MacDonald v. MacDonald

2017 UT App 136

THE UTAH COURT OF APPEALS

KIRKPATRICK MACDONALD,
Appellant,
v.
LEE ANNE MACDONALD,
Appellee.

Opinion
No. 20150785-CA
Filed August 3, 2017

Third District Court, Silver Summit Department
The Honorable Kara Pettit
No. 104500031

Troy L. Booher, Julie J. Nelson, and Bart J. Johnsen,
Attorneys for Appellant
Matthew A. Steward and Shannon K. Zollinger,
Attorneys for Appellee

JUDGE DAVID N. MORTENSEN authored this Opinion, in which
JUDGES STEPHEN L. ROTH and KATE A. TOOMEY concurred. 1

MORTENSEN, Judge:

¶1 After roughly twenty years of marriage, Kirkpatrick
MacDonald (MacDonald) and Lee Anne MacDonald (now
Fahey) divorced after stipulating to alimony payments and the
division of their property. Fahey sold some of the land awarded
to her and invested the proceeds, which now provide her a
substantial income stream. MacDonald petitioned the trial court
to adjust the alimony that he stipulated to pay because, he

1. Judge Stephen L. Roth participated in this case as a member of
the Utah Court of Appeals. He retired from the court before this
decision issued.
 MacDonald v. MacDonald

claimed, Fahey’s new income stream constitutes a substantial
material change in circumstances. The trial court denied the
petition and MacDonald appeals. We affirm.

BACKGROUND

¶2 Fahey and MacDonald married in June 1991.
Irreconcilable differences arose and MacDonald filed for divorce
in February 2010. The parties engaged in mediation, which
resulted in an agreement in December 2010 (the Agreement).
MacDonald and Fahey signed the Agreement in October and
November 2011, respectively. The parties submitted the
Agreement to the court in December 2011.

¶3 The Agreement awarded Fahey three pieces of real
property in the Preserve Development in Summit County. One
of these lots is the property at issue (the Property). The
Agreement also provided that MacDonald “pay the
Homeowner’s Association fees and property taxes on [the
Property] for a period of five years . . . or until [Fahey] sells [the
Property].” If sold, Fahey “shall reimburse [MacDonald] for
those payments without interest.” The Agreement further
required that MacDonald pay Fahey alimony until December
2020 or earlier if she remarried, cohabited, or died. The parties
stipulated that alimony payments would begin at $2,000 per
month and increase to $6,000 per month beginning in January
2013. The Agreement contained no language specifically
conditioning alimony upon any aspect of the parties’ real
property division, the subsequent disposition of the property, or
upon Fahey’s needs. MacDonald was awarded all real property
from the marriage not specifically awarded to Fahey.2 In
addition, MacDonald paid $200,000 in cash to Fahey before he

2. This included a $6.5 million brownstone building and a $1.5
million apartment, both in New York City.

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signed the Agreement. He further agreed to pay monthly
installments, described as an additional property settlement, for
a total of $103,500, beginning with a payment of $4,500 per
month and later decreasing to $4,000 per month. The trial court
entered the Decree of Divorce and Findings of Fact and
Conclusions of Law in January 2012, incorporating all terms of
the Agreement.

¶4 Sometime between the parties signing the Agreement and
the court entering the Decree, a buyer offered MacDonald
$1,425,000 to purchase the Property. According to MacDonald,
this price was approximately twice what he anticipated the
Property was worth. The parties agreed the Property should be
sold and signed a sale contract before the Decree was entered.
The sale closed in late January 2012, and Fahey deposited the
proceeds, $1,240,000, into her trust account. Fahey’s trust
account was apparently set up prior to receiving the funds from
the sale of the Property, and it already held the $200,000 cash
settlement MacDonald had paid Fahey as part of the Agreement.
In 2013, Fahey deposited another $498,000 from the sale of other
property. As of April 2015, Fahey’s trust account contained
$1,740,000 and she was expected to earn $45,000 per year on her
investments.

¶5 In January 2013, MacDonald filed a petition to modify the
Decree, asking that the trial court terminate his alimony
obligations. MacDonald argued that Fahey’s investment of funds
from the sale of the Property and the subsequent interest income
generated by that investment constituted a substantial material
change in circumstances.

