2018 UT App 175

THE UTAH COURT OF APPEALS

GARY LYNN ARMENDARIZ,

Appellant,

v.

PIXIE MARIE ARMENDARIZ,

Appellee.

Opinion

No. 20160997-CA

Filed September 7, 2018

Second District Court, Farmington Department

The Honorable John R. Morris

No. 044700632

Matthew G. Koyle, Attorney for Appellant

Robert L. Neeley, Attorney for Appellee

JUDGE KATE A. TOOMEY authored this Opinion, in which 

JUDGE GREGORY K. ORME concurred. JUDGE RYAN M. HARRIS

concurred, with opinion.

TOOMEY, Judge:

¶1 Gary Lynn Armendariz and Pixie Marie Armendariz 

divorced in 2005 after almost twenty-nine years of marriage.

Gary1 entered early retirement in 2015, claiming that physical 

pain prevented him from working in a position similar to his 

employment during the marriage. As a result, Gary’s income 

decreased after he retired, and he petitioned the district court to 

modify the divorce decree by terminating Pixie’s award of 

 

1. “As is our practice in cases where both parties share a last 

name, we refer to the parties by their first name with no 

disrespect intended by the apparent informality.” Smith v. Smith, 

2017 UT App 40, ¶ 2 n.1, 392 P.3d 985.
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alimony (the Petition to Modify). The district court denied the 

Petition to Modify, concluding that Gary’s retirement was 

foreseeable at the time of divorce and that his early retirement 

was voluntary and therefore did not constitute a material and 

substantial change of circumstances. Gary appeals, and we 

affirm.

¶2 Gary and Pixie’s 2005 divorce decree identified three 

events that would terminate Gary’s alimony obligation: 

(1) Pixie’s remarriage, (2) “her creation of a cohabitation 

relationship with a person of either sex,” or (3) “her death.” It 

also provided that Pixie would receive a “50% distributive share 

of [Gary’s] federal civilian employment civil service retirement 

account as of and not beyond the entry date of the decree of 

divorce.” Gary had worked as an aircraft mechanic at Hill Air 

Force Base for thirty-five years before retiring at the age of 

sixty-one.

¶3 Near the end of 2014, Gary filed the Petition to Modify, 

asking the court to modify the divorce decree and terminate his 

alimony obligation, based on his planned retirement the next 

year. According to the Petition to Modify, he wanted to retire 

early because he was “simply unable to continue [working].” 

Because of his retirement, Gary asserted that, “[f]or some reason, 

[Pixie] believes she is entitled to her alimony, and her 

appropriate share of [Gary’s] retirement accounts, which would 

obviously be inappropriate and inequitable.”

¶4 During the bench trial, Gary testified that he suffered an 

injury in a car accident in 1998 that broke all of the metatarsal 

bones in his foot. Then, in 2011 and 2012, Gary underwent 

shoulder surgeries to repair torn rotator cuffs in each shoulder.

As a result of these injuries, Gary claimed it was too painful to 

continue working and therefore sought early retirement.

¶5 After the bench trial, the court entered an order with 

supporting findings of facts and conclusions of law. The court 

concluded that it “[did] not have jurisdiction to terminate 
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20160997-CA 3 2018 UT App 175

alimony” because Gary’s retirement was foreseeable at the time 

of divorce and nothing in the divorce decree provided that 

retirement would terminate his alimony obligations. It found 

that the divorce decree allocated half of Gary’s retirement 

account accrued during the time of the marriage to Pixie, but the 

decree did not provide that receipt of the retirement funds 

would “modify, terminate, or amend the award of alimony to 

[Pixie].” In its oral ruling, the court also found that there was no 

evidence, other than Gary’s anecdotal statements, that his 

injuries rendered him disabled and unable to continue working. 

It further found that Gary “admitted under cross-examination 

that he didn’t even seek alternative employment or 

reassignment,” and he did not provide any information that his 

employer had “talked to him about the quality of his work” or 

his ability to continue working. Without additional evidence to 

support his inability to continue working, the court concluded 

that his early retirement was voluntary. For these reasons, the 

court denied the Petition to Modify. Gary appeals.

¶6 Gary contends the district court erred in determining that 

his retirement was foreseeable at the time the divorce decree was 

entered. “In a divorce action, the district court is permitted 

considerable discretion in adjusting the financial and property 

interests of the parties, and its actions are entitled to a 

presumption of validity.” Anderson v. Anderson, 2018 UT App 19, 

¶ 19, 414 P.3d 1069 (quotation simplified). We review a district 

court’s determination regarding a petition to modify a divorce 

decree for an abuse of discretion. MacDonald v. MacDonald, 2017 

UT App 136, ¶ 7, 402 P.3d 178, aff’d, 2018 UT 48; see also Earhart v. 

