AMY R. MYERS, Appellee, v. JACOB W. MYERS, Appellant.
Opinion
No. 20220002-CA
Filed March 2, 2023
Sixth District Court, Richfield Department
The Honorable Brody L. Keisel
No. 184600056
Benjamin L. Wilson, Attorney for Appellant
Douglas L. Neeley, Attorney for Appellee
JUDGE RYAN M. HARRIS authored this Opinion, in which
JUDGES MICHELE M. CHRISTIANSEN FORSTER and JOHN D. LUTHY
concurred.
HARRIS, Judge:
¶1 After more than two decades of marriage, Jacob and Amy Myers divorced in 2018, and mutually agreed to the terms of their divorce. In particular, they agreed that Jacob[1] would pay Amy $916 per month in child support and $2,300 per month in alimony. Less than two years later, Jacob filed a petition to modify the divorce decree, asserting that both his and Amy’s income had changed since the divorce. The district court, after holding a trial, denied Jacob’s petition to modify, and Jacob appeals that denial, asserting that the court erred in determining that Amy’s ability to earn had not changed and in failing to make findings regarding Amy’s reasonable expenses. We find merit in Jacob’s positions, and therefore reverse and remand.
BACKGROUND
¶2 Jacob and Amy Myers married in 1995, but divorced in 2018 after some twenty-three years of marriage. When they divorced, one of their children (born in 2001) was still a minor, but all their children are now adults. Throughout most of their marriage, Jacob worked in oil production as a rig manager. His position paid relatively well—at the time of the divorce, he was earning $8,233 per month—but required him to work a nontraditional schedule (two weeks on, two weeks off), and in addition the job was sometimes dangerous and often involved the operation of heavy machinery.
¶3 While Jacob worked in the oil fields, the couple decided that Amy would—at least until the children were grown—forgo steady employment outside the home in order to care for the children. Amy did, however, run a small “foot zoning” business from which she earned approximately $250 per month.
¶4 In April 2018, Amy filed for divorce, citing irreconcilable differences. Jacob did not contest Amy’s petition; instead, the parties—neither of which were, at the time, represented by counsel—filed a joint stipulation, using forms provided by the court’s self-help center, agreeing to resolve all matters related to the divorce petition. As amended, the stipulation provided that Jacob would pay Amy $916 per month in child support—at least for another year or two until the parties’ youngest child reached the age of majority—and $2,300 per month in alimony. Jacob’s obligation to pay alimony was to last twenty-three years—until April 2041—unless Amy remarried or cohabited before that.
¶5 In the stipulation, the parties agreed that Jacob’s income was $8,233 per month, and that Amy’s income was $250 per month, and those figures were apparently used to calculate Jacob’s child support obligation according to applicable guidelines. But the stipulation contained no indication of how Jacob’s alimony obligation was calculated; in particular, the stipulation was silent as to what Amy’s reasonable monthly expenses might be.
¶6 Using court-approved forms, the parties incorporated the terms of their stipulation into proposed findings of fact and conclusions of law, as well as a proposed divorce decree, and the district court signed the documents, thus finalizing the parties’ divorce, in May 2018. The final documents, like the parties’ amended stipulation, provided that Jacob would pay $916 per month in child support and $2,300 per month in alimony, but contained no findings about Amy’s reasonable monthly expenses.
¶7 About eighteen months later, in November 2019, Jacob— now represented by an attorney—filed a petition to modify the alimony award contained in the decree. In the petition, Jacob alleged that “the income of both parties has significantly changed since their divorce was finalized.” With regard to his own income, Jacob alleged that he was “no longer working in the oil fields” because he was “no longer able to work the same work schedule and the same type of work because of how it was negatively affecting him.” He asserted that he was “going back to school” in an effort to begin a different career, and that he was “currently not working.” With regard to Amy’s income, Jacob alleged that Amy had become employed and earned $1,200 per month, and that her “self-employment income” had increased to $1,500 per month, such that Amy’s total monthly income was $2,700. Jacob alleged that the changes in the parties’ respective incomes constituted a “substantial change in circumstances that warrants a modification” of the alimony award.
¶8 Just a few weeks later, in January 2020, Amy—also now represented by an attorney—filed a motion for an order to show cause, asserting (among other things) that Jacob had failed to fully comply with his child support and alimony obligations. The court issued an order commanding Jacob to appear and show cause why he should not be held in contempt of court, and later held an evidentiary hearing to consider the matter. At that hearing, the court found that Jacob had “voluntarily quit his employment” in the oil fields and that, “if he hadn’t, he would have been able to pay what was ordered.” The court thus found Jacob in contempt and ordered him to pay Amy more than $22,000 in back child support and nearly $6,000 in unpaid alimony.
¶9 In the meantime, Jacob’s petition to modify remained pending, and the parties exchanged updated financial declarations in anticipation of an eventual trial. Amy’s first updated financial declaration, signed in December 2019, listed total annual income of nearly $11,000 (or about $889 per month) from three different sources: a new job, her foot zoning business, and teaching yoga classes. In this same declaration, Amy set forth monthly expenses of $4,084, with some of the expenses being at least partially attributable to her youngest child, who was still living in the home with Amy at that point. Then in August 2021, on the day of trial, Amy submitted a second updated financial declaration. According to this new declaration, Amy had recently obtained a different job, this one full-time, that paid her $45,000 per year ($3,750 per month). In addition, Amy stated that she earned $241 per month from her foot zoning business and $22 per week teaching yoga. She also asserted that her monthly expenses had increased to $4,795 (although the line-items listed in the declaration add to only $4,613), even though no children were living with her any longer. Among the changes from the 2019 declaration were a $500 increase in healthcare expenses, a $175 increase in real estate maintenance, a $100 increase in entertainment expenses, and an $88 increase in utilities.
¶10 In August 2021, the district court held a one-day bench trial to consider Jacob’s petition to modify. The only two witnesses to testify were Jacob and Amy. During his testimony, Jacob explained that he voluntarily left his position in the oil fields because he was no longer able to focus on his job duties to the degree he wanted, and he was worried that—due to the dangerous nature of the work—he would injure himself or someone else. However, he acknowledged, on cross-examination, that he was still physically able to perform the duties of the job; that his employer had not asked him to leave; that he had not received mental health counseling to address his concerns about the stress of his work; that he could have taken a leave of absence to address those issues and “gone back to” his job after that; and that if he had done so, he would still “be able to . . . pay the $2,300 a month in alimony.” He testified that, as of the time of trial, he was working at a home improvement warehouse earning $14 per hour, or $2,426 each month.
¶11 During her testimony, Amy testified that she had recently obtained full-time employment with the local chamber of commerce, in which she earned a salary of $3,750 per month. In response to direct questioning about this job, Amy conceded that she has “the ability to earn at least $3,750 a month,” and that she would be able to “do that moving forward.” In addition, she acknowledged that she earned additional income from her foot zoning business and her work as a yoga instructor. Amy testified that she earned some $100 per month from teaching yoga. With regard to her foot zoning business, she testified that she averaged ten treatments per month and charges $50 per treatment, and therefore earns $500 per month in revenue. But she testified that she must pay certain expenses associated with the business that eat up most of the revenue, resulting in her making only some $90 per year (or $7.50 per month) in profit. On cross-examination, she acknowledged that her total gross income from all sources, before expenses, was approximately $4,350 per month.
¶12 Amy testified that she was still living in the same house that the couple had been living in during the marriage, but that now—at the time of trial—she was living there alone because her children were grown and gone. With regard to expenses, she testified that her total monthly expenses were $4,084 in 2019 but had increased to $4,795 at the time of trial, despite the fact that, by the time of trial, she was living alone. She explained that new health insurance and home maintenance costs were largely responsible for the increase. But then, in response to a direct question about how her expenses at the time of the 2018 divorce compared to her expenses at the time of the 2021 modification trial, she testified that her expenses had “stayed the same.”
