2016 UT App 125

THE UTAH COURT OF APPEALS

DIANE FISH,

Appellee,

v.

JEFFERY J. FISH,

Appellant.

Memorandum Decision

No. 20150040-CA

Filed June 9, 2016

Second District Court, Ogden Department

The Honorable Ernest W. Jones

No. 074901990

Robert L. Neeley, Attorney for Appellant

Richard H. Reeve, Attorney for Appellee

JUDGE MICHELE M. CHRISTIANSEN authored this Memorandum 

Decision, in which SENIOR JUDGE PAMELA T. GREENWOOD 

concurred. SENIOR JUDGE RUSSELL W. BENCH concurred 

in the result.

1

CHRISTIANSEN, Judge:

¶1 Jeffery J. Fish appeals the district court’s order denying 

his motion to modify his decree of divorce from Diane Fish.

2 We 

affirm.

 

1. Senior Judges Russell W. Bench and Pamela T. Greenwood sat 

by special assignment as authorized by law. See generally Utah R. 

Jud. Admin. 11-201(6).

2. Because the parties still share a last name, we refer to them by 

their first names for clarity.
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¶2 Diane and Jeffery married in 1980. In 2007, Diane filed for 

divorce. The divorce decree was entered in 2009, and Jeffery was 

ordered to pay alimony of $800 per month. He appealed, 

arguing that the district court erred by failing to impute income 

to Diane, by imputing income to him, and in calculating the

amount of alimony. See Fish v. Fish, 2010 UT App 292, ¶ 11, 242 

P.3d 787. This court remanded the case back to the district court, 

concluding that the range of income imputed to Jeffery did not 

support the amount of the alimony award, that the district court 

had failed to make adequate findings regarding the parties’ 

earning capacities, and that the district court failed to consider 

whether maintaining the marital standard of living remained a 

realistic goal. Id. ¶ 31. On remand, the district court held an

evidentiary hearing and entered supplementary findings of fact 

and conclusions of law. The court found that Diane’s monthly 

income was $2,233 and that her needs were $2,997. It therefore 

again ordered Jeffery to pay alimony of $800 per month.

¶3 In 2012, Jeffery filed a petition seeking to terminate or 

reduce the alimony award based on an alleged change in Diane’s 

income. The district court conducted a bench trial in 2014, 

finding that from 2009 to 2014, Diane’s monthly income had 

risen by $264 and that her monthly reasonable and necessary 

expenses had risen by $492 over that same time period. The 

court determined that, because this was not a material change in 

circumstances, there were no grounds to modify the divorce 

decree. The court also awarded attorney fees to Diane after 

finding that she was the prevailing party and that Jeffery had the 

financial ability to pay those fees. The district court stated its 

findings in a memorandum decision and directed Diane’s 

counsel to prepare a final order for the court to sign. After the 

order was prepared, signed, and entered, Jeffery filed a motion 

seeking to have the court amend its findings or grant a new trial, 

which motion the district court denied.

¶4 Jeffery appeals, contending that the district court erred 

(1) by what he characterizes as modifying the divorce decree by 

increasing Diane’s monthly expenses, (2) by “failing to follow 
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20150040-CA 3 2016 UT App 125

the law of the case that [Diane] is capable of working 36 hours 

per week,” (3) by failing to find that Diane was voluntarily 

underemployed, (4) by failing to find that an unforeseen 

material substantial change in circumstances warranted 

modification of the decree, (5) by denying Jeffery’s motion to 

amend findings of fact or to grant a new trial, and (6) by failing 

to award attorney fees to Jeffery.

I. 

¶5 Jeffery first contends that 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.” We generally review a district court’s 

determination to modify or not to modify a divorce decree for an 

abuse of discretion. Snyder v. Snyder, 2015 UT App 245, ¶ 9, 360 

P.3d 796. However, we review for correctness any challenges to 

the legal adequacy of findings of fact or to the legal accuracy of 

the district court’s statements underlying such a determination. 

See id.; Van Dyke v. Van Dyke, 2004 UT App 37, ¶ 9, 86 P.3d 767.

¶6 Utah law generally prevents a district court from 

modifying an alimony award to account for new needs:

The court may not modify alimony or issue a new 

order for alimony to address needs of the recipient 

that did not exist at the time the decree was 

entered, unless the court finds extenuating 

circumstances that justify that action.

