Background

• Kirkpatrick and Lee Anne MacDonald divorced after a stipulated settlement (Agreement) entered into the Decree in Jan 2012 that divided property and set alimony payable by Kirkpatrick until Dec 2020 (stepped payments starting $2,000 then $6,000/month).
• The Agreement awarded Lee Anne three lots (including the Property) and required Kirkpatrick to pay HOA fees and property taxes on the Property for five years or until sale, with reimbursement if sold.
• Before the Decree was entered, the parties agreed to sell the Property; sale closed in Jan 2012 and Lee Anne deposited net proceeds (~$1.24M) into a trust that already held $200,000 she received from Kirkpatrick under the Agreement. She later deposited additional real-estate sale proceeds and earned investment income.
• In Jan 2013 Kirkpatrick petitioned to terminate or reduce alimony, arguing Lee Anne’s investment income from the sale proceeds was a substantial material change in circumstances not foreseeable at divorce.
• After a two-day trial the court denied modification, finding the sale and investment of proceeds were foreseeable under the Agreement and not an unforeseeable substantial change. Kirkpatrick appealed.

Issues

Key Cases Cited

• Fish v. Fish, 379 P.3d 882 (Utah Ct. App. 2016) (applies foreseeability standard to alimony modification and upholds trial court discretion)
• Earhart v. Earhart, 365 P.3d 719 (Utah Ct. App. 2015) (upholds modification where income loss was unforeseeable and substantial)
• Bolliger v. Bolliger, 997 P.2d 903 (Utah Ct. App. 2000) (earlier discussion of contemplated-change standard; court did not apply foreseeability analysis here)
• Wilde v. Wilde, 969 P.2d 438 (Utah Ct. App. 1998) (recognizes substantive effect of 1995 amendment to alimony modification statute)