¶13 After trial, the parties (through counsel) submitted written closing arguments. Amy argued that, for purposes of the alimony computation, the court should impute to Jacob the same income he had made in the oil fields, find there to be no material and substantial change in circumstances, and on that basis dismiss the petition to modify. For his part, Jacob argued that the court should modify (or even terminate) his alimony obligation because Amy was now employed full-time and had the ability to provide for her own needs. In particular, Jacob argued that Amy’s reasonable expenses were in actuality less than the amounts reflected on her recent financial declaration and in her testimony, and that her increased income was sufficient to meet those needs.
¶14 A few weeks later, the district court issued a written ruling denying Jacob’s petition to modify. In its ruling, the court found that Jacob had voluntarily quit his job in the oil fields, and that his monthly income had decreased from $8,233 to $2,427. The court also found that Amy “currently works” for the local chamber of commerce “earning $45,000 annually,” and that Amy “also has side businesses doing foot treatments and teaching yoga.” But the court made no specific finding regarding Amy’s total income.
¶15 Building on these findings, the court concluded that Jacob’s change in income constituted “a substantial material change in circumstances that was not expressly stated in the decree.” The court did not separately analyze whether the change in Amy’s income also constituted such a change in circumstances.
¶16 Having concluded that there existed a substantial material change in circumstances, the court proceeded to “consider whether modification [of the alimony award] is appropriate.” The court began its analysis by examining Jacob’s income situation, and concluded that, because Jacob had left his job voluntarily and had not sustained any loss in earning capacity, Jacob “remains able to earn income at the level he was earning at the oil fields.” Accordingly, the court imputed to Jacob an income of $8,233 per month for purposes of the alimony calculation.
¶17 With regard to Amy’s expenses, the court found that her “financial needs . . . [have] not changed since” 2018, when “the stipulated decree was entered,” but made no specific finding as to the exact amount of those expenses.
¶18 And with respect to Amy’s earning capacity, the court offered its view that the “determinative factor[]” was not Amy’s income but, instead, her “ability to provide” for herself. On that score, the court found that “[n]o evidence was presented that [Amy] has obtained extra education or has otherwise increased her ability to earn since the time of the divorce,” and therefore concluded that—despite her increased income—her earning capacity had not changed. In so ruling, the court observed that it was Jacob’s “unilateral decision” to leave his job that compelled Amy to “obtain employment to provide for herself,” and stated that reducing Jacob’s alimony obligation where the precipitating event “was [Jacob’s] decision to leave his employment would set a precedent allowing parties who have stipulated to pay alimony to renege on that stipulation by taking a much lower paying job and forcing receiving parties to find additional employment by stopping alimony payments.”[2]
ISSUE AND STANDARDS OF REVIEW
¶19 Jacob now appeals the court’s denial of his petition to modify. In this context, “we review the district court’s underlying findings of fact, if any, for clear error,” Peeples v. Peeples, 2019 UT App 207, ¶ 11, 456 P.3d 1159, and we review its determination regarding the presence or absence of a substantial change of circumstances, as well as its ultimate determination regarding the petition to modify, for an abuse of discretion, see id.; see also Armendariz v. Armendariz, 2018 UT App 175, ¶ 6, 436 P.3d 294. The district court’s choice of, and application of, the appropriate legal standard, however, “presents an issue of law that we review for correctness.” Peeples, 2019 UT App 207, ¶ 11.
ANALYSIS
¶20 We begin our analysis with a general discussion of petitions to modify alimony awards and the process courts are to follow when adjudicating such petitions. We then address Jacob’s claim that the court failed to follow the correct process in this case.
I
¶21 After a district court has made an award of alimony, the court “retains continuing jurisdiction to” modify that award “when it finds that there has been a substantial material change in circumstances.” See Nicholson v. Nicholson, 2017 UT App 155, ¶ 7, 405 P.3d 749 (quotation simplified); see also Utah Code § 30-3-5(8)(i)(i) (2019).[3] If the court determines that no substantial material change in circumstances has occurred, then the court’s analysis ends, and the petition to modify the alimony award is properly denied. See Moon v. Moon, 1999 UT App 12, ¶ 27, 973 P.2d 431 (“As a threshold issue, before modifying an alimony award, the court must find a substantial material change in circumstances . . .” (quotation simplified)); see also Peeples v. Peeples, 2019 UT App 207, ¶ 32, 456 P.3d 1159 (affirming a district court’s denial of a petition to modify on the ground that there existed no substantial material change in circumstances).
¶22 If, however, the court finds that a substantial material change in circumstances has occurred, the court must conduct a complete analysis regarding whether the alimony award remains appropriate. See Nicholson, 2017 UT App 155, ¶ 7 (stating that, once a finding of changed circumstances “has been made, the court must then consider” the alimony factors (emphasis added) (quotation simplified)); accord Moon, 1999 UT App 12, ¶ 29. This analysis should include examination of the statutory alimony factors, see Utah Code § 30-3-5(8)(a) (2019), including the factors commonly referred to as “the Jones factors,” see Jones v. Jones, 700 P.2d 1072, 1075 (Utah 1985); see also Nicholson, 2017 UT App 155, ¶ 7 (stating that, after finding that circumstances have changed, “the court must then consider at least the following factors in determining a new alimony award: (i) the financial condition and needs of the recipient spouse; (ii) the recipient’s earning capacity or ability to produce income; (iii) the ability of the payor spouse to provide support; and (iv) the length of the marriage” (quotation simplified)). “These factors apply not only to an initial award of alimony, but also to a redetermination of alimony during a modification proceeding.” Williamson v. Williamson, 1999 UT App 219, ¶ 8, 983 P.2d 1103.
¶23 “Consideration of these factors is critical to achieving the purposes of alimony,” Paulsen v. Paulsen, 2018 UT App 22, ¶ 14, 414 P.3d 1023, which are “(1) to get the parties as close as possible to the same standard of living that existed during the marriage; (2) to equalize the standards of living of each party; and (3) to prevent the recipient spouse from becoming a public charge,” Miner v. Miner, 2021 UT App 77, ¶ 14, 496 P.3d 242 (quotation simplified). “The core function of alimony is therefore economic— it should not operate as a penalty against the payor nor a reward to the recipient.” Roberts v. Roberts, 2014 UT App 211, ¶ 14, 335 P.3d 378.
¶24 “Regardless of the payor spouse’s ability to pay more, the recipient spouse’s demonstrated need must constitute the maximum permissible alimony award.” Id. (quotation simplified); see also Barrani v. Barrani, 2014 UT App 204, ¶ 30, 334 P.3d 994 (“An alimony award in excess of the recipient’s need is a basis for remand”). Because a recipient spouse’s demonstrated need constitutes an effective “ceiling” on an alimony award, see Fox v. Fox, 2022 UT App 88, ¶ 19, 515 P.3d 481, courts often begin their analysis by assessing whether recipient spouses are able to meet their reasonable needs through their own income. See Vanderzon v. Vanderzon, 2017 UT App 150, ¶ 42, 402 P.3d 219 (stating that, in determining alimony, courts will generally “first assess the needs of the parties, in light of their marital standard of living” (quotation simplified)). If the recipient spouse is able to meet his or her own needs, then the analysis ends, and no award should be made, but if “the recipient spouse is not able to meet [his or] her own needs, then [the court] should assess whether the payor spouse’s income, after meeting his [or her] needs, is sufficient to make up some or all of the shortfall between the recipient spouse’s needs and income.” See id. (quotation simplified).
¶25 When considering the relevant alimony factors, courts are “required to make adequate factual findings on all material issues, unless the facts in the record are clear, uncontroverted, and capable of supporting only a finding in favor of the judgment.” Bukunowski v. Bukunowski, 2003 UT App 357, ¶ 9, 80 P.3d 153 (quotation simplified). When a district court fails to enter specific findings regarding “the needs and condition of the recipient spouse, making effective review of the alimony award impossible, that omission is an abuse of discretion.” Id. ¶ 10.
