Tag: increase

Thayne v. Thayne – 2022 UT App 122 – Change of Circumstances

2022 UT App 122








No. 20200598-CA

Filed November 3, 2022

Second District Court, Ogden Department

The Honorable Ernest W. Jones

No. 204900701

Devin Thayne, Appellant Pro Se

David C. Blum, Attorney for Appellee

SENIOR JUDGE RUSSELL W. BENCH authored this Opinion, in which JUDGE GREGORY K. ORME and JUSTICE JILL M. POHLMAN concurred.[1]

BENCH, Senior Judge:

¶1        Devin Thayne appeals the district court’s order granting Stephanie Thayne’s motion to dismiss his petition to modify child and spousal support. We agree with the reasoning of the district court and affirm.


¶2        Devin and Stephanie[2] were married in June 2010 and separated in April 2019. At the time of their separation, the parties lived in California, and their divorce proceedings therefore commenced in California. As part of their divorce proceedings, a hearing was held on December 10, 2019. At the hearing, the parties came to an agreement regarding custody and visitation schedules of their three minor children, and the court entered a stipulation and order addressing those issues that same day. At this time, both parties were anticipating a relocation to Utah, and the stipulation recognized this “period of transition” and noted, “Further order as to custody will be addressed in Utah . . . if necessary.”

¶3        At the December hearing, the parties also stipulated as to other issues, including property division, spousal support, and child support. This stipulation mentioned the impending move to Utah and the likelihood that, due to the move, “[Devin’s] annual income of $141,000 will decrease to approximately $90,000– $100,00 per year.” The stipulation also provided that Devin would pay $840 per month in spousal support, beginning January 1, 2020, and continuing for, at most, only four years (roughly half the length of the nearly nine-year marriage), and that Stephanie was “to make reasonable efforts to become self-supporting within a reasonable period of time.” Additionally, the stipulation provided that Devin would maintain health insurance for the children and that “upon [Stephanie’s] employment,” she would also provide health insurance for the children “if available at no or reasonable cost through her employment.”

¶4        The parties did, as planned, move to Utah in December 2019, and Devin’s income did resultingly drop to $90,000. Thereafter, on February 18, 2020, the California court entered a judgment of dissolution (the Judgment). The Judgment incorporated the parties’ stipulations made at the December hearing and finalized the divorce.

¶5        About two months later, on April 22, 2020, Devin filed a petition to modify the Judgment in Utah. Devin argued that “his dramatic reduction in income” amounted to a “substantial and material change in circumstances” that warranted a change to the previously ordered spousal support and child support amounts. Devin argued the changes were also warranted by a change in Stephanie’s income, stating, “[U]pon information and belief, Stephanie has initiated employment or other means to generate a regular and consistent income.” Additionally, Devin’s petition to modify raised issues surrounding the mechanics of the children’s visitation, arguing that the Judgment “fails to detail how the parties are to exchange the minor children” considering that the two older children were in school and the youngest child was not yet school-aged. He requested that he be allowed to return all three children in the morning instead of having to wait to return the youngest child at noon, as provided for in the Judgment.

¶6        Stephanie responded with a motion to dismiss or, alternatively, a motion for summary judgment. She argued that Devin’s petition to modify rested on changes in circumstances that were foreseeable when the Judgment was entered and that, therefore, his petition must be dismissed.

¶7        The district court granted Stephanie’s motion to dismiss in its entirety. The court determined that there was no indication that the Judgment was not already calculated based on Devin’s anticipated reduction in salary to $90,000–$100,00 per year. The court explained,

The order was finalized and entered after the move and the initial payments were set to be made while the parties already were to live in Utah. It stretches the imagination of the Court to the breaking point to believe that the California court would enter an order fully expecting income to have dropped before even the first payment would be made.

As to spousal support, the court recognized that “differences in earning potential . . . should be given some weight in fashioning the support award” and that this factor was presumptively already considered by the California court making the award. (Quotation simplified.) And as to visitation, the court pointed out that the issue was addressed in the Judgment, which specifically provided that the children would be delivered “at school or if no school at noon.” The court therefore determined that it did not find a “significant unforeseen change in circumstances” to support modification. (Emphasis added.) Devin now appeals.


