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Wall v. Wall, 2007 UT App 81

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Case Summary

Laurie P. Wall and Cory R. Wall divorced in 2000 after nineteen years of marriage, with Mrs. Wall receiving $800 per month in alimony and $1200 per month in child support for the parties’ three children. After the divorce, Mrs. Wall completed her college degree and obtained full-time employment, prompting Mr. Wall, a self-employed attorney, to petition to terminate or reduce his alimony obligation and reduce his child support obligation. The trial court reduced child support prospectively but declined to make the reduction retroactive, and declined to modify alimony after finding that Mrs. Wall’s graduation and subsequent employment had been contemplated by the parties at the time of divorce. Mr. Wall’s motion for a new trial was denied, and the trial court awarded Mrs. Wall her attorney fees. Mr. Wall appealed all four rulings, and the Utah Court of Appeals affirmed across the board while remanding for a determination of Mrs. Wall’s appellate attorney fees.

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Facts

Marriage and Divorce

  • The parties married on June 10, 1981, and were divorced by decree of divorce entered on November 2, 2000.

Circumstances at the Time of Divorce

  • At the time of the divorce, Mrs. Wall was not employed because she was caring for the parties’ three children and attending college.
  • Wall was self-employed as an attorney, and his income fluctuated due to the nature of his practice; his most current tax returns at the time of divorce reflected a gross monthly income of $4734.

Original Support Terms

  • Under the parties’ Settlement Agreement and the original Decree, Mr. Wall was required to pay Mrs. Wall $1200 per month in child support and $800 per month in alimony.

Post-Divorce Changes

  • Following the divorce, Mrs. Wall graduated from college and found full-time employment.

The Petition to Modify

  • On March 3, 2004, Mr. Wall filed a verified petition to modify the decree of divorce, seeking to terminate or reduce his alimony obligation and to reduce his child support obligation based on Mrs. Wall’s graduation from college and her subsequent employment.

Trial and Income Findings

  • The trial court conducted a one-day trial on November 1, 2005, and found that Mr. Wall’s gross monthly income was approximately $4706 and that Mrs. Wall’s gross monthly income was approximately $2666.

Child Support Ruling

  • The trial court found a substantial change in circumstances sufficient to reduce Mr. Wall’s child support obligation to $977 per month, effective December 1, 2005.
  • The court declined to make the modified child support order retroactive, finding that retroactive application would harm the children because Mrs. Wall was unable to pay Mr. Wall the retroactive amount of approximately $4000.

Alimony Ruling

  • The trial court found that the parties did not agree at the time of divorce that $800 per month in alimony was sufficient to meet Mrs. Wall’s needs, and that the record at the time of divorce showed that amount did not actually meet her needs.
  • The trial court found that Mrs. Wall’s completion of college and her obtaining employment were contemplated by the parties at the time of divorce, and therefore did not constitute a substantial change in circumstances; it declined to modify Mr. Wall’s alimony obligation.

Attorney Fees

  • The trial court awarded attorney fees to Mrs. Wall at the conclusion of trial.

Post-Trial Motion and Appeal

  • Wall filed a motion for a new trial on January 20, 2006, on the issues of alimony, retroactive application of the child support modification, and the attorney fees award; the trial court denied the motion on March 28, 2006, and Mr. Wall appealed.

Issues of the Case

Cory R. Wall, the appellant, raises four issues on appeal.

  • Issue 1: Alimony
  • Issue 2: Retroactive Application of Child Support Modification
  • Issue 3: Denial of Motion for New Trial
  • Issue 4: Award of Attorney Fees

The Utah Court of Appeals affirmed the trial court on all four issues and remanded for a determination of the attorney fees Mrs. Wall reasonably incurred on appeal.

  • Alimony – Award

    Claim on Appeal: Mr. Wall argued that the trial court erred in refusing to reduce or terminate his alimony obligation because Mrs. Wall’s completion of college and her qualification for full-time employment constituted a substantial change in circumstances.

    Holding: — Affirmed. The court of appeals held that Mrs. Wall’s graduation from college and subsequent employment were contemplated by the parties at the time of divorce, based on record evidence including the trial court’s findings that Mrs. Wall was a full-time student and her divorce complaint’s reference to obtaining employable skills; because the change was contemplated, it was not legally cognizable as a substantial change in circumstances.