II
¶26 With these principles in mind, we turn our attention to Jacob’s assertion that the court failed to follow the correct process in adjudicating his petition to modify. In particular, Jacob asserts that the court—once it determined that there had been a substantial material change in circumstances—was required to conduct a complete analysis of all the alimony factors, and that it failed to properly do so.[4] We find merit in Jacob’s argument.
¶27 The district court started its analysis in the proper place, and assessed whether Jacob had demonstrated that there had been a substantial material change in circumstances that would justify reopening the alimony inquiry. Looking just at the change in Jacob’s own income, the court made a finding that there had been a “substantial change in circumstances.” And neither party takes issue with this finding on appeal; both appear to acknowledge the correctness of the court’s initial determination that circumstances affecting these parties had changed enough to justify a second look at the alimony situation.[5]
¶28 From there, though, the court’s analysis strayed from the proper path. After determining that the change in Jacob’s income constituted a substantial material change in circumstances, the court did not conduct a full analysis of the relevant alimony factors. With regard to Amy’s needs, the court’s analysis, in full, was simply this: “[Amyl testified that her monthly expenses have not increased from the time the parties were divorced in May 2018 until the time of trial in August of 2021.” The court made no finding that Amy’s testimony on that point was credible, see Rehn v. Rehn, 1999 UT App 41, ¶ 7, 974 P.2d 306 (“A trial court may not merely restate the recipient spouse’s testimony regarding her monthly expenses.” (quotation simplified)), and did not make any effort to assess what Amy’s reasonable monthly needs actually were; the court’s comparison to the 2018 divorce decree is especially unhelpful, in context, because that decree contained no specific determination regarding Amy’s expenses.
¶29 With regard to the parties’ earning capacity, the court acknowledged that Amy had obtained a full-time job that paid her $3,750 each month, and that Amy “earns additional income from a foot zoning business and teaching yoga.” But the court made no finding as to what Amy’s total income actually was, stating that “[n]o evidence was presented that [Amy] has obtained extra education or has otherwise increased her ability to earn since the time of the divorce, only that her actual income has increased.”
¶30 And with regard to Jacob, the court found that he had voluntarily left his job in the oil fields, and that he “remains able to earn income at the level he was earning” before. On that basis, the court imputed to Jacob income of $8,233 per month, despite the fact that Jacob was no longer earning that amount. Jacob takes no issue with this imputation determination on appeal.
¶31 The court then completed its analysis by stating as follows: “[Amy’s] financial needs and both parties’ ability to earn has not changed since the time the stipulated decree was entered. Therefore, [Jacob’s] Petition to Modify the alimony ordered in the decree is DENIED.”
¶32 In our view, the court was, at least to some extent, conflating the “changed circumstances” part of the analysis with the “Jones factors” part of the analysis. Its first mistake was failing to make a specific finding regarding Amy’s reasonable monthly needs. As noted, no such finding had been made in connection with the 2018 decree, and Amy had submitted two conflicting financial declarations since then. In order to complete the multi-factor alimony analysis mandated by the court’s unchallenged conclusion that circumstances had materially changed, the court needed to make an actual finding regarding Amy’s expenses.[6]
¶33 The next error the court made was in determining that Amy’s earning capacity had not changed, even though her income had. And here, it is important to differentiate between situations in which a spouse’s income goes down from situations in which a spouse’s income goes up. Certainly, where a spouse’s income goes down, it does not necessarily follow—indeed, it often does not follow—that the spouse’s earning capacity has also gone down; in such situations, courts retain the discretion to determine that, even though a spouse’s income has gone down, his or her earning capacity has not been diminished, and to impute to the spouse— for instance, on the basis of a finding of voluntary underemployment—an income in line with the unchanged earning capacity. See, e.g., Olson v. Olson, 704 P.2d 564, 566 (Utah 1985) (stating that where parties “experience[] a temporary decrease in income, [their] historical earnings must be taken into account in determining the amount of alimony to be paid”); Pankhurst v. Pankhurst, 2022 UT App 36, ¶¶ 14–15, 508 P.3d 612 (noting that “a finding of voluntary underemployment is not a prerequisite to imputing income,” and affirming a trial court’s determination to assess the payor spouse’s income at a higher level than his current income because the current lower income was “temporary” (quotation simplified)); Gerwe v. Gerwe, 2018 UT App 75, ¶ 31, 424 P.3d 1113 (crediting a trial court’s skepticism about a payor spouse’s sudden drop in income where the spouse “came into trial making a huge amount of money . . . and then all of a sudden is making no money because, you know, now it’s time to pay somebody” (quotation simplified)). Indeed, the district court made precisely such a finding with regard to Jacob, and no party takes issue with that finding here on appeal.
¶34 But the fact that a spouse’s income has gone up is very strong evidence that the spouse’s earning capacity has also risen. A party who is actually earning $45,000 per year will nearly always properly be deemed to have the capacity to earn at least that amount. There are, of course, exceptions: in some isolated instances, an increase in income is temporary and does not reflect an overall or long-term increase in earning capacity. See English v. English, 565 P.2d 409, 412 (Utah 1977) (stating that, when parties “experience[] unusual prosperity during one year,” that unusual income figure is not necessarily indicative of earning capacity); see also, e.g., Woskob v. Woskob, 2004 PA Super 37, ¶ 28, 843 A.2d 1247 (holding that a spouse’s earning capacity, moving forward, was not reflected by three “retroactive salary bonuses” that were not likely to occur in the future, and stating that, since the spouse’s “elevated salary during [the] period [in which he received those bonuses] is totally disproportionate to his actual earning capacity, his support obligation should reflect his earning capacity rather than his actual earnings”). But before concluding that a spouse’s earning capacity is less than the spouse’s actual income, a court should have evidence that the spouse’s higher income is truly ephemeral and not indicative of long-term earning capacity.
¶35 No such evidence is present here. Amy has obtained a full-time salaried position that pays her a steady income of $45,000 per year. There is no indication that this job is only temporarily available to her. The evidence was undisputed that Amy’s earning capacity, moving forward, has increased, as exemplified by her new job; indeed, she testified that she has “the ability to earn at least $3,750 a month” at that job, and that she would be able to “do that moving forward.” The district court’s observation that Amy had not “obtained extra education” in an effort to grow her earning capacity is true as far as it goes. But even in the absence of any extra education or training, a spouse’s earning capacity can rise, and a spouse’s ability to obtain and maintain a salaried job is an extremely strong piece of evidence so indicating.
¶36 We certainly take the court’s point that the reason Amy felt compelled to find additional employment was because Jacob made the decision to quit his job and pay her less in alimony. In the court’s view, Jacob’s decision “forc[ed]” Amy “to find additional employment.” We take no issue with the court’s observation that the law should not incentivize payor spouses to become voluntarily underemployed. But we do not think the law contains any such incentive; indeed, the customary (and presumably adequate) remedy for such behavior is for the court— where appropriate, and as the court did here—to find the payor spouse underemployed and impute to that spouse an income commensurate with the previous salary.[7]
¶37 Thus, we conclude that the district court erred in its analysis of Amy’s earning capacity. It erroneously determined that Amy’s earning capacity had not changed. And based on this determination, it stopped short of making a specific finding as to what Amy’s new earning capacity was, taking into account her new full-time job and, if appropriate, her part-time side endeavors. See Degao Xu v. Hongguang Zhao, 2018 UT App 189, ¶ 31, 437 P.3d 411 (“When determining an alimony award, it is appropriate and necessary for a trial court to consider all sources of income that were used by the parties during their marriage to meet their self-defined needs, including income from a second job.” (quotation simplified)). The court should remedy these errors on remand, and should complete the calculation regarding Amy’s expenses and earning capacity, thus answering the question Jacob raises, namely, whether Amy has the ability to take care of her own needs through her own income.