¶6 The court denied the petition after a two-day trial,
concluding that the sale of the Property and the investment of
the sale proceeds did not constitute a substantial material change
in circumstances. The trial court ruled “that [MacDonald] ha[d]
not shown a substantial change of circumstances from the time
of the Decree that was not foreseen or contemplated by the

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Decree, and therefore denie[d] the Petition to Modify on those
grounds.” Further, the trial court found that “the parties, in their
Agreement, which contained both the property division and the
setting of alimony, contemplated that [Fahey] was going to sell
those lots and was going to use the proceeds of the sale of those
lots to pay expenses.” MacDonald appeals the trial court’s order.

ISSUE AND STANDARD OF REVIEW

¶7 MacDonald appeals the trial court’s determination that he
failed to show a substantial material change in circumstances,
not foreseeable at the time of the divorce. As we have explained,
this court generally will “review a district court’s determination
to modify or not to modify a divorce decree for an abuse of
discretion.” Fish v. Fish, 2016 UT App 125, ¶ 5, 379 P.3d 882; see
Earhart v. Earhart, 2015 UT App 308, ¶ 5, 365 P.3d 719 (“A district
court’s determination regarding whether a substantial change of
circumstances has occurred is presumptively valid, and our
review is therefore limited to considering whether the district
court abused its discretion.”).

ANALYSIS

¶8 MacDonald contends that the trial court’s determination
that the facts did not warrant a modification of alimony was an
abuse of discretion. He argues that Fahey’s new income stream
from her interest earned on investments constitutes “a
substantial change in circumstances that occurred after the
divorce and was not foreseeable at the time of divorce.”
MacDonald relies on Bolliger v. Bolliger, 2000 UT App 47, 997
P.2d 903, which requires “evidence that the change was foreseen
at the time of the divorce to preclude a finding of changed
circumstances.” Id. ¶ 11 n.3. We disagree and affirm.

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I. The Foreseeability Standard

¶9 The standard to be applied to a petition to modify an
award of alimony is set forth in the Utah Code, which reads:

The court has continuing jurisdiction to make
substantive changes and new orders regarding
alimony based on a substantial material change in
circumstances not foreseeable at the time of the
divorce.

Utah Code Ann. § 30-3-5(8)(i)(i) (LexisNexis 2013). This
provision, amending section 30-3-5, was added in 1995 and has
been the controlling statute for alimony modifications since. 3 See
Wilde v. Wilde, 969 P.2d 438, 441 n.1 (Utah Ct. App. 1998).
Accordingly, the language of this provision controls the question
presented in this appeal.

¶10 We construe statutes according to their plain meaning if
possible.

The primary objective of statutory interpretation is
to ascertain the intent of the legislature. Since [t]he
best evidence of the legislature’s intent is the plain
language of the statute itself, we look first to the
plain language of the statute. In so doing, [w]e
presume that the legislature used each word
advisedly. . . . When we can ascertain the intent of
the legislature from the statutory terms alone, no

3. We note that this case solely concerns modification of an
award of alimony under a decree of divorce. The “change in
circumstances required to justify a modification of a divorce
decree varies with the type of modification sought.” Haslam v.
Haslam, 657 P.2d 757, 758 (Utah 1982).

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other interpretive tools are needed, and our task of
statutory construction is typically at an end.

Bagley v. Bagley, 2016 UT 48, ¶ 10, 387 P.3d 1000 (alterations in
original) (citations and internal quotation marks omitted).

When we interpret a word within a statute, we first
consider its plain meaning. In looking to determine
the ordinary meaning of nontechnical terms of a
statute, our starting point is the dictionary. If not
plain when read in isolation, [a word] may become
so in light of its linguistic, structural, and statutory
context.

Nichols v. Jacobsen Constr. Co., 2016 UT 19, ¶ 17, 374 P.3d 3
(alteration in original) (citations and internal quotation marks
omitted). “We also presume that when the legislature amends a
statute, it intended the amendment to change existing legal
rights.” Olsen v. Samuel McIntyre Inv. Co., 956 P.2d 257, 261 (Utah
1998) (citation and internal quotation marks omitted). Indeed,
after section 30-3-5 was amended, this court held that the 1995
amendment “regulates a party’s right to receive alimony and is a
substantive change in the law.” See Wilde, 969 P.2d at 442–43.

¶11 The dictionary defines “foreseeable” as “being such as
may reasonably be anticipated.” Foreseeable, Webster’s Third Int’l
Dictionary 890 (1971). From the linguistic and structural position
of this term in the statute, and assuming that the legislature used
not only the word but its form advisedly, we conclude that the
legislature purposely did not use the verb “foresee” in its past
tense, “foreseen.” This distinction is important. If 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. Instead, the legislature employed the
adjective “foreseeable,” which includes not only those

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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.