    Statutory Authority: Utah Code Ann. § 81-4-504(3) (Formerly: § 30-3-5(8)(g)(ii)) — a court may not modify alimony to address needs of the recipient that did not exist at the time the decree was entered, absent a finding of extenuating circumstances.

    Standard of Review:

    Abuse of discretion — applied to the trial court’s determination whether to modify the divorce decree.

    Correctness — applied to the legal adequacy of the trial court’s findings of fact and the legal accuracy of its statements.

    Controlling Cases:

    • Van Dyke v. Van Dyke, 2004 UT App 37, 86 P.3d 767 (setting the abuse-of-discretion/correctness standards of review for decree modification)
    • Moore v. Moore, 872 P.2d 1054 (Utah Ct. App. 1994) (threshold requirement of a substantial, uncontemplated change in circumstances)
    • Dana v. Dana, 789 P.2d 726 (Utah Ct. App. 1990) (a reasonably contemplated change is not legally cognizable as a substantial change)
    • Durfee v. Durfee, 796 P.2d 713 (Utah Ct. App. 1990) (evidence of contemplation, preferably in the decree itself, is required)
    • Bolliger v. Bolliger, 2000 UT App 47, 997 P.2d 903 (if decree and record are both silent as to the changed circumstance, it was not contemplated)

    Why It Matters: This decision confirms that a decree’s silence on a future life event is not dispositive — extrinsic record evidence created at the time of divorce, such as findings describing a party’s student status or allegations in the divorce pleadings, can independently establish that the event was “contemplated,” defeating a later modification petition. Practitioners representing the party seeking modification must examine the full contemporaneous record, not merely the decree’s text, before assuming a life change was unforeseen. Conversely, practitioners representing the party opposing modification benefit from building a robust record — through findings and pleadings — of the other party’s anticipated trajectory at the time of divorce.

  • Child Support — Modification

    Claim on Appeal: Mr. Wall argued that Utah Code section 78-45-9.3(4) mandated that the child support modification be applied retroactively to the date of service of his petition, and that the trial court erred in declining to do so.

    Holding: — Affirmed. The court held that the governing statute gives the trial court discretion whether to make a child support modification retroactive; the statute’s use of “may” is permissive, and the 2003 amendment made the effective date mandatory only once a court chooses to order retroactive application, not mandatory in every case.

    Statutory Authority: Utah Code Ann. § 81-7-102(4)(c), (5) (Formerly: § 78-45-9.3(3)(c), (4)) — child support is generally not subject to retroactive modification, but a support payment may be modified with respect to any period during which a modification petition is pending, at the court’s discretion.

    Standard of Review:

    Abuse of discretion — applied to the trial court’s decision whether to award a retroactive child support modification.

    Controlling Cases:

    • Wilde v. Wilde, 2001 UT App 318, 35 P.3d 341 (interpreting the statute to give courts discretion to determine both if and when a modified child support award should be made retroactive)
    • Ball v. Peterson, 912 P.2d 1006 (Utah Ct. App. 1996) (discretionary nature of retroactive child support modification)
    • Crockett v. Crockett, 836 P.2d 818 (Utah Ct. App. 1992) (discretionary nature of retroactive child support modification)

    Why It Matters: The opinion forecloses an argument, likely to recur, that the 2003 statutory amendment converted retroactive child support modification from a discretionary remedy into a mandatory one. Practitioners petitioning to modify child support should not assume retroactivity to the date of service is automatic and should build an equitable record — including the non-petitioning party’s ability to absorb a retroactive judgment — to support (or oppose) the request.

  • Civil Procedure — New Trial

    Claim on Appeal: Mr. Wall argued he was entitled to a new trial because the trial court’s findings regarding Mrs. Wall’s claimed living expenses at the time of divorce were not supported by sufficient evidence, and that the court should instead have treated the stipulated $800 alimony figure as conclusive proof of her needs.

    Holding: — Affirmed. Because the court of appeals had already concluded that the trial court acted within its discretion in finding that the $800 alimony award did not meet Mrs. Wall’s needs at the time of divorce, Mr. Wall’s new-trial motion merely reargued issues the court had already resolved, and the trial court did not err in denying it.