¶38 Finally, the court’s analysis regarding Jacob’s ability to provide support was also incomplete, and will require additional analysis in the event the court concludes that Amy is not completely able to pay for all of her reasonable monthly needs. See Vanderzon v. Vanderzon, 2017 UT App 150, ¶ 42, 402 P.3d 219 (“[I]f the court finds that the recipient spouse is not able to meet her own needs, then it should assess whether the payor spouse’s income, after meeting his needs, is sufficient to make up some or all of the shortfall between the recipient spouse’s needs and income.” (quotation simplified)). As already noted, the court imputed to Jacob a monthly income of $8,233, based on a finding of voluntary underemployment, and that determination is not challenged on appeal. But in order to compute Jacob’s ability to provide support to Amy to cover any determined shortfall, the court will need to compute Jacob’s reasonable monthly expenses, see Rehn, 1999 UT App 41, ¶ 10 (“To be sufficient, the findings should also address the obligor’s needs and expenditures, such as housing, payment of debts, and other living expenses.” (quotation simplified)), which the court did not endeavor to do in its order.
¶39 As to whether a shortfall exists, the parties take divergent positions on appeal. Jacob asserts that no shortfall exists, and that Amy is able to pay all of her own reasonable monthly expenses. Amy, for her part, contends that even with her newly increased income she still has “a shortfall of over $1,800.” But Jacob’s alimony obligation ($2,300) apparently exceeds even Amy’s current calculation of her shortfall; under Amy’s computation of expenses, then, Jacob would still be entitled to at least some modification of his alimony obligation. On remand, the district court should run this complete calculation, making specific findings on each of the relevant factors, and should determine the extent to which Jacob’s alimony obligation should be modified.
CONCLUSION
¶40 The district court did not apply the proper legal analysis to Jacob’s petition to modify, and erred when it concluded that Amy’s earning capacity had not changed. We reverse the court’s denial of Jacob’s petition to modify, and remand this case for further proceedings consistent with this opinion.
[1] Because the parties have the same last name, we refer to them by their first names for clarity, with no disrespect intended by the apparent informality.
[2] Amy does not argue that we should affirm the denial of Jacob’s petition to modify on the basis that the original award was derived from a stipulation, and therefore the district court’s comments about holding Jacob to his stipulation are not directly before this court. But we note, for clarity, that even stipulated alimony awards are subject to modification. See, e.g., Diener v. Diener, 2004 UT App 314, ¶ 5, 98 P.3d 1178 (noting that, while a court “is certainly empowered to consider the circumstances surrounding an existing stipulation when considering a petition to modify . . . , the law was intended to give the courts power to disregard the stipulations or agreements of the parties . . . and enter judgment for such alimony . . . as appears reasonable, and to thereafter modify such judgments when change of circumstances justifies it, regardless of attempts of the parties to control the matter by contract” (quotation simplified)); accord Sill v. Sill, 2007 UT App 173, ¶¶ 12–18, 164 P.3d 415.
[3] At the time Jacob filed his petition to modify, the relevant statute authorized modification of alimony awards when the movant could demonstrate that there had been “a substantial material change in circumstances not foreseeable at the time of the divorce.” Utah Code § 30-3-5(8)(i)(i) (2019) (emphasis added). In 2021, prior to the trial on Jacob’s petition to modify, our legislature amended that statutory provision; under current law, modification is authorized upon a showing that there has been “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. § 30-3-5(11)(a) (2022) (emphasis added). In this appeal, the parties have not briefed the question of which version of the statute applies to Jacob’s petition to modify, nor has either side suggested that the outcome of this case turns on these differences in statutory text. Operating on the assumption that Jacob is entitled to application of the version of the statute in effect when he filed his petition, see State v. Clark, 2011 UT 23, ¶ 13, 251 P.3d 829 (stating that “we apply the law as it exists at the time of the event regulated by the law in question,” and that when that event is a motion, “we apply the law as it exists at the time the motion is filed”), we apply the 2019 version of the statute in this appeal, but follow the parties’ lead in presuming this application to have no effect on the outcome of the case.
[4] Amy characterizes Jacob’s appellate claims as assertions that the district court’s findings were inadequate, and argues based on this characterization that Jacob—by not asking the court to make more detailed findings—failed to preserve his claims for appellate review. See In re K.F., 2009 UT 4, ¶ 60, 201 P.3d 985 (stating that a party “waives any argument regarding whether the district court’s findings of fact were sufficiently detailed when the [party] fails to challenge the detail, or adequacy, of the findings with the district court” (quotation simplified)). While we acknowledge— as discussed herein—that the court did not make findings on several of the alimony factors, that was due to the court’s error (discussed herein) regarding Amy’s earning capacity, and its concomitant failure to complete the proper legal analysis. Thus, we disagree with Amy’s characterization of Jacob’s claims on appeal, and note that Jacob certainly preserved for our review the general question of whether the district court applied the correct legal analysis to his petition to modify, as well as the more specific question of whether Amy can meet her needs through her own income. Thus, we reject Amy’s assertion that Jacob’s contentions on appeal were not properly preserved for our review.
[5] We note that the court made this determination by looking solely at the change in Jacob’s income. Arguably, the change in Amy’s income would constitute a second basis for a determination that circumstances had changed significantly enough to revisit the appropriateness of the alimony award. Ultimately, however, it does not matter, for purposes of this appeal, which change the district court relied on to determine that a substantial material change had taken place.
[6] Amy argues that the “facts concerning [her] financial needs and conditions are clear from the record,” and on that basis urges us to excuse the court’s failure to make a specific finding. We disagree with the premise of Amy’s argument. At trial, Amy testified that her expenses had stayed the same since May 2018, but there was no 2018 figure to which Amy’s testimony could be compared. Moreover, after 2018, Amy submitted two conflicting financial declarations and, at trial, Jacob’s attorney established that Amy was then living alone rather than with one or more of the parties’ children. We therefore agree with Jacob that the evidence in the record regarding Amy’s expenses was sufficiently conflicting as to be significantly less than “clear.”
[7] Moreover, we do not think it inappropriate, in the abstract, for payee spouses to make an effort to enter the workforce, and thereby pursue a higher standard of living and a greater degree of independence from the payor spouse. We recognize that many spouses who have long been out of the workforce may find it difficult to reenter it, with or without additional education or training; generally speaking, our law does not require payee spouses in that situation to attempt to reenter the workforce in ways incongruous with their employment history. But a spouse who, whether by chance or perseverance, manages to gain a foothold in the workforce after a long absence may very well benefit from the experience; as we see it, our law should encourage self-sustainability and independence. Accordingly, we do not necessarily view—as the district court seemed to—the outcome of Amy’s employment journey to be an unfortunate one.
This opinion is subject to revision before final publication in the Pacific Reporter
MacDonald v. MacDonald – 2018 UT 48
IN THE SUPREME COURT OF THE STATE OF UTAH
KIRKPATRICK MACDONALD,
Petitioner,
v.
LEE ANN MACDONALD,
Respondent.
No. 20170789
Filed September 5, 2018
On Certiorari to the Utah Court of Appeals
Third District, Silver Summit
The Honorable Kara L. Pettit
No. 104500031
Attorneys:
Troy L. Booher, Julie J. Nelson, Bart J. Johnsen, Salt Lake City, for Petitioner
Matthew A. Steward, Shannon K. Zollinger, Salt Lake City, for Respondent
ASSOCIATE CHIEF JUSTICE LEE authored the opinion of the Court, in which CHIEF JUSTICE DURRANT, JUSTICE HUMONAS, JUSTICE PEARCE, and JUSTICE PETERSEN joined.
ASSOCIATE CHIEF JUSTICE LEE, opinion of the Court:
¶1 Kirkpatrick MacDonald (MacDonald) filed a petition to vacate or reduce the alimony award to his former spouse Lee Anne MacDonald (now known as Lee Anne Fahey). The district court denied MacDonald’s petition under Utah Code section 30-3-5(8)(i)(i). In doing so it applied a standard set forth in a line of cases from our court of appeals, which allows a modification of an alimony order only if there is a substantial change in circumstances that was not “contemplated” in the original decree of divorce. See Bolliger v. Bolliger, 2000 UT App 47, ¶ 11, 997 P.2d 903. That decision was affirmed on appeal to our court of appeals, but under a different standard.
