Wilde v. Wilde

• Decision Date: 25 October 2001
• Docket Number: No. 20000473-CA.,20000473-CA.
• Citation: 35 P.3d 341,2001 UT App 318
• Parties: J. Lynn WILDE, Petitioner and Appellee, v. Sherrie D. WILDE, Respondent and Appellant.
• Court: Utah Court of Appeals

35 P.3d 341

2001 UT App 318

J. Lynn WILDE, Petitioner and Appellee, v. Sherrie D. WILDE, Respondent and Appellant.

No. 20000473-CA.

Court of Appeals of Utah.

October 25, 2001.

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

Nicolaas Dejonge and Diana J. Huntsman, Diana J. Huntsman & Associates, PC, Salt Lake City, for Appellee.

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

OPINION

BILLINGS, Judge:

¶ 1 This is Appellant Sherrie D. Wilde's second appeal concerning an alimony modification petition she filed in 1994. In particular, she appeals the trial court's refusal to award her modified alimony retroactive to the date of her modification petition and the trial court's refusal to award her prejudgment interest. She also challenges the trial court's finding that she has the ability to contribute to her support. Finally, she appeals the trial court's denial of her attorney fees and costs incurred at trial. We affirm.

BACKGROUND

¶ 2 In 1987, after twenty-five years of marriage, Appellant and Appellee J. Lynn Wilde divorced. In the divorce decree, Appellant was awarded alimony of $200 a month for seven years. In 1992, in an amended divorce decree, the parties stipulated to increase the alimony to $318 a month.

¶ 3 In August of 1994, Appellant filed a petition to modify the amended decree, seeking an increase in the amount and duration of the alimony. The petition alleged a substantial and material change in circumstances based on a substantial increase in Appellee's income, a substantial decrease in Appellant's income, and Appellant's contraction of rheumatoid arthritis. Appellee was served with the petition in September of 1994.

¶ 4 In January of 1995, Appellant lost her job for reasons unrelated to her health. In February, she filed a motion for temporary alimony. She was awarded $800 a month, effective March 1, 1995. Sometime in April of 1995, Appellant obtained part-time employment. In March of 1996, Appellant terminated her employment. Since terminating her employment, she has not made efforts to gain employment.

¶ 5 In November of 1995, Appellant filed an amended modification petition restating her request for increased alimony and accusing Appellee of orchestrating the parties' divorce to deprive Appellant of her fair share of the marital estate (the fraud claim). Appellant then proceeded to conduct discovery of Appellee's assets, requesting financial records from Beneficial International, Inc., of which Appellee is a principal, from "the beginning" of the corporation, and related entities, from 1985.

¶ 6 In March of 1997, during the first trial on the amended modification petition, and in response to Appellee's motion in limine, the trial court barred further inquiry into Appellant's fraud claim. Following the trial, the court concluded that Appellant's arthritis was a substantial, material change in circumstances justifying modification of the alimony award. However, the trial court also concluded that Appellant's arthritis was not an extenuating circumstance required to support a modification by an amendment to Utah's Divorce Statute (extenuating circumstance amendment), which became effective during the proceedings. Therefore, the trial court denied Appellant's modification petition and ordered that alimony terminate.

¶ 7 Appellant appealed to this court. We reversed in part, holding the extenuating circumstance amendment did not apply, and remanded for the trial court:

(1) to determine the amount and duration of additional alimony to be awarded to [Appellant]; (2) to determine the amount of attorney fees reasonably incurred on appeal by [Appellant]; and (3) to reconsider whether or not [Appellant] should be awarded attorney fees incurred at trial on the petition to modify, and if so, the amount thereof, all supported by the required findings of fact.

Wilde v. Wilde, 969 P.2d 438, 445 (Utah Ct.App.1998).¹

¶ 8 Following our remand, Appellant filed a petition for temporary alimony, alleging that she had become totally disabled and unemployable. She was awarded temporary alimony of $2,000 a month from March of 1999.

¶ 9 A second trial was held on four separate days between August 9 and October 13, 1999. At trial, Appellant sought modified alimony retroactive to the date of her modification petition. To support her claims that she was unable to work to meet her living expenses of $3,200 a month, Appellant offered evidence that the Social Security Administration (SSA) had awarded her disability benefits, effective March 1, 1996. She also offered testimony by two new medical experts, in addition to two experts who testified at the first trial. The experts testified Appellant's arthritis had worsened and she had developed Parkinson's Disease, Shogren's Syndrome, and Fibromyalgia since the first trial. In regard to Appellant's employability, Appellee offered videos showing Appellant performing "normal day-to-day activities" and testimony of a temporary staffing agency sales president and two individuals who had been awarded disability benefits by the SSA but were employed.

