MacDonald v. MacDonaldMacDonald v. MacDonald
128 Under the facts of this case, CFC had a plausible good-faith basis for claiming that the lien was a valid contractual lien. Ex-husband signed the promissory note granting CFC the right to encumber his property at a time when he was a record owner of the Property. As far as CFC knew, based on the facts at the time the lien was filed, Ex-husband shared ownership in the Property. Accordingly, CFC had a good-faith plausible basis to file the lien and therefore, at the time the lien was filed, the lien was not wrongful. If the district court were to have concluded, as Lindstrom maintains it should have, that the promissory note was not signed by an owner of the Property, the court would have had to make a separate legal conclusion that the divorce decree alone divested Ex-husband of his ownership interest in the Property.7 Again, the Act specifically limits the district court in this summary proceeding to determine only “whether a document is a wrongful lien” and that it “may not determine any other property or legal rights of the parties or restrict other legal remedies of any party.”
CONCLUSION
129 For the foregoing reasons, we affirm the district court‘s determination that CFC‘s lien against the Property was not wrongful.
Matthew A. Steward and Shannon K. Zollinger, Salt Lake City, Attorneys for Appellee.
Judge David N. Mortensen authored this Opinion, in which Judges Stephen L. Roth and Kate A. Toomey concurred.1
Opinion
MORTENSEN, Judge:
11 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
BACKGROUND
12 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.
13 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 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.
14 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.
15 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.
16 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 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
ISSUE AND STANDARD OF REVIEW
17 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, 15, 379 P.3d 882; see Earhart v. Earhart, 2015 UT App 308, 15, 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
18 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. 111 n.3. We disagree and affirm.
I. The Foreseeability Standard
19 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.
110 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 other interpretive tools are needed, and our task of statutory construction is typically at an end. Bagley v. Bagley, 2016 UT 48, 110, 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, 117, 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.
111 The dictionary defines “foreseeable” as “being such as may reasonably be antici-
112 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
113 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. 13. 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. 14. 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. 118 (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. 119. Thus, in Fish we expressly applied the foreseeability standard and construed the provision to encompass 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
114 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. 111 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. 113, 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 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.
115 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.
116 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
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. 111 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.
II. The Foreseeability Standard Applied
117 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.
118 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
119 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. 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
120 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.
121 Affirmed.
DAVID N. MORTENSEN
JUDGE