse’s separate property.” Baruch v. Clark, 154
Idaho 732, 737, 302 P.3d 357, 362 (2013) (citing I.C. § 32-903). “However, all other property
acquired after marriage—including income on separate property—is community property.” Id.
(citing I.C. § 32-906). Therefore, there is a rebuttable presumption that all property acquired
during marriage is community property. Reed, 137 Idaho at 58, 44 P.3d at 1113. “[A] party
wishing to show that assets acquired during marriage are separate property bears the burden of
proving with reasonable certainty and particularity that the property is separate.” Baruch, 154
Idaho at 737, 302 P.3d at 362.
       Jerry started his investment management business in 1991. Accordingly, the business in
its entirety was Jerry’s separate property to begin with and he was entitled, initially, to a
presumption that the business remained his separate property throughout the marriage. However,
during the marriage Jerry sold the “business,” or at least a portion thereof, and started a new
business. Accordingly, it is necessary to characterize the business as it has existed and evolved
throughout the marriage, which begins with an accurate understanding of the nature of the
business.
            i.   The lower courts correctly understood the nature of Jerry’s investment
                 management business.
       Jerry contends that his investment management business consists of the client
relationships, or his “book of business,” and his skill and expertise as an investment manager,
neither of which can exist without the other. Veronika contends that the client relationships have
a value separate and apart from Jerry, as evidenced by the sale in 2011. We agree with Veronika.
       Jerry’s investment management business, though based in part on his personal skill and
expertise, also consists of the client relationships, or the “book of business,” which is capable of
existing without Jerry. For example, in 2011, Jerry sold his “business” to Brinton Webb, another
Ameriprise affiliated investment manager. According to the Purchase and Sale Agreement, Jerry
agreed to sell his “Business and Assets, as they exist,” for $504,000, which was to be paid in
forty-eight equal installments of $10,500. The “Business” was providing “fee-based investment
management and other like services,” and the “Assets” included Jerry’s “client base,” which
consisted of 264 clients with approximately $45,000,000 in assets under management (AUM).


                                                 15
Accordingly, the “Business” and the “Assets” can function without Jerry. Jerry even stated that
“Mr. Webb did not buy an entity or portion thereof such as JPSS or [Straight Line (Idaho)], but
rather client relationships.” (Emphasis added). Therefore, although Jerry’s skill and expertise is
an essential part of the business—a part that remains separate—the client relationships, the
“Assets” or the “book of business,” are also part of the business, and a part that can be
characterized and valued, as discussed below.
         ii.   The district court did not err in affirming the magistrate court’s finding that the
               proceeds from the sale of the “book of business” were community property.
       Jerry contends that the district court erred in affirming the magistrate court’s finding that
the proceeds from the sale of the “book of business” were community property because Jerry
could not accurately trace his separate property. Jerry argues that this was error because his
expert was able to trace his separate property interest, which consisted of all client accounts
acquired before marriage, or ninety-seven percent of the $367,500 sale proceeds. Veronika
contends that the community property interest would also consist of any change to the customer
base through change in both clients and AUM between the date of marriage and the date of sale.
       “As a general rule, the natural enhancement in value of separate property during
coverture does not constitute community property; however, to the extent an enhancement in
value is due to community efforts, labor, industry or funds, it falls into the community.” Speer v.
Quinlan, In and For Lewis Cnty., 96 Idaho 119, 127, 525 P.2d 314, 322 (1973) (quoting Gapsch
v. Gapsch, 76 Idaho 44, 52, 277 P.2d 278, 282 (1954)); see also Hoskinson v. Hoskinson, 139
Idaho 448, 460, 80 P.3d 1049, 1061 (2003) (“[T]he natural enhancement of a separate property
asset due to market trends, inflation, etc., and which is not attributable to community efforts or to
rents and profits of the assets, is separate property.” (quoting Mifflin v. Mifflin, 97 Idaho 895,
896, 556 P.2d 854, 855 (1976))). “[A] so-called profit or gain from the sale of separate property
occasioned by a natural enhancement in the value of such property, constitutes a part of the
separate estate.” Speer, 96 Idaho at 127, 525 P.2d at 322. “[I]f community efforts and ability
have been expended in the conduct of a separate property business, a proper inquiry . . . is
whether the community has received fair and adequate compensation for its labor.” Baruch, 154
Idaho at 741, 302 P.3d at 366 (quoting Speer, 96 Idaho at 128, 525 P.2d at 323).
       “Commingling of separate and community property does not convert the separate
property to community property where the separate property can be identified through either
direct tracing or accounting.” Id. at 737, 302 P.3d at 362 (quoting Barton v. Barton, 132 Idaho


                                                 16
394, 396, 973 P.2d 746, 748 (1991)). “When separate and community property are commingled
so that tracing is impossible, it is presumed to be community property, and the burden is on the
person asserting the separate character of the property.” Martsch v. Martsch, 103 Idaho 142, 146,
645 P.3d 882, 886 (1982).
       Here, Jerry and Veronika each hired certified public accountants to characterize and trace
certain property, including the business. Jerry hired David M. Smith and Veronika hired Terri R.
Gazdik. Smith opined that “a portion of the proceeds from the partial sale of the business would
be community property, if assets acquired during the marriage were sold.” According to Smith,
“3% of the [$367,500] proceeds [from the partial sale] represent the portion of the business
assets acquired during the marriage.” The remaining ninety-seven percent represent the portion
acquired before marriage. Smith made this determination based on each client’s date of
acquisition and the 2011 value of each client’s AUM.
       Veronika’s expert, Gazdik, agreed that the sale proceeds consisted both of separate
property and community property, but disagreed with Smith’s opinion that ninety-seven percent
of the proceeds were separate property. According to Gazdik, “[t]he separate property would
consist of the value of the base at the time of marriage, not the value as of the date of sale. Any
change to this base through change in clientele and change in assets under management (AUM)
would be community property.” The separate property “would consist of the value of the base at
the time of marriage, including any natural appreciation or depreciation in value on these
accounts.” In other words, the community property portion of the proceeds would consist of the
percentage of the client accounts Jerry acquired during the marriage and the percentage of any
enhancement in the value of the client account from the date of marriage to the date of sale,
unless the enhancement was due to natural fluctuations rather than community efforts.
       The magistrate court agreed with Veronika’s expert, concluding:
       If an account is acquired before marriage, at a certain dollar amount, and that
       account is increased solely by natural market fluctuations, then it would appear
       the AUM represented by that account, including its natural enhancement would be
       separate. However, if that account originally acquired before marriage is
       substantially increased due to Jerry’s efforts to solicit further investments by the
       account owner, which increased investment is made after marriage, then that
       portion of the AUM attributable to the increase in the account after marriage
       would be community property.
The magistrate court explained that, “[b]ecause no tracing was done on the AUM, the court has
no way of knowing which was which, and must fall back on statutory presumptions, that the


                                                17
business sold and sale proceeds were community property.” As a result, the court held that the
MPCU joint checking account was community property because it was funded with sale
proceeds and the investment accounts were community property because they were funded with
either sale proceeds or community income. The district court affirmed the magistrate court’s
findings.
       Jerry argues that the lower courts erred by engaging in the analysis of the AUM because
“[a]ny increase (or decrease) is a result of the market, client participation and Jerry’s separate
property expertise.” Although changes in the clients’ AUM may be due to natural fluctuations
and Jerry’s separate property skill and expertise, if the AUM appreciated or depreciated as a
result of Jerry’s efforts during the marriage, the community is entitled to reimbursement for
those efforts. Accordingly, tracing of the AUM is necessary in order to determine which portion
of the sale proceeds consist of community property. As previously noted, assets under
management, or AUM, is the amount of investments that a person, such as an investment
manager, manages on behalf of the client. Thus, the AUM is the client’s money, and Jerry,
Veronika, Straight Line, etc., has no claim to that money. Nevertheless, Jerry’s compensation has
always been based on the value of the client’s AUM: when asked during his deposition to
explain his compensation structure, Jerry testified that he and Melissa “charge a percentage of
assets under our management.” At trial, Gazdik testified that Jerry “gets a fee for the percentage
of assets that he manages,” and Smith testified that “[t]he asset is the income potential that the
client has” and that Jerry and Melissa “earn a percentage off of the account value.” To accept
Jerry’s position would require us to conclude that Jerry’s clients were paying him for managing
their assets without performing any actual work or labor on his part, essentially reducing his role
to that of a mere holding agent of their invested funds. The testimony at trial, and common sense,
suggest that Jerry’s services involved considerably more effort than just merely watching the
value of his clients’ portfolios increase or decrease as the market fluctuated day-by-day.
Therefore, it seems accurate to conclude that the community property portion of the proceeds
would have consisted not only of the percentage of the new clients acquired during marriage, but
also the percentage of any increase or decrease in AUM that was due to Jerry’s efforts during
marriage.
       Jerry could not accurately trace the sale proceeds or account for the difference between
increases in the AUM that were due to either market fluctuations or his efforts. Smith’s