¶ 10 Following the second trial, the court found Appellant had the ability to work part-time and contribute to her support and was voluntarily unemployed. The court additionally found Appellee's earnings had increased since the divorce and he had the ability to pay reasonable alimony. The court therefore awarded Appellant alimony of $1,500 a month, effective November 1, 1999. The court denied Appellant retroactive modified alimony, finding she had received temporary alimony, disability benefits, Medicaid, and support from her friends and her church during the proceedings. Although the trial court awarded Appellant all of the attorney fees and costs she requested for the first appeal, the trial court denied all of the attorney fees and costs she requested for the two trials.

¶ 11 Following the trial court's ruling, Appellant filed a Motion to Alter or Amend Judgment, for Relief from Judgment, and/or for a New Trial (motion for a new trial). The trial court denied the motion. In June of 2001, Appellant filed this second appeal.

ANALYSIS

I. Retroactive Alimony

¶ 12 Appellant argues an amendment to Utah Code Ann. § 30-3-10.6(2), effective May 1, 2001, following the second trial, requires an alimony modification to be applied retroactively to the date the modification pleading is served. She further argues amended section 30-3-10.6(2) should apply in this case because it clarifies, rather than substantively changes, the statute in effect when Appellee was served. She alternatively argues even if the trial court had discretion, under section 30-3-10.6(2) or the common law, it exceeded that discretion in not awarding her modified alimony retroactive to the date her petition was served.

A. Does the Amendment to Section 30-3-10.6(2) Apply?

¶ 13 As a general rule, amendments which "`affect substantive or vested rights. . . operate only prospectively.'" Wilde v. Wilde, 969 P.2d 438, 442 (Utah Ct.App.1998) (quoting Department of Soc. Servs. v. Higgs, 656 P.2d 998, 1000 (Utah 1982)). However, if an amendment is procedural or remedial, then it applies to accrued, pending, and future actions. See id. When the Legislature amends a statute, we presume it intended to make a substantive, rather than procedural or remedial change. See id.

¶ 14 "A substantive law `creates, defines and regulates the rights and duties of the parties which may give rise to a cause of action.'" Wilde, 969 P.2d at 442 (concluding amendment which conditioned modification of alimony on showing of "extenuating circumstances" regulated right to receive alimony and substantively changed law) (citation omitted). A procedural or remedial law "provid[es] a different mode or form of procedure for enforcing substantive rights," Pilcher v. Department of Soc. Servs., 663 P.2d 450, 455 (Utah 1983), or clarifies the meaning of an earlier enactment. See Foil v. Ballinger, 601 P.2d 144, 151 (Utah 1979).

¶ 15 Appellant does not appear to argue that the amendment to section 30-3-10.6(2) is procedural; rather, she argues the amendment clarifies how section 30-3-10.6(2) should have been understood. "`[E]very amendment not expressly characterized as a clarification carries the rebuttable presumption that it is intended to change . . . existing legal rights and liabilities.'" Abel v. Industrial Comm'n, 860 P.2d 367, 369 (Utah Ct. App.1993) (citation omitted). In Foil, the Utah Supreme Court held that an amendment to the statute requiring a plaintiff to file a notice of intent to commence a malpractice action was procedural because it clarified the Legislature's intent which had been questioned in prior case law. See Foil, 601 P.2d at 151. Appellant asserts there has been "dispute and uncertainty" as to whether prior section 30-3-10.6(2) granted trial courts the discretion to award or required them to award modified alimony retroactively to the date of the modification petition. However, she cites no authority for this proposition. Cases interpreting this section do not mention any dispute or uncertainty. Rather, they suggest that prior section 30-3-10.6(2) unambiguously granted trial courts the discretion to determine if and when support should be awarded retroactive to the petition. See Ball v. Peterson, 912 P.2d 1006, 1012 (Utah Ct.App.1996); Crockett v. Crockett, 836 P.2d 818, 820 (Utah Ct.App.1992).

¶ 16 As we discuss in section I.B., we conclude the amendment to section 30-3-10.6(2) now requires a court that awards retroactive modified alimony to enter a judgment for the retroactive alimony. That judgment begins to accrue interest and may be filed as a lien to secure that judgment. Under prior section 30-3-10.6(2), a trial court was not required to enter such a judgment. We conclude that this is a substantive change in the law and not a clarification of the prior statute. Thus, amended section 30-3-10.6(2) does not apply...