¶8        Devin argues that the district court erroneously dismissed

his petition to modify, which dismissal was based on its determination that the facts alleged in the petition did not show an unforeseen substantial change in circumstances that would warrant modification. “We review a decision granting a motion to dismiss for correctness, granting no deference to the decision of the district court.” Miller v. Miller, 2020 UT App 171, ¶ 10, 480 P.3d 341 (quotation simplified).[3]


¶9        A party may seek changes to an award of spousal or child support when there has been a substantial change of circumstances not addressed in the divorce decree. See Utah Code Ann. § 30-3-5(11)(a) (LexisNexis Supp. 2022) (“The court has continuing jurisdiction to make substantive changes and new orders regarding alimony based on a substantial material change in circumstances not expressly stated in the divorce decree or in the findings that the court entered at the time of the divorce decree.”); id. § 78B-12-210(9)(a) (“A parent, legal guardian, or the office may at any time petition the court to adjust the amount of a child support order if there has been a substantial change in circumstances.”). But the changes in circumstances that Devin raises in his petition that have occurred since the stipulation was drafted in December 2019—namely, his decreased income and Stephanie’s availability for employment—were foreseen and addressed in that stipulation. Furthermore, these changes in circumstances that Devin raises had already occurred by the time the Judgment incorporating that stipulation was eventually entered in February 2020.

¶10 The Judgment orders Devin to pay “child support in the amount of $2,160 per month” and “spousal support in the amount of $840 per month” commencing in January 2020, shortly after relocation. And in the same section, the Judgment clearly recognizes Devin’s impending income reduction: “[Devin] anticipates that [his] annual income of $141,000 will decrease to approximately $90,000–$100,000 per year due to the relocation of himself and his employment from California to Utah.” Thus, the Judgment anticipated Devin’s lowered income, and we agree with the district court that it is implausible that the California court would have made support awards based on Devin’s old income when it recognized that a much lower income would be in effect before any payments became due.

¶11      This same support section of the Judgment also anticipates Stephanie’s future employment. The Judgment limits the maximum length of spousal support to four years[4] and states, “[Stephanie] is placed under a Gavron Admonition to make reasonable efforts to become self-supporting within a reasonable period of time.”[5] Further, the Judgment clarifies that “upon [Stephanie’s] employment[,] [she] shall obtain health insurance for the parties[’] minor children if available at no or reasonable cost through her employment.” In fact, even Devin’s petition to modify recognized that the Judgment addresses Stephanie’s future employment:

[U]pon information and belief, Stephanie has initiated employment or other means to generate a regular and consistent income. Indeed, the Judgment indicates Stephanie was required to make efforts to secure full-time employment. As such, Stephanie either has secured regular employment or now possesses the ability to secure gainful full-time employment. At a minimum, Stephanie should be imputed income at a reasonable amount considering her education, training, certificates, employment history, and any other factors reasonably considered by the Court.

So Stephanie’s return to employment was clearly anticipated in the Judgment.[6]

¶12      Thus, the Judgment addressed both the anticipated drop in Devin’s income and the possibility of Stephanie’s return to employment and accounted for them when ordering child and spousal support amounts. And therefore, these employment changes do not amount to unanticipated changes that would warrant a modification of the support amounts. Therefore, we see no error in the district court’s determination that even when viewing the alleged facts in Devin’s favor, no substantial change in circumstances had occurred that was not addressed in the Judgment; and consequently, we see no error in the dismissal of Devin’s petition to modify.

¶13      Devin, however, points to language in the stipulation that he argues implies that the Judgment was “a very loose order intended only to last until more was known in Utah.” First, he points to a general provision at the close of the Judgment stating, “The issues of child custody and visitation, child support and spousal support are transferred to the county in which the parties’ minor children will be residing in Utah effective immediately upon entry of this judgment.” But we do not agree that this language is an indication that the support awards should be revisited upon relocation; instead, where the parties had already relocated upon entry of the Judgment, the language simply demonstrates an awareness that any unanticipated issues or changes of circumstances that might arise in the future (in the nearly fifteen years before the children would all become adults) would be appropriately dealt with in Utah instead of California.

