Fish v. Fish

2016 UT App 125

THE UTAH COURT OF APPEALS

DIANE FISH,
Appellee,
v.
JEFFERY J. FISH,
Appellant.

Memorandum Decision
No. 20150040-CA
Filed June 9, 2016

Second District Court, Ogden Department
The Honorable Ernest W. Jones
No. 074901990

Robert L. Neeley, Attorney for Appellant
Richard H. Reeve, Attorney for Appellee

JUDGE MICHELE M. CHRISTIANSEN authored this Memorandum
Decision, in which SENIOR JUDGE PAMELA T. GREENWOOD
concurred. SENIOR JUDGE RUSSELL W. BENCH concurred
in the result.1

CHRISTIANSEN, Judge:

¶1 Jeffery J. Fish appeals the district court’s order denying
his motion to modify his decree of divorce from Diane Fish.2 We
affirm.

1. Senior Judges Russell W. Bench and Pamela T. Greenwood sat
by special assignment as authorized by law. See generally Utah R.
Jud. Admin. 11-201(6).

2. Because the parties still share a last name, we refer to them by
their first names for clarity.
Fish v. Fish

¶2 Diane and Jeffery married in 1980. In 2007, Diane filed for
divorce. The divorce decree was entered in 2009, and Jeffery was
ordered to pay alimony of $800 per month. He appealed,
arguing that the district court erred by failing to impute income
to Diane, by imputing income to him, and in calculating the
amount of alimony. See Fish v. Fish, 2010 UT App 292, ¶ 11, 242
P.3d 787. This court remanded the case back to the district court,
concluding that the range of income imputed to Jeffery did not
support the amount of the alimony award, that the district court
had failed to make adequate findings regarding the parties’
earning capacities, and that the district court failed to consider
whether maintaining the marital standard of living remained a
realistic goal. Id. ¶ 31. On remand, the district court held an
evidentiary hearing and entered supplementary findings of fact
and conclusions of law. The court found that Diane’s monthly
income was $2,233 and that her needs were $2,997. It therefore
again ordered Jeffery to pay alimony of $800 per month.

¶3 In 2012, Jeffery filed a petition seeking to terminate or
reduce the alimony award based on an alleged change in Diane’s
income. The district court conducted a bench trial in 2014,
finding that from 2009 to 2014, Diane’s monthly income had
risen by $264 and that her monthly reasonable and necessary
expenses had risen by $492 over that same time period. The
court determined that, because this was not a material change in
circumstances, there were no grounds to modify the divorce
decree. The court also awarded attorney fees to Diane after
finding that she was the prevailing party and that Jeffery had the
financial ability to pay those fees. The district court stated its
findings in a memorandum decision and directed Diane’s
counsel to prepare a final order for the court to sign. After the
order was prepared, signed, and entered, Jeffery filed a motion
seeking to have the court amend its findings or grant a new trial,
which motion the district court denied.

¶4 Jeffery appeals, contending that the district court erred
(1) by what he characterizes as modifying the divorce decree by
increasing Diane’s monthly expenses, (2) by “failing to follow

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the law of the case that [Diane] is capable of working 36 hours
per week,” (3) by failing to find that Diane was voluntarily
underemployed, (4) by failing to find that an unforeseen
material substantial change in circumstances warranted
modification of the decree, (5) by denying Jeffery’s motion to
amend findings of fact or to grant a new trial, and (6) by failing
to award attorney fees to Jeffery.

I.

¶5 Jeffery first contends that the district court erred “in
modifying the decree of divorce increasing *Diane’s+ monthly
expenses by addressing needs that did not exist at the time the
decree was entered.” We generally review a district court’s
determination to modify or not to modify a divorce decree for an
abuse of discretion. Snyder v. Snyder, 2015 UT App 245, ¶ 9, 360
P.3d 796. However, we review for correctness any challenges to
the legal adequacy of findings of fact or to the legal accuracy of
the district court’s statements underlying such a determination.
See id.; Van Dyke v. Van Dyke, 2004 UT App 37, ¶ 9, 86 P.3d 767.

¶6 Utah law generally prevents a district court from
modifying an alimony award to account for new needs:

The court may not modify alimony or issue a new
order for alimony to address needs of the recipient
that did not exist at the time the decree was
entered, unless the court finds extenuating
circumstances that justify that action.