Utah Code Ann. § 30-3-5(8)(i)(ii) (LexisNexis 2013). Jeffery 

asserts that the district court’s denial of his petition to modify 

the divorce decree was in fact a modification of the divorce 

decree and that the modification was based on needs that did 

not exist at the time the decree was entered.

¶7 Jeffery claims that the court “did modify the Decree of 

Divorce [by] entering an order entitled Modification of Decree of 
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20150040-CA 4 2016 UT App 125

Divorce.” But it is the substance of an order rather than its 

caption that governs its interpretation. Cf. Trembly v. Mrs. Fields 

Cookies, 884 P.2d 1306, 1310 n.2 (Utah Ct. App. 1994) (“*T+he 

substance, not caption, of a motion is dispositive in determining 

the character of the motion.”); Color Process Co. v. Northwest 

Screenprint Co., 417 S.W.2d 934, 935 (Mo. 1967) (treating a court’s 

order as quashing service because, although being captioned 

“Judgment of Dismissal,” the substance of the order “did 

no more than quash the service”). The district court’s 

order, prepared by Diane’s counsel and signed by the court, 

stated that “IT IS HEREBY ORDERED, ADJUDGED AND 

DECREED: 1. *Jeffery’s+ Petition to Modify the Divorce Decree is 

denied. 2. Alimony shall remain at $800 per month.” 

Accordingly, despite counsel’s decision to caption the order 

“Modification of Divorce Decree,” the substance of the motion 

was denial of the petition to modify.

¶8 Jeffery also argues that the order constituted a 

modification because “the trial court made a substantial change 

to the decree [by] increasing [Diane’s+ monthly expenses to 

$3,489 per month by reason of purchasing a home after the 

divorce.” It is true that the district court’s memorandum decision 

found that Diane’s monthly expenses had risen by $492 from 

2009 to 2014. But that finding was not included in the court’s 

order denying Jeffery’s petition to modify. Moreover, making a 

finding of fact does not change or modify a divorce decree. 

Rather, the making of findings of fact is a part of the process by 

which a court determines whether modification is appropriate.3

 

3. We note that while Utah Code section 30-5-8(i)(ii) prevents a 

court from modifying alimony to account for the recipient 

spouse’s new needs, it does not appear to forbid a court from 

considering the recipient spouse’s new needs in its decision not 

to modify. In any event, Jeffery’s challenge in this regard is 

limited to the question of whether the district court erred by 

modifying alimony on the basis of Diane’s new needs.
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20150040-CA 5 2016 UT App 125

¶9 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, and the 

order therefore did not run afoul of section 30-3-5(8)(i)(ii).

II. 

¶10 Jeffery next contends that the district court erred by 

“failing to follow the law of the case that *Diane+ is capable of 

working 36 hours per week.” “Depending on the procedural 

posture of a case . . . , the district court may or may not have 

discretion to reconsider a prior decision it has made.” IHC Health 

Servs. v. D & K Mgmt., Inc., 2008 UT 73, ¶ 27, 196 P.3d 588. 

“While a case remains pending before the district court prior to 

any appeal, . . .the court remains free to reconsider that 

decision;” thus “reconsideration . . . is within the sound 

discretion of the district court.” Id. However, under the 

mandate-rule branch of the law-of-the-case doctrine, “a prior 

decision of a district court becomes mandatory after an appeal 

and remand.” Id. ¶ 28. It is not obvious which branch of the lawof-the-case doctrine Jeffrey seeks to apply here. However, 

because he asserts that the district court “erred” and does not 

attack the district court’s reconsideration as being an abuse of 

discretion, we assume that he means the mandate rule.4 We 

review the application of the mandate rule for correctness. See 

Robinson v. Robinson, 2016 UT App 32, ¶ 17, 368 P.3d 147.

¶11 Jeffery asserts that in 2011, the district court found that 

Diane was capable of working thirty-six hours per week. He 

notes that, at the 2014 modification trial, Diane’s accountant 

testified that Diane worked slightly over thirty hours per week 

in 2013. Jeffery further notes that Diane’s employer testified that

he trusted Diane to schedule her own hours as long as the total 

 

4. Jeffery does not cite any authority to explain when a district 

court’s reconsideration of an issue may amount to an abuse of 

discretion.
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20150040-CA 6 2016 UT App 125

was under forty hours per week. Jeffery therefore concludes that 

the district court was required to impute income to Diane by 

multiplying her hourly wage by thirty-six hours per week, rather 

than accepting her W-2, which reflected about thirty hours per 

week. 

