Macdonald (Husband) and Fahey (Wife) were married for twenty years and divorced pursuant to an agreement filed with the court in December 2011.
Under the agreement, Fahey received a property settlement that included among other things a $200,000 cash settlement, $103,500 to be paid to her by Macdonald in monthly installments of $4,500 per month, and a parcel of property in the Preserve Development in Summit County.
In addition to the property settlement, Macdonald was ordered to pay Fahey alimony starting at $2,000 per month and increasing to $6,000 per month beginning in January 2013. The alimony was to continue until December 31, 2020 or until Fahey remarried, cohabited or died, whichever was earliest.
In 2012 Fahey sold the Summit County property and deposited the proceeds into a trust account, into which she also deposited the $200,000 cash settlement and the proceeds from the sale of another property.
As of April 2015 Fahey held about $1,740,000
in the account and was expected to earn about $45,000 per year from her investments from the account.
In January 2013 McDonald filed a petition to modify his alimony obligation, citing Fahey’s reduced need due to her receipt of ongoing investment income.
However, it was foreseeable that Fahey might sell the property and invest the proceeds for a periodic income stream. Alimony can only be modified based on a substantial and material change of circumstances that was not foreseeable at the time of the divorce.
McDonald argued that the change of circumstances was not actually foreseen at the time of the divorce, as evidenced by the fact the divorce decree itself did not mention such a change of circumstances.
The problem with McDonald’s argument was that it was based on the old standard for modifying alimony, before the current alimony statute was amended to use the language “foreseeable.”
The Court noted that, in interpreting a statute, the court first looks to the plain language of the statute. The court will assume that the legislature used each word of the statute advisedly, according to its ordinary meaning, unless otherwise indicated. Thus, in interpreting the meaning of the word “foreseeable”, the court’s first task was to consult the dictionary.
According to Webster’s Third Intn’l Dictionary, “foreseeable” means “being such as may reasonably be anticipated.” It may reasonably have been anticipated that Fahey would sell a valuable property and invest the proceeds in order to obtain a steady periodic stream of income.
McDonald cited the case of Boliger v. Boliger, 2000 UT App 47, 997 P.2d 903 in support of his argument that a change of circumstances must not have been foreseen — that is, not contemplated in the divorce decree Itself, in order to form the basis for an alimony modification.
Although Boliger was decided after the alimony statute was amended to its current form, according to the Court of Appeals, the attorneys had apparently not briefed the distinction between “foreseen” and “foreseeable” in enough detail for that Court to discern the subtle difference.
But the “foreseeable” standard was subsequently applied in the case of Fish v. Fish, 2016 UT App 125, 379 P.3d 882 to deny a petition to reduce alimony where the recipient spouse’s modest wage increases were foreseeable.
The “foreseeable” standard was also applied in Earhart v. Earhart, 2015 UT App. 308, 365 P.3d 719. In that case, however, the “foreseeable “ standard allowed Me. Earhart to have his alimony obligation modified where he experienced a substantial loss of income (from $240,00 per year to $180,000 per year) dug to the unforeseeable loss of one of his largest clients.
The legal standard for modifying alimony child support used to be the same. But now the standards for modifying child support and alimony are codified in separate statutes and different legal legal standards apply. For alimony, the “ not foreseeable” standard is used.
In sum, if a substantial change of circumstances may be reasonably anticipated, it will not form the basis for a alimony modification. Conversely, a substantial change of circumstances that could not reasonably have been anticipated at the time of the divorce may form the basis for an alimony modification.
See McDonald v. McDonald, 2017 UT App 136.
This material should not be construed as legal advice for any particular fact situation, but is intended for general informational purposes only. For advice specific to any individual situation, an experienced attorney should be contacted.