Earhart, 2015 UT App 308, ¶ 5, 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.”).

¶7 The district court “has continuing jurisdiction to make 

substantive changes and new orders regarding alimony based on 

a substantial material change in circumstances not foreseeable at 
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20160997-CA 4 2018 UT App 175

the time of the divorce.” Utah Code Ann. § 30-3-5(8)(i)(i) 

(LexisNexis Supp. 2017) (emphasis added). In MacDonald, this 

court addressed the “foreseeability standard” and determined 

that, rather than use “the verb ‘foresee’ in its past tense, 

‘foreseen,’” the “legislature employed the adjective ‘foreseeable,’

which includes not only those circumstances which the parties 

or the court actually had in mind, but also circumstances that 

could ‘reasonably be anticipated’ at the time of the decree.” 2017 

UT App 136, ¶ 11. Our supreme court has affirmed our 

interpretation of section 30-3-5-(8)(i)(i) and clarified that “the 

foreseeability inquiry requires a threshold determination of the 

relevant scope of information to be considered” and that “it is 

not enough to simply note that something is foreseeable if it can 

be reasonably anticipated.” See MacDonald v. MacDonald, 2018 

UT 48, ¶ 31. The inquiry of foreseeability is therefore limited to 

the universe of information that was presented in the record at 

the time the district court entered the divorce decree.” Id. ¶ 5.

¶8 Here, the fact of Gary’s retirement was a foreseeable event 

at the time of the divorce. Gary contributed to a retirement 

account during the marriage, and a provision of the divorce 

decree provided that Pixie was entitled to half of that account 

accrued during their marriage. The fact of Gary’s retirement was 

therefore “foreseeable under the express terms of the decree.” 

See id. ¶¶ 5, 44. And Gary admitted at the bench trial that 

“[w]hen [he] divorced [Pixie] in 2005 . . . [he had] anticipated to 

work until [he] was 65.” The divorce decree also identified three 

specific events that would terminate Pixie’s alimony, but nothing 

in the decree “specifically call[ed] out retirement as an event 

which would terminate the alimony obligation.” None of these 

provisions included language that Gary’s retirement or the 

distribution of half of his retirement fund to Pixie would 

terminate Gary’s alimony obligation.2 We therefore conclude the 

 

2. Similar to the appellant in MacDonald, Gary argues that 

Bolliger v. Bolliger, 2000 UT App 47, 997 P.2d 903, is controlling 

and that this court should apply the standard from a prior 

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20160997-CA 5 2018 UT App 175

district court did not abuse its discretion in determining Gary’s 

retirement was a foreseeable event at the time the divorce decree 

was entered3 and that nothing in the decree supports the 

conclusion that retirement was a triggering event for termination 

of his alimony obligation.4

 

(...continued)

version of Utah Code section 30-3-5(8)(i)(i). But MacDonald

explicitly stated that, although the Bolliger court “did not address 

whether the 1995 amendment [to this statute] altered the 

applicable standard . . . the standard did change and we apply 

that standard today.” 2017 UT App 136, ¶ 16; see also MacDonald

2018 UT 48, ¶¶27–29. As a result, any reliance on cases that do 

not apply the current foreseeability standard for a petition to 

modify alimony is misplaced.

3. Because we conclude Gary’s retirement was a foreseeable 

event at the time of divorce and nothing in the divorce decree 

provided that retirement would terminate Gary’s alimony 

obligation, we decline to address the remainder of Gary’s 

arguments that relate to whether his early retirement was 

voluntary.

4. This latter proposition is not surprising as a legal matter, 

although it is perhaps counterintuitive at first blush. Alimony is 

a form of support, terminable on remarriage and other specific 

occurrences, limited to the duration of the marriage, and subject 

to adjustment in the event of a material change of circumstances.

See generally Utah Code Ann. § 30-3-5(8)–(10) (LexisNexis Supp. 