¶12 It is not clear that the district court’s factual finding (“The 

Court finds [Diane] was working 36 hours a week.”) amounted

to a decision for the purposes of the law-of-the-case doctrine. See 

Decision, Black’s Law Dictionary (10th ed. 2014) (“A judicial or 

agency determination after consideration of the facts and the law; 

esp., a ruling, order, or judgment pronounced by a court when 

considering or disposing of a case.” (emphasis added)). Nor is it 

clear that the court’s 2011 finding as to the number of hours 

Diane was actually working in 2009 is relevant to the court’s 

implicit determination of the number of hours Diane was

capable of working in 2014. In any event, 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”; “*w+hile a case remains pending before the district 

court prior to any appeal . . . the court remains free to reconsider 

that decision.” IHC Health Servs., 2008 UT 73, ¶¶ 27, 28 

(emphases added). In this case, no appeal was taken between the 

2011 entry of the district court’s findings of fact and the 2014 

order denying Jeffery’s petition.

¶13 We conclude that the district court did not err, because

the mandate rule has no application here.

III. 

¶14 Jeffery next contends that the district court erred by 

failing to find that Diane was voluntarily underemployed. He 

asserts that Diane was working thirty hours per week, and that 

the district court “tacitly approved *Diane+ only working 

approximately 30 hours per week in determining her present 

monthly income.” Jeffery again argues that the district court 

should have instead multiplied Diane’s hourly pay by the 
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20150040-CA 7 2016 UT App 125

number of hours she had been working in 2009 (thirty-six hours 

per week) and imputed to her that amount of income.

¶15 Jeffery does not cite any authority relevant to his 

argument. See Utah R. App. P. 24(a)(9). It is true that a court may 

impute income to a former spouse for purposes of calculating 

alimony after finding that the former spouse is voluntarily 

unemployed or voluntarily underemployed. See Connell v. 

Connell, 2010 UT App 139, ¶ 16, 233 P.3d 836. “However, a 

finding of voluntary underemployment does not require a court 

to impute the higher income; it merely allows [the court] to do 

so.” Id. ¶ 17. Because Jeffery fails to cite any authority regarding 

what standards a court should employ for determining when it 

is appropriate to impute income, he necessarily fails to convince 

us that the district court erred by failing to impute income to 

Diane. Moreover, as noted above, the district court’s statement 

that Diane was working thirty-six hours per week in 2011 does 

not appear relevant to the apparent determination that working 

thirty hours per week in 2014 was reasonable. Accordingly, there 

is no support for Jeffery’s claim that income should be imputed 

to her for thirty-six hours per week. He therefore cannot show 

that the district court erred or abused its discretion by not 

imputing income to Diane.

¶16 Because Jeffery has not shown that the district court 

should have imputed income to Diane, let alone proven the 

amount it should have imputed, we conclude that this claim is 

inadequately briefed and do not consider it further.

IV. 

¶17 Jeffery contends that the district court erred by failing to 

find that there was a substantial change of circumstances, not 

foreseeable at the time of the divorce, that justified a 

modification of alimony. “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.” Utah Code Ann. § 30-3-
Fish v. Fish

20150040-CA 8 2016 UT App 125

5(8)(i)(i) (LexisNexis 2013). “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.” Earhart v. Earhart, 2015 UT App 308, ¶ 5, 365 P.3d 

719.

¶18 Jeffery does not explain why or in what way he believes 

the district court abused its discretion. Rather, he asserts that the 

district court erred. Jeffery begins by estimating Diane’s 

reasonable income; multiplying Diane’s hourly wage by the 

number of hours he believes she should be working.5 He then 

adds a “typical” annual bonus and the military retirement 

monies that she receives. Because the total he arrives at is greater 

than the amount Diane was earning in 2009, he asserts that a 

substantial change of circumstances has occurred. He further 

claims that because the divorce decree is devoid of language 

referring to an increase in income, any increase is “a change of 

circumstance not contemplated by the divorce decree itself.” On 

this basis, Jeffery concludes that “there has been a material 

substantial change of circumstances not contemplated in the 

decree of divorce.”

