2022 UT App 122
THE UTAH COURT OF APPEALS
STEPHANIE THAYNE,
Appellee,
v.
DEVIN THAYNE,
Appellant.
Opinion
No. 20200598-CA
Filed November 3, 2022
Second District Court, Ogden Department
The Honorable Ernest W. Jones
No. 204900701
Devin Thayne, Appellant Pro Se
David C. Blum, Attorney for Appellee
SENIOR JUDGE RUSSELL W. BENCH authored this Opinion, in which
JUDGE GREGORY K. ORME and JUSTICE JILL M. POHLMAN
concurred.1
BENCH, Senior Judge:
¶1 Devin Thayne appeals the district court’s order granting
Stephanie Thayne’s motion to dismiss his petition to modify child
and spousal support. We agree with the reasoning of the district
court and affirm.
1. Senior Judge Russell W. Bench sat by special assignment as
authorized by law. See generally Utah R. Jud. Admin. 11-201(7).
Justice Jill M. Pohlman began her work on this case as a member
of the Utah Court of Appeals. She became a member of the Utah
Supreme Court thereafter and completed her work on the case
sitting by special assignment as authorized by law. See generally
id. R. 3-108(4).
Thayne v. Thayne
BACKGROUND
¶2 Devin and Stephanie2 were married in June 2010 and
separated in April 2019. At the time of their separation, the parties
lived in California, and their divorce proceedings therefore
commenced in California. As part of their divorce proceedings, a
hearing was held on December 10, 2019. At the hearing, the
parties came to an agreement regarding custody and visitation
schedules of their three minor children, and the court entered a
stipulation and order addressing those issues that same day. At
this time, both parties were anticipating a relocation to Utah, and
the stipulation recognized this “period of transition” and noted,
“Further order as to custody will be addressed in Utah . . . if
necessary.”
¶3 At the December hearing, the parties also stipulated as to
other issues, including property division, spousal support, and
child support. This stipulation mentioned the impending move to
Utah and the likelihood that, due to the move, “[Devin’s] annual
income of $141,000 will decrease to approximately $90,000–
$100,00 per year.” The stipulation also provided that Devin would
pay $840 per month in spousal support, beginning January 1,
2020, and continuing for, at most, only four years (roughly half
the length of the nearly nine-year marriage), and that Stephanie
was “to make reasonable efforts to become self-supporting within
a reasonable period of time.” Additionally, the stipulation
provided that Devin would maintain health insurance for the
children and that “upon [Stephanie’s] employment,” she would
also provide health insurance for the children “if available at no
or reasonable cost through her employment.”
2. Because the parties have the same last name, we refer to them
by their first names for clarity, with no disrespect intended by the
apparent informality.
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¶4 The parties did, as planned, move to Utah in December
2019, and Devin’s income did resultingly drop to $90,000.
Thereafter, on February 18, 2020, the California court entered a
judgment of dissolution (the Judgment). The Judgment
incorporated the parties’ stipulations made at the December
hearing and finalized the divorce.
¶5 About two months later, on April 22, 2020, Devin filed a
petition to modify the Judgment in Utah. Devin argued that “his
dramatic reduction in income” amounted to a “substantial and
material change in circumstances” that warranted a change to the
previously ordered spousal support and child support amounts.
Devin argued the changes were also warranted by a change in
Stephanie’s income, stating, “[U]pon information and belief,
Stephanie has initiated employment or other means to generate a
regular and consistent income.” Additionally, Devin’s petition to
modify raised issues surrounding the mechanics of the children’s
visitation, arguing that the Judgment “fails to detail how the
parties are to exchange the minor children” considering that the
two older children were in school and the youngest child was not
yet school-aged. He requested that he be allowed to return all
three children in the morning instead of having to wait to return
the youngest child at noon, as provided for in the Judgment.
