2017 UT App 136

THE UTAH COURT OF APPEALS

KIRKPATRICK MACDONALD,

Appellant,

v.

LEE ANNE MACDONALD,

Appellee.

Opinion

No. 20150785-CA

Filed August 3, 2017

Third District Court, Silver Summit Department

The Honorable Kara Pettit

No. 104500031

Troy L. Booher, Julie J. Nelson, and Bart J. Johnsen, 

Attorneys for Appellant

Matthew A. Steward and Shannon K. Zollinger, 

Attorneys for Appellee

JUDGE DAVID N. MORTENSEN authored this Opinion, in which 

JUDGES STEPHEN L. ROTH and KATE A. TOOMEY concurred.1

MORTENSEN, Judge:

¶1 After roughly twenty years of marriage, Kirkpatrick 

MacDonald (MacDonald) and Lee Anne MacDonald (now 

Fahey) divorced after stipulating to alimony payments and the 

division of their property. Fahey sold some of the land awarded

to her and invested the proceeds, which now provide her a 

substantial income stream. MacDonald petitioned the trial court 

to adjust the alimony that he stipulated to pay because, he 

 

1. Judge Stephen L. Roth participated in this case as a member of 

the Utah Court of Appeals. He retired from the court before this 

decision issued.
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claimed, Fahey’s new income stream constitutes a substantial 

material change in circumstances. The trial court denied the 

petition and MacDonald appeals. We affirm.

BACKGROUND

¶2 Fahey and MacDonald married in June 1991.

Irreconcilable differences arose and MacDonald filed for divorce 

in February 2010. The parties engaged in mediation, which 

resulted in an agreement in December 2010 (the Agreement). 

MacDonald and Fahey signed the Agreement in October and 

November 2011, respectively. The parties submitted the

Agreement to the court in December 2011.

¶3 The Agreement awarded Fahey three pieces of real 

property in the Preserve Development in Summit County. One 

of these lots is the property at issue (the Property). The 

Agreement also provided that MacDonald “pay the 

Homeowner’s Association fees and property taxes on [the 

Property] for a period of five years . . . or until [Fahey] sells [the 

Property].” If sold, Fahey “shall reimburse [MacDonald] for 

those payments without interest.” The Agreement further 

required that MacDonald pay Fahey alimony until December 

2020 or earlier if she remarried, cohabited, or died. The parties 

stipulated that alimony payments would begin at $2,000 per 

month and increase to $6,000 per month beginning in January 

2013. The Agreement contained no language specifically 

conditioning alimony upon any aspect of the parties’ real 

property division, the subsequent disposition of the property, or 

upon Fahey’s needs. MacDonald was awarded all real property 

from the marriage not specifically awarded to Fahey.2 In 

addition, MacDonald paid $200,000 in cash to Fahey before he 

 

2. This included a $6.5 million brownstone building and a $1.5 

million apartment, both in New York City.
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20150785-CA 3 2017 UT App 136

signed the Agreement. He further agreed to pay monthly 

installments, described as an additional property settlement, for 

a total of $103,500, beginning with a payment of $4,500 per 

month and later decreasing to $4,000 per month. The trial court 

entered the Decree of Divorce and Findings of Fact and 

Conclusions of Law in January 2012, incorporating all terms of 

the Agreement.

¶4 Sometime between the parties signing the Agreement and 

the court entering the Decree, a buyer offered MacDonald 

$1,425,000 to purchase the Property. According to MacDonald, 

this price was approximately twice what he anticipated the 

Property was worth. The parties agreed the Property should be 

sold and signed a sale contract before the Decree was entered. 

The sale closed in late January 2012, and Fahey deposited the 

proceeds, $1,240,000, into her trust account. Fahey’s trust 

account was apparently set up prior to receiving the funds from 

the sale of the Property, and it already held the $200,000 cash 

settlement MacDonald had paid Fahey as part of the Agreement. 

In 2013, Fahey deposited another $498,000 from the sale of other 

property. As of April 2015, Fahey’s trust account contained 

$1,740,000 and she was expected to earn $45,000 per year on her 

investments.

¶5 In January 2013, MacDonald filed a petition to modify the 

Decree, asking that the trial court terminate his alimony 

obligations. MacDonald argued that Fahey’s investment of funds 

from the sale of the Property and the subsequent interest income 

generated by that investment constituted a substantial material 

change in circumstances.

