Petersen v. Petersen

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Petersen v. Petersen. Filed October 21, 1999 IN THE UTAH COURT OF APPEALS


Gary V. Petersen,
Petitioner and Appellant,


Julie A. Petersen,
Respondent and Appellee.

(Not For Official Publication)

Case No. 981652-CA

October 21, 1999
   1999 UT App 306 -----

Second District, Ogden Department
The Honorable Pamela G. Heffernan

Michael K. Mohrman, Paul M. Belnap, Salt Lake City, for Appellant
Clark W. Sessions, Salt Lake City, for Appellee


Before Judges Greenwood, Davis, and Jackson.


Appellant appeals an order of the trial court denying his petition to modify a decree of divorce. We affirm.

Appellant contends that the trial court erred in determining that he failed to show that a substantial and material change in circumstances has occurred to support a termination of his alimony obligations. Specifically, appellant asserts that appellee's current financial circumstances, including her employment, her increased assets, and her lack of support obligations, are substantially and materially different than they were at the time of the divorce, when she was unemployed and had six children to support.

Appellant's arguments ignore the statutory mandate that, in order to support a modification of alimony, the alleged substantial and material change in circumstances must be one that was not foreseeable at the time of the divorce. See Utah Code Ann. § 30-3-5(7)(g)(i)(Supp. 1999). In its findings of fact and conclusions of law filed with the original decree of divorce, the divorce court recognized that appellee would have to obtain employment to make up a shortfall between her income and expenses, stating "the defendant has not been employed outside the parties' home, but is in all probability now required to seek employment and additional education and training in order to assist in providing partial support for herself and the parties' minor children." Thus, it appears that appellee's subsequent employment was foreseeable at the time of the divorce.

Moreover, the evidence supports the trial court's conclusion that appellee's financial circumstances are not substantially and materially different from her circumstances at the time of divorce. Appellee is still living in the marital home and paying a substantial mortgage thereon, she is earning less than half of appellant's pre-divorce income while incurring substantially the same level of expenses as she had at the time of the divorce, and her income is still insufficient to meet her expenses while appellant is able to continue alimony payments. Appellant has failed to demonstrate that appellee is able to maintain her pre-divorce standard of living without assistance from appellant. SeeBridenbaugh v. Bridenbaugh, 786 P.2d 241, 243 (Utah Ct. App. 1990) ("The appropriate test to determine whether the termination in alimony [is] appropriate is whether [wife] is now able to provide for herself a standard of living which is equal to that enjoyed during the marriage of the parties."). Accordingly, the trial court did not abuse its discretion in denying appellant's petition to terminate alimony.

Affirmed. Appellee is awarded her attorney fees and costs on appeal. See Moon v. Moon, 973 P.2d 431, 439 (Utah Ct. App. 1999) (stating that where prevailing party on appeal was awarded fees below, they are entitled to an award on appeal). The case is remanded to the trial court for a determination of an appropriate award.

Pamela T. Greenwood,
Associate Presiding Judge

James Z. Davis, Judge

Norman H. Jackson, Judge