    Statutory Authority: Not specified in opinion (the opinion does not cite a specific rule or statute governing new-trial motions).

    Standard of Review:

    Abuse of discretion — the trial court has some discretion in deciding whether to grant a new trial, reversible only for abuse of that discretion.

    Controlling Cases:

    • Okelberry v. W. Daniels Land Ass’n, 2005 UT App 327, 120 P.3d 34 (standard of review for denial of a motion for new trial)

    Why It Matters: The ruling illustrates that a new-trial motion which simply reargues the merits of issues already decided on the underlying record will not succeed; practitioners should reserve new-trial motions for genuinely new evidentiary deficiencies rather than as a vehicle to relitigate contested findings.

  • Attorney Fees — Award

    Claim on Appeal: Mr. Wall argued that the trial court erred in awarding attorney fees to Mrs. Wall.

    Holding: — Affirmed. The trial court considered the required factors — Mrs. Wall’s recent (six-week-old) employment, her insufficient funds to cover ongoing expenses, her status as the prevailing party on the most contested issue (alimony), and Mr. Wall’s greater discretionary income — and awarded Mrs. Wall only a portion of her fees in light of Mr. Wall’s limited discretionary income; the award was within the trial court’s discretion. The court of appeals further remanded for a determination of Mrs. Wall’s attorney fees incurred on appeal.

    Statutory Authority: Not specified in opinion (the opinion does not cite a specific statute for the underlying fee award, applying case-law factors instead).

    Standard of Review:

    Abuse of discretion — the decision to award attorney fees and the amount awarded rest primarily in the trial court’s sound discretion.

    Controlling Cases:

    • Wells v. Wells, 871 P.2d 1036 (Utah Ct. App. 1994) (abuse-of-discretion standard for attorney fee awards in divorce actions)
    • Kelley v. Kelley, 2000 UT App 236, 9 P.3d 171 (required factors: receiving spouse’s need, payor spouse’s ability to pay, and reasonableness of fees)
    • Childs v. Childs, 967 P.2d 942 (Utah Ct. App. 1998) (fees on appeal generally awarded to a party who prevailed below and prevails on the main issues on appeal)
    • Nelson v. Nelson, 2004 UT App 254, 97 P.3d 722 (fees on appeal)

    Why It Matters: The decision reinforces the three-factor Kelley framework for divorce attorney fee awards and confirms that a party who prevails below and substantially prevails on appeal is generally entitled to fees incurred in defending the appeal, making a comprehensive factual record on need, ability to pay, and reasonableness essential at trial.

Rules of Evidence

Utah Codes

Rules of Civil Procedure

Utah Code of Judicial Administration

Utah Rules of Appellate Procedure

Utah Rules of Professional Conduct

Case Cited

  • Van Dyke v. Van Dyke, 2004 UT App 37, 86 P.3d 767 (standard of review for divorce decree modification)
  • Okelberry v. W. Daniels Land Ass’n, 2005 UT App 327, 120 P.3d 34 (standard of review for denial of a new trial motion)
  • Wells v. Wells, 871 P.2d 1036 (Utah Ct. App. 1994) (standard of review for attorney fee awards in divorce actions)
  • Moore v. Moore, 872 P.2d 1054 (Utah Ct. App. 1994) (threshold requirement of a substantial, uncontemplated change in circumstances)
  • Dana v. Dana, 789 P.2d 726 (Utah Ct. App. 1990) (contemplated changes are not legally cognizable as substantial changes)
  • Durfee v. Durfee, 796 P.2d 713 (Utah Ct. App. 1990) (evidence required to show a change was contemplated at divorce)
  • Bolliger v. Bolliger, 2000 UT App 47, 997 P.2d 903 (silence in both decree and record means the change was not contemplated)
  • Wilde v. Wilde, 2001 UT App 318, 35 P.3d 341 (courts have discretion whether and when to make a child support modification retroactive)
  • Ball v. Peterson, 912 P.2d 1006 (Utah Ct. App. 1996) (discretionary nature of retroactive child support modification)
  • Crockett v. Crockett, 836 P.2d 818 (Utah Ct. App. 1992) (discretionary nature of retroactive child support modification)
  • Kelley v. Kelley, 2000 UT App 236, 9 P.3d 171 (three-factor test for attorney fee awards in divorce actions)
  • Childs v. Childs, 967 P.2d 942 (Utah Ct. App. 1998) (fees on appeal generally awarded to the prevailing party below who also prevails on appeal)
  • Nelson v. Nelson, 2004 UT App 254, 97 P.3d 722 (fees on appeal)