¶6 Stephanie responded with a motion to dismiss or,
alternatively, a motion for summary judgment. She argued that
Devin’s petition to modify rested on changes in circumstances
that were foreseeable when the Judgment was entered and that,
therefore, his petition must be dismissed.
¶7 The district court granted Stephanie’s motion to dismiss in
its entirety. The court determined that there was no indication
that the Judgment was not already calculated based on Devin’s
anticipated reduction in salary to $90,000–$100,00 per year. The
court explained,
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The order was finalized and entered after the move
and the initial payments were set to be made while
the parties already were to live in Utah. It stretches
the imagination of the Court to the breaking point
to believe that the California court would enter an
order fully expecting income to have dropped
before even the first payment would be made.
As to spousal support, the court recognized that “differences in
earning potential . . . should be given some weight in fashioning
the support award” and that this factor was presumptively
already considered by the California court making the award.
(Quotation simplified.) And as to visitation, the court pointed out
that the issue was addressed in the Judgment, which specifically
provided that the children would be delivered “at school or if no
school at noon.” The court therefore determined that it did not
find a “significant unforeseen change in circumstances” to support
modification. (Emphasis added.) Devin now appeals.
ISSUE AND STANDARD OF REVIEW
¶8 Devin argues that the district court erroneously dismissed
his petition to modify, which dismissal was based on its
determination that the facts alleged in the petition did not show
an unforeseen substantial change in circumstances that would
warrant modification. “We review a decision granting a motion to
dismiss for correctness, granting no deference to the decision of
the district court.” Miller v. Miller, 2020 UT App 171, ¶ 10,
480 P.3d
341 (quotation simplified).3
3. Although we review the grant of a motion to dismiss for
correctness, “the determination of the trial court that there has or
has not been a substantial change of circumstances is presumed
(continued…)
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ANALYSIS
¶9 A party may seek changes to an award of spousal or child
support when there has been a substantial change of
circumstances not addressed in the divorce decree. See Utah Code
Ann. § 30-3-5(11)(a) (LexisNexis Supp. 2022) (“The court has
continuing jurisdiction to make substantive changes and new
orders regarding alimony based on a substantial material change
in circumstances not expressly stated in the divorce decree or in
the findings that the court entered at the time of the divorce
decree.”);
id. § 78B-12-210(9)(a) (“A parent, legal guardian, or the
office may at any time petition the court to adjust the amount of a
child support order if there has been a substantial change in
circumstances.”). But the changes in circumstances that Devin
raises in his petition that have occurred since the stipulation was
drafted in December 2019—namely, his decreased income and
Stephanie’s availability for employment—were foreseen and
addressed in that stipulation. Furthermore, these changes in
circumstances that Devin raises had already occurred by the time
the Judgment incorporating that stipulation was eventually
entered in February 2020.
¶10 The Judgment orders Devin to pay “child support in the
amount of $2,160 per month” and “spousal support in the amount
of $840 per month” commencing in January 2020, shortly after
valid, and we review the ruling under an abuse of discretion
standard,” Doyle v. Doyle,
2009 UT App 306, ¶ 7,
221 P.3d 888
(quotation simplified), aff’d,
2011 UT 42,
258 P.3d 553. Thus, “this
seems to be a case where deferential and correctness standards
appear to intersect.” Miller v. Miller,
2020 UT App 171, ¶ 10 n.5,
480 P.3d 341 (quotation simplified). Nonetheless, the parties agree
we should review the dismissal for correctness, so “we assume
without deciding that correctness is the appropriate standard of
review to apply to the district court’s . . . dismissal in this context.”
Id.
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relocation. And in the same section, the Judgment clearly
recognizes Devin’s impending income reduction: “[Devin]
anticipates that [his] annual income of $141,000 will decrease to
approximately $90,000–$100,000 per year due to the relocation of
himself and his employment from California to Utah.” Thus, the
Judgment anticipated Devin’s lowered income, and we agree with
the district court that it is implausible that the California court
would have made support awards based on Devin’s old income
when it recognized that a much lower income would be in effect
before any payments became due.
