Fish v. Fish, 2016 UT App 125

Background

Diane and Jeffery Fish divorced in 2009; the decree ordered Jeffery to pay $800/month alimony.
On initial appeal the Court of Appeals remanded for better findings about earning capacity and marital standard of living. The district court held an evidentiary hearing, found Diane’s 2014 income $2,233/month and needs $2,997/month, and again ordered $800/month alimony.
In 2012 Jeffery petitioned to terminate or reduce alimony based on alleged changes in Diane’s income; a 2014 bench trial produced findings that Diane’s income rose $264/month and expenses rose $492/month since 2009. The court denied modification and awarded Diane attorney fees as the prevailing party.
Jeffery moved to amend findings or for a new trial; the motion was denied. He appeals raising multiple challenges to the modification denial, imputation of income, adequacy of findings, and attorney fees.
The appeals court reviews discretionary modification decisions for abuse of discretion but reviews legal questions and application of the mandate rule for correctness.

Issues

Issue	Plaintiff's Argument (Jeffery)	Defendant's Argument (Diane)	Held
Whether the denial of Jeffery’s petition amounted to an improper modification of the divorce decree by recognizing new needs	The caption (“Modification of Decree of Divorce”) and findings about increased expenses effectively increased Diane’s needs and modified the decree in violation of statute	The order’s substance denied the petition and kept alimony at $800; findings of changed needs are part of the court’s fact-finding process and do not themselves modify the decree	Court held no modification occurred: substance was denial of modification and retaining $800; findings alone do not change decree
Whether the court was bound by prior finding that Diane could work 36 hours/week (law-of-the-case/mandate rule)	The district court previously found Diane capable of 36 hours/week; that finding should control and require imputing income	The mandate rule does not apply because no intervening appeal occurred between the 2011 finding and the 2014 proceeding; factual determinations may be reconsidered pre-appeal	Court held the mandate rule did not apply and no error resulted
Whether the court should have imputed higher income (voluntary underemployment) to Diane	Diane worked ~30 hours/week in 2014 but had worked 36 hours earlier; court should impute income for 36 hours/week	Court implicitly found Diane’s actual earnings were reasonable and declined to impute income; imputation is discretionary even after a voluntary underemployment finding	Court affirmed: Jeffery failed to show error or to marshal authority/evidence to require imputation
Whether Diane’s increased income/expenses constituted a substantial, unforeseeable change justifying modification	Jeffery argued Diane’s income increase (when imputed to more hours) and increased housing costs were unforeseen material changes requiring modification	Diane argued increases were not materially substantial or unforeseeable such that modification was warranted; district court has broad discretion to determine materiality	Court held district court did not abuse discretion; modest income increase over five years was not a material unforeseeable change
Adequacy and sufficiency of findings; denial of motion to amend or for new trial	Jeffery contended findings failed to address earning capacity, underemployment, and unexpected needs, and evidence was insufficient	Diane pointed to the district court’s findings (income and expense comparisons) and argued they rationally supported denial of modification	Court held findings were adequate and supported by evidence; unstated findings may be implied where reasonable; no reversible error
Attorney fees on appeal	Jeffery sought fees as prevailing party	Diane had been awarded fees below; Jeffery did not prevail below or on appeal	Court denied Jeffery’s fee request; he is not prevailing party

Key Cases Cited

IHC Health Servs. v. D & K Mgmt., Inc., 196 P.3d 588 (Utah 2008) (mandate-rule and when district courts may reconsider prior rulings)
Trembly v. Mrs. Fields Cookies, 884 P.2d 1306 (Utah Ct. App. 1994) (substance, not caption, controls characterization of motions/orders)
Connell v. Connell, 233 P.3d 836 (Utah Ct. App. 2010) (imputation of income permitted but not mandatory upon voluntary underemployment)
Earhart v. Earhart, 365 P.3d 719 (Utah Ct. App. 2015) (district court’s determination of substantial material change reviewed for abuse of discretion)
Roberts v. Roberts, 335 P.3d 378 (Utah Ct. App. 2014) (findings must be based on sufficient evidence)
Hall v. Hall, 858 P.2d 1018 (Utah Ct. App. 1993) (unstated findings may be implied when reasonable to assume court resolved controversy)
Wilson Supply, Inc. v. Fradan Mfg. Corp., 54 P.3d 1177 (Utah 2002) (appellant’s burden to marshal record when challenging sufficiency of evidence)
Kimball v. Kimball, 217 P.3d 733 (Utah Ct. App. 2009) (prevailing-party fee prevailing on appeal doctrine)