Petition to terminate alimony for early retirement is denied as foreseeable and not a listed termination ground in the decree.

September 7, 2018

In this case, a husband of a divorced couple, filed to terminate his alimony because he was retiring early.  The decree did not indicate that alimony terminated at retirement, but rather on remarriage, cohabitation, or death. Although the husband claimed he had medical and other reasons for his early retirement, he did not bring much evidence and chiefly relied on his own testimony. The district court was not persuaded and found that the retirement was voluntary and that alimony would not terminate at retirement.  The husband appealed and ruled in wife’s favor, and explained the concepts of “foreseeable” and whether alimony ends at retirement:

¶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 entered3 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 terminate upon his retirement.

Armendariz v. Armendariz, 2018 UT App 175 (Filed September 7, 2018).

Read the entire case HERE.

Footnote 4 of this case was interesting and deals with the concepts of alimony that are based on need and subject to adjustments, as opposed to the concepts of retirement rights as property that are not a function of need and that such retirement benefits do not end with remarriage.)

 

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