¶19 As explained above, Jeffery has not established that the 

court should have imputed more income to Diane than she was 

actually earning. Accordingly, we assume that Diane’s 

reasonable income was the amount she was receiving from her 

employment and the military retirement. The magnitude of her 

alleged increase in income is therefore much smaller than that 

asserted by Jeffery. 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

 

5. Jeffery provides calculations based on working weeks of 

thirty-six hours, thirty-three hours, and thirty-two hours without 

identifying which he believes to be correct.
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20150040-CA 9 2016 UT App 125

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. 

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 district court to determine

whether a substantial and material change has occurred. See 

Earhart, 2015 UT App 308, ¶ 5.

¶20 In short, Jeffery argues that because Diane’s 2014 income 

(as calculated using the number of hours per week he believes 

the court should have imputed to her) 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. We disagree. Contrary to Jeffery’s 

contention, this is a question of discretion, not correctness. The 

district court had discretion to determine, as it did, that in light 

of all the circumstances, Diane’s $2 per hour increase in pay over 

a five-year period was not such a change.

V. 

¶21 Jeffery next contends that the district court erred by 

denying his motion to amend its findings of fact or to grant a 

new trial. He challenges both the adequacy of the findings made 

by the court and the sufficiency of the evidence to support those 

findings. A district court’s determination must be based on 

adequate findings, and the court’s findings must be derived 

from sufficient evidence. See Roberts v. Roberts, 2014 UT App 211, 

¶ 10, 335 P.3d 378.
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20150040-CA 10 2016 UT App 125

¶22 Findings are adequate when they contain sufficient detail

to permit appellate review to ensure that the district court’s 

discretionary determination was rationally based. Barnes v. 

Barnes, 857 P.2d 257, 259 (Utah Ct. App. 1993); Hall v. Hall, 858 

P.2d 1018, 1021 (Utah Ct. App. 1993). “Unstated findings can be 

implied if it is reasonable to assume that the trial court actually 

considered the controverted evidence and necessarily made a 

finding to resolve the controversy, but simply failed to record 

the factual determination it made.” Hall, 858 P.2d at 1025.

¶23 We consider first the district court’s discretionary 

determination that there was not a material change in 

circumstances. The findings supporting this ruling were that, 

from 2009 to 2014, Diane’s income increased by $264 per month 

and her expenses increased by $492 per month. The court 

calculated these increases by comparing its earlier findings about

her financial situation in 2009 with the amounts the court found 

she was reasonably earning and spending in 2014.

¶24 Jeffery asserts that these findings were inadequate to 

support the determination that there was not a material change 

in circumstances. He argues that the district court’s findings 

were inadequate because they did not include a finding that 

Diane was underemployed.6 However, the court actually made a 

finding to the contrary. By finding that Diane was reasonably

earning $2,497 per month, the court implicitly rejected Jeffery’s 

underemployment argument that sought imputation of 

additional income. See Hall, 858 P.2d at 1025. The district court 

further found that “this is not a significant material change in 

income for Diane” and therefore concluded that there was “not a 

material change in circumstances.” We reject Jeffery’s 

inadequacy claim; as a matter of logic, a district court’s findings 

 

6. Jeffery claimed that Diane was underemployed because, in 

2014, she was working fewer hours than she had in 2009, and 

that the court should therefore impute income to her as if she 

was working thirty-six hours per week.
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20150040-CA 11 2016 UT App 125

are not inadequate to support its ultimate determination simply 

because they are unfavorable to the losing party’s position.7

¶25 Jeffery also challenges the sufficiency of the evidence to 

support the court’s findings. “Findings of fact, whether based on 

oral or documentary evidence, shall not be set aside unless 

clearly erroneous . . . .” Utah R. Civ. P. 52(a) (2014). “An 

appellant who challenges the sufficiency of the evidence 

supporting a finding of fact has the burden of combing the 

record for and compiling all of the evidence that supports the 

finding of fact and explaining why that evidence is legally 

insufficient to support the finding of fact.” Wilson Supply, Inc. v. 