2017). In contrast, retirement benefits are a property interest, 

allocable to the named beneficiary if separate property or

distributed as marital property if part of the marital estate. See 

Johnson v. Johnson, 2012 UT App 22, ¶¶ 11–13, 270 P.3d 556, aff’d 

in part and rev’d in part on other grounds by 2014 UT 21, 330 P.3d 

704. Entitlement to retirement benefits is not a function of need, 

and that entitlement does not end with remarriage or 

(continued...)
Armendariz v. Armendariz

20160997-CA 6 2018 UT App 175

¶9 We conclude that Gary’s retirement was foreseeable at the 

time the divorce decree was entered and the decree did not 

provide that Gary’s alimony obligation would terminate upon 

his retirement. Accordingly, we affirm.

HARRIS, Judge (concurring):

¶10 I concur in full with the majority opinion, because in my 

view the result in this case is compelled by the plain language of 

Utah Code section 30-3-5(8)(i)(i), which allows district courts to 

 

(...continued)

cohabitation. See id. ¶ 11 (providing that “an employee spouse’s 

retirement benefits are subject to equitable distribution in a 

divorce proceeding, provided that the benefits accrued in whole

or in part during the marriage” (quotation simplified)). But there 

is an indirect connection between the two. Alimony is a function 

of need and ability to pay. See Utah Code Ann. § 30-3-5(8)(a)(i)–

(iii). To the extent that a spouse otherwise entitled to alimony 

becomes eligible for retirement benefits, her actual need may 

well be reduced. And by the same token, if the spouse obligated 

to pay alimony receives less in retirement than he earned while 

working, his ability to pay may likewise be reduced. Seen from 

this perspective, Judge Harris makes an excellent point: where a 

payor spouse experiences a drop in income at retirement, or 

where a payee spouse receives significant benefits associated 

with either spouse’s retirement, such changes may well make 

alimony unnecessary or at least suggest that the amount of 

alimony be reduced. Thus, anticipating such changes and 

adjusting alimony accordingly, either prospectively or at the 

time they occur, makes a great deal of sense. See infra ¶¶ 10–12.

But the majority does not see any need for amendment of the 

applicable statute. Family law practitioners need only recognize 

that in all but a handful of divorce cases, retirement is inevitable, 

and thus a foreseeable, event. As such, it should routinely be 

dealt with explicitly in the divorce decree.
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20160997-CA 7 2018 UT App 175

modify alimony orders only where there exists a change in 

circumstances that is both (a) substantial and material, and (b) 

“not foreseeable at the time of the divorce.” (LexisNexis Supp. 

2017); see also MacDonald v. MacDonald, 2017 UT App 136, ¶ 12, 

402 P.3d 178 (interpreting the statute to require that “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” (quotation simplified)), aff’d, 2018 UT 48. As the 

majority opinion recognizes, retirement will usually be 

foreseeable, and clearly was in this case. See supra ¶ 7. 

Accordingly, I agree that the district court did not abuse its 

discretion in determining that the requirements of the statute 

were not met, and therefore did not err in declining to consider a 

modification to the applicable alimony order.

¶11 I write separately for two reasons. First, I wonder whether 

this result—especially as applied to retirement—is truly what 

our legislature intended. While it is of course the legislature’s 

task—and not ours—to weigh competing policy considerations 

and craft legislation, it seems to me that there are compelling 

policy reasons to prefer the rule discussed in our previous 

decision in Bolliger v. Bolliger, 2000 UT App 47, 997 P.2d 903, 

interpreting the statutory language in effect prior to the 1995 

statutory amendment discussed in MacDonald, 2017 UT App 136, 

¶ 12 n.4. Under the previous rule, “a party’s retirement or receipt 

of social security, unless expressly foreseen at the time of the 

divorce, may amount to a substantial material change of 

circumstances entitling the petitioner to a determination of 

whether the alimony [order] should be modified.” Bolliger, 2000 

UT App 47, ¶ 20. The language of the current statute, by 

contrast, could give rise to situations in which payor spouses are 

saddled with alimony obligations that were computed based on 

pre-retirement income but that, subsequent to their retirement, 

they may not realistically be able to meet. If that result is not 
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20160997-CA 8 2018 UT App 175

what the legislature intended, then it should consider amending 

the statute. 

¶12 Second, assuming that the current statutory scheme 

remains in place, I urge family law practitioners and district 

judges, when negotiating and drafting alimony provisions in 

decrees of divorce, to make a practice of taking into account the 

parties’ likely future retirement, and making appropriate ex ante 

adjustments to the payor spouse’s future payment obligations to 

account for significant foreseeable post-retirement changes in the 

parties’ financial situation, including the extent to which the 

payee spouse will receive significant retirement benefits, and 

including any changes in the payor spouse’s income.