                                                18
opinion—that ninety-seven percent of the sale proceeds were separate property—does not
include such an analysis of the AUM, and is therefore, misleading and incomplete. Veronika’s
expert also could not provide a definitive opinion because she did not have sufficient records
from Jerry. For example, Jerry did not report the proceeds from the sale on his individual tax
returns from 2011, 2012, and 2013. Furthermore, Jerry did not provide the value of the AUM at
the date of marriage or date of acquisition, thereby precluding Gazdik from determining any
appreciation or depreciation in the AUM. Finally, Jerry’s list of client accounts was created by
Jerry without any independent verification. After considering the entirety of the record, including
the parties’ demeanor while testifying, the magistrate court found that Jerry’s testimony as to
these matters was not credible, and therefore, it could not accept Smith’s testimony which relied
upon those representations. It follows then, that without competent evidence establishing the
relative percentages of separate and community proceeds, Jerry failed to accurately trace the sale
proceeds, which were commingled in a joint checking account. Therefore, the magistrate court
did not err in presuming that the proceeds from the sale of the business were community
property. Accordingly, we affirm the district court on this issue.
        iii.   The district court did not err in affirming the magistrate court’s finding that
               Straight Line is a community property asset because it was started during the
               marriage with clients who were acquired during marriage.
       Jerry contends that the district court erred in affirming the magistrate court’s finding that
Straight Line is community property because, although it was started during marriage, the
majority of the clients that make up Straight Line were acquired prior to marriage. Veronika
contends that Straight Line is a community asset in its entirety because all of the clients that
make up Straight Line were acquired during marriage.
       Again, there is a presumption that all property acquired during marriage is community
property. Reed, 137 Idaho at 58, 44 P.3d at 1113; see also I.C. § 32-906. “Because all property
acquired during marriage is presumed to be community property, a party wishing to show that
assets acquired during marriage are separate property bears the burden of proving with
reasonable certainty and particularity that the property is separate.” Baruch, 154 Idaho at 737,
302 P.3d at 362. “Where a business is begun with both community and separate funds it
generally constitutes community and separate property in the proportion or ratio in which the
contributions have been made by the two estates.” Worzala v. Worzala, 128 Idaho 408, 412, 913
P.2d 1178, 1182 (1996) (quoting Gapsch, 76 Idaho at 56, 277 P.2d at 285).


                                                 19
       Here, Jerry’s expert, Smith, opined that “92.9% of the assets under management (AUM)
were obtained prior to the date of marriage” and therefore, any compensation derived from those
accounts would be Jerry’s separate property. Smith made this conclusion by looking to Exhibit
11—a spreadsheet created by Jerry that consists of a list of client accounts with their current
AUM as well as the year Jerry acquired the account. According to the spreadsheet, Jerry had
$22,366,379.53 in AUM, 7.1 percent of which is attributable to clients who were acquired
between 2003 (date of marriage) and 2013 (date of filing for divorce). Veronika’s expert,
Gazdik, agreed with Smith’s opinion in general, but explained that the clients who were
reacquired by Jerry after the sale to Webb in 2011 would need to be added to the 7.1 percent,
because Jerry, through Straight Line, reacquired those clients during the marriage. The
magistrate court agreed with Veronika’s expert.
       The magistrate court’s finding that the clients were acquired during the marriage is
supported by substantial and competent evidence because Jerry sold all of his client base to
Webb in 2011, thereby requiring Jerry to reacquire clients during the marriage in order to start
Straight Line. The 2011 Purchase and Sale Agreement between Jerry and Webb provides that
“Buyer shall receive Seller’s entire Business and Assets, as they shall exist, as of the Transfer
Date.” (Emphasis added). Jerry represented that his business consisted of “ALL CLIENT
GROUPS ASSIGNED TO THE FORMER AMERIPRISE ADVISOR NUMBER OF JERRY A.
PAPIN, JR . . . AS OF WEDNESDAY, AUGUST 24, 2011.” Attached to the Purchase and Sale
Agreement is Exhibit A, which is a list of “all client groups.” As of August 24, 2011, Jerry had
264 clients with approximately $45,000,000 in AUM.
       On the same day that the Purchase and Sale Agreement was executed, Jerry and Webb
executed an Amendment to the Purchase and Sale Agreement. The Amendment explains that
Jerry could “solicit clients of the Business . . . to move some or all of their accounts from
[Webb’s] Ameriprise [business] to [Jerry]’s new Industry business.” The parties agreed that Jerry
would limit the amount of AUM leaving Webb’s Ameriprise practice to no more than
$12,500,000. Should Jerry take more than that, he would have to reduce the purchase price by
five percent for each increment of $1,000,000 in excess of $12,500,000. Jerry testified that he
executed the Amendment because Webb did not want Ameriprise to know that Jerry would be
keeping some of his old clients. In other words, he was attempting to create the appearance that




                                               20
he had completely divested himself of his old clients, when in reality he was keeping a
significant portion of them.
         The next day, Jerry entered into an operating agreement with Melissa Davis, starting their
new industry business, Straight Line. At that time, Straight Line was merely a shell as it did not
have any clients. In November 2011, Jerry informed Webb that he would be transferring
$16,900,000 in AUM to Straight Line. For the purpose of the divorce proceedings, Jerry created
a list entitled “AUM sold,” showing which clients he transferred to Straight Line. 4 As a result,
Jerry reduced the purchase price from $504,000 to $378,000 (a twenty five percent decrease), as
required by the terms of the Amendment.
         Based on this information, the magistrate court found, and the district court affirmed, that
Jerry sold his entire business to Webb during the marriage, thereby having to reacquire those
clients. Jerry argues, in essence, that the Purchase and Sale Agreement was just a ploy by Webb
to deceive Ameriprise and that the Amendment shows their true intentions, i.e., that Jerry could
keep a significant percentage of his client base and move those accounts to Straight Line.
Therefore, he suggests that this was not an actual sale of the assets. We reject this explanation for
the same reasons the lower courts rejected it.
         Although there is conflicting evidence as to whether Jerry sold his entire client list or
merely a portion thereof, the conflicting evidence is due to Jerry’s attempt to conceal his
business dealings with Webb from Ameriprise, which Jerry acknowledges. “Findings of fact that
are supported by substantial and competent evidence are not clearly erroneous—even in the face
of conflicting evidence in the record.” Woods v. Woods, 163 Idaho 904, 907, 422 P.3d 1110,
1113 (2018) (quoting Hull v. Giesler, 163 Idaho 247, 250, 409 P.3d 827, 830 (2018)). Therefore,
we hold that the magistrate court’s finding that Jerry sold his entire client list, or “book of
business,” during the marriage is supported by substantial and competent evidence. That being
the case, we similarly affirm the magistrate court’s finding that, because Jerry sold all of his
clients in 2011 and then solicited them back, “[t]he work Jerry did in soliciting these clients all
occurred after the original sale, making the date of acquisition of all these accounts sometime in
2011, after the parties’ marriage.” Because Jerry was unable to meet his burden of proving with
reasonable certainty and particularity that Straight Line was his separate property, we hold that

4
  Exhibit 4 was amended several times during trial in order to effectuate Jerry’s intent when he created the list. It
was amended first to “AUM kept,” then to “AUM moved to my platform,” and then to “AUM moved to our
platform.”


                                                         21
the rebuttable presumption applies. Therefore, the magistrate court’s finding that Straight Line is
community property is supported by substantial and competent evidence. Accordingly, we affirm
the district court on this issue.
         iv.    The district court did not err in affirming the magistrate court’s valuation of
                Straight Line.
        Jerry argues that the district court erred in affirming the magistrate court’s valuation of
Straight Line because it is not supported by substantial and competent evidence. According to
Jerry, the magistrate court should have disregarded Veronika’s expert’s testimony regarding the
value of Straight Line because she did not use any of the standard and acceptable valuation
methods. Veronika contends the magistrate court was within its discretion when weighing the
different opinions of value.
        “[I]n ‘divorce proceedings the determination of the value of community property is
within the discretion of the trial court and will not be disturbed on appeal if it is supported by
substantial competent evidence.’ ” Chandler v. Chandler, 136 Idaho 246, 249, 32 P.3d 140, 143
(2001) (quoting Maslen v. Maslen, 121 Idaho 85, 90, 822 P.2d 982, 987 (1991)). When it comes
to valuing a business, our holding from Chandler provides guidance:
                Two values must be considered when determining the overall value of a
        business: intangible assets and tangible assets. The value of the business is
        determined when the two factors are combined. “Goodwill” (an intangible asset)
        is an appropriate factor in determining the value of a business. Olsen v.
        Olsen, 125 Idaho 603, 606, 873 P.2d 857, 860 (1994). Goodwill represents “the
        advantage or benefit, which is acquired by an establishment, beyond the mere
        value of the capital, stock, funds, or property employed therein, in consequence of
        the general public patronage and encouragement which it receives from constant
        or habitual customers, on account of its local position, or common celebrity, or
        reputation for skill or affluence. . . .” Newark Morning Ledger Co. v. United
        States, 507 U.S. 546, 555 (1993); see also Harshbarger v. Eby, 28 Idaho 753,
        761, 156 P. 619, 621 (1916); Loveland v. Loveland, 91 Idaho 400, 402, 422 P.2d
        67, 69 (1967). Goodwill is not the equivalent of future earnings. See In re
        marriage of Bookout, 833 P.2d 800, 804 (Colo. App. 1991), citing In re Marriage
        of Lukens, 558 P.2d 279 (Wash. App. 1976); Dugan v. Dugan, 457 A.2d 1 (N.J.
        1983) (other citation omitted); see also In re Marriage of Hall, 692 P.2d 175
        (Wash. 1984) (“Goodwill is a property or asset which supplements the earning
        capacity of another asset, a business, or a profession, and, therefore, it is not the
        earning capacity itself.”). Rather, “relative to marital dissolution, goodwill
        represents the ability of a business to earn money after the divorce based on
        efforts made during the marriage . . . to the extent future profits are likely due to
        circumstances that exist at the time of the dissolution, they should be reflected in