Litigation and Appellate Strategy

Reversal Predictor

  • The decree and the full record (findings and pleadings) are truly silent as to the changed circumstance, with no reference to the trajectory that later changed.
  • The trial court modifies alimony to address needs arising only after the divorce without making an extenuating-circumstances finding.
  • The trial court treats retroactive child support modification as mandatory rather than discretionary once a petition is pending.
  • The trial court awards or denies attorney fees without addressing need, ability to pay, and reasonableness.

Mandatory Factor Checklist

  • Alimony modification: a substantial change in circumstances not contemplated at the time of the decree (Moore; Dana).
  • Extending alimony to new needs: an extenuating-circumstances finding under § 81-4-504(3).
  • Retroactive child support modification: application of the default non-retroactivity rule versus the discretionary pending-petition exception under § 81-7-102(4)(c), (5).
  • Attorney fees: the receiving spouse’s need, the payor spouse’s ability to pay, and the reasonableness of the fees requested (Kelley).

Signal Cluster (High-Risk Appeal Profile)

Appellate viability increases where several factors converge: (1) a party’s post-divorce degree completion or new employment, paired with a decree and record that are completely silent about any such plans; (2) an obligor with fluctuating self-employment income whose figure is independently disputed at trial; and (3) a modification-seeking party who cannot afford to pay a retroactive judgment, inviting the court to deny retroactivity on equitable grounds even if the underlying modification is granted.

Strategy Insight

Appeals from denials of alimony modification are best framed as challenges to whether the record contains any evidence that the change was contemplated — a legal-sufficiency argument reviewed with less deference — rather than as a broader dispute over whether the recipient’s current needs are equitably compelling, which the deferential abuse-of-discretion standard makes very difficult to win.

 

Insights

Utah-Only Jurisprudence

The opinion relies exclusively on Utah authority — the Utah Code and Utah appellate case law. There is no reliance on out-of-state decisions or secondary treatises, consistent with the largely statute-driven, court-of-appeals-developed nature of Utah’s family law modification doctrine.

Doctrinal Anchors (Utah Supreme Court)

Notably, no Utah Supreme Court case is cited or relied upon anywhere in the opinion. Every controlling authority — on substantial change in circumstances, retroactive child support modification, new trial motions, and attorney fees — is a Utah Court of Appeals decision. This underscores that the doctrinal framework governing divorce-decree modification in Utah has been built almost entirely at the intermediate appellate level.

The Most Important Holding

The most significant holding is that a life change need not be referenced in the decree itself to be “contemplated” for modification purposes — contemporaneous record evidence such as trial court findings describing a party’s status (here, “a full-time student with limited recent work experience”) or allegations in the original divorce complaint can independently satisfy the contemplation requirement. This substantially broadens the universe of evidence that can defeat an alimony modification petition.

Reversal Based on Legal Error vs. Factual Error

There was no reversal; the trial court was affirmed on all four issues. Had reversal occurred, the most likely basis would have been a legal-adequacy problem — a finding of “contemplation” unsupported by any record evidence, which is reviewed for correctness rather than deferential abuse of discretion. That legal-error pathway remains the most promising avenue for a future appellant challenging a similar contemplation finding.

Continued Deference in Income Determinations

The trial court’s independent finding of Mr. Wall’s fluctuating self-employment income (approximately $4706 per month, close to the $4734 figure from the time of divorce) went essentially unchallenged on appeal, illustrating the broad latitude Utah trial courts receive in fixing income for self-employed obligors with variable earnings.