¶14 Second, Devin relies on language in the child custody stipulation that mentions relocation and then states, “Further orders as to custody will be addressed in Utah upon parties’ move, if necessary.” However, this mention (and in particular its “if necessary” limitation) simply clarifies what would happen if changes were warranted in the future and is not an indication that the California court expected the divorce decree to be modified upon relocation. Furthermore, this reference specifically mentions only the modification of child custody, which is largely unrelated to the income changes raised in Devin’s petition to modify.

¶15 Third, Devin points to the Judgment’s failure to address the issue of how the children would be claimed on the parties’ taxes as evidence that the Judgment was intended to be only temporary. But, again, this omission does not suggest that the California court expected that its support awards would be recalculated upon arrival in Utah.

¶16      Devin also raises contract principles to argue that the intent of the parties regarding future modification should have been considered by the district court when determining if modification was appropriate. But even assuming the intent of the parties would be relevant, there was no ambiguity in the stipulated agreement suggesting that immediate modification was intended after relocation to Utah, nor was there any indication that this remained an open question. Although Devin tries to introduce additional materials that he argues show such an intention, even under contract principles those materials would not be considered because of the unambiguous nature of the parties’ stipulation.[7] See Bakowski v. Mountain States Steel, Inc., 2002 UT 62, ¶ 16, 52 P.3d 1179 (“When interpreting a contract, a court first looks to the contract’s four corners to determine the parties’ intentions, which are controlling. If the language within the four corners of the contract is unambiguous, then a court does not resort to extrinsic evidence of the contract’s meaning, and a court determines the parties’ intentions from the plain meaning of the contractual language as a matter of law.” (quotation simplified)).[8]


¶17      We do not see an error in the district court’s determination that the changes in circumstances Devin raises were already addressed by the original Judgment. And as a result, we see no error in the court’s denial of Devin’s petition to modify.[9] We therefore affirm.



Utah Family Law, LC | | 801-466-9277

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Do you pay tithing on child support?

Nothing is more frustrating to a sincere Christian than to ask the question, “Should I pay tithing on child support money I receive as a parent?” and to receive this kind of response: “It’s between you and the Lord.” 

While “it’s between you and God,” is important to your analysis of the question, and while you need to ask God to guide you in your analysis and your ultimate decision, “it’s between you and the Lord” it doesn’t really answer your question. It gives you too little guidance. 

What you want to know is whether you should pay tithing on the child support you receive or not pay tithing on it and why. I can and will answer these questions for you substantively. 

First, while you will find faithful, devoted, rational Christians who will answer your question with a “yes” and other equally faithful, devoted, rational Christians who will answer your question with a “no,” unless the church you attend has a specific policy on what is and is not tithed* there is no definitive answer to this question (don’t be upset, I will give you as definitive an answer as I can in the next paragraph). 

The answer is: no. Here is why: 

  • If you administer (spend) child support for the sole and exclusive benefit of the child(ren), then 
    • child support is not yours and thus not “your increase” and thus not money on which you pay tithing (Deuteronomy 14:22; see also Leviticus 27:30-33); 
    • and if the person who earned the funds out of which child support is paid has already paid tithing on it, then there is no purpose in “tithing” it again just because it has changed hands by being entrusted to you to administer for the benefit of the minor children. 
      • If the payor did not pay tithing on the child support funds entrusted to you, you are still not obligated to pay tithing on the funds, as they are not your income/increase. 

“But,” you may ask, “if I spend some of the child support funds on myself (and you can legally do that if, for example, you use child support to pay your rent, your heat, electric, and/or water bill or similar utilities), then is that ‘increase’ to me, such that I should pay tithing on that portion/fraction that benefits me?” I don’t think so. To explain further by way of a real-life analogy: 

  • I once had a job as a caretaker for mentally disabled adults during the day. Among the services I provided for these adults was taking them to the occasional movie. 
  • My employer provided me with money to purchase movie tickets for these adults, as well as to purchase a movie ticket for me. 
    • Obviously, they money my employer entrusted to me to buy a movie ticket was not for my own enjoyment. I had no choice as to whether I would purchase the ticket for myself or spend the money as I chose. 
    • Whether I wanted to watch the movie (or liked the movie) was irrelevant because the purpose of providing me with money to purchase a movie ticket for me was enable me to accompany the disabled adults I cared for into the movie theater to supervise and attend to them during the movie. 
  • The money my employer gave me to purchase a movie ticket for myself was not income/increase to me in any way. I clearly had no moral obligation to pay tithing on that money.