                                                 22
       the value of the business.” Richard E. Poley, Valuing Business Goodwill in a
       Divorce, 26 APR COLO. LAW. 53 (1997).
Id. at 249–50, 32 P.3d at 143–44. There are many accepted methods used by experts in valuing a
business’s goodwill. Some of the acceptable methods include the excess earnings method, the
straight capitalization of earning method, net asset value method, capitalized excess earnings
method, market value method, and the buy/sell agreement method. See id. at 250, 32 P.3d at 144.
“How the trial court assesses and weighs each method and variable with it, in each particular
case, is within that court’s discretion.” Id. Moreover, “[t]hese valuation methods are not the
exclusive methods available to a trial court in determining the value of a community business.”
Id.
       Here, Veronika’s expert, Gazdik, testified that, as of July 5, 2013, the value of Straight
Line was $210,826.68, as agreed upon by the parties in the 2013 operating agreement. Of that
amount, Jerry’s share was fifty percent, or $105,413.34. Gazdik also opined that, as of December
31, 2013, the value of Straight Line was $193,922. Of that amount, Jerry’s share was fifty
percent, or $96,961. To calculate the most recent value, Gazdik used gross revenues from
Straight Line for the most recent twelve months and subtracted the nondiscretionary expenses.
The net revenue after subtracting nondiscretionary expenses was $193,922, fifty percent of
which was Jerry’s interest. Gazdik admitted that under ordinary circumstances, this was not the
preferred method for calculating the value of a business; however, due to the lack of
documentation provided by Jerry, that was the best she could do. Jerry did not provide an
opinion of value, but merely argued that the court should have ignored Veronika’s expert.
       After considering the evidence presented at trial, the magistrate court held that the
business had a value of $105,413.34, as indicated in the 2013 operating agreement between Jerry
and Melissa. The district court affirmed the magistrate court’s valuation because the court acted
within its discretion when it adopted the value placed by Jerry and Melissa in their operating
agreement. Jerry argues that the $105,413.34 is only an accurate value of the business “in the
event of ‘death, catastrophic disability or adjudicated incompetence of any member.’ ” However,
he provides no factual or legal basis as to why the actual value should have been any different.
       We hold that the magistrate court did not err in valuing Straight Line. Because Jerry did
not provide an opinion of value, the court was left with either Gazdik’s opinion of value, which
Jerry argued should have been disregarded because her methodology was improper, or the value
agreed upon by Jerry and Melissa in the 2013 operating agreement, with which he also


                                                23
disagreed. Jerry had every opportunity to rebut Gazdik’s values with his own, but chose not to do
so. As a result, the magistrate court accepted the value assigned by Jerry and Melissa. We hold
that the magistrate court did not err in relying on Jerry and Melissa’s valuation of Straight Line.
Accordingly, we affirm the district court on this issue.
   C. Jerry’s separate property home.
       During the marriage, Veronika and Jerry lived in Jerry’s separate property home. There
was an existing mortgage on the home that predated the marriage, and in October 2001, Jerry
refinanced the home. According to the refinancing documents, Jerry was required to make 180
payments of $785.42 beginning December 1, 2001. The mortgage was paid off on February 19,
2008, approximately eight years early. None of this is in dispute. What is in dispute is the
mortgage balance as of the date of marriage. Jerry’s expert estimated that the balance was
$40,500, while Veronika’s expert estimated that the balance was $72,680.57. Veronika’s expert
also testified that the community should be reimbursed $13,797.80 for the amount the
community expended on property taxes on Jerry’s home. The magistrate court agreed with
Veronika’s expert and held that “[t]he principal balance paid off by the community was $70,000,
plus taxes paid by the community of $13,797.80, for a total community interest in the home of
$83,797.80[,] half of which amount must be reimbursed to Veronika.”
       On appeal, Jerry contends that the district court erred in not holding that the magistrate
court abused its discretion in accepting the opinion of Veronika’s expert as to the balance of the
mortgage as of the date of marriage because it was untimely and not supported by substantial and
competent evidence. Jerry also contends that both lower courts erred in requiring Jerry to
reimburse the community for the amount paid in annual property taxes because property taxes do
not enhance the value of the home.
           i. The district court correctly concluded that the magistrate court did not abuse its
              discretion in allowing Gazdik to provide an opinion regarding the balance of the
              mortgage at the date of marriage.
       Jerry contends that the magistrate court abused its discretion in allowing Veronika’s
expert to provide an opinion regarding the balance of the mortgage on Jerry’s separate property
home at the time of marriage because her opinion was untimely.
       “When reviewing the trial court’s evidentiary rulings, this Court applies an abuse of
discretion standard.” Herrett v. St. Luke’s Magic Reg’l Med. Ctr., Ltd., 164 Idaho 129, 132, 426
P.3d 480, 483 (2018) (quoting Edmunds v. Kraner, 142 Idaho 867, 871, 136 P.3d 338, 342


                                                 24
(2006)). “The Court reviews a trial court’s decision admitting or excluding evidence, including
the testimony of expert witnesses, under the abuse of discretion standard.” Id. (quoting White v.
Mock, 140 Idaho 882, 888, 104 P.3d 356, 362 (2004)). In order to determine whether a trial court
has abused its discretion, this Court must determine whether the trial court: “(1) correctly
perceived the issue as one of discretion; (2) acted within the outer boundaries of its discretion;
(3) acted consistently with the legal standards applicable to the specific choices available to it;
and (4) reached its decision by the exercise of reason.” Lunneborg v. My Fun Life, 163 Idaho
856, 867, 421 P.3d 187, 198 (2018).
        Here, Jerry was aware that there was a dispute regarding the unpaid balance of the
mortgage on his separate property home as of the date of marriage. During discovery, Veronika
served Jerry with requests for production, requesting the “balance of each such mortgage as of
the date of the parties’ marriage.” Jerry did not provide the requested information in his
production. Veronika later sent Jerry a letter asking that he supplement his discovery with the
requested information. Jerry once again failed to do so. Subsequently, Veronika filed a motion to
compel, which was heard by the magistrate court on March 13, 2015, approximately five weeks
before the discovery deadline of April 22, 2015. At the hearing, Jerry argued that he could not
find the requested documents. After a short discussion on the matter, Jerry explained that he
would provide whatever he could within ten days from the date of the hearing. Jerry once again
failed to do so.
        On June 29, 2015, three days before trial was set to commence and nine weeks after the
discovery deadline had come and gone, Veronika’s expert filed a Rebuttal to Corrected Amended
Disclosure of Expert Witness Opinions of David M. Smith and Disclosure of Additional Expert
Opinions. The disclosure was in response to the second amended opinion of Jerry’s expert,
which was filed on June 1, 2015, almost six weeks after the discovery deadline. In her amended
rebuttal opinion, Veronika’s expert provided a new opinion regarding the balance of the
mortgage on Jerry’s separate property home. In response, Jerry’s expert provided a self-created
amortization schedule, which assumed a beginning principal balance of $39,921.61.
        The magistrate court allowed the exhibit and testimony because the “records for showing
where the payments were made from, they’ve all been out, and you’ve had them for months.” On
intermediate appeal, the district court held that the magistrate court did not abuse its discretion in