Utah Code Ann. § 30-3-5(8)(i)(ii) (LexisNexis 2013). Jeffery
asserts that the district court’s denial of his petition to modify
the divorce decree was in fact a modification of the divorce
decree and that the modification was based on needs that did
not exist at the time the decree was entered.

¶7 Jeffery claims that the court “did modify the Decree of
Divorce [by] entering an order entitled Modification of Decree of

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Divorce.” But it is the substance of an order rather than its
caption that governs its interpretation. Cf. Trembly v. Mrs. Fields
Cookies, 884 P.2d 1306, 1310 n.2 (Utah Ct. App. 1994) (“*T+he
substance, not caption, of a motion is dispositive in determining
the character of the motion.”); Color Process Co. v. Northwest
Screenprint Co., 417 S.W.2d 934, 935 (Mo. 1967) (treating a court’s
order as quashing service because, although being captioned
“Judgment of Dismissal,” the substance of the order “did
no more than quash the service”). The district court’s
order, prepared by Diane’s counsel and signed by the court,
stated that “IT IS HEREBY ORDERED, ADJUDGED AND
DECREED: 1. *Jeffery’s+ Petition to Modify the Divorce Decree is
denied. 2. Alimony shall remain at $800 per month.”
Accordingly, despite counsel’s decision to caption the order
“Modification of Divorce Decree,” the substance of the motion
was denial of the petition to modify.

¶8 Jeffery also argues that the order constituted a
modification because “the trial court made a substantial change
to the decree [by] increasing [Diane’s+ monthly expenses to
$3,489 per month by reason of purchasing a home after the
divorce.” It is true that the district court’s memorandum decision
found that Diane’s monthly expenses had risen by $492 from
2009 to 2014. But that finding was not included in the court’s
order denying Jeffery’s petition to modify. Moreover, making a
finding of fact does not change or modify a divorce decree.
Rather, the making of findings of fact is a part of the process by
which a court determines whether modification is appropriate.3

3. We note that while Utah Code section 30-5-8(i)(ii) prevents a
court from modifying alimony to account for the recipient
spouse’s new needs, it does not appear to forbid a court from
considering the recipient spouse’s new needs in its decision not
to modify. In any event, Jeffery’s challenge in this regard is
limited to the question of whether the district court erred by
modifying alimony on the basis of Diane’s new needs.

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¶9 Because the district court’s order did not change the
amount of alimony or modify the divorce decree, it was neither a
modification of alimony nor a new order of alimony, and the
order therefore did not run afoul of section 30-3-5(8)(i)(ii).

II.

¶10 Jeffery next contends that the district court erred by
“failing to follow the law of the case that *Diane+ is capable of
working 36 hours per week.” “Depending on the procedural
posture of a case . . . , the district court may or may not have
discretion to reconsider a prior decision it has made.” IHC Health
Servs. v. D & K Mgmt., Inc., 2008 UT 73, ¶ 27, 196 P.3d 588.
“While a case remains pending before the district court prior to
any appeal, . . .the court remains free to reconsider that
decision;” thus “reconsideration . . . is within the sound
discretion of the district court.” Id. However, under the
mandate-rule branch of the law-of-the-case doctrine, “a prior
decision of a district court becomes mandatory after an appeal
and remand.” Id. ¶ 28. It is not obvious which branch of the law-
of-the-case doctrine Jeffrey seeks to apply here. However,
because he asserts that the district court “erred” and does not
attack the district court’s reconsideration as being an abuse of
discretion, we assume that he means the mandate rule.4 We
review the application of the mandate rule for correctness. See
Robinson v. Robinson, 2016 UT App 32, ¶ 17, 368 P.3d 147.

¶11 Jeffery asserts that in 2011, the district court found that
Diane was capable of working thirty-six hours per week. He
notes that, at the 2014 modification trial, Diane’s accountant
testified that Diane worked slightly over thirty hours per week
in 2013. Jeffery further notes that Diane’s employer testified that
he trusted Diane to schedule her own hours as long as the total

4. Jeffery does not cite any authority to explain when a district
court’s reconsideration of an issue may amount to an abuse of
discretion.

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was under forty hours per week. Jeffery therefore concludes that
the district court was required to impute income to Diane by
multiplying her hourly wage by thirty-six hours per week, rather
than accepting her W-2, which reflected about thirty hours per
week.

¶12 It is not clear that the district court’s factual finding (“The
Court finds [Diane] was working 36 hours a week.”) amounted
to a decision for the purposes of the law-of-the-case doctrine. See
Decision, Black’s Law Dictionary (10th ed. 2014) (“A judicial or
agency determination after consideration of the facts and the law;
esp., a ruling, order, or judgment pronounced by a court when
considering or disposing of a case.” (emphasis added)). Nor is it
clear that the court’s 2011 finding as to the number of hours
Diane was actually working in 2009 is relevant to the court’s
implicit determination of the number of hours Diane was
capable of working in 2014. In any event, the mandate-rule
branch of the law-of-the-case doctrine only “dictates that a prior
decision of a district court becomes mandatory after an appeal
and remand”; “*w+hile a case remains pending before the district
court prior to any appeal . . . the court remains free to reconsider
that decision.” IHC Health Servs., 2008 UT 73, ¶¶ 27, 28
(emphases added). In this case, no appeal was taken between the
2011 entry of the district court’s findings of fact and the 2014
order denying Jeffery’s petition.

¶13 We conclude that the district court did not err, because
the mandate rule has no application here.

III.

¶14 Jeffery next contends that the district court erred by
failing to find that Diane was voluntarily underemployed. He
asserts that Diane was working thirty hours per week, and that
the district court “tacitly approved *Diane+ only working
approximately 30 hours per week in determining her present
monthly income.” Jeffery again argues that the district court
should have instead multiplied Diane’s hourly pay by the

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number of hours she had been working in 2009 (thirty-six hours
per week) and imputed to her that amount of income.

¶15 Jeffery does not cite any authority relevant to his
argument. See Utah R. App. P. 24(a)(9). It is true that a court may
impute income to a former spouse for purposes of calculating
alimony after finding that the former spouse is voluntarily
unemployed or voluntarily underemployed. See Connell v.
Connell, 2010 UT App 139, ¶ 16, 233 P.3d 836. “However, a
finding of voluntary underemployment does not require a court
to impute the higher income; it merely allows [the court] to do
so.” Id. ¶ 17. Because Jeffery fails to cite any authority regarding
what standards a court should employ for determining when it
is appropriate to impute income, he necessarily fails to convince
us that the district court erred by failing to impute income to
Diane. Moreover, as noted above, the district court’s statement
that Diane was working thirty-six hours per week in 2011 does
not appear relevant to the apparent determination that working
thirty hours per week in 2014 was reasonable. Accordingly, there
is no support for Jeffery’s claim that income should be imputed
to her for thirty-six hours per week. He therefore cannot show
that the district court erred or abused its discretion by not
imputing income to Diane.

¶16 Because Jeffery has not shown that the district court
should have imputed income to Diane, let alone proven the
amount it should have imputed, we conclude that this claim is
inadequately briefed and do not consider it further.

IV.

¶17 Jeffery contends that the district court erred by failing to
find that there was a substantial change of circumstances, not
foreseeable at the time of the divorce, that justified a
modification of alimony. “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.” Utah Code Ann. § 30-3-

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5(8)(i)(i) (LexisNexis 2013). “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.” Earhart v. Earhart, 2015 UT App 308, ¶ 5, 365 P.3d
719.

¶18 Jeffery does not explain why or in what way he believes
the district court abused its discretion. Rather, he asserts that the
district court erred. Jeffery begins by estimating Diane’s
reasonable income; multiplying Diane’s hourly wage by the
number of hours he believes she should be working.5 He then
adds a “typical” annual bonus and the military retirement
monies that she receives. Because the total he arrives at is greater
than the amount Diane was earning in 2009, he asserts that a
substantial change of circumstances has occurred. He further
claims that because the divorce decree is devoid of language
referring to an increase in income, any increase is “a change of
circumstance not contemplated by the divorce decree itself.” On
this basis, Jeffery concludes that “there has been a material
substantial change of circumstances not contemplated in the
decree of divorce.”