If you are obligated to provide housing, heat, and water to your children under the same roof as where you reside, then you cannot do that without providing housing, heat, and water for yourself at the same time. As long as you utilize those child support funds responsibly for the benefit of your children, then those funds are not income/increase to you. You have no moral obligation to pay tithing on those funds. 


*The original version of this question specifically asked whether the Church of Jesus Christ of Latter-day Saints requires a child support recipient to pay tithing on child support, and the answer to that question is: the church has no specific policy on the subject. 

Utah Family Law, LC | | 801-466-9277 

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What would happen if there were no alimony or splitting assets in divorce without kids?

That is an interesting question. Before I answer it, know this: anyone who is motivated to marry on a “what’s in it for me?” basis and who stays married motivated by a “what’s in it for me?” basis is likely to be unhappy in his/her marriage and likely will end up divorced. Marriage success and happiness depends upon the couple’s mutual devotion to each other, to the family they make together, and placing the interests of their marriage and family ahead of their own, individual self-interest.

Here is what I believe would happen if there were no more alimony or splitting of assets in divorce proceedings when a married couple has no children:

  • the desire for certain women to marry would plummet. Why? It’s politically incorrect to state the following, but it is no less true: many women (not all) marry so that their husbands (and now, in the case of lesbian couples, their wives) will provide for them (and only for them, not for children the couple may have) financially. If this kind of woman (i.e., a woman who relied on her spouse financially) knew that she would get no alimony upon divorce and wouldn’t get half of the funds the spouse saved and half of the retirement funds the spouse accrued during the marriage, there is a certain kind of woman who would not marry.
    • Do not misunderstand me: a woman (or man) who foregoes pursuing a career so that the couple can have children and rear a family together in the best possible conditions, with one parent staying home to care for the children instead of working outside the home, is a spouse who, if she/he has lived up to that commitment, deserves alimony if the marriage ends in divorce. The traditional family, i.e., where the children have a stay at home parent, is the optimal way to rear children who will be themselves physically and mental healthy, decent, productive adults. Some families cannot afford to have a parent stay at home. There is no shame in that. But when both spouses work even though they both don’t need to work, and where such spouses have children and warehouse those kids in daycare, they are doing themselves and their children a disservice that cannot be compensated for.
  • the desire for a percentage of heterosexual men to marry would increase. Many such men have seen their fellow male friends and family members financially ruined by alimony and by losing so much of what they worked so hard for in divorce. This causes many men to fear and avoid marriage to a woman out of concern that divorce will ruin them. Many husbands of childless couples who knew that their wives would not profit from divorce would not fear divorce nearly as much as they do now.
    • Do not misunderstand me: there are many men who are devoted to their wives and children. Their wives and family are a labor of love for whom them willingly and gladly sacrifice their time, effort, and income. There are many decent men, however, whose wives are not themselves decent people who are equally devoted to their husbands and families. Men who marry gold diggers are justifiably upset when the gold diggers try to profit from divorce.

Now if, after you read this answer in its entirety, you conclude that “marriage is for suckers,” you have missed the point completely.

Utah Family Law, LC | | 801-466-9277

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Bjarnson v. Bjarnson – 2020 UT App 141 – prospective increase in alimony based upon uncertain future event



No. 20190734-CA
Filed October 16, 2020
Fourth District Court, Provo Department
The Honorable Derek P. Pullan
No. 164400963

Aaron R. Harris, Attorney for Appellant
Rosemond G. Blakelock and Megan P. Blakelock, Attorneys for Appellee


ORME, Judge:

¶1        Hugh Lynn Bjarnson and Jennifer Lou Bjarnson were married in 2008. In 2016, Hugh[1] filed for divorce, and the parties separated three months later. Following a bench trial, the district court entered a decree of divorce in 2019. The court’s alimony determination is the sole point of contention on appeal.

