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Armendariz v. Armendariz

Court of Appeals of Utah

September 7, 2018

Gary Lynn Armendariz, Appellant,
v.
Pixie Marie Armendariz, Appellee.

          Second District Court, Farmington Department The Honorable John R. Morris No. 044700632

          Matthew G. Koyle, Attorney for Appellant

          Robert L. Neeley, Attorney for Appellee

          Judge Kate A. Toomey authored this Opinion, in which Judge Gregory K. Orme concurred.

          TOOMEY, Judge:

         ¶1 Gary Lynn Armendariz and Pixie Marie Armendariz divorced in 2005 after almost twenty-nine years of marriage. Gary[1] entered early retirement in 2015, claiming that physical pain prevented him from working in a position similar to his employment during the marriage. As a result, Gary's income decreased after he retired, and he petitioned the district court to modify the divorce decree by terminating Pixie's award of alimony (the Petition to Modify). The district court denied the Petition to Modify, concluding that Gary's retirement was foreseeable at the time of divorce and that his early retirement was voluntary and therefore did not constitute a material and substantial change of circumstances. Gary appeals, and we affirm.

         ¶2 Gary and Pixie's 2005 divorce decree identified three events that would terminate Gary's alimony obligation: (1) Pixie's remarriage, (2) "her creation of a cohabitation relationship with a person of either sex," or (3) "her death." It also provided that Pixie would receive a "50% distributive share of [Gary's] federal civilian employment civil service retirement account as of and not beyond the entry date of the decree of divorce." Gary had worked as an aircraft mechanic at Hill Air Force Base for thirty-five years before retiring at the age of sixty-one.

         ¶3 Near the end of 2014, Gary filed the Petition to Modify, asking the court to modify the divorce decree and terminate his alimony obligation, based on his planned retirement the next year. According to the Petition to Modify, he wanted to retire early because he was "simply unable to continue [working]." Because of his retirement, Gary asserted that, "[f]or some reason, [Pixie] believes she is entitled to her alimony, and her appropriate share of [Gary's] retirement accounts, which would obviously be inappropriate and inequitable."

         ¶4 During the bench trial, Gary testified that he suffered an injury in a car accident in 1998 that broke all of the metatarsal bones in his foot. Then, in 2011 and 2012, Gary underwent shoulder surgeries to repair torn rotator cuffs in each shoulder. As a result of these injuries, Gary claimed it was too painful to continue working and therefore sought early retirement.

         ¶5 After the bench trial, the court entered an order with supporting findings of facts and conclusions of law. The court concluded that it "[did] not have jurisdiction to terminate alimony" because Gary's retirement was foreseeable at the time of divorce and nothing in the divorce decree provided that retirement would terminate his alimony obligations. It found that the divorce decree allocated half of Gary's retirement account accrued during the time of the marriage to Pixie, but the decree did not provide that receipt of the retirement funds would "modify, terminate, or amend the award of alimony to [Pixie]." In its oral ruling, the court also found that there was no evidence, other than Gary's anecdotal statements, that his injuries rendered him disabled and unable to continue working. It further found that Gary "admitted under cross-examination that he didn't even seek alternative employment or reassignment," and he did not provide any information that his employer had "talked to him about the quality of his work" or his ability to continue working. Without additional evidence to support his inability to continue working, the court concluded that his early retirement was voluntary. For these reasons, the court denied the Petition to Modify. Gary appeals.

         ¶6 Gary contends the district court erred in determining that his retirement was foreseeable at the time the divorce decree was entered. "In a divorce action, the district court is permitted considerable discretion in adjusting the financial and property interests of the parties, and its actions are entitled to a presumption of validity." Anderson v. Anderson, 2018 UT App 19, ¶ 19, 414 P.3d 1069 (quotation simplified). We review a district court's determination regarding a petition to modify a divorce decree for an abuse of discretion. MacDonald v. MacDonald, 2017 UT App 136, ¶ 7, 402 P.3d 178, aff'd, 2018 UT 48; see also 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.").

         ¶7 The district 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)(i)(i) (LexisNexis Supp. 2017) (emphasis added). In MacDonald, this court addressed the "foreseeability standard" and determined that, rather than use "the verb 'foresee' in its past tense, 'foreseen, '" the "legislature employed the adjective 'foreseeable,' which includes not only those circumstances which the parties or the court actually had in mind, but also circumstances that could 'reasonably be anticipated' at the time of the decree." 2017 UT App 136, ¶ 11. Our supreme court has affirmed our interpretation of section 30-3-5-(8)(i)(i) and clarified that "the foreseeability inquiry requires a threshold determination of the relevant scope of information to be considered" and that "it is not enough to simply note that something is foreseeable if it can be reasonably anticipated." See MacDonald v. MacDonald, 2018 UT 48, ¶ 31. The inquiry of foreseeability is therefore limited to the universe of information that was presented in the record at the time the district court entered the divorce decree." Id. ¶ 5.

         ¶8 Here, the fact of Gary's retirement was a foreseeable event at the time of the divorce. Gary contributed to a retirement account during the marriage, and a provision of the divorce decree provided that Pixie was entitled to half of that account accrued during their marriage. The fact of Gary's retirement was therefore "foreseeable under the express terms of the decree." See id. ¶¶ 5, 44. And Gary admitted at the bench trial that "[w]hen [he] divorced [Pixie] in 2005 . . . [he had] anticipated to work until [he] was 65." The divorce decree also identified three specific events that would terminate Pixie's alimony, but nothing in the decree "specifically call[ed] out retirement as an event which would terminate the alimony obligation." None of these provisions included language that Gary's retirement or the distribution of half of his retirement fund to Pixie would terminate Gary's alimony obligation.[2] We therefore conclude the district court did not abuse its discretion in determining Gary's retirement was a foreseeable event at the time the divorce decree was entered[3] and that nothing in the decree supports the conclusion that retirement was a triggering event for termination of his alimony obligation.[4]

         ¶9 We conclude that Gary's retirement was foreseeable at the time the divorce decree was entered and the decree did not provide that Gary's alimony obligation would ...


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