¶12 Thus, the intent of the 1995 amendment 4 is
unambiguous—a change in circumstances, even a substantial
one, can only form the basis for the modification of alimony if
that circumstance was not foreseeable—as opposed to actually
foreseen—“at the time of the divorce.” See Utah Code Ann. § 30-
3-5(8)(i)(i). Accordingly, we conclude that, as it pertains to
alimony, only a substantial material change in circumstances not
foreseeable, i.e., not reasonably capable of being anticipated at

4. Prior to the 1995 amendment, the statute provided:
The court has continuing jurisdiction to make
subsequent changes or new orders for the support
and maintenance of the parties, the custody of the
children and their support, maintenance, health,
and dental care, or the distribution of the property
and obligations for debts as is reasonable and
necessary.
Utah Code Ann. § 30-3-5(3) (Michie Supp. 1994); see Wilde v.
Wilde, 969 P.2d 438, 441 & n.1 (Utah Ct. App. 1998) (discussing
the 1995 amendment). Thus, before 1995 a single standard
applied to the continuing power of the district court to modify
(“make subsequent changes or new orders”) a decree as to
alimony (“the support and maintenance of the parties”), child
support (“the custody of children and their support”), and
property and debt distribution. See Utah Code Ann. § 30-3-5(3).
The law was changed. Now alimony and child support
modification are controlled by separate statutory provisions. See
id. § 30-3-5(8)(i)(i) (LexisNexis 2013) (controlling modification of
alimony); id. § 78B-12-210(8)–(9) (2012) (controlling modification
of child support).

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the time the decree was entered, qualifies as a basis for
modification.

¶13 Recent cases from this court confirm this interpretation. In
Fish v. Fish, 2016 UT App 125, 379 P.3d 882, a husband “filed a
petition seeking to terminate or reduce” alimony based upon an
alleged two-dollar-an-hour increase in his wife’s income. Id. ¶ 3.
The trial court denied the petition. Id. The husband appealed,
asserting, among other grounds, that the trial court failed “to
find that an unforeseen material substantial change in
circumstances warranted modification of the decree.” Id. ¶ 4. The
husband claimed that because the divorce decree was devoid of
language referring to an increase in income by the receiving
spouse, any increase would be a “change of circumstance not
contemplated by the divorce decree itself.” Id. ¶ 18 (internal
quotation marks omitted). This court disagreed and affirmed the
trial court, stating:

We next note that the statute is concerned with
whether the alleged change of circumstances was
“foreseeable,” not whether the alleged change of
circumstances was actually foreseen and accounted
for in a divorce decree. See Utah Code Ann. § 30-3-
5(8)(i)(i). It follows that an increase of income not
actually contemplated by the divorce decree does
not automatically require a finding that a
“substantial material change in circumstances not
foreseeable at the time of the divorce” has
occurred. See id. We are not aware of any Utah
authority requiring a district court to find that such
a change has occurred simply because one party’s
income has increased and the divorce decree did
not discuss possible increases in income.

Id. ¶ 19. Thus, in Fish we expressly applied the foreseeability
standard and construed the provision to encompass

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circumstances beyond those actually foreseen at the time. We
further noted:

Were it otherwise, creeping inflation could
necessitate recalculation of nearly all alimony
awards on an annual or biennial basis. And such a
rule would conflict with the considerable
discretion enjoyed by the district court to
determine whether a substantial and material
change has occurred.

Id. Consequently, this court agreed with the trial court that
although the receiving ex-spouse’s income had increased
somewhat in the intervening time between the decree and the
petition to modify, that increase was foreseeable and a petition
to modify alimony could not be granted. Id. ¶ 20.

¶14 Similarly, in Earhart v. Earhart, 2015 UT App 308, 365 P.3d
719, this court affirmed a trial court’s finding that certain
substantial material changes in circumstances were
unforeseeable and therefore provided a basis for modification of
alimony. Id. ¶¶ 11, 14. Mr. Earhart’s annual income at the time
the decree was entered was $264,000, but some months later, his
business “suffered the unforeseen loss of its primary client,” and
as a result his annual income dropped to $180,000. Id. ¶¶ 3, 11. In
its findings, the trial court noted that the evidence was
essentially uncontroverted that a significant client had been lost,
the financial records of the company confirmed that the revenue
historically flowing from this client had evaporated, and “the
change in clientele and income was unforeseeable.” Id. ¶¶ 11, 13.
This court affirmed, concluding that, even though the evidence
was mixed, sufficient evidence existed to support the trial court’s
findings, “which in turn are adequate to support its conclusion
that an unforeseen and involuntary change of circumstances had
occurred.” Id. ¶ 14.

