(concurring and concurring in result):
I concur in the majority opinion, except the discussion of temporary alimony, with which I concur in result only.
Here, Wife moved for an award of temporary alimony during the pendency of the petition to modify. Wife made this motion years after the court had issued a final decree and had awarded permanent alimony. In essence, Wife moved for a preliminary modification of the permanent award. Thus, the trial court correctly relied on Utah Code Jud.Admin.Rule 6-404(3) in refusing to award “temporary” alimony.
I disagree with the majority’s view that the divorce statute provides an exception to the general rule that a trial court cannot issue a preliminary modification of a permanent award of alimony. Utah Code Ann. § 30-3-3(3) (Supp.1993) allows a court to issue preliminary orders “during the pen-dency of the action.” The section applies to all actions listed in subpart (1). Subpart (1) lists the following as actions: “any action filed under Title 30, Chapter 3, 4, or 6, and in any action to establish an order of custody, visitation, child support, alimony, or division of property in a domestic case ...”
A modification is filed under the same civil number, with the same parties and the same subject matter jurisdiction. In other words, a modification, as described in section 30-3-5(3), is not a separate action, but is a subsequent proceeding in the original divorce action. Thus, I do not construe section 30-3-3(3) to allow for “temporary” alimony (in reality, a preliminary modification) after a court has issued an award of permanent alimony.