¶6 The court denied the petition after a two-day trial, 

concluding that the sale of the Property and the investment of 

the sale proceeds did not constitute a substantial material change 

in circumstances. The trial court ruled “that [MacDonald] ha[d]

not shown a substantial change of circumstances from the time 

of the Decree that was not foreseen or contemplated by the 
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Decree, and therefore denie[d] the Petition to Modify on those 

grounds.” Further, the trial court found that “the parties, in their 

Agreement, which contained both the property division and the 

setting of alimony, contemplated that [Fahey] was going to sell 

those lots and was going to use the proceeds of the sale of those 

lots to pay expenses.” MacDonald appeals the trial court’s order.

ISSUE AND STANDARD OF REVIEW

¶7 MacDonald appeals the trial court’s determination that he 

failed to show a substantial material change in circumstances, 

not foreseeable at the time of the divorce. As we have explained, 

this court generally will “review a district court’s determination 

to modify or not to modify a divorce decree for an abuse of 

discretion.” Fish v. Fish, 2016 UT App 125, ¶ 5, 379 P.3d 882; see 

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.”).

ANALYSIS

¶8 MacDonald contends that the trial court’s determination 

that the facts did not warrant a modification of alimony was an 

abuse of discretion. He argues that Fahey’s new income stream 

from her interest earned on investments constitutes “a 

substantial change in circumstances that occurred after the 

divorce and was not foreseeable at the time of divorce.” 

MacDonald relies on Bolliger v. Bolliger, 2000 UT App 47, 997 

P.2d 903, which requires “evidence that the change was foreseen 

at the time of the divorce to preclude a finding of changed 

circumstances.” Id. ¶ 11 n.3. We disagree and affirm.
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I. The Foreseeability Standard

¶9 The standard to be applied to a petition to modify an 

award of alimony is set forth in the Utah Code, which reads:

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. § 30-3-5(8)(i)(i) (LexisNexis 2013). This 

provision, amending section 30-3-5, was added in 1995 and has 

been the controlling statute for alimony modifications since.3 See 

Wilde v. Wilde, 969 P.2d 438, 441 n.1 (Utah Ct. App. 1998). 

Accordingly, the language of this provision controls the question 

presented in this appeal.

¶10 We construe statutes according to their plain meaning if 

possible.

The primary objective of statutory interpretation is 

to ascertain the intent of the legislature. Since [t]he 

best evidence of the legislature’s intent is the plain 

language of the statute itself, we look first to the 

plain language of the statute. In so doing, [w]e 

presume that the legislature used each word 

advisedly. . . . When we can ascertain the intent of 

the legislature from the statutory terms alone, no 

 

3. We note that this case solely concerns modification of an 

award of alimony under a decree of divorce. The “change in 

circumstances required to justify a modification of a divorce 

decree varies with the type of modification sought.” Haslam v. 

Haslam, 657 P.2d 757, 758 (Utah 1982).
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other interpretive tools are needed, and our task of 

statutory construction is typically at an end.

Bagley v. Bagley, 2016 UT 48, ¶ 10, 387 P.3d 1000 (alterations in 

original) (citations and internal quotation marks omitted).

When we interpret a word within a statute, we first 

consider its plain meaning. In looking to determine 

the ordinary meaning of nontechnical terms of a

statute, our starting point is the dictionary. If not 

plain when read in isolation, [a word] may become 

so in light of its linguistic, structural, and statutory 

context.

Nichols v. Jacobsen Constr. Co., 2016 UT 19, ¶ 17, 374 P.3d 3

(alteration in original) (citations and internal quotation marks 

omitted). “We also presume that when the legislature amends a 

statute, it intended the amendment to change existing legal 

rights.” Olsen v. Samuel McIntyre Inv. Co., 956 P.2d 257, 261 (Utah 

1998) (citation and internal quotation marks omitted). Indeed,

after section 30-3-5 was amended, this court held that the 1995 

amendment “regulates a party’s right to receive alimony and is a 

substantive change in the law.” See Wilde, 969 P.2d at 442–43.

¶11 The dictionary defines “foreseeable” as “being such as 

may reasonably be anticipated.” Foreseeable, Webster’s Third Int’l 

Dictionary 890 (1971). From the linguistic and structural position 

of this term in the statute, and assuming that the legislature used 

not only the word but its form advisedly, we conclude that the 

legislature purposely did not use the verb “foresee” in its past 

tense, “foreseen.” This distinction is important. If the provision 

required that the changed circumstances warranting 

modification were not actually foreseen, then a petitioner would 

bear the burden of showing that when the decree was entered 

the parties or the court had not actually contemplated that such 

a change would occur. Instead, the legislature employed the 

adjective “foreseeable,” which includes not only those 
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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.