Fradan Mfg. Corp., 2002 UT 94, ¶ 21, 54 P.3d 1177; see also Nielsen 

v. Nielsen, 2014 UT 10, ¶ 42, 326 P.3d 645 (explaining that, while 

marshaling is not an absolute requirement, “a party challenging 

a factual finding or sufficiency of the evidence to support a 

verdict will almost certainly fail to carry its burden of persuasion 

on appeal if it fails to marshal”). Jeffery’s arguments, however, 

appear to attack the content of the court’s findings rather than 

any perceived deficiency in the evidence supporting them.

¶26 Jeffery first argues that the court’s “findings are 

insufficient” because the court “failed to make findings as to the 

recipient’s earning capacity or the ability to produce income.”

He refers to Utah Code section 30-3-5(8)(a)(ii), which states, “The 

court shall consider at least the following factors in determining 

alimony: . . . the recipient’s earning capacity or ability to produce 

income.” But Jeffery ignores the fact that the court here was 

considering whether to modify alimony at all rather than how 

much to modify alimony by. The district court’s section 30-3-

5(8)(a)(ii) duty to calculate the appropriate amount of alimony is 

only triggered in a modification proceeding once the court has 

 

7. For this reason, we also reject Jeffery’s claims that the findings 

were inadequate for failing to include findings that Diane’s 

housing expense had increased unreasonably and that Jeffery 

was the prevailing party.
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20150040-CA 12 2016 UT App 125

determined that, pursuant to section 30-3-5(8)(i)(i), modification 

is appropriate “based on a substantial material change in 

circumstances not foreseeable at the time of the divorce.” As a 

result, because the court here determined that no such change 

had occurred, it was under no duty to enter new findings as to 

Diane’s earning capacity.8

¶27 Jeffery next argues that the district court’s findings were 

insufficient because “[the] court erroneously increased *Diane’s+ 

monthly expenses by addressing needs that did not exist at the 

time the divorce was entered.” His complaint appears to be that 

the district court found Diane’s increased monthly expenses 

reasonable. But he does not explain why the evidence in support 

of that finding was insufficient. Rather, he simply repeats his 

argument that the district court should not have considered 

Diane’s increased housing expense as reasonable. “The court 

may not modify alimony or issue a new order for alimony to 

address needs of the recipient that did not exist at the time the 

decree was entered . . . .” Utah Code Ann. § 30-3-5(8)(i)(ii). But 

here, the court did not modify or issue a new order of alimony. 

See supra ¶¶ 7–9.

¶28 Jeffery also argues that the district court’s findings were 

insufficient because “*t+he trial court failed to find there had 

been a material substantial change of circumstances regarding 

*Diane’s+ increase in income that was not foreseeable at the time 

of the divorce.” Failure to rule in favor of one party neither 

renders the evidence insufficient to support the findings nor the 

findings inadequate to support the ruling.

 

8. Jeffery also makes arguments in this regard premised on his 

earlier assertions that the law-of-the-case somehow applies to 

the district court’s 2011 findings and that additional income 

should have been imputed to Diane. Because we rejected those 

premises above, we reject the associated arguments here.
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20150040-CA 13 2016 UT App 125

¶29 We conclude that the district court did not err by entering 

findings that supported its ruling, and the fact that Jeffery 

sought a different ruling does not undermine the sufficiency of 

the evidence supporting those findings. We reject Jeffery’s 

attempt to inject alternative findings favorable to his preferred 

outcome under the guise of an adequacy-of-the-findings or 

sufficiency-of-the-evidence challenge.

VI. 

¶30 Jeffery next contends that the district court erred by 

failing to award attorney fees to him. Specifically, he argues that 

he is the prevailing party because he has shown that the district 

court should have reduced or terminated his alimony obligation. 

“Generally, when the trial court awards fees in a domestic action 

to the party who then substantially prevails on appeal, fees will 

also be awarded to that party on appeal.” Kimball v. Kimball, 2009 

UT App 233, ¶ 52, 217 P.3d 733 (citation and internal quotation 

marks omitted).

¶31 Jeffery did not prevail below and has not prevailed on 

appeal. The district court therefore did not err in failing to award 

attorney fees to him below, and we do not award attorney fees to 

him on appeal.9

¶32 We affirm in all respects.

 

9. Unfortunately, despite receiving an award of attorney fees 

below, Diane did not request an award of her attorney fees 

incurred on appeal.