No. 81-122 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1982 

IN RE THE MARRIAGE OF 

GERALD E. ROWEW, 

Petitioner and Respondent, 

-vsMARY HELEN ROWEN, 

Respondent and Appellant. 

Appeai from: District Court of the Sixteenth Judicial District! 

In and for the County of Rosebud, The Honorable 

Alfred B. Coate, Judge presiding. 

Counsel of Record: 

For Appellant : 

Holmstrom, Dunaway & West, ~illings, Montana 

For Respondent : 

Berger, Sinclair & Nelson, Billings, Montana 

Submitted on Briefs: May 6, 1982 

Decided: ~ugust 11, 1982 
Mr. Justice John C. Sheehy delivered the Opinion of the 

Court. 

Mary Rowen appeals from an amended judgment entered by 

the Rosebud County District Court, Sixteenth Judicial District, 

denying her motion to hold her former husband Dr. Gerald E. 

Rowen in contempt for failing to make maintenance payments 

to her as provided in the decree, and for a modification of 

her maintenance payments up to a monthly sum of $1,250. 

Instead, the District Court ordered the husband to pay 

the wife arrearages totaling $2,229 and one-half of her 

attorney fees in the sum of $625. 

The 30 year marriage of the parties was dissolved on 

September 7, 1976, upon the petition of the husband, who 

appeared in the action with counsel. Wife did not contest 

the dissolution action. The District Court incorporated in 

its decree a separation and property settlement agreement 

that had been executed between the parties on August 11, 

1976. The record does not show the wife was then represented 

by counsel. 

On September 23, 1980, wife filed her motion in the 

District Court for a show cause order commanding husband to 

appear and show cause why he should not be held in contempt 

for his failure to pay delinquent maintenance monies to her, 

for reasonable attorney fees, and for a modification of the 

maintenance award contained in the decree to $1,250 per 

month for her support. Hearing was had on her motion, 

findings and conclusions were submitted by both parties, 

and on November 14, 1980, the District Court entered its 

findings of fact and conclusions of law. Her motion for 

contempt was denied, as was her motion to increase the 

monthly maintenance award to her, the District Court finding 
that there was no showing of changed circumstances so substantial 

and continuous as to make the terms of the property settlement agreement unconscionable. However, the District Court 

did determine that by interpreting the property settlement 

agreement, that the husband was in arrears on maintenance 

payments to the wife in the total sum of $2,229 and that 

husband should pay $625 to the wife toward her attorney fees 

and costs. It is from this order, as amended on January 19, 

1981, that wife appeals. 

The center of controversy is the following paragraph in 

the property settlement agreement between the parties which 

is incorporated in the decree of dissolution and which 

provides for a monthly maintenance award to the wife: 

"To pay to the Wife as alimony the sum of $750.00 

per month commencing on September 1, 1976, and 

continuing each and every month thereafter, subject 

to the following contingencies: (1) This amount 

of $750 per month is based upon 13 percent of the 

Husband's taxable income and if said income should 

rise or fall then the $750 shall be adjusted to 

provide that the Wife shall receive 13 percent of 

the Husband's taxable income each calendar year. 

In this regard, the Husband will agree to make any 

tax returns or other business records available 

to the Wife. The alimony payable hereunder shall 

be adjusted on May 1 of each year, based on the 

previous calendar year's taxable income." (Emphasis 

added. ) 

The District Court found that the term "taxable income" 

has a definition set forth in section 63 of the Internal 

Revenue Code (26 U.S.C.A. § 63). It further found that 

deductions permitted under the code are (1) expenses, (2) 

alimony, (3) exemptions, (4) Keogh plan, and (5) zero bracket 

deductions. 

However, the District Court determined that the husband 

should not be permitted to deduct alimony in determining his 

taxable income as that would create a "double deduction"; 

and also that the exemptions claimed by the husband should 
not be allowed as "that would give the doctor an opportunity 

to unilaterally reduce his alimony payments to an unconscionable figure." 

Based upon its interpretation of the term "taxable 

income" foregoing, the District Court recomputed the amounts 

that the husband should have paid to the wife and determined 

an arrearage in the total of $2,229. 

The attorney who represented the husband (there is an 

indication in the transcript that he may have represented 

both parties in the original divorce action, but that does 

not otherwise appear in the court record) testified that in 

drawing up the property settlement agreement and providing 

for the monthly maintenance award to the wife he had used 

the figure of $69,623 as the taxable income of the husband 

for 1975 to determine a monthly payment of $750 per month 

based upon 13 percent of the husband's taxable income. The 

figure of $69,623 had been given to the attorney either by 

the husband or the husband's accountant. The attorney also 

testified that there was discussion in his office between 

the parties as to what the income from the medical profession 

would be, and that the husband had concern that the income 

could fall or rise and accordingly the monthly maintenance 

should be adjusted. The attorney also testified that in 

determining the taxable income, he would not have deducted 

the alimony payments, although the Internal Revenue Code 

section provides that alimony is a deduction in determining 

taxable income for income tax purposes. 

In truth, in the year 1975, immediately preceding the 

marital dissolution, the gross income rather than the taxable 

income of the husband had been $69,623. 

