No. 80-460 INTHE SUPREME COURT OF THE STATE OF MONTANA 1981

MARY ELLEN HEINTZELMAN, Plaintiff and Respondent,

VS

# . EMERY HEINTZELMAN, Defendant and Appellant.

Appeal from: DistrictCourt of the Eighth Judicial District, In and for the County of Cascade. Honorable H. WilliamCoder, Judge presiding. Counsel of Record: For Appellant: Randono and Donovan, Great Falls, Montana Ralph Randono argued, Great Falls, Montana For Respondent: Conner, Baiz and Olson, Great Falls, Montana Thomas A. Baiz Jr. argued, Great Falls, Montana

Submitted: June 12, 1981 Decided: July 9, 1981 Filed: 

## JUL9

# -1981

v 

### "ClerkMr. Chief Justice Frank I. Haswell delivered the Opinion of the Court. Emery Heintzelman appeals from a judgment entered in District Court, Cascade County, awarding his formerwife

a one-fourth interest in his FELA settlement,past maintenance and permanent maintenance of $250per month. We affirm in part and reverse in part. In June 1974,Mary Ellen Heintzelman filed a complaint seeking a dissolution from appellant, Emery Heintzelman. A decreewas entered on December 11, 1974,but was later set aside upon motion of Mary Ellen. A final decreewas eventually entered on June 30, 1976, specifying that appellant was to pay1'$250per month as and forpermanent alimony [maintenance]." The decree was silentas to the date the marriage was terminated, so upon stipulation of theparties it was later amended to relateback to December 11, 1974. InApril 1976,prior to entry of the final dissolution decree, Emery was injured while working for the Burlington Northern Railroad; he stopped working in December 1976. The injury left him permanently disabled, and, as a result, he petitioned the DistrictCourt in February 1977 asking that he be relieved of his obligation topay maintenance. Following a hearing on thepetition, the decree wasmodified, eliminating themaintenance requirement. Mary Ellen filed amotion for a new trial on the ground that Emery had not shown changed circumstances so as to make the maintenance payments unconscionable. In support of her motion, Mary Ellen pointed out to the court that Emery had

an unsettled claim againstBurlington Northern under the Federal Employers' LiabilityAct (FELA). That award, though still speculative at the time of hearing,would compensateEmery for past and future wage loss aswell as for pain and suffering. Themotion for a new trial was denied, and Mary Ellen appealed to this Court. Heintzelmanv. Heintzelman

(1980) I 

### -Mont

# . , 609 P.2d 295, 37 St.Rep. 653. While the appealwas pending, Emery reached settlement. Thus, we dismissed the appeal without prejudice and remanded the

cause to District Court for a determination of the amount of Emery's FELA settlementand whether Mary Ellen was entitled to any share of it. Upon remand,and after hearing, the District Court concluded that Mary Ellen was entitled to a reinstatement of the maintenance award,plus arrearages, and that shewas to receive one-fourth of the net FELA settlementobtained by Emery. From this order,Emery appeals, raising several issueswhich we frame as follows: (1)Did the District Court have jurisdiction to award any part of the FELA settlementto Mary Ellen? (2) Did the District Court err in awarding respondent alimony in the amount of $250per month? Emery Heintzelman contends initially that the District Court lacked jurisdiction in 1980 to disturb theproperty settlement that was entered in this case in 1976. By awardingMary Ellen a portion of the FELA award--whichwas not before the court in 1976--thedistrict judge, in effect, reopened the property settlement, contrary to the dictates of section 40-4-208,MCA. We agree that the district judge

was without jurisdiction to do this. Section 40--4-208, MCA, provides that a property settlement may not be revoked ormodified unless "the court finds the existence of conditions that justify the reopening of a judgment under the laws of this state.' We note that MaryEllen did not petition the court to reopen the property settlement for a considerationof the FELA award, nor did the district judgemake any findings of conditions requiring relief from the judgment. As a basis for modification,Mary Ellen instead directs our attention to the opinion of this Court,dated April 1980, in which we remanded this cause to the District Court "for furtherproceedings to determine whether thewife is entitled to any share of the [FELA] settlement by the husband." Heintzelman, supra, -Mont. at 