Practitioner Takeaways

  • Trial Lawyers: Build a deliberate contemporaneous record at the time of divorce — through findings of fact and pleading allegations — regarding each party’s anticipated education, employment, or income trajectory, since that record will control any future modification petition.
  • Appellate Lawyers: Frame a challenge to a “contemplated change” finding as an attack on the legal sufficiency of the record evidence (correctness review), not merely as a disagreement with the equities (abuse-of-discretion review), since the latter is far more difficult to win.
  • Self-Employed/Business-Owner Litigants: Expect income figures to be closely scrutinized and independently found by the trial court when income fluctuates; maintain documentation supporting the claimed monthly gross income at both the divorce and any later modification proceeding.

Majority Opinion

This opinion is subject to revision before publication in the Pacific Reporter.

IN THE UTAH COURT OF APPEALS

—-ooOoo—-

Laurie P. Wall, Petitioner and Appellee, v. Cory R. Wall, Respondent and Appellant.

) ) ) ) ) ) ) ) ) OPINION (For Official Publication) Case No. 20060312-CA F I L E D (February 23, 2007) 2007 UT App 61

—– Third District, Salt Lake Department, 994908054 The Honorable Sandra N. Peuler

Attorneys: Gregory B. Wall, Salt Lake City, for Appellant Robert H. Wilde, Midvale, for Appellee

—– Before Judges Bench, Billings, and Davis.

BILLINGS, Judge:

¶1 Cory R. Wall appeals from the trial court’s order modifying decree of divorce and order denying motion for new trial. Specifically, Mr. Wall argues that the trial court erred when it denied his petition to reduce or terminate his alimony obligation to his ex-wife, Laurie P. Wall; denied his request to make the child support modification retroactive; denied his request for a new trial; and awarded Mrs. Wall attorney fees. We affirm and remand for a determination of attorney fees accrued on appeal.

BACKGROUND

¶2 Mr. and Mrs. Wall were married on June 10, 1981, and were divorced by decree of divorce (the Decree) on November 2, 2000. At the time of the divorce, Mrs. Wall was not working because she was caring for the parties’ three children and attending college. Mr. Wall was self-employed as an attorney. Due to the nature of his law practice, his income fluctuated; however, at the time of the divorce, Mr. Wall’s most current tax returns reflected a gross monthly income of $4734. According to the parties’ settlement agreement (the Settlement Agreement) and the original 20060312-CA 2 Decree, Mr. Wall was required to pay Mrs. Wall $1200 per month in child support and $800 per month in alimony.

¶3 Following the parties’ divorce, Mrs. Wall graduated from college and found full-time employment. On March 3, 2004, Mr. Wall filed a verified petition to modify the decree of divorce (the Petition). The Petition sought to terminate or reduce Mr. Wall’s alimony obligation and to reduce his child support obligation based on Mrs. Wall’s change in circumstances, specifically her graduation from college and subsequent employment.

¶4 On November 1, 2005, the trial court conducted a one-day trial regarding the Petition. At that time, the court determined that Mr. Wall’s gross monthly income was approximately $4706 and Mrs. Wall’s gross monthly income was approximately $2666. At the conclusion of the trial, the court found that there had been a substantial change in circumstances sufficient to reduce Mr. Wall’s child support obligations to $977 per month, effective December 1, 2005. The court declined to make the modified child support order retroactive because it would harm the children as Mrs. Wall was unable to pay Mr. Wall the retroactive amount of approximately $4000.

¶5 Regarding Mr. Wall’s alimony obligation, the trial court found that the parties did not agree at the time of divorce that the $800 monthly alimony was sufficient to meet Mrs. Wall’s needs and that the documents on file with the court at the time of the divorce showed that the $800 per month actually did not meet her needs. The trial court further found that Mrs. Wall’s completion of college and getting a job were contemplated by the parties at the time of divorce, and therefore she did not experience a substantial change in circumstances. The trial court declined to modify Mr. Wall’s alimony obligations, and determined that the alimony should remain consistent with the provisions of the original Decree. The court awarded attorney fees to Mrs. Wall.

¶6 On January 20, 2006, Mr. Wall filed a motion for new trial, requesting that a new trial be held on the issues of alimony reduction or termination, retroactive application of the child support modification order, and the award of attorney fees to Mrs. Wall. The trial court denied Mr. Wall’s motion on March 28, 2006. Mr. Wall now appeals.

ISSUES AND STANDARDS OF REVIEW

¶7 On appeal, Mr. Wall argues that the trial court erred in refusing to modify the original Decree. “The determination to 20060312-CA 3 modify a divorce decree is generally reviewed under an abuse of discretion standard. However, questions about the legal adequacy of findings of fact and the legal accuracy of the trial court’s statements present issues of law, which we review for correctness.” Van Dyke v. Van Dyke, 2004 UT App 37,¶9, 86 P.3d 767 (quotations and citations omitted). ¶8 Mr. Wall also asserts that the trial court erred when it denied his motion for a new trial. “In deciding whether to grant a new trial, the trial court has some discretion, and we reverse only for abuse of that discretion.” Okelberry v. W. Daniels Land Ass’n, 2005 UT App 327,¶20 n.14, 120 P.3d 34 (quotations and citation omitted).

 

¶9 Finally, Mr. Wall contends that the trial court erred in awarding attorney fees to Mrs. Wall at the conclusion of trial. “An award of attorney fees in divorce actions rests within the sound discretion of the trial court, which we will not disturb absent an abuse of discretion.” Wells v. Wells, 871 P.2d 1036, 1038 (Utah Ct. App. 1994).

ANALYSIS I. Alimony

¶10 Mr. Wall contends that the trial court erred in failing to reduce or terminate his alimony obligation to Mrs. Wall. More specifically, he asserts that Mrs. Wall experienced a substantial change in circumstances when she completed college and became qualified for full-time employment.

¶11 “On a petition for a modification of a divorce decree, the threshold requirement for relief is a showing of a substantial change of circumstances occurring since the entry of the decree and not contemplated in the decree itself.” Moore v. Moore, 872 P.2d 1054, 1055 (Utah Ct. App. 1994) (quotations and citations omitted) (emphasis omitted). If a change in circumstances is “reasonably contemplated at the time of divorce[, then it] is not legally cognizable as a substantial change in circumstances in modification proceedings.” Dana v. Dana, 789 P.2d 726, 729 (Utah Ct. App. 1990).

¶12 “In order for a material change in circumstances to be contemplated in a divorce decree there must be evidence, preferably in the form of a provision within the decree itself, that the trial court anticipated the specific change.” Durfee v. Durfee, 796 P.2d 713, 716 (Utah Ct. App. 1990). Thus, “if both the divorce decree and the record are bereft of any reference to 20060312-CA 4 the changed circumstance at issue in the petition to modify, then the subsequent changed circumstance was not contemplated in the original divorce decree.” Bolliger v. Bolliger, 2000 UT App 47,¶13, 997 P.2d 903.

¶13 In its findings of fact, the trial court determined that at the time of the parties’ divorce, Mrs. Wall was a full-time student with limited recent work experience and that either her completing a college degree or her getting a job, or both, was contemplated at the time of the divorce. Mr. Wall is correct that neither the parties’ original Settlement Agreement, nor the original Decree, reference Mrs. Wall’s graduation from college or subsequent employment. However, the trial court’s findings of fact at the time of the divorce state that Mrs. Wall “is a fulltime student with limited recent work experience.” Moreover, Mrs. Wall’s divorce complaint states that she was attending college at the time of the divorce “in an attempt to obtain skills which [would] allow her sufficient income to support herself.” These references, made at the time of divorce, provide sufficient record evidence to support the trial court’s conclusion that Mrs. Wall’s graduation from college and subsequent employment were contemplated at the time of divorce.

¶14 Mr. Wall also argues that when the trial court refused to modify the alimony amount, it erred in determining that the $800 per month alimony payments did not meet Mrs. Wall’s needs at the time of the divorce, and in considering Mrs. Wall’s current needs–needs that did not exist at the time of the divorce. Although these arguments are not determinative as we have previously affirmed the trial court’s finding that there has been no change in circumstances not contemplated at the time of the divorce, we nonetheless respond to Mr. Wall’s concerns.

¶15 First, regarding Mr. Wall’s argument that $800 per month was sufficient to meet Mrs. Wall’s needs at the time of the divorce, we note that at the time of the divorce, the parties entered into the Settlement Agreement and stipulated that Mrs. Wall would receive $800 per month in alimony payments. Mr. Wall claims that by stipulating to this amount, Mrs. Wall agreed that $800 per month would sufficiently meet her needs. However, Mrs. Wall argues that the $800 per month was merely a settlement as to the amount she was to receive each month, not a stipulation that $800 per month was sufficient to meet her needs.