In the years following the marital dissolution, the 

husband made monthly payments to the wife based upon his 
taxable income as shown in his income tax returns. The 

following table taken from his income tax returns will 

indicate the gross income, deductions, taxable income, annual 

maintenance and monthly maintenance paid to the wife using 

the taxable income figures: 

Gross Income $79,118 $75,912 $68,231 $80,494 $69,623 

Deductions 27,459 25,504 24,696 22,519 19,030 

Taxable Income 51,659 50,408 43,535 57,975 50,593 

Annual Maintenance (13%) 6,716 6,553 5,660 7,537 6,577 

Monthly Maintenance (; 12) 560 546 472 628 549 

The husband paid wife $750 per month until the adjustment occurred in the year 1977. Thus, the monthly maintenance 

to wife dropped from $750 to $628 on May 1, 1977; decreased 

to $472 per month on May 1, 1978; increased to $546 per 

month on May 1, 1979; and increased to $559.64 on May 1, 

1980. 

The District Court further found that wife was capable 

of earning $5,200 annually over and above the maintenance 

she was receiving from the petitioner and that the husband 

had not had an increase in his income sufficient to meet the 

requested amount of increase by the wife. 

On appeal, the wife contends that the District Court 

erred (1) in not interpreting the term "taxable income" to 

mean "total income" of husband; (2) in its determination of 

the amount of arrearages due wife; and, (3) in failing to 

adopt the findings and conclusions submitted by wife which 

would have held the maintenance award provision in the 

decree to be unconscionable and permitted modification. 

The property settlement, incorporated in the decree, 

provides that the maintenance payments shall terminate upon 
the remarriage of wife. This language shows clearly that 

the payments are for support and maintenance. See Bertagnolli 

v. Bertagnolli (1979), - Mont. - , 604 P.2d 299, 36 

St.Rep. 2250. The separation agreement does not expressly 

preclude or limit modification of its maintenance terms. 

The District Court therefore has power to modify such provisions 

by modifying the decree. Section 40-4-201(6), MCA. The 

District Court may modify maintenance provisions in a decree 

upon a showing of changed circumstances so substantial and 

continuing as to make the terms unconscionable. Section 40- 

4-208 (2) (b) (i) , MCA. 

The District Court chose not to modify the maintenance 

provision. It chose instead to interpret the term "taxable 

income", so as to exclude alimony and personal exemptions as 

deductions in determining taxable income. There is support 

in the record for the exclusion of alimony based upon the 

attorney's intention (not the parties') that alimony should 

not be a deduction in determining income for purposes of 

maintenance between the parties. There is no support in the 

record for a determination that personal exemptions were not 

to be deducted in determining taxable income. Undoubtedly 

the District Court felt that interpreting "taxable income" 

in strict accordance with the Internal Revenue Code definition 

would be unconscionable as far as the wife was concerned and 

attempted to ameliorate that unconscionability. 

We determine that the maintenance provision in the 

decree, incorporated from the separation agreement, is 

indeed unconscionable as to the wife, and that the facts in 

the case as a matter of law show changed circumstances so 

substantial and continuing as to make the maintenance provision 

unconscionable. In support thereof, we cite these facts 

from the record: 
At the time of the decree, when his gross income was 

$69,623, husband agreed to pay wife the sum of $750 per 

month. In fact his taxable income at that time was $50,593. 

The husband agreed therefore to pay 18 percent of his taxable 

income in maintenance in the first year. The husband made 

payments of $750 per month until May 1, 1977. At that time, 

he calculated his taxable income for 1976 in the sum of 

$57,975, and reduced his monthly payments to his wife to the 

sum of $628. In the ensuing years through 1979, husband's 

gross income varied from 98 percent of $69,623 (his 1975 

gross income) to 116 percent thereof. In the same period of 

years his $750 payments to his wife varied from 63 percent 

to 75 percent thereof. The tax returns of the husband for 

the period 1976 through 1979 show items which make the 

calculation of the maintenance award based upon taxable 

income unconscionable both to the husband and the wife. For 

example, the husband sold a residence in that period for 

which he received a capital gain, and that capital gain income 

was included in the computation of taxable income which 

meant a gain to the wife. On the other hand, husband spent 

$1,293 in 1978 attending professional meetings but $4,142 in 

1979. Each of these professional costs constitute deductions 

in calculating the wife's maintenance. Thus, husband has it 

in his power by various charge-offs to his business and 

other items substantially to reduce the monthly payments of 

maintenance to his wife. We do not say that he has exercised 

this power; the very existence of the power in the decree 

makes it unconscionable as to the wife. 

These facts, incontrovertible from the record, constitute 

as a matter of law changed circumstances so substantial and 

continuing as to make the terms unconscionable. See ~ronovich 
v. Kronovich (1978), Mont. - , 588 P.2d 510, 35 St.Rep. 

1946; section 40-4-208,(2) (b) (i), MCA. The amount of 

maintenance in this case is beyond the control of the wife 

and within the control of the husband and for that reason the 

District Court is empowered by section 40-4-208, MCA, to 

reopen the judgment and modify the maintenance provision. 

See In Re Marriage of Jorgensen (1979), - Mont. , 590 

P.2d 606, 36 St.Rep. 233. 

The judgment of the District Court as to contempt and 

attorney fees in the prior District Court action is affirmed. 

The determination of the District Court with respect to 

arrearage and maintenance is reversed and the cause is 

remanded with instructions to the District Court after 

hearing to find and determine a proper sum for maintenance 

to be paid by husband to the wife from and since the date of 

her application for modification with credits thereon to be 

accorded the husband for any amounts of maintenance paid in 

that period. The District Court shall further determine 

such attorney fees as may be proper for the prosecution of 

this appeal to be awarded to the wife, plus her costs in 

this Court, and any other further relief meet in the cause, 

including additional attorney fees and costs in any retrial 

of the maintenance issue. 

Justice I / 
We Concur: