(concurring and dissenting):
¶ 17 I agree that because the statute of frauds is an affirmative defense, the trial court prematurely cut off Gloria Ashby’s claim for breach of contract. I disagree, however, that the equitable claim of unjust enrichment should also go forward. See, e.g., American Towers Owners Ass’n v. CCI Mech., Inc., 930 P.2d 1182, 1192-93 (Utah 1996) (stating that a claim for unjust enrichment seeks an equitable remedy). In my view, equitable claims between divorcing parties can be addressed only in the divorce action. See Martinez v. Martinez, 818 P.2d 538, 541-43 (Utah 1991) (holding that the Utah Code and relevant case law allows trial courts sufficient flexibility in formulating support awards such that a separate award for equitable restitution cannot stand). Specifically, in determining alimony, the divorce court “shall consider ... whether the recipient spouse directly contributed to any increase in the payor spouse’s skill by paying for education received by the payor spouse or allowing the payor spouse to attend school during the marriage.” Utah Code Ann. § 30-3-5(8)(a)(vii) (2007).
¶ 18 I would therefore allow only the legal claim for breach of contract to survive the 12(b)(6) motion to dismiss.