¶16 We conclude that simply because the parties stipulated to $800 per month alimony does not mean that they implicitly agreed $800 would sufficiently meet Mrs. Wall’s needs. Instead, the stipulation indicates that they implicitly agreed that Mr. Wall has a legal obligation to pay alimony. Parties settle on alimony 20060312-CA 5 amounts for various reasons, including to balance a budget or to avoid extensive litigation.

¶17 Second, Mr. Wall argues that in refusing to modify the alimony amount the trial court improperly considered Mrs. Wall’s current needs–needs that did not exist at the time of the divorce. Under Utah law, “[t]he 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)(g)(ii) (Supp. 2006).

¶18 We have previously discussed the crux of Mr. Wall’s argument on this issue–that $800 per month alimony was sufficient to meet Mrs. Wall’s needs at the time of the divorce and that because her monthly income is triple the amount of alimony she receives, the court must have included additional needs that were not present at the time of the divorce. In making his argument, Mr. Wall fails to acknowledge the substantial debt Mrs. Wall accumulated to attend college. As we noted above, the record indicates that this was a circumstance contemplated by the trial court at the time of the divorce. In sum, we conclude that the trial court did not abuse its discretion in refusing to modify Mrs. Wall’s alimony award.

II. Child Support

¶19 Next, Mr. Wall argues that the trial court erred when it refused to apply the modification of child support retroactively. Utah Code section 78-45-9.3(4) states: A child or spousal support payment under a child support order may be modified with respect to any period during which a modification is pending, but only from the date of service of the pleading on the obligee, if the obligor is the petitioner, or on the obligor, if the obligee is the petitioner. If the tribunal orders that the support should be modified, the effective date of the modification shall be the month following service on the parent whose support is affected. Once the tribunal determines that a modification is appropriate, the tribunal shall order a judgment to be entered for any difference in the original order and the modified amount for the period from the service of the pleading until the final order of modification is entered. 1. This section was amended in 2003 and became effective on May 5, 2003. See Utah Code Ann. § 78-45-9.3 Amendment Notes. Mr. Wall’s Petition was filed on March 3, 2004. Because the Petition was filed after the 2003 amendment became effective, the provisions of the statute’s current version apply. 20060312-CA 6 Utah Code Ann. § 78-54-9.3(4) (Supp. 2006) (emphasis added). 1 Mr. Wall asserts that the Utah Legislature created a mandatory requirement for retroactive application of a child support modification when it amended this section in 2003 to include the second sentence: “If the tribunal orders that the support should be modified, the effective date of the modification shall be the month following service on the parent whose support is affected.” Id. (emphasis added).

¶20 However, we read the statute as a whole, which makes it clear that as a general rule, child support orders are “not subject to retroactive modification.” Id. § 78-45-9.3(3)(c). The statute goes on to provide an exception to the general rule and gives the court discretion to make child support modification orders retroactive. See id. § 78-45-9.3(3)(c), (4). The language in subsection (4) specifically states that the court “may” modify child support “with respect to any period during which a modification is pending.” Id. § 78-45-9.3(4). The legislature’s use of “may” clearly gives the court discretion to make child support modification orders retroactive.

¶21 Moreover, in Wilde v. Wilde, 2001 UT App 318, 35 P.3d 341, this court interpreted section 78-45-9.3(4) to give courts discretion to retroactively apply a modified child support award. See id. at ¶21. In addressing the Utah Legislature’s 2000 amendment to this section, this court noted that the 2000 amendment retained the first sentence: “A child or spousal support payment under a child support order may be modified with respect to any period during which a modification is pending, but only from the date of service of the pleading on the obligee, if the obligor is the petitioner, or on the obligor, if the obligee is the petitioner.” Id. (emphasis added) (quoting Utah Code Ann. § 78-54-9.3(4)). This sentence had previously been interpreted “to give courts the discretion to determine both if and when a modified child support award should be made retroactive.” Id. at ¶19; see also Ball v. Peterson, 912 P.2d 1006, 1012 (Utah Ct. App. 1996); Crockett v. 20060312-CA 7 Crockett, 836 P.2d 818, 820 (Utah Ct. App. 1992). Accordingly, this court concluded that by retaining the first sentence after the 2000 amendment, the statute “still provide[d] that support may be modified retroactively with respect to any post-service period, not that it must be.” Wilde, 2001 UT App 318 at ¶21 (emphasis omitted).