¶2 The court of appeals repudiated the contemplated in the decree standard set forth in Bolliger and other cases. It concluded that those cases had been overtaken by the text of Utah Code section 30-3-5(8)(i)(i), which allows for a modification only where there is “a substantial material change in circumstances not foreseeable at the time of the divorce.” But it affirmed the district court on the ground that the change in circumstances alleged by MacDonald was foreseeable at the time of the divorce in this case.
¶3 MacDonald asks us to reverse the court of appeals on the grounds that (1) the contemplated in the decree standard should be read into the statute by virtue of the “prior construction” canon of interpretation, see Christensen v. Indus. Comm’n, 642 P.2d 755, 756 (Utah 1982) (discussing the prior construction canon); and (2) the change in circumstance identified by MacDonald was neither contemplated in the divorce decree nor foreseeable at the time of the divorce. We affirm, while clarifying the standard that applies under Utah Code section 30-3-5(8)(i)(i).
¶4 We hold that there is no basis in the prior construction canon for the contemplated in the decree standard set forth in Bolliger and other cases. We base that conclusion on the absence of the core predicate for this canon—an authoritative construction by the courts of the operative language of the statute. Neither Bolliger nor any of the other cited cases ever attempted to interpret the text of the statute. They simply perpetuated a standard set forth in a prior line of cases (and established under a prior statutory regime). And without an authoritative construction of the statute there is no basis for the prior construction canon.
¶5 To this extent we affirm the standard embraced by the court of appeals. We hold that the plain language of the statute applies— and that the question is whether an alleged substantial change was “foreseeable” at the time of the divorce, not whether it was “contemplated” in the divorce decree. But we also raise a point of clarification that is not addressed explicitly in the decision of the court of appeals. We clarify that the inquiry of foreseeability is limited to the universe of information that was presented in the record at the time the district court entered the divorce decree.
¶6 We also affirm the court of appeals’ application of the legal standard to the facts of this case under this clarified standard. We hold that MacDonald failed to carry his burden of establishing, on the basis of the record that was before the court that entered the divorce decree, that the change that he alleges was not foreseeable.
I
¶7 MacDonald filed for divorce from Fahey in February 2010. MacDonald and Fahey entered into a mediated settlement agreement, which was fully incorporated into a divorce decree. That agreement required MacDonald to pay alimony to Fahey through December 2020 (or earlier if she remarried, cohabited, or died). Per the agreement, alimony payments increased from $2,000 per month to $6,000 per month after December 2012—the last month that MacDonald owed a monthly $4,000 property settlement payment to Fahey.
¶8 The agreement also divided the marital real property. Fahey acquired ownership to three unencumbered lots. MacDonald agreed to pay the homeowner’s association fees and property taxes on those lots as a loan, for five years or until Fahey sold one of the lots, at which time Fahey would reimburse MacDonald.
¶9 After the settlement agreement was signed and the divorce decree was entered one of Fahey’s lots sold for $1,425,000. MacDonald “was directly involved in and responsible for the sale.” Both MacDonald and Fahey agreed to that sale prior to entry of the divorce decree. And the sale closed shortly after the decree was entered. Fahey placed most of the proceeds from the property sale into an investment account that she previously opened with the $200,000 financial settlement MacDonald paid Fahey before mediation. That investment account now produces about $45,000 in annual income for Fahey.
¶10 In light of the property sale and Fahey’s new income, MacDonald filed a petition to vacate or reduce the alimony award under Utah Code section 30-3-5(8)(i). The district court denied MacDonald’s petition. In so doing it applied a test from a line of cases handed down by the Utah Court of Appeals, citing Wall v. Wall, 2007 UT App 61, 157 P.3d 341; Moon v. Moon, 1999 UT App 12, 973 P.2d 431; and Moore v. Moore, 872 P.2d 1054 (Utah Ct. App. 1994). That test grants the district court continuing jurisdiction to modify a divorce decree when a substantial change of circumstances is “not contemplated” by the decree itself. The court concluded that the divorce decree “expressly contemplate[d] that [Fahey] would sell the lots and use the proceeds of the sales of those lots to pay her expenses[,]” therefore precluding the court from modifying the alimony award.
¶11 MacDonald appealed the denial of the petition. The court of appeals affirmed. But it based its decision on a different standard than that applied by the district court. It interpreted Utah Code section 30-3-5(8)(i)(i) to warrant a modification of alimony only when “a substantial material change in circumstances [was] not foreseeable.” MacDonald v. MacDonald, 2017 UT App 136, ¶ 12, 402 P.3d 178. And it defined “‘foreseeable’ as ‘being such as may reasonably be anticipated.’” Id. ¶ 11 (citing WEBSTER’S THIRD INT’L DICTIONARY 890 (1971)). “From the linguistic and structural position of this term in the statute” the court of appeals inferred “that the legislature purposely did not use the verb ‘foresee’ in its past tense, ‘foreseen.’” Id. It also found that “distinction . . . important.” Id. It concluded that “[i]f the provision required that the changed circumstances warranting modification were not actually foreseen, then a petitioner would bear the burden of showing that when the decree was entered the parties or the court had not actually contemplated that such a change would occur.” Id. “Instead,” the court concluded, “the legislature employed the adjective ‘foreseeable,’” which in the court of appeals’ view “includes not only those circumstances which the parties or the court actually had in mind, but also circumstances that could ‘reasonably be anticipated’ at the time of the decree.” Id.
¶12 In so holding the court of appeals rejected the standard that MacDonald sought to import from a line of prior court of appeals cases—most significantly Bolliger v. Bolliger, 2000 UT App 47, 997 P.2d 903. MacDonald had cited Bolliger for the proposition that a successful petition for a change in alimony must show that “a substantial material change of circumstances has occurred ‘since the entry of the decree and not contemplated in the decree itself.’” Id.¶ 11 (emphasis removed) (quoting Durfee v. Durfee, 796 P.2d 713, 716 (Utah Ct. App. 1990)). Yet the court of appeals rejected the Bolliger standard on the ground that the court in that case had not addressed the governing statutory language, enacted by the legislature in 1995, but instead had simply carried forward a standard that had been adopted in our case law before the enactment of the governing statute. MacDonald, 2017 UT App 136, ¶ 16 (concluding that “the Bolliger court did not address whether the 1995 amendment altered the applicable standard” and holding that “the standard did change and we apply that standard today”).
¶13 The court of appeals then affirmed the district court’s decision under the statutory standard. It did so on the ground that it could not “say that it was unforeseeable that Fahey would sell some of the real estate and invest the proceeds” in the manner that she had done. Id. ¶ 18. To support that conclusion the court of appeals emphasized the following points: (a) the “express terms” of the divorce decree “discussed certain obligations that would arise if and when Fahey sold the [p]roperty,” thus leaving “no doubt” that the sale of the property was foreseeable, id. ¶ 19; (b) a “reasonable person will normally act in a prudent manner to protect his or her financial interests and security,” such that it is “not merely foreseeable” but “likely” that a person in Fahey’s position would assure that the proceeds of a real estate transaction “would not be frittered away or left to gather dust,” id. ¶ 18; and (c) Fahey invested the $200,000 that was paid to her by MacDonald “in an investment account,” such that it “is hardly a stretch to foresee that if real property were liquidated the proceeds of that sale might be deposited in that same account for investment purposes,” id. In light of “these facts” the court of appeals held that “the trial court did not exceed its discretion when it concluded that MacDonald failed to show an unforeseeable substantial material change in circumstances from the time” of the divorce decree. Id. ¶ 19.
¶14 MacDonald filed a petition for certiorari. The threshold question presented is a question of law—as to the governing standard on a petition to modify an alimony award. Our review of such a question is de novo. In re Baby B., 2012 UT 35, ¶ 41, 308 P.3d 382. We are also asked to consider the propriety of the court of appeals’ application of the governing standard to the facts of this case. Our review of the court of appeals’ decision is for correctness. State v. Levin, 2006 UT 50, ¶ 15, 144 P.3d 1096.
