Fish v. Fish

• Decision Date: 09 June 2016
• Docket Number: No. 20150040–CA,20150040–CA
• Citation: 379 P.3d 882,2016 UT App 125
• Parties: Diane FISH, Appellee, v. Jeffery J. FISH, Appellant.
• Court: Utah Court of Appeals

379 P.3d 882

2016 UT App 125

Diane FISH, Appellee,

v.Jeffery J. FISH, Appellant.

No. 20150040–CA

Court of Appeals of Utah.

Filed June 9, 2016

Robert L. Neeley, Ogden, 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

Memorandum Decision

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.

¶ 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 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 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

¶ 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 law-of-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 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, 196 P.3d 588

(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...