¶12 Thus, the intent of the 1995 amendment4 is 

unambiguous—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.” See Utah Code Ann. § 30-

3-5(8)(i)(i). Accordingly, we conclude that, as it pertains to 

alimony, only a substantial material change in circumstances not 

foreseeable, i.e., not reasonably capable of being anticipated at 

 

4. Prior to the 1995 amendment, the statute provided:

The court has continuing jurisdiction to make 

subsequent changes or new orders for the support 

and maintenance of the parties, the custody of the 

children and their support, maintenance, health, 

and dental care, or the distribution of the property 

and obligations for debts as is reasonable and 

necessary.

Utah Code Ann. § 30-3-5(3) (Michie Supp. 1994); see Wilde v. 

Wilde, 969 P.2d 438, 441 & n.1 (Utah Ct. App. 1998) (discussing 

the 1995 amendment). Thus, before 1995 a single standard 

applied to the continuing power of the district court to modify 

(“make subsequent changes or new orders”) a decree as to 

alimony (“the support and maintenance of the parties”), child 

support (“the custody of children and their support”), and 

property and debt distribution. See Utah Code Ann. § 30-3-5(3). 

The law was changed. Now alimony and child support 

modification are controlled by separate statutory provisions. See 

id. § 30-3-5(8)(i)(i) (LexisNexis 2013) (controlling modification of 

alimony); id. § 78B-12-210(8)–(9) (2012) (controlling modification 

of child support).
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the time the decree was entered, qualifies as a basis for 

modification.

¶13 Recent cases from this court confirm this interpretation. In 

Fish v. Fish, 2016 UT App 125, 379 P.3d 882, a husband “filed a 

petition seeking to terminate or reduce” alimony based upon an 

alleged two-dollar-an-hour increase in his wife’s income. Id. ¶ 3. 

The trial court denied the petition. Id. The husband appealed, 

asserting, among other grounds, that the trial court failed “to 

find that an unforeseen material substantial change in 

circumstances warranted modification of the decree.” Id. ¶ 4. The 

husband claimed that because the divorce decree was devoid of 

language referring to an increase in income by the receiving 

spouse, any increase would be a “change of circumstance not 

contemplated by the divorce decree itself.” Id. ¶ 18 (internal 

quotation marks omitted). This court disagreed and affirmed the 

trial court, stating:

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 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.

Id. ¶ 19. Thus, in Fish we expressly applied the foreseeability 

standard and construed the provision to encompass 
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circumstances beyond those actually foreseen at the time. We 

further noted:

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.

Id. Consequently, this court agreed with the trial court that 

although the receiving ex-spouse’s income had increased 

somewhat in the intervening time between the decree and the 

petition to modify, that increase was foreseeable and a petition 

to modify alimony could not be granted. Id. ¶ 20.

¶14 Similarly, in Earhart v. Earhart, 2015 UT App 308, 365 P.3d 

719, this court affirmed a trial court’s finding that certain

substantial material changes in circumstances were 

unforeseeable and therefore provided a basis for modification of 

alimony. Id. ¶¶ 11, 14. Mr. Earhart’s annual income at the time 

the decree was entered was $264,000, but some months later, his 

business “suffered the unforeseen loss of its primary client,” and 

as a result his annual income dropped to $180,000. Id. ¶¶ 3, 11. In 

its findings, the trial court noted that the evidence was 

essentially uncontroverted that a significant client had been lost, 

the financial records of the company confirmed that the revenue 

historically flowing from this client had evaporated, and “the 

change in clientele and income was unforeseeable.” Id. ¶¶ 11, 13. 

This court affirmed, concluding that, even though the evidence 

was mixed, sufficient evidence existed to support the trial court’s 

findings, “which in turn are adequate to support its conclusion 

that an unforeseen and involuntary change of circumstances had 

occurred.” Id. ¶ 14.
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¶15 In sum, the two most recent decisions of this court 

reviewing a trial court’s adjudication of a petition to modify 

alimony applied a foreseeability standard. This approach is 

consistent with the plain language of the 1995 amendment and is 

the standard we apply today.

