Want to Modify Alimony? Get Your Ducks in a Row
Fish v. Fish is a recent case decided by the Utah Court of Appeals involving the attempted modification of an alimony award. In that case, Diane and Jeffery got married in 1980, and Diane filed for divorce in 2007. Jeffery was ordered to pay alimony of $800 per month, which he appealed saying that the district court erred by failing to impute income to Diane, imputing income to him, and in calculating the amount of alimony. The case was remanded back to the district court, and on remand the court found that Diane’s monthly income was $2,233 and that she needed $2,997. Thus, Jeffery was ordered to pay alimony of $800 per month. In 2012, Jeffery filed a petition to reduce or get rid of the alimony award based on an alleged change in Diane’s income. A bench trial determined that her monthly income rose by $264 and that her monthly reasonable and necessary expenses rose by $492. The court held that there were no grounds to modify the divorce decree because this was not a material change in circumstances. Jeffery filed a motion seeking the court to amend its findings or grant a new trial, but the district court denied this motion. Jeffery appealed and said the district court erred for the following reasons.
Jeffery first claims the district court erred in modifying the decree of divorce increasing Diane’s monthly expenses by addressing needs that did not exist at the time the decree was entered. Utah law generally does not allow a district court to modify an alimony award to account for new needs. The Utah Court of Appeals concluded that because the district court’s order did not change the amount of alimony or modify the divorce decree, it was neither a modification of alimony nor a new order of alimony.
He also claims that the district court erred by failing to follow the law of the case that Diane is capable of working 36 hours per week. At the 2014 modification trial, Diane’s accountant testified that Diane worked slightly over 36 hours per week in 2013. Jeffery also explained that Diane’s employer testified that he allowed Diane to schedule her hours as long as the total was under 40 hours per week. The court explained that the mandate-rule branch of the law-of-the-case doctrine only dictates that a prior decision of a district court becomes mandatory after an appeal and remand; while a case remains pending before the district court prior to any appeal the court remains free to reconsider that decision. In Jeffery’s case, there was no appeal taken between the 2011 entry of the district court’s findings of fact and the 2014 order denying Jeffery’s petition. Therefore, the mandate rule does not apply here, and the district court did not err.
Jeffery next claimed that the district court erred by failing to find that Diane was voluntary underemployed. He argues that the district court should have multiplied Diane’s hourly pay by the number of hours she was working in 2009 (36 hours per week) rather than 30 hours per week. A finding of voluntary underemployment does not require a court to impute the higher income, but rather merely allows the court to do so. Jeffery failed to cite any authority regarding what standards a court should employ for determining when it is appropriate to impute income. There is no support for Jeffery’s claim, so the court concluded that his claim was inadequately briefed.
Jeffery also argued that because Diane’s 2014 income, using the number of hours per week he believes the court should have used in the calculation, is higher than her income at the time of the divorce decree, the district court was required to find that a substantial, material, and unforeseeable change in circumstances had occurred. The court disagreed and said this is a question of discretion, not correctness. The district court had discretion to determine that Diane’s $2 per hour increase in pay over a five-year period was not such a change.
This court affirmed the lower court’s order in all respects. The District court’s order increasing Diane’s monthly expenses did not violate Utah Code Ann. 30-3-5(8)(i)(ii) because the order was not a modification of alimony or a new order of alimony since it did not change the amount on the divorce decree. Jeffery’s claim that the district court erred by failing to find that the wife was voluntarily underemployed was inadequately briefed because Jeffery did not show that the court should have imputed income to the wife. Lastly, the district court had discretion to determine that in light of all the circumstances, Diane’s $2 per hour increase was not not a substantial change in circumstances that justified a modification of alimony.