MacDonald v. MacDonald

2017 UT App 136
THE UTAH COURT OF APPEALS
K IRKPATRICK M AC DONALD,
Appellant,
v.
LEE A NNE M AC DONALD,
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 D AVID N. M ORTENSEN authored this Opinion, in which
JUDGES S TEPHEN L. R OTH and K ATE 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
20150785-CA 	2 	2017 UT App 136
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.

MacDonald v. MacDonald
20150785-CA 	3 	2017 UT App 136
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

MacDonald v. MacDonald
20150785-CA 	4 	2017 UT App 136
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.

MacDonald v. MacDonald
20150785-CA 	5 	2017 UT App 136
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).

MacDonald v. MacDonald
20150785-CA 	6 	2017 UT App 136
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

MacDonald v. MacDonald
20150785-CA 	7 	2017 UT App 136
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 	amendment4 	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).

MacDonald v. MacDonald
20150785-CA 	8 	2017 UT App 136
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

MacDonald v. MacDonald
20150785-CA 	9 	2017 UT App 136
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.

MacDonald v. MacDonald
20150785-CA 	10 	2017 UT App 136
¶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.

MacDonald v. MacDonald
20150785-CA 	11 	2017 UT App 136
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.

MacDonald v. MacDonald
20150785-CA 	12 	2017 UT App 136
¶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.