Utah Court of AppealsDec 12, 2002
2002 UT App. 419 (Utah Ct. App. 2002)

Case No. 20010516-CA.

Filed December 12, 2002. (Not For Official Publication)

Appeal from the Third District, Salt Lake Department, The Honorable Stephen L. Henriod.

Jarrod H. Jennings, Mary Cline, and Mary C. Corporon, Salt Lake City, for Appellant.

Nathan D. Pace and Stacey G. Schmidt, Salt Lake City, for Appellee.

Before Judges Jackson, Billings, and Davis.


JACKSON, Presiding Judge:

Appellant Rae Adamson (Husband) appeals the trial court's denial of his petition to modify the divorce decree and terminate alimony. Husband alleged a substantial and material change in circumstances, namely, his contemplated future retirement. Husband had not actually retired, nor has he yet retired.

"This issue is . . . inappropriate for appellate review because it is not ripe. Ripeness occurs when `a conflict over the application of a legal provision [has] sharpened into an actual or imminent clash of legal rights and obligations between the parties thereto.'" Adelman v. Adelman, 815 P.2d 741, 744 (Utah Ct.App. 1991) (alteration in original) (quoting Redwood Gym v. Salt Lake City Comm'n, 624 P.2d 1138, 1148 (Utah 1981)). No "`actual or imminent clash of legal rights'" exists here because Husband's employment status has not in fact changed. Id. Husband asks us to modify his alimony payments based upon his prospective retirement.

Husband argues in his reply brief that his retirement is not merely speculative, but is in fact imminent because it is a matter of choice and because he is old enough to retire. However, if Husband's alimony were terminated by a court ruling, the ruling could not compel him to actually retire. He has to make his own retirement decision. Until he does, Husband has no argument that there is a substantial and material change entitling him to a modification or termination of alimony. See Utah Code Ann. § 30-3-5(7)(g)(i) (Supp. 2001) (allowing trial court to modify alimony based upon a finding of "substantial material change in circumstances"). Husband's entitlement to retire does not guarantee that he will in fact retire.

Husband further argues that the real issue, which is ripe for appellate review, is the harm he presently suffers from being unable both to retire and to continue paying alimony. However, alimony modification is not a question of harm. Rather, there is a threshold question: Has there been a substantial and material change in the petitioner's circumstances?See id. Thus far, Husband has established no basis to modify or terminate alimony within the contemplation of section 30-3-5(7)(g)(i).

Husband provides no legal authority, nor are we aware of any, allowing modification of alimony based on the "harm" suffered by an inability to simultaneously retire and continue paying alimony.

Accordingly, we conclude that Husband's petition is not ripe for judicial determination. We affirm the trial court's conclusion that "[t]here has not been a substantial and material change in circumstances warranting a modification of alimony." Further, Wife's claim for attorney fees on appeal is denied.

We do not address the trial court's additional conclusions regarding whether the original alimony award contemplated Husband's retirement. Our affirmance of the trial court's denial of Husband's petition is limited to our conclusion that because Husband has not in fact retired, he presents no issue ripe for judicial determination. The trial court's further conclusions regarding the substance of Husband's petition were not necessary.

WE CONCUR: Judith M. Billings, Associate Presiding Judge, and James Z. Davis, Judge.