¶2      Following the couple’s separation, Jennifer moved in with her ailing mother, with whom she had also lived between the time she separated from a former husband and when she moved in with Hugh. She could not recall how long she had lived with her mother the first time but said that she had done so “briefly.” Her mother’s residence is a fully furnished three-level home, on five acres, in which Jennifer had her own bedroom. When she moved in following her separation from Hugh, she did not pay rent, although she provided care to her mother and testified that she paid her mother’s water assessment. Jennifer asserted at trial that she could not afford to rent an apartment at that time and was “living there because [she had] nowhere else to live.” It was entirely unclear how long she would remain there.[2]

¶3      The court determined that Jennifer was entitled to a monthly alimony award of $1,830, $1,000 of which accounted for her anticipated monthly housing expense, as reflected in her financial declaration. But because she was not obligated to pay rent while living with her mother, the court ordered Hugh to make alimony payments “for the length of the marriage in the amount of $830 per month until . . . Jennifer secures her own housing,” at which time the “alimony will increase to $1,830 per month.” Hugh appeals.

¶4      Hugh’s argument is limited to the prospective aspect of the district court’s alimony award. He does not challenge the $830 monthly obligation currently payable. Instead, he contends that the court exceeded its discretion by ordering a prospective increase in his alimony obligation based upon an uncertain future event. We agree.

¶5      Although “trial courts have broad latitude in determining whether to award alimony and in setting the amount, and we will not lightly disturb a trial court’s alimony ruling, . . . we will reverse if the court has not exercised its discretion within the bounds and under the standards we have set.” Rule v. Rule, 2017 UT App 137, ¶ 11, 402 P.3d 153 (quotation simplified). See also State v. De La Rosa, 2019 UT App 110, ¶ 4, 445 P.3d 955 (“Trial courts do not have discretion to misapply the law.”) (quotation simplified). We conclude that it was legal error for the district court to order a prospective increase in alimony based on a possible future event without first finding when—or even whether—such an event will occur. Instead, the court should have reserved the question of a possible change in alimony for a later petition to modify the alimony award should Jennifer’s housing situation change.

¶6      “A prospective change in alimony alters the award to which the recipient spouse would otherwise be entitled based on the trial court’s anticipation of a future event that will materially change the parties’ circumstances.” Boyer v. Boyer, 2011 UT App 141, ¶ 15, 259 P.3d 1063. But because “the trial court will be better able to make an educated adjustment when and if [a possible future] event actually occurs,” id., “prospective changes to alimony are disfavored,” Richardson v. Richardson, 2008 UT 57, ¶ 10, 201 P.3d 942. Indeed, they are appropriate “only as to future events that are ‘certain to occur within a known time frame.’” MacDonald v. MacDonald, 2018 UT 48, ¶ 40, 430 P.3d 612 (quoting Richardson, 2008 UT 57, ¶ 10). Thus, in Richardson, a prospective change in alimony was appropriate where it was based on events that were certain to occur on specified dates. See 2008 UT 57, ¶¶ 10–11. In contrast, “a plan to retire, without actually retiring, would be insufficient to justify a prospective alimony reduction.” Id. ¶ 10.

¶7      Here, the district court ordered Hugh to pay a prospective alimony increase of $1,000 per month when “Jennifer secures her own housing.” Other than noting that Jennifer was “residing with her mother rent free right now,” the court made no factual findings regarding her future housing. It did not find that it was “certain” that Jennifer would secure her own independent housing, much less that it would occur “within a known time frame.” See id. Indeed, it could not have so found absent any indication that Jennifer was actively searching for independent housing, that she intended to move out of her mother’s home within a certain timeframe, or that her current living arrangements would be short-lived. The amount of the appropriate increase was also necessarily speculative. The $1,000 may have been a solid estimate based on current conditions, but either high or low depending on when and whither she relocates—if she does. The prospective modification to the alimony award was thus improper under Richardson and its progeny, even though the court’s desire for efficiency is understandable.