¶19 As explained above, Jeffery has not established that the
court should have imputed more income to Diane than she was
actually earning. Accordingly, we assume that Diane’s
reasonable income was the amount she was receiving from her
employment and the military retirement. The magnitude of her
alleged increase in income is therefore much smaller than that
asserted by Jeffery. We next note that the statute is concerned
with whether the alleged change of circumstances was
“foreseeable,” not whether the alleged change of circumstances
was actually foreseen and accounted for in a divorce decree. See

5. Jeffery provides calculations based on working weeks of
thirty-six hours, thirty-three hours, and thirty-two hours without
identifying which he believes to be correct.

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Utah Code Ann. § 30-3-5(8)(i)(i). It follows that an increase of
income not actually contemplated by the divorce decree does not
automatically require a finding that a “substantial material
change in circumstances not foreseeable at the time of the
divorce” has occurred. See id. We are not aware of any Utah
authority requiring a district court to find that such a change has
occurred simply because one party’s income has increased and
the divorce decree did not discuss possible increases in income.
Were it otherwise, creeping inflation could necessitate
recalculation of nearly all alimony awards on an annual or
biennial basis. And such a rule would conflict with the
considerable discretion enjoyed by the district court to determine
whether a substantial and material change has occurred. See
Earhart, 2015 UT App 308, ¶ 5.

¶20 In short, Jeffery argues that because Diane’s 2014 income
(as calculated using the number of hours per week he believes
the court should have imputed to her) is higher than her income
at the time of the divorce decree, the district court was required
to find that a substantial, material, and unforeseeable change in
circumstances had occurred. We disagree. Contrary to Jeffery’s
contention, this is a question of discretion, not correctness. The
district court had discretion to determine, as it did, that in light
of all the circumstances, Diane’s $2 per hour increase in pay over
a five-year period was not such a change.

V.

¶21 Jeffery next contends that the district court erred by
denying his motion to amend its findings of fact or to grant a
new trial. He challenges both the adequacy of the findings made
by the court and the sufficiency of the evidence to support those
findings. A district court’s determination must be based on
adequate findings, and the court’s findings must be derived
from sufficient evidence. See Roberts v. Roberts, 2014 UT App 211,
¶ 10, 335 P.3d 378.

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¶22 Findings are adequate when they contain sufficient detail
to permit appellate review to ensure that the district court’s
discretionary determination was rationally based. Barnes v.
Barnes, 857 P.2d 257, 259 (Utah Ct. App. 1993); Hall v. Hall, 858
P.2d 1018, 1021 (Utah Ct. App. 1993). “Unstated findings can be
implied if it is reasonable to assume that the trial court actually
considered the controverted evidence and necessarily made a
finding to resolve the controversy, but simply failed to record
the factual determination it made.” Hall, 858 P.2d at 1025.

¶23 We consider first the district court’s discretionary
determination that there was not a material change in
circumstances. The findings supporting this ruling were that,
from 2009 to 2014, Diane’s income increased by $264 per month
and her expenses increased by $492 per month. The court
calculated these increases by comparing its earlier findings about
her financial situation in 2009 with the amounts the court found
she was reasonably earning and spending in 2014.

¶24 Jeffery asserts that these findings were inadequate to
support the determination that there was not a material change
in circumstances. He argues that the district court’s findings
were inadequate because they did not include a finding that
Diane was underemployed.6 However, the court actually made a
finding to the contrary. By finding that Diane was reasonably
earning $2,497 per month, the court implicitly rejected Jeffery’s
underemployment argument that sought imputation of
additional income. See Hall, 858 P.2d at 1025. The district court
further found that “this is not a significant material change in
income for Diane” and therefore concluded that there was “not a
material change in circumstances.” We reject Jeffery’s
inadequacy claim; as a matter of logic, a district court’s findings

6. Jeffery claimed that Diane was underemployed because, in
2014, she was working fewer hours than she had in 2009, and
that the court should therefore impute income to her as if she
was working thirty-six hours per week.