II
¶15 The court of appeals applied a standard that asks not whether a given change in circumstances was “contemplated” in a divorce decree but instead whether that change was “foreseeable” at the time the decree was entered. MacDonald v. MacDonald, 2017 UT App 136, ¶¶ 17–19, 402 P.3d 178. It defined foreseeable as that which “may reasonably be anticipated.” Id. ¶ 11 (quoting WEBSTER’S THIRD INT’L DICTIONARY 890 (1971)). And it concluded that the district court did not exceed its discretion in concluding that MacDonald failed to show that Fahey’s sale of the property and investment of its proceeds was “an unforeseeable substantial material change” at the time of the original divorce decree. Id. ¶ 19.
¶16 MacDonald challenges the court of appeals’ decision on two fronts. His first argument is a challenge to the legal standard adopted by the court of appeals. His second goes to the application of that standard to the facts of this case. We affirm the judgment of the court of appeals, but offer some clarification on the governing standard.
The Governing Standard Under Section 30-3-5(8)(i)(i)
¶17 MacDonald views the contemplated in the decree standard as a matter established by settled case law. He asks us to reverse the court of appeals on the basis of the “prior construction” canon of statutory interpretation. This canon says that an amendment to a statutory scheme can be presumed to have incorporated an authoritative “judicial construction[]” of statutory language that was in place when the legislature adopted the amendment. See Christensen v. Indus. Comm’n, 642 P.2d 755, 756 (Utah 1982). MacDonald views this canon as applicable because he sees the contemplated in the decree standard as an established judicial construction of Utah Code section 30-3-5(8)(i)(i). He claims that the court of appeals erred in crediting the statutory text, which speaks in terms of an unforeseeable change rather than one not specifically contemplated in a divorce decree, because he thinks that the prior construction canon compels the conclusion that the statute incorporates the interpretation embraced in Bolliger and other cases.
¶18 The parties argue over two separate components of the operative test. The first goes to the relevant verb and verb tense: MacDonald says that the operative standard is contemplated, meaning actually anticipated (past tense) at the time of the divorce decree, while Fahey says that the standard is foreseeable, meaning reasonably capable of being anticipated. The parties argue at length about this question, with MacDonald insisting that the prior construction canon requires an inquiry into whether the alleged change was contemplated and Fahey asserting that the statutory language is clear in speaking only of reasonable foreseeability.
¶19 But this is not the only dimension of the parties’ disagreement. MacDonald is also asking for a standard that speaks to the relevant universe of information to be considered in assessing contemplation (or foreseeability). In arguing for a contemplated in the decree standard MacDonald is also asking us to confine the analysis of whether a certain change was contemplated or foreseeable to information set forth in the divorce decree or at least evident in the record of the district court.
¶20 We hold that the prior construction canon is not applicable in these circumstances. We find no authoritative judicial construction of the governing statutory text and thus hold that there is no basis for a conclusion that the legislature adopted the standard endorsed in a line of case law into the terms of the statute. And on that basis we affirm the court of appeals’ determination that Utah Code section 30-3-5(8)(i)(i) means what it says—a court has authority to grant a petition to modify an alimony order if there is a “substantial material change in circumstances not foreseeable at the time of the divorce.” (Emphasis added).
¶21 We explain the basis for this conclusion in Part II.A.1 below. But this speaks only to the verb and verb tense question. That leaves the question of the relevant universe of information to consider in deciding whether an alleged “substantial material change in circumstances” is foreseeable. This is a question that the court of appeals did not address expressly. We consider it in Part II.A.2, and conclude that MacDonald is right to suggest that foreseeability should be assessed on the basis of information either in the divorce decree or at least in the record of the court that entered it.
“Not Contemplated” or “Not Foreseeable”? (The Prior Construction Cannon)
¶22 The prior construction canon applies where “a word or phrase” in a statute “has been authoritatively interpreted by the highest court in a jurisdiction, or has been given a uniform interpretation by inferior courts.” ANTONIN SCALIA & BRYAN A. GARNER, READING LAW: THE INTERPRETATION OF LEGAL TEXTS 322(2012). Where this premise is established the courts treat the authoritative interpretation of a word or phrase as a legal term of art. And a “later version” of a statute “perpetuating the wording is presumed to carry forward” the established judicial interpretation. Id.; see id. at 324 (articulating the “term of art” justification for this canon; noting that a word or phrase that has been authoritatively construed acquires a “technical legal sense” that “should be given effect in the construction of later-enacted statutes”); see also Rueda v. Utah Labor Comm’n, 2017 UT 58, ¶ 94 & n.32, P.3d (opinion of Durrant, C.J.) (relying on the prior construction canon to conclude that “by accident” is a term of art in the Workers’ Compensation Act).
¶23 This canon, however, requires an actual prior construction. All of our cases that have embraced this canon have arisen in circumstances in which a statutory amendment or reenactment is adopted in the face of a body of cases interpreting the words of the statute.[1] That stems from the central premise of the canon. Without a prior judicial construction of the terms of a statute there is no basis for the conclusion that the legislature has “carr[ied] forward” the judicial interpretation given to a prior version of the statute. SCALIA & GARNER, READING LAW 322.
¶24 And here we have no basis for this crucial premise of the canon. None of the cases cited by MacDonald involves an attempt to interpret the controlling language of Utah Code section 30-3-5(8)(i)(i). The contemplated in the decree standard, in fact, was applied in our case law well before the initial adoption of the controlling statute. That statute (which speaks of whether an alleged change was “foreseeable”) was first enacted in 1995. UTAH CODE§ 30-3-5(5)(g)(i) (1995). Before that date, the governing statute said nothing of foreseeability (or contemplation). It simply recognized the broad discretion of the court to grant a petition to modify. Id.§ 30-3-5(3) (1994) (“The court has continuing jurisdiction to make subsequent changes or new orders for the support and maintenance of the parties . . . as is reasonable and necessary.”).
¶25 The body of cases invoked by MacDonald to support the contemplated in the decree standard existed under this broad, general provision. The reference to a change “contemplated” in the divorce decree traces back to a series of decisions of this court.[2] But there are no Utah Supreme Court cases on this issue after the 1995 enactment of the now-controlling statute. And there is accordingly no authoritative decision from this court – no Utah Supreme Court “judicial construction” to sustain the prior construction canon.
¶26 The same goes for the Utah Court of Appeals. There is again a long line of court of appeals decisions that speak in terms of a change “contemplated” in a divorce decree.[3] But the seminal cases trace back to a time that long predates the 1995 enactment of the now-controlling statute.[4] And the post-1995 cases, to the extent they restate the contemplated in the decree standard, do so without any independent statutory analysis—without any authoritative judicial construction.
¶27 MacDonald points to Bolliger v. Bolliger, 2000 UT App 47, 997 P.2d 903, for his contrary conclusion. Bolliger was indeed handed down after the 1995 enactment of the controlling statute. And, as MacDonald notes, Bolliger does apply the contemplated in the decree standard. See id. ¶¶ 11–20. But Bolliger still does not hand down an authoritative judicial construction of the 1995 statute. As the court of appeals in this case noted, Bolliger punts on this question on the ground that the parties in that case had not challenged the applicability of case law “requiring evidence that [an alleged] change was foreseen at the time of the divorce.” Id. ¶ 11 n.3 (emphasis added).
¶28 That concession was understandable given that the divorce decree in that case was entered in 1987—many years before the 1995 enactment of the new statute. See id. ¶ 2. The timing of the divorce decree is likely the explanation for the court of appeals’ determination that the older cases were “sound and grounded in principles of res judicata.” Id. ¶ 11 n.3. If a divorce decree was handed down at a time when an earlier legal regime was in place, the parties might well have expected that their decree would be governed by the law in place at that time. See State v. Clark, 2011 UT 23, ¶ 13, 251 P.3d 829 (“[W]e apply the law as it exists at the time of the event regulated by law in question.”). The Bolliger court, in any event, seemed to think of it that way. And it surely did not engage in an interpretation of the 1995 statute. Nor did any of the other cases cited by MacDonald.