¶8      Jennifer argues that “[h]ousing was not considered by the court to be some ‘future’ event.” Rather, she contends the court ordered the alimony increase with the goal of “restor[ing] the parties to the same standard of living that existed during the marriage,” and because an independent living situation had been Jennifer’s standard of living during her marriage, the court properly determined that she was entitled to monthly alimony payments in the amount of $1,830. In support of this argument, she relies on Sauer v. Sauer, 2017 UT App 114, 400 P.3d 1204, in which we affirmed the trial court’s decision to base part of its alimony award on the payee’s future expected housing expenses. See id. ¶ 10. In Sauer, the trial court based its decision on the facts that the payee “live[d] in a trailer on a friend’s property” and that “it [was] unknown how long a person can survive on the good nature of a friend.” Id. (quotation simplified). We noted that the court’s “determination ma[de] conceptual sense” because “[i]n the aftermath of a separation, a party may temporarily return to his or her parents’ home, shelter with friends, or become homeless and thus incur no actual housing expenses.” Id. ¶ 10 n.3. In such situations, “the court may consider what constitutes a reasonable rental or mortgage payment in the relevant area for housing similar to the housing previously shared by the parties.” Id.

¶9      Although the district court in this case would have been entitled to make such a determination if it had found that Jennifer’s living situation with her mother was a temporary byproduct of the divorce, as with the examples mentioned in Sauer, the court took a different course. Instead of ordering Hugh to immediately begin making monthly payments of $1,830—as would have been consistent with the approach taken in Sauer— the court determined that a monthly alimony award of $830 was sufficient to maintain Jennifer’s standard of living while she lived with her mother. The court then made the $1,000 increase in alimony conditional on Jennifer securing her own housing at some later date. The increase was unquestionably a prospective change to its alimony award because it was based “on the trial court’s anticipation of a future event that will materially change the parties’ circumstances,” i.e., a change in Jennifer’s living situation. See Boyer, 2011 UT App 141, ¶ 15. Thus, the court erred in ordering the prospective increase without first concluding that the material change was “certain to occur within a known time frame.” See Richardson, 2008 UT 57, ¶ 10.

¶10 To be sure, the uncertainty of whether or when Jennifer would secure her own independent living arrangement does not undercut her ability to do exactly that at some future date and to seek a corresponding increase in the amount of her alimony. The district court already determined that she would be entitled to an increase in that event. But the proper procedure for seeking an increase in alimony, should she eventually secure other housing, would be for her to file a petition to modify the alimony award. See Utah Code Ann. § 30-3-5(10)(a) (LexisNexis Supp. 2020). Where an anticipated event is too speculative for the court to consider in its alimony determination at the time of divorce, as is the case here, “the court may . . . delay the determination” by entering “findings indicating that the future [event] has not been considered in making the present award” because material information regarding the future event was unavailable to the court at the time of the divorce decree, thereby avoiding future dismissal of the petition to modify on foreseeability grounds. MacDonald, 2018 UT 48, ¶ 35 (quotation simplified). See id. ¶¶ 34–36, 40–41.

¶11 We therefore vacate the portion of the court’s decree prospectively increasing the alimony award and remand for the court to enter the necessary findings so that the issue is preserved for future resolution and the determination can be made later upon a petition to modify, with any “foreseeability” argument Hugh might otherwise be inclined to make being effectively foreclosed.[3]

Utah Family Law, LC | | 801-466-9277


[1] Because the parties share the same surname, we refer to them by their first names, with no disrespect intended by the apparent informality.

[2] Nothing in the record or briefing suggests that Jennifer’s living situation has changed subsequent to entry of the divorce decree.

[3] Because Hugh prevails on appeal, we deny Jennifer’s request for attorney fees, premised on rule 33 of the Utah Rules of Appellate Procedure.

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Do you think coronavirus and the quarantine will increase divorces?

Today’s question is: Do you think coronavirus and the quarantine will trigger an increase in divorces?

Answer: Without question. There are obviously some legitimate reasons to curtail or even totally suspend parent-time if a parent or child is sick with the COVID-19 virus–we don’t want the kids and parents spreading the disease in their passing back and forth between houses. But for the rest of you, remember when Rham Emmanuel said, “Never let a crisis go to waste”? Well, a malevolent parent never lets a plausible excuse to interfere with custody and parent-time go to waste either. 

Utah Family Law, LC | | 801-466-9277

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