Bolliger v. Bolliger

• Decision Date: 25 February 2000
• Docket Number: No. 990350-CA.,990350-CA.
• Citation: 2000 Utah Ct. App. 47,997 P.2d 903
• Parties: Frances R. BOLLIGER, Petitioner and Appellee, v. Ronald E. BOLLIGER, Respondent and Appellant.
• Court: Utah Court of Appeals

997 P.2d 903

2000 Utah Ct. App. 47

Frances R. BOLLIGER, Petitioner and Appellee, v. Ronald E. BOLLIGER, Respondent and Appellant.

No. 990350-CA.

Court of Appeals of Utah.

February 25, 2000.

Michael A. Jensen, Salt Lake City, for Appellant.

Suzanne Marelius, Littlefield & Peterson, Salt Lake City, for Appellee.

Before GREENWOOD, Presiding Judge, JACKSON, Associate Presiding Judge, and DAVIS, Judge.

OPINION

DAVIS, Judge:

¶ 1 Respondent Ronald E. Bolliger appeals the trial court's denial of his petition to modify the alimony awarded in the parties' divorce decree. We reverse.

I. FACTS

¶ 2 The parties here had been married for approximately thirty-four years when they divorced in March 1987. A stipulation and settlement agreement was entered into and incorporated into the divorce decree. Regarding alimony, the decree provided:

The Defendant shall pay to the Plaintiff for each of the months of January, February and March, 1987, the amount of $785.00 and the amount of $685.00 as of April, 1987, and thereafter, as monthly alimony and one-half of the military pension retirement benefits authorized under PL97-252, 10 USCS 1408 et seq. (Former Spouse's Protection Act). The Defendant is ordered to pay to Plaintiff one-half of any increase he receives in his retirement benefits and to pass along such increases at the time his benefits are increased.... The support payments outlined herein shall be payable to Plaintiff so long as she lives with the exception that they will cease upon Plaintiff's remarriage, cohabitation, or death.

¶ 3 Respondent filed a Petition to Modify Alimony in October 1997, seeking to reduce the permanent alimony award.¹ Respondent argued that a substantial change of circumstances had occurred by his unexpected early retirement, which was not anticipated in the divorce decree, and petitioner's receipt of social security, also not anticipated by the divorce decree and not considered in the amount of alimony awarded petitioner. Petitioner maintained that both the social security benefits and respondent's retirement were anticipated by the divorce decree and, therefore, did not amount to a substantial change of circumstances.

¶ 4 Before the hearing on respondent's petition, the parties entered into a Stipulation of Undisputed Facts. Regarding respondent's income, the parties stipulated that at the time of the divorce, he was earning $5700 per month. When the petition to modify was filed, respondent was earning $2937 per month: $1071 in social security benefits; half of his Air Force Retirement in the amount of $1184; and pension payments of $682 from his employer. Thus, his monthly income had decreased by $2763, or approximately forty-eight percent. The parties also stipulated that respondent "had to accept retirement through a reduction in force from [his employer]."

¶ 5 At the time of the divorce, petitioner earned a gross monthly income of about $340. She also received the $685 in alimony and half of respondent's Air Force Retirement in the amount of $1184. Thus, petitioner had a monthly income of approximately $2209. Petitioner's stipulated monthly income at the time of the petition to modify was $2390, derived from social security benefits in the amount of $521, half of respondent's Air Force Retirement in the amount of $1184, and alimony in the amount of $685. Petitioner became unemployed in June 1991 due to health problems.

¶ 6 At the hearing on respondent's petition, the trial court rejected respondent's arguments and denied his petition to modify. The trial court made the following determination regarding a substantial material change of circumstances:

The Court first considered whether there had been any substantial change since entry of the Decree, unforeseen by the parties to support any modification to the Decree. The Court finds that there has been no substantial, material change in circumstances sufficient to modify the Decree. The alleged changes of Respondent's retirement and the parties' receipt of social security benefits are foreseeable events. Further the parties agreed to a permanent alimony award. The Court is also not persuaded that the current difference in the parties' incomes which has been stipulated as $138 is a sufficient difference to warrant any change to the Court orders herein. It is evident that ever since the divorce there has been a much greater difference between the incomes of the parties than the present gap of $138, and that in prior years the difference always favored the Respondent.