### - 

### , 609 P.2d at 297-298, 37 St.Rep. at 656. This order was not a directive to the district judge or theparties to relitigate the property settlement. If the opinion in Heintzelman, supra, is read in its entirety, it is clear that we intended the District Court to consider the FELA award only in relationship to the maintenance award. In fact,we noted in that opinion that the sole issue being considered by this Court in that appeal was the propriety of the judge's order setting aside themaintenance award. The issue of the FELA award as an Ite~ of marital property was never properly before the court. Therefore,we vacate that portion of the judgment ordering Emery to pay a portion of his FELA settlementto Mary Ellen. We need not address the contention raised by Emery Heintzelman that the FELA award is notmarital property, but rather is separateproperty and as such is not subject to division. 1n.viewof our finding that the District Court lacked jurisdiction to reopen the property settlement, this question is not before the Court at this time. Emery Heintzelman next argues that the district judge abused his discretion in reinstating the $250per month maintenance award. He contends that his injury is of such anature that he cannotwork, and that i-b is unconscionable to requirehim to pay maintenance. Mary Ellen argued before the District Court in 1978 and before this Court, that Emery Heintzelman was not able to show "changed circumstances so substantial and continuing as to make the [maintenance] terms unconscionable." Section 40-4-208,MCA. Permanentmaintenance was awarded in June 1976, following Emery's injury,but prior to his receipt of the FELA settlement. After Emery quitworking in December 1976,he petitioned the court for a vacation of themaintenance award. The district judge entered an order Bn October 1978 eliminating that award, finding changed circumstances in that Emery was
no longer able to work. From that order,Mary Ellen appealed, arguing that despite the fact that Emery could not work, his financial circumstanceshad not changed drastically because of his pending FELA award. On appeal,we agreed that this award could affect Emery's ability to pay and should be considered by the district judge. Heintzelman, supra,

## -Mont. at 

### - I 609 P.2d at 297, 37 St.Rep. at 655. For that reason,we remanded the case for a consideration of the effect of the FELA award. On remand, the district judge concluded that the "husband has failed tomake a showing of change of circumstances so substantial and continuing as tomake the terms of the alimony award unconscionable." We will not overturn that finding absent

a showing of abuse of discretion. Our review of the record convinces us that there was no such abuse here. Emery argues,as he did with respect to theproperty settlement issue, that the District Court should not look at the FELA award in considering his financial circumstances, because the FELA settlement constitutes separateproperty.He contends that property not reachable in a property division is likewise not available indirectly through a maintenance award. We disagree. Whether his FELA award was subject to division asmarital property is not necessary to a determination of themaintenance issue. Rather,we find it appropriate that the district judge considered the FELA award in evaluating Emery's financial circumstances with respect to paying maintenance. We approved such a practice by the district judge in Karr v. Karr (1981), Mont

# . , 628 P.2d 267, 38 St.Rep. 506, 511, and find it relevanthere: "'While [thehusband's] pension cannot be included in the marital property, or used as a set-off, it can be considered as a source of income in arriving at an equitable apportionment required by the statute. iust as it 

### - 2 may be used in determining alimony ormaintenance

# .

# .. The federal law may hold our wrist from reaching into [the husband's] retirement salary,but it need not blind our eyes to the reality of the situation.'"

(Emphasisadded.) See also sections 40-4-202 and 40-4-203,MCA. Based on the foregoing,we affirm the district judge's order reinstating permanent maintenance, as of August 1980. We vacate that ,portionof the judgment awarding arrearages from February 1977 through July 1980. Themaintenance encompassed in that time period was vacated by order dated October 1978 because of circumstances existing at that time. That vacation order was notmodified until the September 1980 order was entered, which reinstatedmaintenance, again on the basis of circumstances existing at the time. ThusMary Ellen is entitled to arrearages only for theperiod from July 1976 to February 1977, less credit for Emery's overpayment of child support, and the payments obtained by Mary Ellen in executing

on Emery's accounts. She is also entitled to $250per month permanent maintenance.This cause is remanded to the District Court for proceedings in conformity with this opinion.

Chief Justice

We concur: