Wilde v. Wilde

• Decision Date: 03 December 1998
• Docket Number: No. 971318-CA,971318-CA
• Citation: 969 P.2d 438
• Parties: 357 Utah Adv. Rep. 29 J. Lynn WILDE, Plaintiff and Appellee, v. Sherrie D. WILDE, Defendant and Appellant.
• Court: Utah Court of Appeals

Page 438

969 P.2d 438

357 Utah Adv. Rep. 29

J. Lynn WILDE, Plaintiff and Appellee, v. Sherrie D. WILDE, Defendant and Appellant.

No. 971318-CA.

Court of Appeals of Utah.

Dec. 3, 1998.

Douglas G. Mortensen, Matheson, Mortensen, Olsen, Jeppson, PC, Salt Lake City, for Appellant.

Kent T. Yano, Salt Lake City, for Appellee.

Before WILKINS, Associate P.J., and BILLINGS and JACKSON, JJ.

OPINION

WILKINS, Associate Presiding Judge:

Defendant Sherrie D. Wilde appeals the trial court's order entered on April 17, 1997 dismissing defendant's amended petition to modify her alimony award. We affirm in part, reverse in part, and remand for further proceedings.

BACKGROUND

J. Lynn Wilde (plaintiff) and Sherrie D. Wilde (defendant) were divorced in June 1987, after twenty-five years of marriage. Pursuant to the divorce decree, the trial court awarded defendant alimony in the sum of $200 per month for seven years. In 1992 the court modified the decree, increasing the alimony award to $318 per month. While the court did not expressly alter the original term of the alimony, it ordered the plaintiff to pay retroactive arrearages through October 1994.

On August 23, 1994, four months after defendant's alimony award was scheduled to terminate, but before plaintiff had completed the payments, defendant filed another petition to modify the divorce decree alleging substantial and material changes in circumstances including a substantial increase in plaintiff's income, substantial decrease in defendant's income, and defendant's contraction of rheumatoid arthritis. In this petition, defendant sought additional alimony on a permanent basis or until she could gain other employment.

In November 1995, defendant filed a motion to amend the original petition. The court granted the motion, and two months later, the defendant filed an amended petition. In addition to restating her request for additional alimony, the amended petition alleged new facts which accused the plaintiff of orchestrating the original divorce so as to deprive the defendant of a larger share of the marital estate.

During the interim between the filing of the original and amended petitions, an amendment to Utah Code Ann. § 30-3-5 became effective, whereby the court could only modify or award new alimony upon, among other things, a showing of "extenuating circumstances." ¹ Utah Code Ann. § 30-3-5(7)(g)(ii) (1995) (amending L.1994, ch. 284).

At trial, plaintiff presented a motion in limine to bar inquiry into the fraud and misrepresentation allegedly perpetrated by the plaintiff before the entry of the divorce decree. The court granted this motion.

At the trial's conclusion, the court dismissed the amended petition. In its order, the court ruled that the May 1995 revisions to section 30-3-5 applied because the defendant filed the amended petition after the effective date of the May 1995 amendments, and the amended petition contained new allegations regarding her request for alimony. Applying the 1995 version of the statute, the court ruled that while defendant's rheumatoid arthritis did constitute a substantial material change in circumstance to justify a modification of the divorce decree, this was not the same as the "extenuating circumstances" required by the 1995 statute. The court also stated, without further explanation, that even if the 1995 amendments did not apply, the order would still be the same.

ISSUES

On appeal, defendant maintains that the district court erred by: (1) applying the 1995 version of section 30-3-5 to her petition to modify the alimony award; (2) ruling that "extenuating circumstances" did not exist to justify an increase in alimony; (3) precluding defendant from presenting evidence of plaintiff's culpability in allegedly hiding assets and other information at the time of the original divorce proceedings; (4) concluding that there was no legal basis to award defendant new alimony; (5) finding that defendant was capable of contributing toward her support and could work part-time; (6) ruling defendant's depression did not constitute a change of circumstance; and (7) denying defendant's request for costs and attorney's fees.

STANDARDS OF REVIEW

Whether a trial court correctly determined which version of a law applies is a legal conclusion that we review for correctness, according no deference to the trial court. See Shaw v. Layton Const. Co., 872 P.2d 1059, 1061 (Utah Ct.App.1994).

In refusing to admit evidence on the issue of plaintiff's alleged fraud or concealment, a trial court has broad discretion. See State v. Pena, 869 P.2d 932, 938 (Utah 1994). We will not disturb such a ruling absent an abuse of discretion. See State v. Casias, 772 P.2d 975, 977 (Utah Ct.App.1989).