¶ 7 Thus, respondent was "ordered to continue all support orders stated in the Decree of Divorce issued March 3, 1987 in full force and effect consisting of the following: payment of alimony to Petitioner in the amount of $685 per month; one-half [of] his military retirement pension along with any increases or adjustments made by the military."² Petitioner was also awarded her costs and attorney fees.

¶ 8 Respondent appeals.

II. ISSUE AND STANDARD OF REVIEW

¶ 9 There is essentially one issue for our review: Did the trial court abuse its discretion by denying respondent's Petition to Modify Alimony on the basis that petitioner's receipt of social security benefits and respondent's retirement were foreseeable events when the divorce decree was entered, and therefore not a substantial material change of circumstances justifying a modification of the earlier alimony award?

¶ 10 "`"The determination of the trial court that there [has or has not] been a substantial change of circumstances ... is presumed valid,"' and we review the ruling under an abuse of discretion standard." Moon v. Moon, 1999 Utah Ct. App. 012, ¶ 28, 973 P.2d 431 (alteration in original) (citations omitted), cert. denied, 982 P.2d 89 (Utah 1999).

III. ANALYSIS

A. Change in Circumstances

¶ 11 Respondent argues that the trial court abused its discretion by denying his petition to modify the original alimony award because both petitioner's receipt of social security benefits and his forced early retirement amount to a substantial material change in circumstances. "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(7)(g)(i) (Supp.1999).³ To succeed on a petition to modify a divorce decree, the moving party must first show that a substantial material change of circumstances has occurred "`since the entry of the decree and not contemplated in the decree itself.'" Durfee v. Durfee, 796 P.2d 713, 716 (Utah Ct.App.1990) (emphasis added) (quoting Stettler v. Stettler, 713 P.2d 699, 701 (Utah 1985)); accord Williamson v. Williamson, 1999 UT App 219, ¶ 8, 983 P.2d 1103.

¶ 12 "[W]here a future change in circumstances is contemplated by the trial court in the divorce decree, the fulfillment of that future change will not constitute a material change of circumstances sufficient to modify the award." Johnson v. Johnson, 855 P.2d 250, 253 (Utah Ct.App.1993).

¶ 13 This court has articulated what is meant by "contemplated by the divorce decree":

The fact that the parties may have anticipated [a substantial material change in circumstances] in their own minds or in their discussions does not mean that the decree itself contemplates the change. In 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.

Durfee, 796 P.2d at 716. Accordingly, if both the divorce decree and the record are bereft of any reference to the changed circumstance at issue in the petition to modify, then the subsequent changed circumstance was not contemplated in the original divorce decree. See id.

¶ 14 The issue of whether the receipt of social security benefits or a spouse's later retirement is a substantial change in circumstances has been discussed in several Utah cases. In Haslam v. Haslam, 657 P.2d 757 (Utah 1982), the parties divorced after twenty-one years of marriage. See id. at 757. At the time of the divorce, the defendant was earning between $1000 and $1200 per month, and the plaintiff was unemployed. See id. The divorce decree required the defendant to pay $200 per month in alimony. See id.

¶ 15 Fourteen years after the divorce was granted, the defendant retired and began receiving social security and pension benefits. See id. at 757-58. He had a monthly income of $1708.89, which included his social security and pension benefits, income from stock dividends, and social security benefits for his present wife along with child support for her child from another marriage. See id. at 758. After the divorce, the plaintiff procured gainful employment and was earning a monthly salary of $1100 plus interest from a savings account. See id.

¶ 16 Based upon the defendant's retirement and the plaintiff's newly realized income, the defendant filed a petition to terminate the alimony. See id. The trial court denied the petition because "the defendant had failed to demonstrate a `change of circumstances' sufficient to warrant termination." Id. at 757. The defendant appealed, arguing that modification was appropriate because "his income is approximately the same as it was in 1966, and the plaintiff's income has increased dramatically." Id. at 758. The supreme court agreed, holding that "[o]n the instant facts it is clear that there has been a substantial change in circumstances." Id. "[T]he combination of the supporting spouse's retirement, together with the dependent spouse's employment, earning of a substantial income, and accumulation of substantial savings subsequent to the original divorce decree, constitutes a substantial change of circumstances." Id. The defendant's petition for modification was therefore reinstated and the case remanded "so that the trial court may consider whether the...