MacDonald v. MacDonald

This opinion is subject to revision before final
publication in the Pacific Reporter

2018 UT 48

IN THE

SUPREME COURT OF THE STATE OF UTAH

KIRKPATRICK MACDONALD,
Petitioner,
v.
LEE ANNE 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 HIMONAS, 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
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Opinion of the Court
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

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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.

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¶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

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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

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Opinion of the Court
the court of appeals, but offer some clarification on the governing
standard.
A. 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

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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.
1. ”Not Contemplated” or “Not Foreseeable”? (The Prior
Construction Canon)
¶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

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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

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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).

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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).

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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).

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¶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.
2. 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.

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¶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

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the present award.” Id. And “[s]uch findings will then allow the
paying spouse to bring a modification proceeding at the appropriate
time while” establishing that substantial material changes were not
foreseeable (within the meaning of the statute). Id.
¶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

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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).
B. 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

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Opinion of the Court
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

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Opinion of the Court
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, ¶ 19
n.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

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5 The remaining documents filed in the record prior to the
divorce decree entry are not relevant to the issues before us.

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 MACDONALD v. MACDONALD
Opinion of the Court
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.

_____________________________________________________________
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.

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