                                                 25
allowing Gazdik’s testimony “based on documents that had been disclosed to Jerry months
prior.”
          We agree with the district court and hold that the magistrate court did not abuse its
discretion in allowing Veronika’s expert to provide an opinion regarding the balance of the
mortgage at the time of the marriage. As explained by the lower courts, there was nothing new
about the opinion. Jerry knew for months that Veronika had an interest in determining the
amount of the mortgage at the time of marriage. Jerry provided several excuses for why he could
not provide Veronika with the requested documents, including that the mortgage records “went
missing” and that he could not get the mortgage records because more than seven years had
passed. In the end, Jerry was the person responsible for the mortgage and had sole access to the
documents that were needed to ascertain how much had been paid during the marriage. Although
it was not Jerry’s burden to establish the amount of reimbursement, Jerry cannot hinder
Veronika’s attempt to meet her burden of proof, which it appears he did.
          Moreover, the magistrate court allowed Jerry’s expert to file a second amended report six
weeks after the discovery deadline, which also included new opinions. In fact, the amended
report included eight new opinions in the event the court were to find that the Covenant was not
a valid marriage settlement agreement. It is pure legal chutzpah for Jerry to allege that he was
somehow prejudiced by the late disclosure when it was precipitated by his own late disclosures
and lack of responsiveness. Therefore, we hold that the magistrate court did not abuse its
discretion in allowing Veronika’s expert to provide an opinion as to the balance of the mortgage.
Accordingly, we affirm the district court on this issue.
             ii. The district court did not err in allowing the evidence of the mortgage balance to
                 stand on remand, thereby allowing the magistrate court an opportunity to reweigh
                 the evidence in light of Veronika’s burden of proof.
          Veronika’s expert testified that, as of the date of marriage, the mortgage balance on
Jerry’s separate property home was $72,680.57, while Jerry’s expert testified that the balance
was $40,500. The difference in opinion is due to either extra payments made before marriage,
extra payments made during marriage, or both. Jerry’s expert testified that Jerry paid as much as
$3,000 a month towards the mortgage before the parties were married. Veronika’s expert
testified that accelerated payments were made throughout the marriage. The magistrate court
accepted the opinion of Veronika’s expert because “Jerry [ ] failed to meet his burden of proof
that he substantially paid down the home mortgage between October of 2001, the date of


                                                 26
refinance[,] and June of 2003, the date of marriage, and finds that additional payments were
made throughout the life of the loan.” On intermediate appeal, the district court reversed the
magistrate court’s finding because it misallocated the burden of proof, which should have been
Veronika’s. Accordingly, the district court remanded the issue for reconsideration of the
evidence in light of Veronika bearing the burden of proof.
        Although Jerry agrees with the district court’s decision to remand the issue, he now
contends that “[t]he error made by the District Court is in permitting the evidence of the amount
of alleged community property equity to stand.” Jerry argues that the magistrate court’s finding
is not supported by substantial and competent evidence because the court relied on “records” that
do not exist. Such evidence, Jerry argues, should not be permitted to stand on remand.
        “[T]his Court reviews the trial court’s decision regarding the admission of evidence for
an abuse of discretion.” Morgan v. New Sweden Irr. Dist., 160 Idaho 47, 51, 368 P.3d 990, 994
(2016). “When this Court remands a case to the [trial] court, ‘it is within the discretion of the
trial court to determine whether the existing record is sufficient, or should be supplemented, in
order to make the required findings of fact and conclusions of law.’ ” Id. (quoting Akers v. D.L.
White Constr., Inc., 156 Idaho 27, 34, 320 P.3d 418, 425 (2013)).
        Here, the magistrate court reached the logical conclusion that extra payments on the
mortgage must have been made at some point in time because the mortgage was paid off
approximately eight years early. To support her argument that extra payments were made during
marriage, Veronika admitted the following records: the refinancing documents; a Washington
Mutual lien release letter dated April 7, 2008, confirming that the mortgage was paid in full in
February 2008; a Washington Mutual home loan statement from February 2008, showing that the
mortgage was paid off with a check for $3,846.77; and a bank statement from the MPCU joint
checking account, showing a mortgage loan payment from 2004 in the amount of $1,500. 5 The
magistrate court acknowledged that “[o]nly estimates exist to establish what the principal
mortgage amount owing on the home at the date of the marriage was.” 6 Nonetheless, the
magistrate court relied on the estimates of Veronika’s expert and held that community income

5
  The MPCU bank statement, which was part of Exhibit 55, is not in the record on appeal. For reasons unknown,
Jerry only included half of Exhibit 55 in the record. Nevertheless, neither party disputes that the bank statement
showed a payment of $1,500 towards the mortgage.
6
   There is no information in the record as to why neither side was able to obtain a payment history on Jerry’s
mortgage. Such information is regularly and routinely made part of the record in a variety of case types being
litigated throughout the courts of this state.


                                                       27
was used to pay off the mortgage in the amount of $70,000. The court based its conclusion on the
belief that Jerry had the burden of proof and had failed to sustain his burden. However, in light of
the district court’s ruling that the magistrate court erroneously placed the burden of proof on
Jerry, the magistrate court should have the opportunity to reweigh the evidence in light of
Veronika bearing the burden. It is within the magistrate court’s discretion on remand to
determine whether the record is sufficient as it currently stands or whether it should be
supplemented. Therefore, we affirm the district court’s decision to remand this issue to the
magistrate court to provide the court with an opportunity to reweigh the evidence.
             iii. The district court did not err in affirming the magistrate court’s finding that the
                  community was entitled to reimbursement for the funds expended towards the
                  property taxes on Jerry’s separate property home because the value of the home
                  was enhanced by the payments.
        The magistrate court held that the community was entitled to be reimbursed for the
$13,797.80 it expended towards Jerry’s separate property tax liability, citing Swanson v.
Swanson, 134 Idaho 512, 518, 5 P.3d 973, 979 (2000), in support. The district court affirmed the
magistrate court, relying on Swanson for the proposition that community funds expended on
separate property tax liability is reimbursable to the community.
        On appeal, Jerry argues that Swanson is inapplicable because annual property taxes do
nothing to enhance or improve the value of a home, and therefore, cannot be reimbursed.
Veronika contends that Jerry benefited directly from these community payments of the property
taxes. We agree. Because the community paid the property taxes, Jerry will have the ability to
sell his home for its fair market value without having to satisfy any encumbrances due to unpaid
tax liens.
        “[W]hen community funds are used to enhance the value of one spouse’s separate
property, such enhancement is community property for which the community is entitled to
reimbursement.” Hoskinson, 139 Idaho at 460, 80 P.3d at 1061 (quoting Bliss, 127 Idaho at 172,
898 P.2d at 1083). “[I]n situations where a spouse’s equity in property has been increased
through the application of community funds to the payment of debt on the property, the measure
of reimbursement to the community should be the amount by which such equity is enhanced.” Id.
(quoting Bliss, 127 Idaho at 172, 898 P.2d at 1083). The measure of the reimbursement “is the
increase in value of the property attributable thereto, not the amount or value of the community
contribution.” Id. (quoting Bliss, 127 Idaho at 173, 898 P.2d at 1084). “The party seeking such



                                                 28
reimbursement to the community carries the burden of demonstrating that the community
expenditures have enhanced the value of the separate property, and the amount of the
enhancement.” Id. (quoting Bliss, 127 Idaho at 172, 898 P.2d at 1083).
       It is well-established that the party seeking reimbursement must prove that the
community funds have enhanced the value of the separate property, not the value of the separate
property estate. For example, in Bliss, the husband expended $5,000 in community funds to pay
a judgment debt to his former wife and $8,000 in community funds in pre-marital attorney fees,
both of which were incurred before his marriage to his then-current wife. 127 Idaho at 171, 898
P.2d at 1082. The lower court ordered the husband to reimburse the community estate $13,000
for the community funds that were expended during the marriage to satisfy his separate property
debts. Id. at 172, 898 P.2d at 1083.
       On appeal, the husband argued that the lower court had no authority to order his separate
estate to reimburse the community the $13,000 it paid towards his separate debts. Id. We agreed.
After reciting the general reimbursement rules, we explained,
               The facts of this case take it outside the direct application of the
       reimbursement rule as cited in Suchan, Suter, and Gapsch. The community funds
       were not used to enhance the value of [Mr. Bliss’s] separate property. They were
       used to pay [his] antenuptial, unsecured debts. We can locate no Idaho statute or
       case allowing reimbursement under these circumstances.
Id. at 172–73, 898 P.2d at 1083–84. The wife could not show any enhancement of the value of
the husband’s separate property through community payments toward his separate property
debts. Id. at 173, 898 P.2d at 1084. The lower court found that the husband’s “separate estate was
‘enhanced’ by the elimination of those separate debts.” Id. That is, that his net worth was
enhanced, “not the value of any identifiable property.” Id. Yet “our past precedents have required
enhancement of separate property.” Id. Accordingly, we reversed the lower court. Id.
       In Swanson, a case similarly involving the reimbursement of a tax liability, we addressed
whether a husband was required to reimburse the community for the expenditure of community
funds used to pay the capital gains tax on the sale of his stock. 134 Idaho at 518, 5 P.3d at 979.
Relying on Bliss and the general reimbursement rules, we explained that it is not the separate
property estate that must be enhanced, but the separate property itself. Id. at 518–19, 5 P.3d at
979–80. We therefore held that the funds used to pay the loan on the property and the funds used
to pay the husband’s separate property tax liability was reimbursable because the funds enhanced