¶29 We reject MacDonald’s threshold argument on this basis. We hold that an essential premise of the prior construction canon is a prior construction of the operative statutory language. And because there was no prior construction of Utah Code section 30-3-5(8)(i)(i) we agree with the court of appeals that the meaning of the statute was an open question.
¶30 We also agree with the court of appeals that the statute plainly contradicts the body of cases cited by MacDonald on the verb tense point that he raises. The statute speaks clearly and unequivocally in terms of a showing of a substantial material change that is “not foreseeable.” UTAH CODE § 30-3-5(8)(i)(i). That verb and verb tense are inconsistent with the “contemplated” formulation in the prior case law. We affirm the court of appeals and repudiate the contemplated standard in the case law on this basis.
The Record for Assessing Foreseeability
¶31 The above conclusion, however, does not resolve the second dimension of MacDonald’s argument—the question of the relevant universe of information to be considered in deciding whether an alleged substantial material change is foreseeable. The foreseeability inquiry requires a threshold determination of the relevant scope of information to be considered. It is not enough to simply note that something is foreseeable if it can be reasonably anticipated. See MacDonald v. MacDonald, 2017 UT App 136, ¶ 11, 402 P.3d 178 (citing a dictionary definition to this effect). Anything and everything can be reasonably anticipated if we assume omniscient access to enough information. But that cannot be what the statute has in mind— otherwise the statute would be a nullity, and we cannot construe it as such. See Meinhard v. State, 2016 UT 12, ¶ 33, 371 P.3d 37.
¶32 In this sense the governing statute is underdeterminate. It articulates the governing standard (“not foreseeable”). And it identifies the relevant timeframe (“at the time of the divorce”). See UTAH CODE § 30-3-5(8)(i)(i). But it doesn’t tell us what information to consider in deciding whether an alleged substantial change is foreseeable.
¶33 We can answer that question, however, by resorting to a body of case law—the same body of cases discussed in Part II.A.1 above. We have refused to treat those cases as having adopted an authoritative judicial construction of foreseeability under the statute because the cited cases never interpreted the term foreseeable. They announced a standard requiring that a change be actually contemplated, and they did so in a line of cases handed down under a statutory regime that did not identify a legal standard but instead conferred broad discretion on the trial court. The actually contemplated standard is in nowise an interpretation of the governing statute. And we have declined to deem it incorporated into the statute under the prior construction canon of interpretation.
¶34 But that does not render this body of cases irrelevant. The cases do more than just speak to the relevant verb tense. They also speak to the relevant universe of information that is to be considered in assessing whether an alleged change is sufficient to sustain a petition to modify. On that question the cases cited by MacDonald are clear and consistent. For years our “appellate courts have consistently required that trial courts make adequate findings on all material issues of alimony to reveal the reasoning followed in making the award.” Johnson v. Johnson, 855 P.2d 250, 253 (Utah Ct. App. 1993). Our court of appeals has accordingly noted that “if a trial court knows that a party will be receiving additional future income it should make findings as to whether such additional income will affect the alimony award.” Id. And it has connected this requirement to a limitation on the scope of information that courts can consider in assessing whether an alleged substantial change is sufficient to sustain a petition to modify an alimony award.
¶35 The court of appeals has explained how the trial court is to decide whether to consider future income in making an alimony award. In the Johnson case the court noted that “[i]f . . . future income. . . is too speculative at the time of trial to anticipate the effect it will have on a receiving spouse’s financial condition and needs, the court may, in its discretion, delay the determination of how the future income will affect the alimony award.” Id. at 254. But the court also identified a means for this “delay”: the court can “make findings indicating that the future income has not been considered in making
¶36 The court of appeals has held, in other words, that “[t]he fact that the parties may have anticipated an increase of income in their own minds or in their discussions does not mean that” the change is foreseen or foreseeable. Durfee v. Durfee, 796 P.2d 713, 716 (Utah Ct. App. 1990). “In order for a material change in circumstances” to be foreseen or foreseeable “there must be evidence, preferably in the form of a provision within the decree itself, that the trial court anticipated the specific change.” Id. (emphasis added).
¶37 This is an answer to the scope of information question. It is consistently established in the above line of cases. And we think it appropriate to adopt this limitation as a gloss on the standard set forth in Utah Code section 30-3-5(8)(i)(i).
¶38 When the legislature enacted this statute in 1995 it overrode the actually contemplated standard set forth in the case law. See SCALIA & GARNER, READING LAW 256 (“If the legislature amends or reenacts a provision . . . a significant change in language is presumed to entail a change in meaning.”). But it did not override the other element of these cases—the element limiting the foreseen or foreseeable inquiry to information contained in the record of the trial court that entered the divorce decree. The statute, in fact, is silent on the threshold inquiry into the universe of information that is to be considered in the foreseeability analysis. Supra ¶ 32. This inquiry is a necessary predicate to the court’s determination that a change is foreseeable. Supra ¶ 31. That means the 1995 statute does not comprehensively cover the alimony modification standard. And when the legislature prescribes a rule “not ‘in full,’” “what remains is to be governed by preexisting law, unamended.” SCALIA & GARNER, READING LAW 96. The court of appeals previously answered this threshold question. See, e.g., Durfee, 796 P.2d at 716; Dana v. Dana, 789 P.2d 726, 729 (Utah Ct. App. 1990). And our preexisting determination on the relevant scope of information remains controlling, so long as it is consistent with the terms of the controlling statutory scheme. For that reason we find it appropriate to incorporate this aspect of the cases cited by MacDonald into the statute.
¶39 We do so not on the basis of the prior construction canon of interpretation but because the 1995 statute does not comprehensively detail the foreseeability inquiry. That inquiry must be conducted by reference to some appropriate universe of information. And because the statute does not itself speak to that universe we look to preexisting law to regulate the relevant scope of information—our court of appeals’ cases.
¶40 This conclusion responds to a practical or policy argument advanced by MacDonald. MacDonald has insisted that the contemplated in the decree standard is necessary to reconcile the standard for alimony modification with the standard we established for prospective modification (within an alimony decree). See Richardson v. Richardson, 2008 UT 57, 201 P.3d 942. In Richardson we held that a divorce decree may be prospectively modified (within the decree itself) only as to future events that are “certain to occur within a known time frame.” Id. ¶ 10. In MacDonald’s view the contemplated in the decree standard from the court of appeals cases is an essential counterpart to the Richardson test. Thus, MacDonald says that (a) a future event that is certain to occur within a known time frame may be built into the divorce decree, with a prospective modification triggered by the occurrence of that event; but (b) a future event that is less certain but foreseen should be noted by findings by the court that entered the divorce decree, in a manner that opens the door to a petition for modification. As to events not expressly contemplated in the decree, however, MacDonald asserts that they are not sufficient to sustain a petition to modify.
¶41 MacDonald’s concerns are valid. But his point goes only to the universe of information question. It provides additional, pragmatic support for assessing foreseeability on the basis of information evident in the record before the district court that handed down the divorce decree. For these and other reasons we agree with MacDonald that the foreseeability of an alleged substantial change should be assessed only on the basis of material available in the record of the trial court that entered the original divorce decree (or that is the proper subject of judicial notice).
Application of the Governing Standard
¶42 MacDonald also challenges the court of appeals’ application of the governing standard under Utah Code section 30-3-5(8)(i)(i). He first notes that the divorce decree did “not obligate” Fahey to sell her property. And he accordingly suggests that the sale of the property was not foreseeable when it sold almost immediately after the divorce decree was entered.
¶43 MacDonald also contends that the court of appeals erred in basing its assessment of foreseeability on the vague notion that an owner might sell her property and that most people are likely to be prudent with their finances. In MacDonald’s view “a quick sale at a windfall price” was not foreseeable, nor was “the amount of money” Fahey would ultimately “generate.” Thus, MacDonald suggests that the statute contemplates a specific notion of foreseeability— foreseeability of a specific decision to invest the proceeds of the property sale (rather than spend them or use them in some other way) in a manner creating a specific stream of income.
