Second, we address whether the trial court erred in denying Callahan's request for attorney fees. Because both claims are questions of law, we review them under a correction of error standard, giving no deference to the trial court. See Toone v. Toone, 952 P.2d 112, 114 (Utah Ct.App. 1998) (stating whether a divorce decree should be reopened to divide a military pension is a question of law); Selvage v. J.J. Johnson Assocs., 910 P.2d 1252, 1257 (Utah Ct.App. 1996) ("Whether attorney fees are recoverable in an action is a question of law, which is reviewed for correctness."). ANALYSIS I. Military Retirement Benefits
We review that decision for correctness. See Toone v. Toone, 952 P.2d 112, 114 (Utah Ct. App. 1998) ("[I]n this case, we are presented with a question of law regarding what constitutes a substantial change of circumstances, which is reviewed for correctness."). ANALYSIS
In this context, a party may seek post-judgment modification of the property distribution provisions of a divorce decree, but in order to succeed in that endeavor the party "must demonstrate that a substantial change in circumstances has occurred since the entry of the decree." See Toone v. Toone, 952 P.2d 112, 114 (Utah Ct. App. 1998) (quotation simplified); see also Throckmorton, 767 P.2d at 123 ("[T]he application of res judicata is unique in divorce actions because of the equitable doctrine which allows courts to reopen alimony, support, or property distributions if the moving party can demonstrate a substantial change of circumstances since the matter was previously considered by the court.").
Section 1408 of the USFSPA authorized state courts to treat a divorcing spouse's military retired pay as divisible marital property, but only that portion it specifically defined as “disposable retired pay.” Id. ; see also Toone v. Toone , 952 P.2d 112, 113–14 (Utah Ct.App.1998) (discussing the holding in McCarty and the subsequent enactment of the USFSPA). Seven years later, the Supreme Court decided Mansell, where it addressed the question of whether, by enacting the USFSPA, Congress “reject [ed] ... McCarty's holding that state law is pre-empted ... [and] restor[ed] to state courts all pre-McCarty authority” or, instead, whether the USFSPA was “only a partial rejection of the McCarty rule that federal law preempts state law regarding military retirement pay.”
Furthermore, Corey asserts that the bankruptcy and its financial effects on Lisa could not be used as evidence that a substantial change of circumstances had occurred since the 2005 modification. When “presented with a question of law regarding what constitutes a substantial change of circumstances, [we] review[ it] for correctness.” Toone v. Toone, 952 P.2d 112, 114 (Utah Ct.App.1998). Lisa contends that this issue was not preserved. “Generally, in order to preserve an issue for appeal the issue must be presented to the trial court in such a way that the trial court has an opportunity to rule on that issue.”
We first address James's arguments. James first argues that the trial court erred by retroactively awarding child support to Fernstrom for the three months before he received notice of modification. "Typically, this court reviews a trial court's modification determination for an abuse of discretion. However, in this case, we are presented with a question of law" regarding how far back the trial court may retroactively modify a child support order, which we review for correctness. Toone v. Toone, 952 P.2d 112, 114 (Utah Ct.App. 1998). James argues that the trial court erroneously relieved Fernstrom of her child support obligation prior to service of Fernstrom's petition to modify.
"[A]lthough we generally review the determination to modify a divorce decree for an abuse of discretion, insofar as that determination is based on a question of law, we review it for correctness." Krambule v. Krambule, 1999 UT App 357,¶ 10, 994 P.2d 210; accord Toone v. Toone, 952 P.2d 112, 114 (Utah Ct.App. 1998). ¶ 21 The trial court determined there was a substantial change of circumstances based on the parties' entry into a common law marriage and Wayne's termination of support payments to Sonia.
Thus, although we generally review the determination to modify a divorce decree for an abuse of discretion, insofar as that determination is based on a conclusion of law, we review it for correctness. See Toone v. Toone, 952 P.2d 112, 114 (Utah Ct.App. 1998). We do not disturb the trial court's factual findings after trial unless clearly erroneous.
1998). "[A] party seeking modification of a divorce decree must demonstrate that 'a substantial change in circumstances has occurred since the entry of the decree,'" Toone v. Toone, 952 P.2d 112, 114 (Utah Ct.App. 1998) (quoting Thompson v. Thompson, 709 P.2d 360, 362 (Utah 1985)), "'and not contemplated in the decree itself,'" Hill v. Hill, 968 P.2d 866, 869 (Utah Ct.App. 1998) (quoting Whitehouse v. Whitehouse, 790 P.2d 57, 61 (Utah Ct.App. 1990) (quoting Naylor v. Naylor, 700 P.2d 707, 710 (Utah 1985))). ¶ 13 Defendant maintains that his petition to modify is procedurally correct because "[i]t wasn't until after the decree was entered that [he] became aware that substantial assets of the corporation had been withdrawn by forgery or theft and that these assets are alleged to not have been within the contemplation of the court when the property settlement was made."
¶ 9 Additionally, whether the payment appellant received when discharged from the military should be treated as a retirement payment is a question of law, which we review for correctness. See Toone v. Toone, 952 P.2d 112, 114 (Utah Ct.App. 1998). ANALYSIS