¶11 This same support section of the Judgment also anticipates
Stephanie’s future employment. The Judgment limits the
maximum length of spousal support to four years4 and states,
“[Stephanie] is placed under a Gavron Admonition to make
reasonable efforts to become self-supporting within a reasonable
period of time.”5 Further, the Judgment clarifies that “upon
4. We agree with Devin that the district court miscalculated the
length of the spousal support award. The court remarked that the
award was “limited to a term of three years (less than one third
the length of the marriage),” but spousal support was actually
awarded for four years, which is under one-half the length of the
marriage. Nonetheless, we do not see that this error in calculation
impacted the district court’s decision in a material way. The court
ultimately determined that the award’s duration was reasonable
because it “was for less than half of the length of marriage,” and
this characterization is still accurate with the four-year
calculation.
5. A Gavron admonition or Gavron warning has its roots in the case
In re Marriage of Gavron, 250 Cal. Rptr. 148 (Ct. App. 1988), wherein
the California Court of Appeal observed the California
Legislature’s intent “that all supported spouses who were able to
do so should seek employment” and its expectation “that courts
(continued…)
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[Stephanie’s] employment[,] [she] shall obtain health insurance
for the parties[’] minor children if available at no or reasonable
cost through her employment.” In fact, even Devin’s petition to
modify recognized that the Judgment addresses Stephanie’s
future employment:
[U]pon information and belief, Stephanie has
initiated employment or other means to generate a
regular and consistent income. Indeed, the
Judgment indicates Stephanie was required to make
efforts to secure full-time employment. As such,
Stephanie either has secured regular employment or
now possesses the ability to secure gainful full-time
employment. At a minimum, Stephanie should be
imputed income at a reasonable amount
considering her education, training, certificates,
employment history, and any other factors
reasonably considered by the Court.
would issue orders encouraging these spouses to seek
employment and to work toward becoming self-supporting,” to
set forth the policy that “there should [be] some reasonable
advance warning that after an appropriate period of time the
supported spouse [is] expected to become self-sufficient or face
onerous legal and financial consequences.” Id. at 152–53
(quotations simplified). In marriages of less than ten years, the
appropriate period of time to become self-sufficient “generally
shall be one-half the length of the marriage.”
Cal. Fam. Code
§ 4320(l) (West 2019). Here, with the given Gavron admonition,
spousal support was awarded for a maximum of four years—less
than half the length of the parties’ nearly nine-year marriage.
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Thayne v. Thayne
So Stephanie’s return to employment was clearly anticipated in
the Judgment.6
¶12 Thus, the Judgment addressed both the anticipated drop in
Devin’s income and the possibility of Stephanie’s return to
employment and accounted for them when ordering child and
spousal support amounts. And therefore, these employment
changes do not amount to unanticipated changes that would
warrant a modification of the support amounts. Therefore, we see
no error in the district court’s determination that even when
viewing the alleged facts in Devin’s favor, no substantial change
in circumstances had occurred that was not addressed in the
Judgment; and consequently, we see no error in the dismissal of
Devin’s petition to modify.
¶13 Devin, however, points to language in the stipulation that
he argues implies that the Judgment was “a very loose order
intended only to last until more was known in Utah.” First, he
points to a general provision at the close of the Judgment stating,
“The issues of child custody and visitation, child support and
spousal support are transferred to the county in which the parties’
minor children will be residing in Utah effective immediately
upon entry of this judgment.” But we do not agree that this
language is an indication that the support awards should be
revisited upon relocation; instead, where the parties had already
relocated upon entry of the Judgment, the language simply
demonstrates an awareness that any unanticipated issues or
changes of circumstances that might arise in the future (in the
6. Although Devin argues on appeal that “[i]t is possible that
[Stephanie] is making even more money than [he is],” the grounds
in his petition to modify were simply that Stephanie had quickly
returned to employment (or at least had the ability to do so). The
petition does not allege that she has secured a level of
employment that would have been unanticipated based on her
earning potential as it existed at the time of the Judgment.