¶22 Similarly, we note that the Utah Legislature’s 2003 amendment retained this same first sentence, giving the trial court discretion to make a child support modification order retroactive. Thus, the 2003 amendment merely made the date of retroactivity mandatory if the court decides to make a retroactive modification. In sum, because the trial court’s retroactive application of the child support modification order is discretionary, we conclude that in this case the trial court was within its discretion in refusing to make the modification order retroactive.

III. New Trial

¶23 Mr. Wall argues that the trial court erred when it denied his motion for a new trial. Specifically, he argues that he is entitled to a new trial because the trial court’s findings concerning Mrs. Wall’s claimed living expenses at the time of the divorce were not supported by sufficient evidence. Essentially, Mr. Wall is again arguing that the trial court should have used the amount of alimony that Mrs. Wall agreed to in the Settlement Agreement as the basis for Mrs. Wall’s needs at the time of the divorce, instead of her financial declaration filed at the time of the divorce. However, as concluded above, the trial court was within its discretion to conclude that the $800 alimony award did not meet Mrs. Wall’s needs at the time of divorce. Mr. Wall’s motion for a new trial basically reargues his position on the trial court’s findings concerning Mrs. Wall’s financial needs at the time of the divorce; therefore, because we have already decided these issues, we conclude that the trial court did not err in denying his motion for a new trial. IV.

Attorney Fees

¶24 Mr. Wall also asserts that the trial court erred in awarding attorney fees to Mrs. Wall. “The decision to award attorney fees and the amount thereof rests primarily in the sound discretion of the trial court.” Kelley v. Kelley, 2000 UT App 236,¶30, 9 P.3d 171 (quotations and citation omitted). Still, in awarding attorney fees, the trial court must consider “the receiving spouse’s financial need, the payor spouse’s ability to pay, and the reasonableness of the requested fees.” Id. (quotations and citation omitted). 20060312-CA 8

¶25 Mr. Wall fails to cite to the trial court’s minute entry regarding attorney fees, in which the trial court found that Mrs. Wall’s employment was only six weeks old at the time of the attorney fees award; Mrs. Wall did not have sufficient funds to handle her ongoing expenses; Mrs. Wall was the prevailing party on the most contested issue–alimony; and Mr. Wall had more discretionary income. The trial court noted Mr. Wall’s limited discretionary income and thus only awarded Mrs. Wall a portion of her attorney fees. Because the trial court considered all of the necessary factors for determining an attorney fees award, we conclude that the trial court was within its discretion in awarding attorney fees to Mrs. Wall.

¶26 Finally, we note that “[i]n divorce proceedings, when the trial court has awarded attorney fees below to the party who then prevails on the main issues on appeal, we generally award fees on appeal.” Childs v. Childs, 967 P.2d 942, 947 (Utah Ct. App. 1998); see also Nelson v. Nelson, 2004 UT App 254,¶9, 97 P.3d 722. Therefore, we remand to the trial court for an award of costs and attorney fees reasonably incurred by Mrs. Wall on appeal.

CONCLUSION

¶27 Based on the foregoing reasons, we affirm the trial court’s order modifying decree of divorce, in which the court denied the Petition to reduce or terminate alimony and declined to make the modified child support retroactive. We also affirm the trial court’s denial of Mr. Wall’s motion for a new trial and its award of attorney fees to Mrs. Wall. Finally, we award Mrs. Wall attorney fees on appeal and remand to the trial court for a determination of the amount of those fees. ______________________________ Judith M. Billings, Judge —–

¶28 WE CONCUR: ______________________________ Russell W. Bench, Presiding Judge 20060312-CA 9 ______________________________ James Z. Davis, Judge

Affirmed

The reviewing court determined that the lower court committed no reversible error and upheld the judgment.