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MacDonald v. MacDonald

Court of Appeals of Utah

August 3, 2017

Kirkpatrick MacDonald, Appellant,
v.
Lee Anne MacDonald, Appellee.

         Third District Court, Silver Summit Department The Honorable Kara Pettit No. 104500031

          Troy L. Booher, Julie J. Nelson, and Bart J. Johnsen, Attorneys for Appellant

          Matthew A. Steward and Shannon K. Zollinger, Attorneys for Appellee

          Judge David N. Mortensen authored this Opinion, in which Judges Stephen L. Roth and Kate A. Toomey concurred. [1]

          MORTENSEN, Judge.

         ¶1 After roughly twenty years of marriage, Kirkpatrick MacDonald (MacDonald) and Lee Anne MacDonald (now Fahey) divorced after stipulating to alimony payments and the division of their property. Fahey sold some of the land awarded to her and invested the proceeds, which now provide her a substantial income stream. MacDonald petitioned the trial court to adjust the alimony that he stipulated to pay because, he claimed, Fahey's new income stream constitutes a substantial material change in circumstances. The trial court denied the petition and MacDonald appeals. We affirm.

         BACKGROUND

         ¶2 Fahey and MacDonald married in June 1991. Irreconcilable differences arose and MacDonald filed for divorce in February 2010. The parties engaged in mediation, which resulted in an agreement in December 2010 (the Agreement). MacDonald and Fahey signed the Agreement in October and November 2011, respectively. The parties submitted the Agreement to the court in December 2011.

         ¶3 The Agreement awarded Fahey three pieces of real property in the Preserve Development in Summit County. One of these lots is the property at issue (the Property). The Agreement also provided that MacDonald "pay the Homeowner's Association fees and property taxes on [the Property] for a period of five years . . . or until [Fahey] sells [the Property]." If sold, Fahey "shall reimburse [MacDonald] for those payments without interest." The Agreement further required that MacDonald pay Fahey alimony until December 2020 or earlier if she remarried, cohabited, or died. The parties stipulated that alimony payments would begin at $2, 000 per month and increase to $6, 000 per month beginning in January 2013. The Agreement contained no language specifically conditioning alimony upon any aspect of the parties' real property division, the subsequent disposition of the property, or upon Fahey's needs. MacDonald was awarded all real property from the marriage not specifically awarded to Fahey.[2] In addition, MacDonald paid $200, 000 in cash to Fahey before he signed the Agreement. He further agreed to pay monthly installments, described as an additional property settlement, for a total of $103, 500, beginning with a payment of $4, 500 per month and later decreasing to $4, 000 per month. The trial court entered the Decree of Divorce and Findings of Fact and Conclusions of Law in January 2012, incorporating all terms of the Agreement.

         ¶4 Sometime between the parties signing the Agreement and the court entering the Decree, a buyer offered MacDonald $1, 425, 000 to purchase the Property. According to MacDonald, this price was approximately twice what he anticipated the Property was worth. The parties agreed the Property should be sold and signed a sale contract before the Decree was entered. The sale closed in late January 2012, and Fahey deposited the proceeds, $1, 240, 000, into her trust account. Fahey's trust account was apparently set up prior to receiving the funds from the sale of the Property, and it already held the $200, 000 cash settlement MacDonald had paid Fahey as part of the Agreement. In 2013, Fahey deposited another $498, 000 from the sale of other property. As of April 2015, Fahey's trust account contained $1, 740, 000 and she was expected to earn $45, 000 per year on her investments.

         ¶5 In January 2013, MacDonald filed a petition to modify the Decree, asking that the trial court terminate his alimony obligations. MacDonald argued that Fahey's investment of funds from the sale of the Property and the subsequent interest income generated by that investment constituted a substantial material change in circumstances.

         ¶6 The court denied the petition after a two-day trial, concluding that the sale of the Property and the investment of the sale proceeds did not constitute a substantial material change in circumstances. The trial court ruled "that [MacDonald] ha[d] not shown a substantial change of circumstances from the time of the Decree that was not foreseen or contemplated by the Decree, and therefore denie[d] the Petition to Modify on those grounds." Further, the trial court found that "the parties, in their Agreement, which contained both the property division and the setting of alimony, contemplated that [Fahey] was going to sell those lots and was going to use the proceeds of the sale of those lots to pay expenses." MacDonald appeals the trial court's order.

         ISSUE AND STANDARD OF REVIEW

         ¶7 MacDonald appeals the trial court's determination that he failed to show a substantial material change in circumstances, not foreseeable at the time of the divorce. As we have explained, this court generally will "review a district court's determination to modify or not to modify a divorce decree for an abuse of discretion." Fish v. Fish, 2016 UT App 125, ¶ 5, 379 P.3d 882; see Earhart v. Earhart, 2015 UT App 308, ¶ 5, 365 P.3d 719 ("A district court's determination regarding whether a substantial change of circumstances has occurred is presumptively valid, and our review is therefore limited to considering whether the district court abused its discretion.").

         ANALYSIS

         ¶8 MacDonald contends that the trial court's determination that the facts did not warrant a modification of alimony was an abuse of discretion. He argues that Fahey's new income stream from her interest earned on investments constitutes "a substantial change in circumstances that occurred after the divorce and was not foreseeable at the time of divorce." MacDonald relies on Bolliger v. Bolliger, 2000 UT App 47, 997 P.2d 903, which requires "evidence that the change was foreseen at the ...


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