I previously posted about a recent Utah Court of Appeals alimony modification case; namely, McDonald v. McDonald, 2017 UT App 136.

In that case, Mr. McDonald sought to modify or vacate a stipulated alimony award based on a substantial and material change of circumstances not foreseen at the time of divorce.

This change was the fact that Mrs. McDonald had sold a property that was awarded to her in the decree of divorce. She had wisely invested the proceeds from the sale and was receiving income from the investments in the amount of $45,000 per year.

Mr. McDonald argued, based on a line of cases of which Boliger v. Boliger, 2000 UT App 47, 997 P.2d 903 was the most prominent, that if a change of circumstances was not contemplated (or “foreseen”) in the divorce decree itself, that there were grounds to reopen the case.

The Court of Appeals rejected this argument because a 1995 statute stated that an alimony case may be reopened upon a showing of a substantial and material change of circumstances not foreseeable at the time of divorce. The Court presumed the word “foreseeable” was intended in its ordinary, everyday usage and therefore consulted Webster’s dictionary for guidance.

An appropriate dictionary definition of foreseeable was “reasonably anticipated.” This was a different meaning than the “foreseen”, or “contemplated in the decree” standard set out in the Boliger line of cases.

Although Boliger had been decided after the statutory amendment was enacted in 1995, the Court had essentially punted on deciding the distinction between “contemplated in the decree” and “foreseeable.” This was because the parties had not briefed this issue and had essentially agreed that the legal standard for reopening an alimony case was whether a change of circumstances was foreseen or contemplated in the decree of divorce. This, in turn, was likely because the divorce decree had been entered in 1985 and the parties (through their attorneys) had become accustomed to applying the law that prevailed at the time of the decree.

At any rate, in McDonald, the Court of Appeals overturned Boliger, based on the new statutory language of “foreseeability.”

Mr. McDonald appealed, and the Utah Supreme Court granted certiorari.

Mr. McDonald argued that the “prior construction” canon of statutory interpretation should apply in construing what was meant by the term “foreseeable” in the 1995 statute.

The prior construction canon holds that an amendment to a statutory scheme can be presumed to have adopted an authoritative judicial interpretation of statutory language that was in place when the statutory amendment was adopted.

This is not a bad argument at first blush, but it did not quite pass muster. The problem with the argument is that the factors for application of the prior construction canon were not exactly met. Prior to the 1995 statutory, there was no express statutory language relating to the concept of “foresee”, whether in its past, present, future, perfect, pluperfect, continuous, or any other grammatical tense.

The Boliger concept of “foreseen” or “contemplated” in the decree was a judicial gloss engrafted onto the old statutory scheme in order to make it workable. The prior statute had said nothing about “foreseeable” or “contemplated in the decree” but had simply recognized the broad authority of courts to grant a petition to modify.

Thus, there was no basis to apply the prior construction judicial canon.

But Mr. McDonald’s second major argument was a strong one and was adopted by the Court. Unfortunately for him, its application still did not result in a favorable outcome for him. But fortunately for us, his argument did advance our understanding of how to apply the concept of foreseeability.

He argued that the universe of information to be considered in determining what was foreseeable should be limited to some ascertainable standard. After all, almost anything can be found after the fact to be “foreseeable”, or “reasonably anticipated” if we assume omniscient access to information. (In other words, hindsight is 20/20).

Mr. McDonald proposed that the scope of information to be considered in determining whether something was foreseeable should be limited to the judicial record established in the trial court.

The Court saw fit to adopt this “universe of information limited to the district court record” standard as a threshold consideration in applying the foreseeability standard. It then proceeded to apply this judicial gloss in rejecting Mr. McDonald’s appeal.

The Court found that the Court of Appeals had properly taken judicial notice of the fact that a reasonably prudent person may be expected to reinvest the proceeds from the sale of a property in order to obtain a steady stream of income.

In sum, the Utah Supreme Court upheld the Court of Appeals’ ruling that the meaning of the term “foreseeable” in the alimony modification statute is not the same as the “contemplated in the decree” standard set out in the Boliger line of cases. But the universe of information to be considered in applying the foreseeability standard is limited to the record established in the trial court.

See McDonald v. McDonald, 2018 UT 48.

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.