¶16 MacDonald relies on Bolliger v. Bolliger, 2000 UT App 47, 

997 P.2d 903, to argue that only where the alleged change in 

circumstances was expressly anticipated in the decree itself is a 

petition to modify alimony precluded.5 Although the court in 

Bolliger quoted an earlier version of Utah Code section 30-3-

5(8)(i)(i), see Bolliger, 2000 UT App 47, ¶ 11, it does not appear 

that the court applied the foreseeability analysis that the plain 

language of the statute requires. Instead, Bolliger applied a 

standard for modification of alimony that requires the moving 

party to show that “a substantial material change of 

circumstances has occurred since the entry of the decree and not 

contemplated in the decree itself.” Id. ¶ 11 (citation and internal 

quotation marks omitted). This is likely because the parties in 

Bolliger did not argue that the 1995 amendment substantively 

changed the prior standard. In fact, the Bolliger court noted:

The parties agree that this provision, added in 

1995, does not alter the efficacy of our 

jurisprudence requiring evidence that the change 

was foreseen at the time of the divorce to preclude 

a finding of changed circumstances.

Id. ¶ 11 n.3. As a result, the Bolliger court did not address

whether the 1995 amendment altered the applicable standard.

As our analysis above shows, however, the standard did change 

and we apply that standard today.

 

5. Both parties in this case have cited Bolliger as controlling case 

law.
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20150785-CA 11 2017 UT App 136

II. The Foreseeability Standard Applied

¶17 Consistent with the statute’s plain language, and as 

applied in our decisions in Fish and Earhart, we hold that the 

standard to be applied in determining whether a substantial 

change in circumstance warrants a modification of alimony is 

whether the circumstance was foreseeable at the time of divorce. 

Where the circumstances are foreseeable, or may be reasonably 

anticipated, modification is not permitted.

¶18 In the present matter, we cannot say that it was 

unforeseeable that Fahey would sell some of the real estate and 

invest the proceeds. A reasonable person will normally act in a 

prudent manner to protect his or her financial interests and 

security. Therefore, it is not merely foreseeable, but likely, that 

under the circumstances of this case, were a real property asset 

to be liquidated, the proceeds would not be frittered away or left 

to gather dust.6 Moreover, the fact that Fahey might have future 

income from investments was foreseeable under the specific 

facts of this case. Prior to entry of the Decree MacDonald paid 

Fahey $200,000 in cash. As part of the stipulated Decree, 

MacDonald agreed to pay $103,500 over time with an initial 

payment amount of $4,500 per month. It would be unreasonable 

to expect that Fahey would necessarily either dissipate more 

than $300,000 in the short term or that she would otherwise not 

handle these funds in a financially prudent manner. The record 

reflects that Fahey put the $200,000, which was paid prior to the 

execution of the Agreement, in an investment account. It is 

hardly a stretch to foresee that if real property were liquidated 

the proceeds of that sale might be deposited in that same account 

for investment purposes.

 

6. Indeed, MacDonald acknowledges that Fahey was under no 

obligation to liquidate the Property and if she had simply held 

onto the Property until after the alimony obligation expires, she 

could have sold it with no effect on alimony.
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¶19 As the trial court noted, the express terms of the 

Agreement, and ultimately the Decree, discussed certain 

obligations that would arise if and when Fahey sold the 

Property. This express provision leaves no doubt that the sale of 

the Property and its resulting proceeds, however they would be 

used in the future, were foreseeable.7 As the trial court noted, the 

Decree expressly provided that certain expenses would be paid 

from the proceeds flowing from the sale of the awarded real 

property. On these facts, the trial court did not exceed its 

discretion when it concluded that MacDonald failed to show an 

unforeseeable substantial material change in circumstances from 

the time of the Decree.

CONCLUSION

¶20 The trial court’s findings adequately support its 

conclusion that MacDonald failed to show a substantial change 

in circumstances that was not foreseeable at the time the Decree

was entered. The trial court therefore did not exceed its 

discretion.

¶21 Affirmed.

 

7. MacDonald also claims that the sales price materially differed 

from what he anticipated. This fact, if true, is not determinative.

Although MacDonald received the offer and approved the sale 

before the Decree was entered, it is easily foreseeable that the 

actual sale price for real estate may differ from what parties 

anticipate. Moreover, there was no evidence that the parties 

agreed to the property distribution based on any mutual 

understanding of the value of the parcels involved.