Smith v. Smith

Smith v. Smith

IN THE UTAH COURT OF APPEALS
 

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Christine Corleissen Smith,

Petitioner and Appellant,

v.

Alan Bruce Smith,

Respondent and Appellee.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20040470-CA
 

F I L E D
(June 16, 2005)
 

2005 UT App 275

 

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Third District, Salt Lake Department, 974900256

The Honorable Leon A. Dever

Attorneys: Randy S. Ludlow, Salt Lake City, for Appellant

Michael A. Jensen, Salt Lake City, for Appellee

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Before Judges Jackson, Orme, and Thorne.

JACKSON, Judge:

    Christine Corleissen Smith (Wife) appeals the district court's modification of her alimony award under the divorce decree between her and her former husband, Alan Bruce Smith (Husband). We affirm.

    A district court "has continuing jurisdiction to make substantive changes and new orders regarding alimony based on a substantive material change in circumstances not foreseeable at the time of the divorce." Utah Code Ann. § 30-3-5(8)(g)(i) (Supp. 2004) (formerly § 30-3-5(7)(g)(i)). We review the district court's modification of alimony for an abuse of discretion. Bolliger v. Bolliger, 2000 UT App 47,¶10, 997 P.2d 903.

    Wife first argues that the modification was improper because the increase in her income as a nurse was foreseeable at the time of the divorce. We have held that "'[i]n order for a material change in circumstances to be contemplated in a divorce decree there must be evidence, preferably in the form of a provision within the decree itself, that the trial court anticipated the specific change.'" Id. at ¶13 (quoting Durfee v. Durfee, 796 P.2d 713, 716 (Utah Ct. App. 1990)). Here, the district court in the divorce proceeding accounted for Wife's income as a nurse at the time of the divorce, but did not indicate in either its findings of fact nor in the divorce decree that Wife expected a significant increase in income. Further, the record of those proceedings provides no evidence that Wife's increase in income was otherwise specifically anticipated by the court,(1) and as such, we cannot conclude that the district court abused its discretion on this point.

    Wife next argues that the original decree stated that "[t]he alimony to be paid herein is a permanent alimony," and therefore cannot be modified. Such an assertion is clearly contrary to our prior holdings where we have determined that a permanent alimony arrangement may be modified "'upon appropriate petition.'" Id. at ¶21 (quoting Munns v. Munns, 790 P.2d 116, 122 (Utah Ct. App. 1990)). Similarly, we reject Wife's argument that the divorce decree's provisions regarding changes to Husband's future income due to his present disability constitute the only grounds for modification.(2) Such an interpretation of the decree is apparent neither in the plain language of the decree nor in the record.

    Accordingly, we cannot conclude the district court abused its discretion. We affirm the district court's order and award Husband costs pursuant to rule 34 of the Utah Rules of Appellate Procedure.(3) See Utah R. App. P. 34(a).

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Norman H. Jackson, Judge

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WE CONCUR:

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Gregory K. Orme, Judge

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William A. Thorne Jr., Judge

1. Wife does cite to the record of the September 14, 2004 modification hearing, where she claimed that in a pre-trial hearing of the divorce proceedings she had told the court her "income would be increasing over the course of [her] career life." However, nothing from the record of the divorce proceedings corroborates her claim, and moreover, if such a statement were made, it likely would not apprise the court that Wife's income would increase by approximately 90% over the course of five years.
    Wife also claims that the provision in the divorce decree defining "unforeseen circumstances" to include changes in Husband's disability indicates that the court in the divorce proceedings was aware of the future earning potential of both parties. However, the fact that the court specifically references Husband's future earning potential in light of his present disability does not establish that the court also considered Wife's future earning potential.

2. Wife refers us to the third paragraph of the divorce decree, which reads:

If unforseen circumstances occur as to the amount of income received by [Husband], because of changes in his disability and/or changes in his disability income that the same shall be a basis for modification and/or review of the alimony as the court deems appropriate at the time and under the circumstances that exist at the time of [the] occurrence of the substantial change of circumstances.

3. We deny Husband's petition for attorney fees pursuant to rule 33 of the Utah Rules of Appellate Procedure because this is not a case egregiously lacking in a reasonable factual or legal basis. See Utah R. App. P. 33(a); Cooke v. Cooke, 2001 UT App 110,¶14, 22 P.3d 1249.