                                               29
the husband’s equity in that property. Id. at 519, 5 P.3d at 980 (citing Shovlain v. Shovlain, 78
Idaho 399, 402, 305 P.2d 737, 738 (1956)).
        Similarly, in Martsch, we held that a husband was entitled to be reimbursed by the wife
for property taxes expended on the wife’s portion of the separate property home. 103 Idaho at
147, 645 P.3d at 887. In that case, the husband acquired a piece of property termed the Highland
property prior to marriage, thereby making it his sole and separate property. Id. at 146, 645 P.3d
at 886. During the marriage, the husband made a gift to the wife of an undivided one-half interest
in the Highland property, thereby making that one-half interest her sole and separate property. Id.
Accordingly, at the time of divorce, each spouse owned a one-half interest in the Highland
property. Id. During the marriage, the husband paid the taxes on the Highland property in the
amount of $3,432.32. Id. at 147, 645 P.2d at 887. We held that, “[s]ince respondent only owns
half the property he is entitled to reimbursement or credit for one half of the amount he paid [on
taxes].” Id.
        Considering Bliss, Swanson, and Martsch, we hold that the community funds that were
used to pay the separate property tax liability on Jerry’s home are reimbursable to the community
because the funds enhanced the value of the separate property home. Therefore, the magistrate
court’s finding that Veronika met her burden of proving that the value of Jerry’s separate
property home was enhanced by the community property funds that were expended on the annual
property taxes is supported by substantial and competent evidence. Accordingly, we affirm the
district court on this issue.
    D. Division of the remaining personal property.
        Jerry contends that the district court erred in affirming the magistrate court’s division of
the personal property and marital debts because the magistrate court relied on exhibits that were
admitted into evidence solely for illustrative purposes. Veronika contends that the magistrate
court relied on the best information it had, and that allowing the parties essentially a second
chance to return before the court just to testify about each item would result in unnecessary time
and expense.
        Division of property is a routine and challenging part of most divorce cases:
        Idaho courts have a duty not only to dissolve the parties’ marital status, but also to
        make an equitable distribution of the parties’ community property in order to
        disentangle the parties’ legal affairs. Idaho courts must undo the bonds of the
        divorcing parties’ community property relationships in order to permit the
        divorcees to go on with their lives independent of one another. Parties to a divorce


                                                 30
         “have a right to have their respective interests in their property after they are
         divorced, definitely and finally determined in the decree which divorces them,” so
         that the prospect of future litigation is less likely. Shaffer v. Shaffer, 262 P.2d 763,
         764 (Wash. 1953).
Chavez, 146 Idaho at 220, 192 P.3d at 1044. “Disposition of property—including valuation and
division—is a question of discretion, guided by statutory and case law.” Stewart v. Stewart, 143
Idaho 673, 677, 152 P.3d 544, 548 (2007). “The disposition of community property is left to the
discretion of the trial court, and unless there is evidence in the record to show an abuse of that
discretion, the award of the trial court will not be disturbed.” Id. (quoting Maslen, 121 Idaho at
88, 822 P.2d at 985). Additionally, “the determination of the value of community property is
within the discretion of the trial court and will not be disturbed on appeal if it is supported by
substantial competent evidence.” Id. (quoting Chandler, 136 Idaho at 249, 32 P.3d at 143).
Moreover, “[s]imply because evidence was offered to illustrate oral testimony does not deprive it
of all evidentiary value.” Higley v. Woodard, 124 Idaho 531, 536, 861 P.2d 101, 106 (Ct. App.
1993).
         During the proceedings below, the parties offered itemized lists of personal property and
debts. Veronika offered Exhibits 62 and 69 to illustrate her desired property division, and Jerry
offered Exhibits A and C to illustrate his desired property division. The property lists were
substantially identical, the main difference being the value assigned to each item. Each of the
lists was admitted solely for illustrative purposes. However, the parties agreed that Veronika’s
property list is “illustrative of what her testimony would be,” and that Jerry’s property list is
“illustrative of his testimony.” During trial, the parties had an opportunity to testify regarding
their respective lists and how they wanted the items divided. Jerry asked that the court allow the
parties to divide all items with a value of $100 or less, which equated to approximately three-
fourths of the lists. As for the larger items, Jerry provided testimony for most of the items,
including the 2012 Dodge Durango; the 2013 Cadillac CTS; the fixtures in the home; the Prague
apartment; the life insurance policy proceeds; and the several bank accounts, including the
MPCU accounts, the Roth IRA account, the Simple IRA account, and the Schwab investment
account. Jerry was unable to provide testimony for the remainder of the larger items, primarily
the fixtures in the home, because it was the end of the last day of trial. 7 Accordingly, the

7
 It appears from the record that the parties neither asked for a continuance nor objected to the trial schedule. The
parties participated in setting the schedule, including the deadline to reconcile the property lists by the date of the
pretrial conference, but they never did so. As a result, the court informed counsel that it was going to be up to the


                                                         31
magistrate court was required to rely, in part, on the parties’ property lists in order to divide the
remaining personal property. 8
         On intermediate appeal, the district court held that the magistrate court erred in relying on
the illustrative exhibits. Yet the district court affirmed the magistrate court’s division because the
parties were given sufficient time and opportunity to finalize and reconcile their lists, but did not
do so. The district court also held that the parties in essence stipulated to the items’ existence
because the parties’ lists were substantially identical and there was substantial evidence in the
record, based on the testimony submitted at trial, for the court to divide the property.
         We hold that the magistrate court did not abuse its discretion in relying in part on the
parties’ illustrative property lists in determining how to divide the remaining personal property.
Although the parties apparently did not reserve enough time to go through all of the personal
property items during trial, they were provided with an opportunity to reconcile their lists before
trial, but chose not to do so. Because they chose not to do so, the court informed the parties that
“it’s going to be up to me to reconcile this list.” In its Memorandum Decision, the court
explained that it was required to divide the remaining personal property by looking to the
illustrative property lists because the parties were unable to “synchronize those lists.” The court
also held that it was no longer willing to allow the parties to divide the property themselves
because they were unable to resolve any of the disputes prior to trial. Therefore, the magistrate
court did not abuse its discretion in relying in part on the parties’ illustrative property lists
because it was the court’s duty to divide the community property in order to finalize the divorce.
Additionally, due consideration for the finality of outcomes compels us to avoid setting a
precedent that would permit parties an evidentiary “do over” whenever they fail to take
advantage of the time allocated to them at trial. Accordingly, we affirm the district court on this
issue.
    E. Grounds for the divorce.
         Jerry contends that the district court erred in affirming the magistrate court’s decision to
grant the divorce on the grounds of irreconcilable differences instead of adultery. Veronika



court to divide the property for them. Again, neither party objected. The parties were also afforded the opportunity
to provide written closing arguments wherein they explained how the property should be divided.
8
  We have recently held that the trial court did not err in allowing the jury to consider a demonstrative exhibit during
deliberations. See State v. Weigle, 165 Idaho 482, 447 P.3d 930 (2019). Thus, the fact finder may appropriately
consider evidence contained in illustrative exhibits in making its decisions when appropriate.


                                                          32
contends that both courts correctly concluded that clear and conclusive evidence of adultery did
not exist.
        Idaho Code section 32-603 provides the grounds upon which a court may grant a divorce,
including adultery, extreme cruelty, and irreconcilable differences. Adultery, for purposes of
determining grounds for a divorce, is defined as “the voluntary sexual intercourse of a married
person with a person other than the offender’s husband or wife.” I.C. § 32-604. “Divorces based
on adultery should be granted only upon very clear and conclusive evidence of the adultery.”
Ross v. Ross, 103 Idaho 406, 409, 648 P.2d 1119, 1122 (1982). On the other hand,
“[i]rreconcilable differences are those grounds which are determined by the court to be
substantial reasons for not continuing the marriage and which make it appear that the marriage
should be dissolved.” I.C. § 32-616.
        Here, Jerry alleges that Veronika was having an affair with a man named Palo, and that
she and Palo had sexual intercourse at least once during the marriage. To prove his allegation,
Jerry offered his own testimony, which was strongly disputed at trial, and the testimony from
three witnesses: a family friend, Jerry’s son from his first marriage, and the magistrate judge who
performed the marriage ceremony for Jerry and Veronika years earlier. The family friend,
Jennifer Keil, testified that in 2014 Veronika told her that she had a sexual relationship with a
person named Palo that commenced in December 2013. Keil also testified that Veronika had
asked her to marry Palo so “he could have citizenship” and she would not “lose her alimony.”
Keil agreed to marry Palo, even though she had never met him before, but backed out when she
read on the internet that it was illegal. Jerry’s son, Aaron Papin, testified that Veronika had asked
one of his friends if she would be interested in marrying her friend from Boston so he could
obtain his green card. Finally, retired judge Linda Cook testified that Veronika called her in
2014, asking if she had time to perform a wedding for an individual named “Jennifer,” which
was later canceled.
        Jerry argues that the magistrate court disregarded Keil’s testimony and erred in doing so
because this Court held in Wood v. Hoglund, 131 Idaho 700, 703, 963 P.2d 383, 386 (1998) that
a trier of fact must accept uncontradicted testimony of a credible witness unless that testimony is
inherently improbable or impeached. Jerry reads Wood out of context. Wood was an easement
case wherein we reversed the lower court’s finding that the Woods’s use of a certain route over
their neighbor’s property was permissive. Id. We reversed the lower court because there was no