The trial court's finding that the defendant was capable of contributing toward her support and able to work part-time is a factual finding which we will not disturb absent clear error. See Hagan v. Hagan, 810 P.2d 478, 481 (Utah Ct.App.1991).

"The determination of the trial court that there [has or has not] been a substantial change of circumstances ... is presumed valid." Wells v. Wells, 871 P.2d 1036, 1038 (Utah Ct.App.1994) (citation omitted). Accordingly, we review the trial court's ruling of no substantial change in circumstances arising from the defendant's depression for an abuse of discretion. See id.

Defendant further challenges the trial court's denial of attorney fees and costs. "An award of attorneys fees [and costs] in divorce actions rests within the sound discretion of the trial court, which we will not disturb absent an abuse of discretion." Id. at 1038 (citation omitted); accord Utah Code Ann. § 30-3-3 (1995).

ANALYSIS

A. Change in the Law

Defendant first argues that the trial court erroneously applied the 1995 version of Utah Code Ann. § 30-3-5, rather than its predecessor, to her petition to modify the alimony award.

The general rule followed in Utah is that "the substantive law to be applied throughout an action is the law in effect at the date the action was initiated." State v. Shipler, 869 P.2d 968, 970 (Utah Ct.App.1994) (citations omitted). It is also clear under Utah Rule of Civil Procedure 15(c), that the initiation date of an action is the filing of the original, rather than the amended, complaint or petition. See Utah R. Civ. P. 15(c). Moreover, statutory enactments which "affect substantive or vested rights generally operate only prospectively." Department of Soc. Serv. v. Higgs, 656 P.2d 998, 1000 (Utah 1982); see generally Barron's Law Dictionary 381 (3d ed.1991) (defining "prospective" as law applicable only after date it was enacted or decided). However, if a statutory amendment is deemed procedural or remedial, then it applies to all actions--those which have accrued or are pending (pending from time of commencement until final determination), and to future actions. See Moore v. American Coal Co., 737 P.2d 989, 990 (Utah 1987); Higgs, 656 P.2d at 1001. In other words, a statute may be applied retroactively "if it affects only procedural and not substantive rights." Washington Nat'l Ins. Co. v. Sherwood Assoc., 795 P.2d 665, 667 (Utah Ct.App.1990).

A substantive law "creates, defines and regulates the rights and duties of the parties which may give rise to a cause of action." Olsen v. Samuel McIntyre Inv. Co., 956 P.2d 257, 260 (Utah 1998) (citation omitted). When the Legislature amends a statute, we presume that it intended the amendment "to change existing legal rights." Id. By contrast, a procedural law "prescribes the practice and procedure or the legal machinery by which the substantive law is determined or made effective," id., or "simply clarifie[s] the legislature's previous intentions." Washington Nat'l, 795 P.2d at 669. Procedural statutes do not "enlarge, eliminate, or destroy vested or contractual rights." Moore, 737 P.2d at 990 (citations omitted). Moreover, a court should "narrowly draw[ ] the boundaries of what constitutes a procedural statute." Olsen, 956 P.2d at 261.

The 1995 amendment provides that one's right to receive additional alimony is justified only upon a showing of "extenuating circumstances." As such, the amendment regulates a party's right to receive alimony and is a substantive change in the law. Accordingly, we apply the law in effect at the date of the filing of the original petition--the 1994 version of the statute. The trial court's ruling that the 1995 version of the statute applied was in error.

B. New Award of Alimony

Defendant contends that the trial court erred in concluding that no legal basis existed to grant her a new award of alimony after the scheduled termination of the original award.

Defendant also claims that the trial court erred in ruling that no "extenuating circumstances" existed to justify an increase in the alimony award. Because we hold that defendant's alimony claim is not governed by the 1995 version of section 30-3-5, we need not and do not address the question of what constitutes "extenuating circumstances." Moreover, defendant maintains that the trial court erred in refusing to admit evidence on the issue of plaintiff's alleged fraud or concealment. She argues that this ruling denied her the opportunity to establish "extenuating circumstances." Again, because defendant's alimony claim is not governed by the 1995 version of the statute, we need not address this argument further.

Under Cole v. Cole, 121 Utah 151, 239 P.2d 615 (1952), and its progeny, when alimony is still being paid, an application for new alimony is timely. See, e.g., Naylor v. Naylor, 700 P.2d 707, 708 (Utah 1985) (entertaining modification request when alimony award was ongoing); Wells, 871 P.2d at 1040 (entertaining modification request when alimony award was one-dollar per year); Russell G. Donaldson, Annotation, Power to Modify Spousal Support Award For a Limited Term, Issued in Conjunction with Divorce, So as to Extend the Term or Make the Award Permanent, 62 A.L.R.4th 180, 219-20 (198...