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Thayne v. Thayne
nearly fifteen years before the children would all become adults)
would be appropriately dealt with in Utah instead of California.
¶14 Second, Devin relies on language in the child custody
stipulation that mentions relocation and then states, “Further
orders as to custody will be addressed in Utah upon parties’
move, if necessary.” However, this mention (and in particular its
“if necessary” limitation) simply clarifies what would happen if
changes were warranted in the future and is not an indication that
the California court expected the divorce decree to be modified
upon relocation. Furthermore, this reference specifically mentions
only the modification of child custody, which is largely unrelated
to the income changes raised in Devin’s petition to modify.
¶15 Third, Devin points to the Judgment’s failure to address
the issue of how the children would be claimed on the parties’
taxes as evidence that the Judgment was intended to be only
temporary. But, again, this omission does not suggest that the
California court expected that its support awards would be
recalculated upon arrival in Utah.
¶16 Devin also raises contract principles to argue that the intent
of the parties regarding future modification should have been
considered by the district court when determining if modification
was appropriate. But even assuming the intent of the parties
would be relevant, there was no ambiguity in the stipulated
agreement suggesting that immediate modification was intended
after relocation to Utah, nor was there any indication that this
remained an open question. Although Devin tries to introduce
additional materials that he argues show such an intention, even
under contract principles those materials would not be
considered because of the unambiguous nature of the parties’
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Thayne v. Thayne
stipulation.7 See Bakowski v. Mountain States Steel, Inc., 2002 UT 62,
¶ 16,
52 P.3d 1179 (“When interpreting a contract, a court first
looks to the contract’s four corners to determine the parties’
intentions, which are controlling. If the language within the four
corners of the contract is unambiguous, then a court does not
resort to extrinsic evidence of the contract’s meaning, and a court
determines the parties’ intentions from the plain meaning of the
contractual language as a matter of law.” (quotation simplified)).8
7. Because these additional materials would not have been
considered in any event, we need not address the district court’s
rulings that they were inadmissible on hearsay and other
grounds. We do, however, note that the materials are far from
showing a clear shared intent between the parties for a
modification upon arrival in Utah.
8. Devin makes a brief argument that the district court “did not
acknowledge the additional burden placed on [him] by having
one child in kindergarten and one in 3rd grade” and argues that a
modification to the drop-off time of the youngest child is
warranted. But again, Devin has not shown a material or
substantial change in circumstances that would support
modification of the decree. See generally
Utah Code Ann. § 30-3-
10.4(1) (LexisNexis 2019) (allowing modification of a child
custody order when circumstances “have materially and
substantially changed since the entry of the order to be
modified”). First, the ages of the children have always been
known, and the objectionable visitation term was stipulated to
when some of the parties’ children attended school and some did
not. Second, although Devin argues on appeal that he must
“spend hours . . . shuffling kids to/from school at different times,”
he argued before the district court only that a change was
warranted “given the distance between the parties’ respective
(continued…)
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CONCLUSION
¶17 We do not see an error in the district court’s determination
that the changes in circumstances Devin raises were already
addressed by the original Judgment. And as a result, we see no
error in the court’s denial of Devin’s petition to modify.9 We
therefore affirm.
residences,” without providing any information as to the length
of the commute or how that compared to the arrangement before
relocation. Thus, we see no change in circumstances presented to
the district court that would have supported a change to this
visitation provision.
9. Stephanie seeks an award of attorney fees under rule 33 of the
Utah Rules of Appellate Procedure. See Utah R. App. P. 33(a)
(allowing an award of reasonable attorney fees where an appeal
“is either frivolous or for delay”). Although Devin’s appeal was
unsuccessful, we do not see that it rises to the level of frivolous
and warrants sanctions under rule 33. We therefore deny
Stephanie’s request for an award of attorney fees.
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