                                                 33
evidence contradicting or disputing the Woods’s testimony that their use was adverse, and there
was no finding by the lower court that the Woods’s testimony was not credible. Id. We explained
that “[a] trier of fact may not arbitrarily disregard credible and unimpeached testimony of a
witness.” Id. “[U]nless a witness’s testimony is inherently improbable, or rendered so by facts
and circumstances disclosed at trial, the trier of fact must accept as true the positive,
uncontradicted testimony of a credible witness.” Id. That is not the case here. Keil’s testimony
was contradicted because Veronika denied it. Jerry’s counsel asked her several times on cross
examination whether she had an affair with Palo to which she consistently responded that she did
not. It was not an abuse of discretion for the magistrate court to believe Veronika’s testimony,
when there was no direct evidence contradicting it. Additionally, the court did consider Keil’s
testimony, but ultimately concluded that the evidence did not clearly and conclusively prove that
Veronika had sexual intercourse with another individual during the marriage. The district court
similarly went through all the evidence that was provided during trial, holding that the magistrate
court did not err in granting the divorce on the grounds of irreconcilable differences because
clear and conclusive evidence of adultery did not exist. Accordingly, we will not disturb the
district court’s conclusion that the magistrate court did not arbitrarily disregard Keil’s testimony.
       Moreover, it is generally understood that “where dual or multiple grounds for divorce
exist, the trial court can use a sound discretion to select the grounds upon which the judge will
grant the divorce.” 27A C.J.S. Divorce § 24. Veronika and Jerry both asked the magistrate court
to grant the divorce in the alternative on the grounds of irreconcilable differences. During trial,
Jerry testified that he noticed the marriage was in trouble just a couple years into it, and that by
2008 they were sleeping in separate bedrooms. According to Jerry, his and Veronika’s marriage
“was a marriage in name, of course, but it wasn’t a marr[iage] – I mean, there was no
partnership. There was no intimacy. There was no having a future together.”
       Thus, although it was clear that the marriage started to fall apart just a few years into it,
clear and conclusive evidence of adultery did not exist. Therefore, the magistrate court did not
err in its finding that neither party met their burden of proving fault grounds for divorce.
Accordingly, we affirm the district court on this issue.
   F. Temporary spousal maintenance.
       Jerry contends that the district court erred in affirming the magistrate court’s award of
spousal maintenance because the magistrate court failed to articulate its rationale for the award in



                                                 34
its conclusions of law. Jerry also contends that the magistrate court abused its discretion in its
consideration of the factors found in Idaho Code section 32-705(2). Veronika contends that the
record supports the magistrate court’s award of spousal maintenance as to the initial award, the
amount, and the duration.
       Spousal maintenance awards are governed by section 32-705, which provides:
       1. Where a divorce is decreed, the court may grant a maintenance order if it finds
       that the spouse seeking maintenance:
          (a) Lacks sufficient property to provide for his or her reasonable needs; and
          (b) Is unable to support himself or herself through employment.
       2. The maintenance order shall be in such amounts and for such periods of time
       that the court deems just, after considering all relevant factors which may include:
          (a) The financial resources of the spouse seeking maintenance, including the
          marital property apportioned to said spouse, and said spouse’s ability to meet
          his or her needs independently;
          (b) The time necessary to acquire sufficient education and training to enable
          the spouse seeking maintenance to find employment;
          (c) The duration of the marriage;
          (d) The age and the physical and emotional condition of the spouse seeking
          maintenance;
          (e) The ability of the spouse from whom maintenance is sought to meet his or
          her needs while meeting those of the spouse seeking maintenance;
          (f) The tax consequences to each spouse;
          (g) The fault of either party.
“Whether to award spousal maintenance under [I.C. § 32-705] is discretionary and requires the
court to give due consideration to each party’s financial needs and abilities.” Pelayo, 154 Idaho
at 861, 303 P.3d at 221 (quoting Stewart, 143 Idaho at 679, 152 P.3d at 550). An award of
spousal maintenance must “be supported by substantial and competent evidence.” Stewart, 143
Idaho at 680, 152 P.3d at 551.
       Here, after considering section 32-705 in its entirety, the magistrate court granted
Veronika a temporary spousal maintenance award as follows:
       Until the community property is divided, Veronika should receive an award of
       $2,000 per month beginning November 1, 2015. Once the community property is
       divided, Veronika should receive an award of $750 per month for two years
       beginning November 1, 2015. In the event she remarries, this amount should
       terminate as of the date of such remarriage. At such time as the community
       property is divided, the $1250 per month awarded in excess of the final spousal


                                               35
       support award, should be reimbursed to Jerry as a lump sum from the second
       largest investment account before the balance is divided equally between the
       parties.
       The record establishes that the magistrate court articulated its rationale for the spousal
maintenance award both in its findings of fact and conclusions of law. The court found that
Veronika was eligible for a maintenance order because, until the parties divided the community
property as ordered in the divorce decree, Veronika would lack sufficient property for her
reasonable needs, and most of the property Veronika would receive after the division she would
need to support herself once she reached the age of sixty-five. The court also found that, due to
her limited job skills, employability, and meager income, Veronika would be unable to support
herself. Veronika was working part-time (approximately ten hours a week) at minimum wage
and would need time to gain skills or an education. Thus, we hold that the magistrate court
sufficiently articulated its rationale for the maintenance award in its decision.
       However, we agree, as Jerry has argued on appeal, that the magistrate court’s rationale
was based, at least in part, on the improper consideration of Veronika’s retirement needs. As
noted, the court’s rationale included a reference to Veronika’s retirement needs. There is nothing
in section 32-705 that permits a trial court to consider a spouse’s retirement needs when deciding
whether to award maintenance. Nevertheless, we hold that it was harmless error for the court to
do so here because the remaining portions of the court’s rationale, i.e., the lack of sufficient
property and inability to support herself through employment, was sufficient in itself to grant a
temporary maintenance order.
       Jerry also contends that the magistrate court abused its discretion in its consideration of
the section 32-705(2) factors. First, Jerry argues that Veronika has the “[f]inancial resources and
abilities” to provide for herself, $1,198,568 to be exact. However, Jerry’s calculation is
misstated. For example, included in the calculation is $120,000 cash Veronika allegedly took to
Prague ($10,000 each year for twelve years). However, the court acknowledged that no evidence
was presented showing how the money had been used, i.e., was it placed in savings or spent on
the community. Also included in the calculation is $340,500 for the Prague apartment. However,
the court did not assign a value to the apartment and instead stated that the apartment was to be
sold and the proceeds divided between the parties. Jerry also included $280,324 in retirement
accounts and $100,000 in his life insurance policy, both of which Veronika will likely not realize
for years to come.