¶44 We affirm. The sale of the property was foreseeable under the express terms of the decree. And MacDonald has not established that Fahey’s investment of the proceeds was unforeseeable.
¶45 The divorce decree’s express provisions confirm that the sale of the property was foreseeable. The decree expressly “discussed certain obligations that would arise if and when Fahey sold the [p]roperty.” MacDonald v. MacDonald, 2017 UT App 136, ¶ 19, 402 P.3d 178. It mandated “that certain expenses would be paid from the proceeds flowing from the sale of the awarded real property.” Id. The express terms of the decree thus “leave[] no doubt that the sale of the [p]roperty” was foreseeable. Id.
¶46 MacDonald highlights aspects of the transaction—the precise sales price and exact timing of the sale—that he claims were unforeseeable. And he asserts that the unforeseeability of these details sustains his petition to reopen the alimony award at issue. We disagree. An alimony award may be reopened when a petitioner identifies a “substantial material change in circumstances not foreseeable at the time of the divorce.” UTAH CODE § 30-3-5(8)(i)(i) (emphasis added). That means that the petitioner bears the burden of showing that the changed circumstances that he claims to be material were unforeseeable (based on evidence in the record at the time of the initial divorce decree). Some details will always be unforeseeable. No one could have foreseen the precise sales price to the penny or the exact date of the closing of the transaction. But these are not the alleged material circumstances. The relevant circumstance was the sale of the property (and subsequent investment of the proceeds, which we discuss below). And MacDonald has not shown that that was not foreseeable.
¶47 MacDonald bears the burden of proving unforeseeability, moreover. And he must do so on the basis of evidence in the original trial record. The record evidence is sparse—consisting of the divorce petition, the stipulated agreement, the trial court’s findings of fact and conclusions of law, and the decree of divorce.[5] And none of these documents provide a basis for MacDonald’s assertion that the approximate date or sales price of the property were unforeseeable. Certainly we have “no evidence that the parties agreed to the property distribution based on any mutual understanding of the value of the parcels involved.” MacDonald, 2017 UT App 136, ¶ 19n.7. Nor do we have any basis for concluding that the foreseeable property sale had an expected sale date.
¶48 We also agree with the court of appeals that MacDonald failed to carry his burden of proving that Fahey’s investment of the proceeds of this transaction was unforeseeable. Id. ¶ 18. The court of appeals took judicial notice of the notion that “[a] reasonable person will normally act in a prudent manner to protect his or her financial interests and security.” Id. It also stated that “[i]t would be unreasonable to expect that Fahey would necessarily either dissipate [the cash settlement she received from the decree] in the short term or that she would otherwise not handle these funds in a financially prudent manner.” Id. We find no error in this approach.
¶49 MacDonald is right to note that the foreseeability inquiry cannot rest on post hoc rationalizations about what a reasonable person might likely have done. The focus must be on information in the record at the time of the entry of the original divorce decree. But that does not foreclose a court’s judicial notice of the sorts of financial choices that a reasonable person is likely to make. Nor does it excuse the petitioner from carrying his burden of proof. And here MacDonald has not established that it was unforeseeable, based on the record of the trial court that entered the original divorce decree, that Fahey would invest the proceeds of the foreseeable property sale in the general manner in which she invested them.
¶50 Some of the details of the investment may have been unforeseeable. The specific broker that Fahey would ultimately use, for example, likely was not foreseeable. Nor was the precise rate of return that she would earn. But those are minor details—not the core material circumstance that MacDonald claims has changed. That circumstance is the availability of an income stream generated by a property sale and a conservative investment of the proceeds. And MacDonald has not shown that those events were unforeseeable at the time of the divorce decree and based on the record in the court that entered that decree.[6] We affirm on that basis.
¶51 In so doing we also reject MacDonald’s assertion that the fact-intensive nature of the foreseeability inquiry requires a remand to the district court. Such a remand would have been permissible— certainly within the discretion of the court of appeals. But we see no reason to require it. And we affirm on the ground that MacDonald has failed to carry his burden of establishing that the sale of property and investment of proceeds was unforeseeable.
III
¶52 A petition to modify an alimony order requires a showing of “a substantial material change in circumstances [that was] not foreseeable at the time of the divorce.” UTAH CODE § 30-3-5(8)(i)(i). We hold that this provision means what it says. A petitioner must make a showing that a substantial, material change was “not foreseeable at the time of the divorce.” We affirm the court of appeals on this point, and we repudiate a line of cases that had held that a petition to modify can be sustained upon a showing that an alleged material change was not “contemplated” in the divorce decree.
¶53 In so doing we clarify, however, that the foreseeability inquiry must be based on evidence that was in the record of the trial court that entered the decree. And we affirm the court of appeals’ determination that MacDonald failed to carry his burden of establishing that Fahey’s sale of the property and investment of the proceeds were not foreseeable.
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[1] See, e.g., Rocky Mountain Helicopter, Inc. v. Carter, 652 P.2d 893, 895–96 (Utah 1982) (explaining that the statutory text at issue was “squarely addressed in” a previous case, determining that the later amendments were minor, and concluding that the legislature adopted our interpretation when it “re-enact[ed] th[e] subdivision without substantial change”); State v. Roberts, 190 P. 351, 352 (Utah 1920) (applying the prior construction canon where a prior case interpreted the statute and “the Legislature re-enacted the section in the precise language as it was when it was construed in the [prior] [c]ase”); see also Jedrziewski v. Smith, 2005 UT 85, ¶¶ 12–13, 128 P.3d 1146 (rejecting the application of the prior construction canon in the absence of a majority opinion interpreting the statute).
[2] Mineer v. Mineer, 706 P.2d 1060, 1062 (Utah 1985); Stettler v. Stettler, 713 P.2d 699, 701 (Utah 1985); Naylor v. Naylor, 700 P.2d 707, 710 (Utah 1985); Lea v. Bowers, 658 P.2d 1213, 1215 (Utah 1983).
[3] See, e.g., Young v. Young, 2009 UT App 3, ¶ 9, 201 P.3d 301 (citing the alimony modification statute and holding that “social security benefits can constitute a substantial material change in circumstances for alimony modification purposes, so long as not expressly foreseen in the original decree of divorce” (emphasis added)); Wall v. Wall, 2007 UT App 61, ¶ 11, 157 P.3d 341 (noting that a substantial change of circumstances must not be “contemplated in the decree itself” but further stating that a change “reasonably contemplated at the time of divorce . . . is not legally cognizable as a substantial change in circumstances” (quoting Moore v. Moore, 872 P.2d 1054, 1055 (Utah Ct. App. 1994), and Dana v. Dana, 789 P.2d 726, 729 (Utah Ct. App. 1990))); Nelson v. Nelson, 2004 UT App 254, ¶ 2, 97 P.3d 722 (quoting the alimony modification statute and then quoting the contemplated in the decree standard); Bolliger v. Bolliger, 2000 UT App 47, ¶ 11, 997 P.3d 903 (quoting the alimony modification statute and then quoting the contemplated in the decree standard).
[4] See, e.g., Moore, 872 P.2d at 1055–56; Throckmorton v. Throckmorton, 767 P.2d 121, 124 (Utah Ct. App. 1988).
[5] The remaining documents filed in the record prior to the divorce decree entry are not relevant to the issues before us.
[6] The court of appeals seems to have reached outside the relevant record in concluding that Fahey’s generation of investment income was foreseeable in light of the fact that “Fahey put the $200,000 [cash settlement], which was paid prior to the execution of the Agreement, in an investment account.” MacDonald, 2017 UT App 136, ¶ 18. In light of that evidence, the court of appeals concluded that “[i]t is hardly a stretch to foresee that if real property were liquidated the proceeds of that sale might be deposited in that same account for investment purposes.” Id. But the premise of this analysis does not appear in the record of the trial court that entered the original divorce decree. For that reason we do not rely on Fahey’s alleged investment of the $200,000 settlement in our foreseeability analysis.