20150785-CA 9 2017 UT App 136
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¶15 In sum, the two most recent decisions of this court
reviewing a trial court’s adjudication of a petition to modify
alimony applied a foreseeability standard. This approach is
consistent with the plain language of the 1995 amendment and is
the standard we apply today.

¶16 MacDonald relies on Bolliger v. Bolliger, 2000 UT App 47,
997 P.2d 903, to argue that only where the alleged change in
circumstances was expressly anticipated in the decree itself is a
petition to modify alimony precluded. 5 Although the court in
Bolliger quoted an earlier version of Utah Code section 30-3-
5(8)(i)(i), see Bolliger, 2000 UT App 47, ¶ 11, it does not appear
that the court applied the foreseeability analysis that the plain
language of the statute requires. Instead, Bolliger applied a
standard for modification of alimony that requires the moving
party to 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 (citation and internal
quotation marks omitted). This is likely because the parties in
Bolliger did not argue that the 1995 amendment substantively
changed the prior standard. In fact, the Bolliger court noted:

The parties agree that this provision, added in
1995, does not alter the efficacy of our
jurisprudence requiring evidence that the change
was foreseen at the time of the divorce to preclude
a finding of changed circumstances.

Id. ¶ 11 n.3. As a result, the Bolliger court did not address
whether the 1995 amendment altered the applicable standard.
As our analysis above shows, however, the standard did change
and we apply that standard today.

5. Both parties in this case have cited Bolliger as controlling case
law.

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 MacDonald v. MacDonald

II. The Foreseeability Standard Applied

¶17 Consistent with the statute’s plain language, and as
applied in our decisions in Fish and Earhart, we hold that the
standard to be applied in determining whether a substantial
change in circumstance warrants a modification of alimony is
whether the circumstance was foreseeable at the time of divorce.
Where the circumstances are foreseeable, or may be reasonably
anticipated, modification is not permitted.

¶18 In the present matter, we cannot say that it was
unforeseeable that Fahey would sell some of the real estate and
invest the proceeds. A reasonable person will normally act in a
prudent manner to protect his or her financial interests and
security. Therefore, it is not merely foreseeable, but likely, that
under the circumstances of this case, were a real property asset
to be liquidated, the proceeds would not be frittered away or left
to gather dust. 6 Moreover, the fact that Fahey might have future
income from investments was foreseeable under the specific
facts of this case. Prior to entry of the Decree MacDonald paid
Fahey $200,000 in cash. As part of the stipulated Decree,
MacDonald agreed to pay $103,500 over time with an initial
payment amount of $4,500 per month. It would be unreasonable
to expect that Fahey would necessarily either dissipate more
than $300,000 in the short term or that she would otherwise not
handle these funds in a financially prudent manner. The record
reflects that Fahey put the $200,000, which was paid prior to the
execution of the Agreement, in an investment account. 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.

6. Indeed, MacDonald acknowledges that Fahey was under no
obligation to liquidate the Property and if she had simply held
onto the Property until after the alimony obligation expires, she
could have sold it with no effect on alimony.

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 MacDonald v. MacDonald

¶19 As the trial court noted, the express terms of the
Agreement, and ultimately the Decree, discussed certain
obligations that would arise if and when Fahey sold the
Property. This express provision leaves no doubt that the sale of
the Property and its resulting proceeds, however they would be
used in the future, were foreseeable. 7 As the trial court noted, the
Decree expressly provided that certain expenses would be paid
from the proceeds flowing from the sale of the awarded real
property. On these facts, 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 Decree.

CONCLUSION

¶20 The trial court’s findings adequately support its
conclusion that MacDonald failed to show a substantial change
in circumstances that was not foreseeable at the time the Decree
was entered. The trial court therefore did not exceed its
discretion.

¶21 Affirmed.

7. MacDonald also claims that the sales price materially differed
from what he anticipated. This fact, if true, is not determinative.
Although MacDonald received the offer and approved the sale
before the Decree was entered, it is easily foreseeable that the
actual sale price for real estate may differ from what parties
anticipate. Moreover, there was no evidence that the parties
agreed to the property distribution based on any mutual
understanding of the value of the parcels involved.

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