                                                 36
       Second, Jerry argues that Veronika does not need any time for “education or training”
because she had no plans to go to school. As Veronika argued on appeal, although that may have
been the case during the marriage, that should not preclude her from having the opportunity to do
so now. Moreover, Veronika could use the time to gain additional skills so she can obtain a full-
time job, which Jerry testified Veronika had planned to do during the marriage.
       Third, Jerry argues that he does not have the “ability to pay” spousal maintenance due to
his own expenses. Jerry provided the court with an exhibit showing his monthly income and
expenses. Based on this information, Jerry alleged that he had an income of $8,500 a month from
Straight Line alone, and $10,159 in monthly expenses. The magistrate court went through Jerry’s
list of expenses, finding that only $6,015.80 were essential, thereby leaving Jerry with
approximately $2,484.20 in discretionary funds.
       Finally, Jerry argues that the magistrate court applied the improper clear and conclusive
standard when considering the “fault of either party” factor. Marital fault, which includes
adultery, is one of the many factors that section 32-705(2) allows a trial court to consider when
making an award for spousal maintenance. See Pelayo, 154 Idaho at 861–62, 303 P.3d at 220–
21. The “ ‘very clear and conclusive’ standard is only warranted when proving adultery as the
grounds for divorce, not for showing ‘fault’ under I.C. § 32-705.” Id. at 861, 303 P.3d at 220
(emphasis added). Under the “fault of either party” factor, the court held that, “[a]s set out above,
the court did not find fault in granting a divorce herein, and the divorce should be granted on
grounds of irreconcilable differences.” By so holding, it appears that the magistrate court likely
used the higher “clear and conclusive” standard when considering fault. The district court
affirmed the magistrate court without addressing the issue. It is likely that the magistrate court
addressed the fault factor as it did in order to respond to Jerry’s written closing argument
wherein he argued under the spousal maintenance section that, “as noted above, the court should
grant Jerry a divorce from Veronika on grounds of adultery.” On intermediate appeal, Jerry
argued the same thing: “As noted above, the Magistrate erred by failing to grant Jerry a divorce
from Veronika on grounds of adultery.” Thus, Jerry himself asked the magistrate court to use the
higher standard. It is unseemly for Jerry to now argue that the lower courts erred when Jerry
invited the error. See Davison v. Debest Plumbing, Inc., 163 Idaho 571, 575, 416 P.3d 943, 947
(2018) (“The doctrine of invited error applies to estop a party from asserting an error when his
own conduct induces the commission of the error.” (quoting Thomson v. Olsen, 147 Idaho 99,



                                                 37
106, 205 P.3d 1235, 1242 (2009))). Accordingly, we will not consider Jerry’s argument for the
first time on appeal. See Kraly, 147 Idaho at 304, 208 P.3d at 286. Therefore, we hold that the
district court did not err in affirming the magistrate court’s award of spousal maintenance.
Accordingly, we affirm the district court on this issue.
    G. Attorney fees and costs below. 9
        Jerry contends that the magistrate court abused its discretion when awarding Veronika
attorney fees and costs because it did not include an independent analysis of the Idaho Code
section 32-705(2) statutory factors in its Memorandum Decision Re: Attorney’s Fees and
because it relied on its own knowledge and experience in considering the factors set out in Rule
908 of the Idaho Rules of Family Law Procedure.
        As to Jerry’s first contention, Veronika argues that the magistrate court did not abuse its
discretion by not independently considering the section 32-705(2) factors in its Memorandum
Decision Re: Attorney’s Fees because it considered the factors in its Memorandum Decision
when deciding whether to award spousal maintenance, which is sufficient.
        Idaho Code section 32-704 provides in part:
        The court may from time to time after considering the financial resources of both
        parties and the factors set forth in section 32-705, Idaho Code, order a party to
        pay a reasonable amount for the cost to the other party of maintaining or
        defending any proceeding under this act and for attorney’s fees, including sums
        for legal services rendered and costs incurred prior to the commencement of the
        proceeding or after entry of judgment. The court may order that the amount be
        paid directly to the attorney, who may enforce the order in his name.
I.C. § 32-704(3) (emphasis added). “Section 32-705 sets forth a number of factors which the
court must consider in determining whether to order a party to pay the costs and fees of the other
party in a domestic relations matter.” Pelayo, 154 Idaho at 865, 303 P.3d at 224 (quoting Noble
v. Fisher, 126 Idaho 885, 891, 894 P.2d 118, 124 (1995)). “[T]he trial court need only consider
the factors set forth in I.C. § 32-705 in considering whether to award costs and attorney’s fees to
a party in a divorce action.” Reed, 157 Idaho at 719, 339 P.3d at 1123 (quoting Jones v. Jones,
117 Idaho 621, 790 P.2d 914 (1990)). “Unless the court’s decision cites the legislative factors
and demonstrates that such factors were considered, the award of attorney fees is subject to being
reversed and remanded.” Pelayo, 154 Idaho at 865, 303 P.3d at 224 (quoting Jensen v. Jensen,


9
 In this appeal, we only discuss attorney fees, not costs, because the district court vacated and remanded the
magistrate court’s award of discretionary costs on intermediate appeal.


                                                     38
128 Idaho 600, 606, 917 P.2d 757, 763 (1996)). “[T]he decision to award attorney fees pursuant
to Idaho Code section 32-704 is reviewed under an abuse of discretion standard.” Reed, 157
Idaho at 720, 339 P.3d at 1124.
       Here, the magistrate court recited the section 32-705(2) factors in its Memorandum
Decision Re: Attorney’s Fees and explained that “[a]n analysis of the above factors was
performed by this court in its Memorandum Decision, for the purpose of determining whether
spousal support was appropriate.” Therefore, “[t]hat analysis will not be repeated here, [because]
no substantially different fact situation has been demonstrated.” Relying on its analysis in the
Memorandum Decision, the court held that Veronika was entitled to attorney fees pursuant to
sections 32-704 and 32-705. The district court agreed, explaining that it “can see no necessity for
the magistrate to run through each of the factors again to determine whether Veronika should be
awarded fees under Idaho Code § 32-704.” We hold that, although the magistrate court did not
analyze the section 32-705(2) factors in its discussion of attorney fees, the court did so when it
considered an award of spousal maintenance, which is sufficient.
       As explained above, the court merely has to “demonstrate[] that such factors were
considered.” Jensen, 128 Idaho at 606, 917 P.2d at 763. In Hoskinson, the trial court combined
its discussion of the wife’s request for spousal maintenance with its discussion of the wife’s
request for attorney fees and costs. 139 Idaho at 465, 80 P.3d at 1066. After doing so, the court
denied the wife’s request for maintenance and determined that each party should bear his or her
own attorney fees. Id. We affirmed the trial court and held that “[t]he magistrate’s decision to
deny [the wife’s] request for continuing separate maintenance was supported by substantial
competent evidence. It follows that the same evidence is sufficient to support the denial of her
request for attorney fees and costs.” Id. at 466, 80 P.3d at 1067. Therefore, we hold that it was
sufficient for the magistrate court to only discuss the section 32-705(2) factors in its
Memorandum Decision when deciding spousal maintenance because the facts surrounding both
awards were substantially the same.
       That being said, Jerry argues, as he did on the issue of spousal maintenance, that the
magistrate court applied the improper clear and conclusive evidence standard when considering
the “fault of either party” factor. However, this time, unlike on the issue of spousal maintenance,
Jerry raised the issue below. In his objection to Veronika’s request for attorney fees, Jerry argued
that, “[e]ven though the Court did not find that either party had met their burden of proof



                                                39
regarding fault based grounds for divorce, the Court may nevertheless consider the evidence of
Veronika’s adultery in the context of her request for fees. Pelayo v. Pelayo, 154 Idaho 855, 860,
303 P.3d 214, 219 (2013).” Jerry also raised his concern to the district court. Despite Jerry’s
request that the lower courts consider marital fault under the lower standard, it appears the
magistrate court considered marital fault under the higher clear and conclusive standard. After
Jerry asked the magistrate court to consider marital fault in the context of attorney fees, the court
merely referred the parties back to its analysis of the factor in its award of spousal maintenance,
which provided that “the court did not find fault in granting a divorce herein, and the divorce
should be granted on grounds of irreconcilable differences.” Therefore, because the magistrate
court likely considered marital fault under the incorrect standard, the district court erred in
affirming the magistrate court without addressing the issue.
           Jerry also contends that the magistrate court abused its discretion in determining the
amount of attorney fees and costs to be awarded because its consideration of the Rule 908 factors
was “based purportedly entirely on [its] own knowledge.” Veronika contends that extensive
evidence was not necessary in this case because “a significant portion of services was rendered
in the presence of the Magistrate, work performed was reflected in the files of the court,
Veronika’s counsel submitted clear and detailed documentation, . . . and the Magistrate was well
qualified by her own knowledge and experience to make a determination on reasonableness.”
           “In any civil action the court may award reasonable attorney fees, including paralegal
fees, to the prevailing party or parties as defined in Rule 901.B, when provided for by any statute
or contract.” I.R.F.L.P. 908(A). 10 If a court grants attorney fees, then it must, at a minimum,
consider the following factors in determining the amount of such fees:
           1. the time and labor required;
           2. the novelty and difficulty of the questions;
           3. the skill requisite to perform the legal service properly and the experience and
           ability of the attorney in the particular field of law;
           4. the prevailing charges for like work;
           5. the time limitations imposed by the client or the circumstances of the case;
           6. the amount involved and the results obtained;
           7. the undesirability of the case;
           8. the nature and length of the professional relationship with the client;
10
     Rule 908 parallels the language in Idaho Rule of Civil Procedure 54(e).