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are not inadequate to support its ultimate determination simply
because they are unfavorable to the losing party’s position.7

¶25 Jeffery also challenges the sufficiency of the evidence to
support the court’s findings. “Findings of fact, whether based on
oral or documentary evidence, shall not be set aside unless
clearly erroneous . . . .” Utah R. Civ. P. 52(a) (2014). “An
appellant who challenges the sufficiency of the evidence
supporting a finding of fact has the burden of combing the
record for and compiling all of the evidence that supports the
finding of fact and explaining why that evidence is legally
insufficient to support the finding of fact.” Wilson Supply, Inc. v.
Fradan Mfg. Corp., 2002 UT 94, ¶ 21, 54 P.3d 1177; see also Nielsen
v. Nielsen, 2014 UT 10, ¶ 42, 326 P.3d 645 (explaining that, while
marshaling is not an absolute requirement, “a party challenging
a factual finding or sufficiency of the evidence to support a
verdict will almost certainly fail to carry its burden of persuasion
on appeal if it fails to marshal”). Jeffery’s arguments, however,
appear to attack the content of the court’s findings rather than
any perceived deficiency in the evidence supporting them.

¶26 Jeffery first argues that the court’s “findings are
insufficient” because the court “failed to make findings as to the
recipient’s earning capacity or the ability to produce income.”
He refers to Utah Code section 30-3-5(8)(a)(ii), which states, “The
court shall consider at least the following factors in determining
alimony: . . . the recipient’s earning capacity or ability to produce
income.” But Jeffery ignores the fact that the court here was
considering whether to modify alimony at all rather than how
much to modify alimony by. The district court’s section 30-3-
5(8)(a)(ii) duty to calculate the appropriate amount of alimony is
only triggered in a modification proceeding once the court has

7. For this reason, we also reject Jeffery’s claims that the findings
were inadequate for failing to include findings that Diane’s
housing expense had increased unreasonably and that Jeffery
was the prevailing party.

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determined that, pursuant to section 30-3-5(8)(i)(i), modification
is appropriate “based on a substantial material change in
circumstances not foreseeable at the time of the divorce.” As a
result, because the court here determined that no such change
had occurred, it was under no duty to enter new findings as to
Diane’s earning capacity.8

¶27 Jeffery next argues that the district court’s findings were
insufficient because “[the] court erroneously increased *Diane’s+
monthly expenses by addressing needs that did not exist at the
time the divorce was entered.” His complaint appears to be that
the district court found Diane’s increased monthly expenses
reasonable. But he does not explain why the evidence in support
of that finding was insufficient. Rather, he simply repeats his
argument that the district court should not have considered
Diane’s increased housing expense as reasonable. “The court
may not modify alimony or issue a new order for alimony to
address needs of the recipient that did not exist at the time the
decree was entered . . . .” Utah Code Ann. § 30-3-5(8)(i)(ii). But
here, the court did not modify or issue a new order of alimony.
See supra ¶¶ 7–9.

¶28 Jeffery also argues that the district court’s findings were
insufficient because “*t+he trial court failed to find there had
been a material substantial change of circumstances regarding
*Diane’s+ increase in income that was not foreseeable at the time
of the divorce.” Failure to rule in favor of one party neither
renders the evidence insufficient to support the findings nor the
findings inadequate to support the ruling.

8. Jeffery also makes arguments in this regard premised on his
earlier assertions that the law-of-the-case somehow applies to
the district court’s 2011 findings and that additional income
should have been imputed to Diane. Because we rejected those
premises above, we reject the associated arguments here.

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¶29 We conclude that the district court did not err by entering
findings that supported its ruling, and the fact that Jeffery
sought a different ruling does not undermine the sufficiency of
the evidence supporting those findings. We reject Jeffery’s
attempt to inject alternative findings favorable to his preferred
outcome under the guise of an adequacy-of-the-findings or
sufficiency-of-the-evidence challenge.

VI.

¶30 Jeffery next contends that the district court erred by
failing to award attorney fees to him. Specifically, he argues that
he is the prevailing party because he has shown that the district
court should have reduced or terminated his alimony obligation.
“Generally, when the trial court awards fees in a domestic action
to the party who then substantially prevails on appeal, fees will
also be awarded to that party on appeal.” Kimball v. Kimball, 2009
UT App 233, ¶ 52, 217 P.3d 733 (citation and internal quotation
marks omitted).

¶31 Jeffery did not prevail below and has not prevailed on
appeal. The district court therefore did not err in failing to award
attorney fees to him below, and we do not award attorney fees to
him on appeal.9

¶32 We affirm in all respects.

9. Unfortunately, despite receiving an award of attorney fees
below, Diane did not request an award of her attorney fees
incurred on appeal.

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