And the winner is . . .  “not foreseeable at the time of the divorce” but based on evidence that was in the record.

Husband wanted to terminate alimony due to a sale of property and increased income of wife.  The trial court denied the request and used Utah Code 30-3-5(8)(i).

To this extent we affirm the standard embraced by the court of appeals. We hold that the plain language of the statute applies— and that the question is whether an alleged substantial change was “foreseeable” at the time of the divorce, not whether it was “contemplated” in the divorce decree. But we also raise a point of clarification that is not addressed explicitly in the decision of the court of appeals. We clarify that the inquiry of foreseeability is limited to the universe of information that was presented in the record at the time the district court entered the divorce decree.

Using a line of cases, the district court found that district court has “continuing jurisdiction to modify a divorce decree when a substantial change of circumstances is “not contemplated” by the decree itself. The court concluded that the divorce decree “expressly contemplate[d] that [Fahey] would sell the lots and use the proceeds of the sales of those lots to pay her expenses[,]” therefore precluding the court from modifying the alimony award.”

Husband appealed claiming that the standard used by the trial court was in contravention of the language of Utah Code 30-3-5(8)(i)(i) which states, “The 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.” The court of appeals applied a standard that asks not whether a given change in circumstances was “contemplated” in a divorce decree but instead whether that change was “foreseeable” at the time the decree was entered. The court of appeals concluded that selling property was foreseeable and investment income could stem from such a sale. Thus, the court of appeals affirmed the trial court.  The husband appealed to the Utah Supreme Court.

The Utah Supreme Court affirmed the denial of termination of alimony, but clarified the standard to be used:

¶52 A petition to modify an alimony order requires a showing of “a substantial material change in circumstances [that was] not foreseeable at the time of the divorce.” UTAH CODE § 30-3-5(8)(i)(i). We hold that this provision means what it says. A petitioner must make a showing that a substantial, material change was “not foreseeable at the time of the divorce.” We affirm the court of appeals on this point, and we repudiate a line of cases that had held that a petition to modify can be sustained upon a showing that an alleged material change was not “contemplated” in the divorce decree. ¶53 In so doing we clarify, however, that the foreseeability inquiry must be based on evidence that was in the record of the trial court that entered the decree. And we affirm the court of appeals’ determination that [husband] failed to carry his burden of establishing that [wife]’s sale of the property and investment of the proceeds were not foreseeable.

MacDonald v. MacDonald, 2018 UT 48 (Filed September 5, 2018)

Read the entire case HERE.