                                                           40
       9. awards in similar cases;
       10. the reasonable cost of automated legal research (Computer Assisted Legal
       Research), if the court finds it was reasonably necessary in preparing a party’s
       case;
       11. any other factor which the court deems appropriate in the particular case.
I.R.F.L.P 908(B).
       “Before a court may determine whether claimed attorney fees are reasonable, it must
have enough information to properly consider the factors of Rule 54(e)(3).” Bailey, 153 Idaho at
530, 284 P.3d at 974. “Some information may come from the court’s own knowledge and
experience, some may come from the record of the case, but some obviously can only be
supplied by the attorney of the party who is requesting the fee award.” Id. at 531, 284 P.3d at 975
(quoting Sun Valley Potato Growers, Inc. v. Texas Refinery Corp., 139 Idaho 761, 769, 86 P.3d
475, 483 (2004)). “[T]he calculation of a reasonable attorney fee is within the trial court’s
discretion.” Id. at 529, 284 P.3d at 973.
       Here, Veronika sought an award of attorney fees in the amount of $89,202.57 and costs in
the amount of $9,787.94. Veronika did not refer to any of the Rule 908(B) factors in her
memorandum of attorney’s fees and costs, and the only information she provided was the hourly
rates of the attorneys and paralegals, a billing statement explaining the types of service, the date
of service, the hours billed, and the total amount charged, and the statement that “Petitioner is the
prevailing party and is entitled to attorney fees and costs.” In its Memorandum Decision Re:
Attorney’s Fees, the magistrate court recognized that it had a duty to consider the factors found
in Rule 908(B). The court listed the factors and provided an explanation for each. However,
besides the first factor, i.e., the time and labor required, the court had to consider the factors
based upon its own knowledge and experience, as it acknowledged.
       Jerry cited to Hackett v. Streeter, 109 Idaho 261, 264, 706 P.2d 1372, 1375 (Ct. App.
1985), both before this Court and on intermediate appeal, to support his argument that the
magistrate court was not presented with sufficient information to award attorney fees to
Veronika. The district court distinguished this case from Hackett by explaining that Veronika
provided detailed billing entries, which contained dated entries describing what work was done
on the case on a specific day and for how long. The court held that “[s]uch detailed billing
provided the magistrate court with sufficient information for the magistrate to consider the
factors set forth in I.R.F.L.P. 9[08].”


                                                 41
       In Hackett, the Idaho Court of Appeals affirmed the trial court’s denial of attorney fees
because the party seeking the fees failed to present sufficient information for the court to
consider the Rule 54(e)(3) factors. See id. at 264, 706 P.2d at 1375. In that case, the defendant
submitted an affidavit in support of his memorandum of costs, which provided the hourly charge
for the attorney’s services, the total number of hours expended, and the total fee. Id. “Essentially
this was the sole basis for the award of attorney fees. Apart from the hourly rate shown, there
was no evidence as to the reasonableness of the attorney fees or the nature of the legal services
which made up the 137 total hours expended.” Id. Therefore, “all the relevant factors could not
have been considered by the district court as the record does not present any information
concerning the amount of attorney fees beyond the hourly rate and amount of time expended by
[the defendant’s] counsel.” Id. The court explained that “it is incumbent upon a party seeking
attorney fees to present sufficient information for the court to consider factors as they
specifically relate to the prevailing party or parties seeking fees.” Id. The defendant in that case
failed to do so, so the court found no error in the denial of a fee award. Id.
       Similarly, in Lettunich v. Lettunich, this Court vacated an award of attorney fees because
the trial court “examine[d] some [of the Rule 54(e)(3)] factors, simply declare[d] the rest
unknown, and yet award[ed] the full amount of fees requested.” 141 Idaho 425, 435, 111 P.3d
110, 120 (2005). We explained that the affidavit submitted by the attorney addressed only one of
the factors in Rule 54(e)(3) and merely asserted that the fees were “reasonably and necessarily
incurred.” Id. “These statements, plus the billing sheets showing how much was billed, do not
equip the court with enough information to arrive at a reasonable award.” Id.
       In this case, Veronika merely provided the magistrate court with billing statements. Such
information was sufficient for the first factor, but the court was required to use its own
knowledge to determine the remaining factors. Although a trial court may rely on its own
knowledge and experience when considering the Rule 908(B) factors, as explained in Lettunich,
billing sheets showing how much was billed “do not equip the court with enough information to
arrive at a reasonable award.” See id. Therefore, we hold that the district court erred in affirming
the magistrate court’s award of attorney fees because the magistrate court was not provided with
sufficient information to determine a reasonable award. Accordingly, we reverse and remand this
issue to the district court with instructions to reverse and remand to the magistrate court. On
remand, the magistrate court should address fault under the appropriate standard and reconsider



                                                  42
the evidence in light of our holding that billing statements in and of themselves do not equip the
court with enough information to arrive at a reasonable award.
      H. Attorney fees and costs on appeal.
         Both parties request attorney fees and costs on appeal. Jerry requests attorney fees and
costs pursuant to the contractual provision in the Covenant and pursuant to Idaho Code section
12-121. Veronika requests attorney fees and costs pursuant to Idaho Code sections 12-121 and
12-123, Idaho Rules of Family Law Procedure 901 and 908, and Idaho Appellate Rules 40 and
41.
         Regarding Jerry’s claim for attorney fees, Jerry contends he is entitled to fees and costs
pursuant to the contractual provision in the Covenant, which provides, “[s]hould either party take
any action to declare the Covenant or any of its terms invalid, said party shall indemnify the
other for all reasonable expenses and costs, including attorneys’ fees, incurred in successfully
enforcing the Covenant.” (Emphasis added). In order to pursue fees and costs under the
contractual provision in the Covenant, Jerry would have had to successfully enforce the
Covenant. That is not the case here, inasmuch as we affirmed the lower courts’ determination
that the Covenant was invalid. Therefore, Jerry is not entitled to attorney fees under the
Covenant.
         Jerry also seeks attorney fees pursuant to section 12-121 based on what he describes as
the clearly erroneous findings of the lower courts and because any defense of this appeal is
inherently unreasonable. Section 12-121 provides:
                 In any civil action, the judge may award reasonable attorney’s fees to the
         prevailing party or parties when the judge finds that the case was brought, pursued
         or defended frivolously, unreasonably or without foundation. This section shall
         not alter, repeal or amend any statute that otherwise provides for the award of
         attorney’s fees. The term “party” or “parties” is defined to include any person,
         partnership, corporation, association, private organization, the state of Idaho or
         political subdivision thereof.
         We hold that Jerry is not entitled to attorney fees under section 12-121 because the issues
were complicated and the defense of the appeal clearly reasonable. There is little case law when
it comes to valuing businesses in marital disputes. Jerry has not provided any facts as to why or
how Veronika defended the appeal frivolously, unreasonably, or without foundation. It was not
frivolous for her to reasonably defend the judgment she won below, even if there were some
errors. Therefore, Jerry is not entitled to attorney fees under section 12-121.



                                                 43
        Regarding Veronika’s claim for attorney fees and costs, Veronika argues that she is
entitled to fees pursuant to section 12-121 because Jerry’s arguments are plainly fallacious and
serve only to harass her and increase the time and expense in resolving this matter. Although
Jerry was found to be deceptive throughout the divorce proceedings, several of his arguments on
appeal were not wholly unreasonable or without foundation. In fact, he partially prevailed on
appeal. Therefore, we hold that Veronika is not entitled to attorney fees under section 12-121.
        Veronika also seeks attorney fees pursuant to section 12-123. We deny Veronika’s
request for fees under section 12-123 as well because “that statute does not apply on appeal.”
Tapadeera, LLC v. Knowlton, 153 Idaho 182, 189, 280 P.3d 685, 692 (2012); see also Spencer v.
Jameson, 147 Idaho 497, 507, 211 P.3d 106, 116 (2009) (“[A]ttorney fees are not awardable
under I.C. § 12-123 for the appellate process.”). Therefore, Veronika is not entitled to attorney
fees either.
        As for costs, Rule 40 provides that “costs shall be allowed as a matter of course to the
prevailing party unless otherwise provided by law or order of the Court.” I.A.R. 40(a). We hold
that neither party is entitled to costs on appeal because each party prevailed in part. See Valient
Idaho, LLC v. JV L.L.C., 164 Idaho 280, 294, 429 P.3d 168, 182 (2018).
                                      IV.     CONCLUSION
        The district court’s decision is affirmed in part and reversed in part. We affirm the district
court’s ruling that the marriage settlement agreement fails for lack of consideration, but on the
alternate theory that there was no consideration as between Jerry and Veronika. Likewise, we
affirm the district court’s rulings concerning the characterization of the sale proceeds and the
business as community property, the valuations of the business, the determination that the
community was entitled to reimbursement for the funds expended towards the mortgage and
property taxes on Jerry’s separate property home, the division of the remaining personal
property, the grant of spousal maintenance, and the grounds for the divorce. However, we
reverse the district court’s decision on attorney fees and remand to the district court with
instructions to reverse and remand to the magistrate court for further proceedings consistent with
this opinion. No attorney fees or costs are awarded on appeal.


        Chief Justice BURDICK, and Justices BRODY, BEVAN and STEGNER CONCUR.




                                                 44
