NO. 94-530

IN THE SUPREME COURT OF THE STATE OF MONTANA

1995

IN RE THE MARRIAGE OF

CHARLES HENRY EICKMEYER,

Petitioner and Respondent,

and

ARLENE GRACE EICKMEYER,

Respondent and Appellant.

APPEAL FROM: District Court of the First Judicial District,

In and for the County of Broadwater,

The Honorable Dorothy McCarter, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

R. J. "Jim" Sewell, Jr., Smith Law Firm,

Helena, Montana

For Respondent:

Thomas S. Winsor, Attorney at Law,

Helena, Montana

Filed:

Submitted on Briefs: March 30, 1995

Decided: May 23, 1995

-cd
Justice Karla M. Gray deli&red the Opinion of the Court.

Arlene Eickmeyer (Arlene) appeals from an order of the First

Judicial District Court, Broadwater County, granting Charles

Eickmeyer's motion to dismiss her petition for increased

maintenance. We affirm, holding that the District Court did not

err in concluding that § 40-4-208(2) (a), MCA, bars Arlene's

petition.

The facts necessary to our resolution of this case are

undisputed. The marriage of Charles Eickmeyer (Charles) and Arlene

was dissolved in 1987. The dissolution decree incorporated Charles

and Arlene's marital settlement agreement which stated, in

pertinent part, that "[nleither of us seeks an award of

maintenance."

Arlene filed a Petition for Increased Maintenance in 1994.

She alleged that a change of circumstances had occurred since the

dissolution "which is so substantial as to be unconscionable."

She requested monthly maintenance in the amount of $750 and

attorney's fees incurred in bringing the petition. Charles moved

to dismiss the petition, arguing that it was barred by § 40-4-

208(2) (a), MCA. The District Court granted the motion to dismiss

and Arlene appeals.

Did the District Court err in concluding that Arlene's

petition was barred by § 40-4-208(2)(a), MCA?

Post-dissolution maintenance proceedings are governed by § 40-

4-208, MCA, which provides in pertinent part:

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Whenever the decree proposed for modification does not

contain provisions relating to maintenance or support,

modification under subsection (1) may only be made within

2 years of the date of the decree.

Section 40-4-208(2) (a), MCA. The District Court concluded that the

statement "[nleither of us seeks an award of maintenance,"

incorporated into the decree from Charles and Arlene's marital

settlement agreement, did not constitute a "provision relating to

maintenance" under 5 40-4-208(2) (a), MCA. Thus, according to the

court, Arlene's petition for maintenance was barred because it was

not brought within two years of the decree.

The interpretation and application of a statute are matters of

law. Matter of E-Z Supply (Mont. 1994), 883 P.2d 833, 835, 51

St.Rep. 1029. We review a district court's conclusions of law to

determine if they are correct. In re Marriage of Barnard (1994),

264 Mont. 103, 106, 870 P.Zd 91, 93.

The function of courts in interpreting statutes is to

effectuate the intent of the legislature. E-Z SUPPLY, 883 P.2d at

835 (citations omitted). "Our primary tool for ascertaining the

legislature's intent is the plain meaning of the words used." E-Z

S!iG%?LY, 883 P.2d at 835; quoting Sagan v. Prudential Insurance

Company of America (1993), 259 Mont. 506, 509, 857 P.2d 719, 722.

"If the legislature's intent can be determined from the plain

meaning of the words used in the statute, we will go no further."

E-Z Supply, 883 P.2d at 835; quoting State ex rel. Neuhausen v.

Nachtsheim (1992), 253 Mont. 296, 299, 833 P.2d 201, 204.

The dispute in this case centers on the meaning of the

"provisions relating to maintenance" language in 5 40-4-208(2) (a),

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MCA. The ordinary and plain understanding of the word "provision"

is "to provide" something. Indeed, this common understanding is

reflected in the dictionary definition of "provision" as "the act

of supplying . ; something provided." American Heritage

Dictionary 1459 (3rd ed. 1992). Thus, a "provision relating to

maintenance" under the statute is an affirmative and actionoriented undertaking; it is a present undertaking or action of

providing maintenance for a SpOUSe , providing other assets

specifically in lieu of maintenance, or providing for the payment

or seeking of maintenance in the future upon the occurrence of a

specified event.

The language "neither of us seeks an award of maintenance"

does not constitute a "provision relating to maintenance" when

compared to the plain meaning of "provision." The language does

not provide maintenance for a party in any form, or even provide

for maintenance as a future possibility. The mere inclusion of the

word "maintenance" in a decree via incorporation, such as occurred

in this case, does not constitute a provision relating to

maintenance under § 40-4-208(2) (a), MCA.

Arlene relies on Marriage of Cooper (1985), 216 Mont. 34, 699

P.2d 1044, and Marriage of Rush (1985), 215 Mont. 498, 699 P.2d 65,

in arguing that the language in her agreement and decree

constitutes a provision relating to maintenance under 5 40-4-

208(2) (a), MCA. Both cases are inapposite here.

In Cooper, we addressed an issue entirely different from the

issue presently before us. There, the issue was which decree or

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order constituted the "d@cree proposed for modification" for

purposes of applying § 40-4-208(2) (a), MCA. Cooper, 699 P.Zd at

1045. In addressing that issue, we observed that the original

dissolution decree contained a provision relating to maintenance

requiring Mr. Cooper to pay $4,200 in seven equal installments of

$600 to his former wife, and permitting the former wife to petition

for maintenance on the completion of those payments. Cooper, 699

P.2d at 1045. We did not define or interpret the "provision

relating to maintenance" language in 5 40-4-208(2) (a), MCA. Thus,

CooDer is inapplicable here and nothing therein supports Arlene's

argument.

In Rush -I the former wife petitioned to modify a 1975

dissolution decree regarding maintenance more than two years after

entry of the decree. -!Rush 699 P.2d at 66. The decree contained

maintenance provisions requiring payment of $400 per month until

the payments reached a total of $24,000; all required maintenance

payments had been made. The district court entertained, but

denied, the former wife's petition to modify. The issue on appeal

was whether the court erred in determining that the former wife had

not satisfied the requirements of 5 40-4-208(b), MCA. - I Rush 699

P.2d at 66-67.

Prior to addressing that issue, we determined the fact that

the maintenance required by the decree had been paid did not

preclude an additional maintenance award as a matter of law. Rush,

699 P.2d at 66. In doing so, we did not specifically address the

"provisions relating to maintenance" language in § 40-4-208(2) (a),

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MCA. Thus, nothing in Rush supports Arlene's argument here.

Indeed, any analogy which could be drawn to Rush would support our

statutory interpretation in this case since it is clear that,

there, the original decree contained provisions for the payment of

maintenance. - I Rush 699 P.2d at 66.

We conclude that the dissolution decree incorporating the

parties' marital settlement agreement did not contain a provision

relating to maintenance. We hold, therefore, that the District

Court did not err in concluding that 5 40-4-208(2) (a), MCA, bars

Arlene's petition and in granting Charles' motion to dismiss.

Affirmed.

Chief Justice

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