Sill v. Sill

• Decision Date: 24 May 2007
• Docket Number: No. 20060296-CA.,20060296-CA.
• Citation: 2007 UT App 173,164 P.3d 415
• Parties: Kallie J. SILL, Petitioner and Appellee, v. Joel Gordon SILL, Respondent and Appellant.
• Court: Utah Court of Appeals

164 P.3d 415

2007 UT App 173

Kallie J. SILL, Petitioner and Appellee, v. Joel Gordon SILL, Respondent and Appellant.

No. 20060296-CA.

Court of Appeals of Utah.

May 24, 2007.

Christina Inge Miller, David B. Thompson, and Natalie C. Segall, Park City, for Appellant.

David S. Dolowitz, Dena C. Sarandos, and Thomas J. Burns, Salt Lake City, for Appellee.

Before BENCH, P.J., BILLINGS and ORME, JJ.

OPINION

BILLINGS, Judge:

¶ 1 Respondent Joel Gordon Sill (Husband) appeals the trial court's grant of Petitioner Kallie J. Sill's (Wife) motion to dismiss Husband's petition to modify the parties' divorce decree. On appeal, Husband contends the trial court erred in concluding that the parties' stipulation, incorporated into the divorce decree, to waive all modification rights divested the court of its statutorily granted jurisdiction to modify the alimony award. See Utah Code Ann. § 30-3-5(8)(g)(i) (Supp. 2006). We reverse and remand.

BACKGROUND

¶ 2 In March 2000, Husband and Wife agreed to end their eighteen-year marriage, and Wife filed a divorce petition. Both parties retained competent counsel, and Husband and Wife entered into settlement negotiations.

¶ 3 Eventually, the parties reached a stipulation and property settlement agreement (the Agreement). The Agreement provides that the stipulation "resolves all issues between [the parties]." Under the terms of the Agreement, the parties agreed that in "divid[ing] the marital assets and income, . . . [Husband] w[ould] pay [Wife] the sum of $1,780,000[ ] within ninety (90) days of execution of th[e] [A]greement." Additionally, the parties agreed as to the division of real and personal properties and the division of Husband's retirement account. The Agreement also provides that Husband will provide Wife with $6000 per month in alimony for a period of ten years and that Husband will pay an additional $8000 per month in alimony (totaling $14,000 per month) for however many months it takes Husband to pay the $1.78 million in full. Finally, the Agreement includes a stipulation specifying that "[t]he provisions of th[e] [A]greement shall be non-modifiable as shall the Decree of Divorce which implements it with the sole exception that if all of the assets have not been disclosed and divided in th[e] [A]greement, those may be brought back before the [c]ourt for appropriate disposition."

¶ 4 The trial court approved the Agreement and incorporated its provisions into the parties' March 2001 divorce decree (the Decree), determining that "[the Agreement is] a fair and equitable method of resolving all issues between [the parties] and provides for the support of each of the parties and the division of their assets and payment of debts."

¶ 5 Following the issuance of the Decree, the parties adhered to the Agreement. But on September 13, 2005, Husband filed a petition to modify the Decree, in which he asked the court to reduce the amount of alimony he agreed to pay because he had suffered a substantial decrease in income. Wife moved to dismiss Husband's petition to modify, claiming that in accordance with the Agreement incorporated in the Decree, both parties had waived the right to modify any terms of the Agreement, including the alimony award.

¶ 6 The trial court agreed with Wife that the parties' waiver of all modification rights barred Husband's request to modify the alimony award and therefore dismissed Husband's petition to modify the Decree.

¶ 7 Husband appeals.

ISSUE AND STANDARD OF REVIEW

¶ 8 On appeal, Husband asserts that the trial court erroneously dismissed his petition to modify the Decree. Husband contends that the trial court wrongly determined that the parties' waiver of modification rights divests the court of its jurisdiction to make alimony modifications under Utah Code section 30-3-5(8)(g)(i). See Utah Code Ann. § 30-3-5(8)(g)(i). "`[A]lthough [this court] generally review[s] the determination to modify a divorce decree for an abuse of discretion, insofar as that determination is based on a conclusion of law, we review it for correctness.'" Medley v. Medley, 2004 UT App 179, ¶ 6, 93 P.3d 847 (first alteration in original) (quoting Krambule v. Krambule, 1999 UT App 357, ¶ 10, 994 P.2d 210).

ANALYSIS

¶ 9 Under section 30-3-5(8)(g)(i), "[t]he 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)(g)(i) (emphasis added).¹ The issue we must decide is whether the non-modification provision that the parties stipulated to in the Agreement, and that the trial court subsequently incorporated into the Decree, usurped the trial court of this continuing jurisdiction to make alimony modifications. We conclude that pursuant to Utah law, the non-modification provision did not divest the court of its continuing jurisdiction under section 30-3-5(8)(g)(i).

¶ 10 First, we begin by examining the language of the statute itself. See State v. Barrett, 2005 UT 88, ¶ 29, 127 P.3d 682 ("When interpreting statutes, this court first looks to the plain language."). In so doing, "`[w]e presume that the legislature used each word advisedly and give effect to each term according to its ordinary and accepted meaning.'" Id. (quoting C.T. ex rel. Taylor v. Johnson, 1999 UT 35, ¶ 9, 977 P.2d 479). Thus, although section 30-3-5 provides no explicit guidance as to the issue before us now, we note the significance of the legislature's inclusion of the adjective "continuing" to refer to the court's jurisdiction and that the generally accepted definition of continuing is "enduring" or "constant." Merriam Webster Collegiate Dictionary 251 (10th ed.2004).

¶ 11 Second, we acknowledge that this court has previously explained that "[w]here the parties' stipulation is accepted by the trial court and incorporated into its [divorce] order, the subject matter of the stipulation is within the continuing jurisdiction of the court." Gates v. Gates, 787 P.2d 1344, 1346 (Utah Ct.App.1990).

¶ 12 Third, we highlight that the effect of parties' alimony stipulations, subsequently incorporated into a decree, on a court's jurisdiction to modify alimony is "no longer considered an open question in this [s]tate." Jones v. Jones, 104 Utah 275, 139 P.2d 222, 223-24 (1943).

"In a divorce action the trial court should make such provision for alimony as the present circumstances of the parties warrant, and any stipulation of the parties in respect thereto serves only as a recommendation to the court. If the court adopts the suggestions of the parties it does not thereby lose the right to make such modification or change thereafter as may be requested by either party based on some change or circumstances warranting such modification."

Id. at 224 (quoting Barraclough v. Barraclough, 100 Utah 196, 111 P.2d 792, 793 (1941) (per curiam)); see also Huck v. Huck, 734 P.2d 417, 419 (Utah 1986). That is,

"the law was intended to give the courts power to disregard the stipulations or agreement of the parties in the first instance and enter judgment for such alimony or child support as appears reasonable and to thereafter modify such judgments when change of circumstances justifies it, regardless of attempts of the parties to control the matter by contract."

Diener v. Diener, 2004 UT App 314, ¶ 5, 98 P.3d 1178 (emphasis added) (quoting Naylor v. Naylor, 700 P.2d 707, 709-10 (Utah 1985)) (affirming trial court's denial of father's petition to modify child support but emphasizing that the parties' prior stipulation as to father's child support obligation was, "standing alone," an insufficient basis for denying the petition to modify because "when presented with a petition to modify a child support order, the trial court may not simply rely upon a prior stipulation entered into by the parties and accepted by the court").

¶ 13 Finally, we rely on the Utah Supreme Court's decision in Callister v. Callister, 1 Utah 2d 34, 261 P.2d 944 (1953), in which the court considered whether the trial court had the power and jurisdiction under Utah Code section 30-3-5 to modify the parties' divorce decree with regard to alimony payments even if the parties had entered into an agreement, incorporated into the divorce decree, intending for the alimony amount provision to be nonmodifiable. In deciding "that the trial court had power and jurisdiction to modify the decree . . . with respect to the [alimony] payments," id. at 949, the court held that

by approval of the agreement in the decree the court did not divest itself of jurisdiction under the statute to make such subsequent changes and orders with respect to alimony payments as might be reasonable and proper, based upon a change of circumstances. [And the court] hold[s] this to be true even though the provisions of the agreement should be interpreted to mean that the parties intended to stipulate for a fixed and unalterable amount of monthly alimony.

Id. at 948.²

¶ 14 We recognize that at the time of the Callister decision section 30-3-5 read:

"When a decree of divorce is made the court may make such orders in relation to the children, property and parties, and the maintenance of the parties and children, as may be equitable. . . . Such subsequent changes or new orders may be made by the court with respect to the disposal of children or the distribution of property as shall be reasonable and proper."

Id. at 946 (omission in original) (quoting Utah Code Ann. § 30-3-5 (1953) (amended 1969)). But we do not find that the statute's present day language undermines the holding in Callister; rather, we believe the fact that the court decided Callister prior to the legislature's inclusion of the continuing jurisdiction language strongly supports our decision that the parties' non-modification provision did not divest the court of its jurisdiction to make alimony modifications. Further, courts interpret the Callister deci...