No. 80-460 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1981 

MARY ELLEN HEINTZELMAN, 

Plaintiff and Respondent, 

VS . 

EMERY HEINTZELMAN, 

Defendant and Appellant. 

Appeal from: District Court of the Eighth Judicial District, 

In and for the County of Cascade. 

Honorable H. William Coder, 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: JUL 9 - 1981 

v " Clerk 
Mr. 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 former wife 

a one-fourth interest in his FELA settlement, past maintenance and permanent maintenance of $250 per 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 decree was entered on December 11, 1974, but was later 

set aside upon motion of Mary Ellen. A final decree was 

eventually entered on June 30, 1976, specifying that appellant was to pay1'$250 per month as and for permanent alimony 

[maintenance]." The decree was silent as to the date the 

marriage was terminated, so upon stipulation of the parties 

it was later amended to relate back to December 11, 1974. 

In April 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 District Court in February 1977 asking 

that he be relieved of his obligation to pay maintenance. 

Following a hearing on the petition, the decree was modified, eliminating the maintenance requirement. 

Mary Ellen filed a motion 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 against Burlington Northern under the 

Federal Employers' Liability Act (FELA). That award, though 

still speculative at the time of hearing, would compensate 
Emery for past and future wage loss as well as for pain and 

suffering. The motion for a new trial was denied, and Mary 

Ellen appealed to this Court. Heintzelman v. Heintzelman 

(1980) I - Mont . , 609 P.2d 295, 37 St.Rep. 653. While 

the appeal was 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 settlement and 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 she was 

to receive one-fourth of the net FELA settlement obtained 

by Emery. From this order, Emery appeals, raising several 

issues which we frame as follows: 

(1) Did the District Court have jurisdiction to award 

any part of the FELA settlement to Mary Ellen? 

(2) Did the District Court err in awarding respondent 

alimony in the amount of $250 per month? 

Emery Heintzelman contends initially that the District 

Court lacked jurisdiction in 1980 to disturb the property 

settlement that was entered in this case in 1976. By 

awarding Mary Ellen a portion of the FELA award--which was 

not before the court in 1976--the district 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 or modified unless "the court finds 

the existence of conditions that justify the reopening of a 

judgment under the laws of this state.' We note that Mary 
Ellen did not petition the court to reopen the property 

settlement for a consideration of the FELA award, nor did 

the district judge make 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 further proceedings to determine whether 

the wife 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 

the parties 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 the maintenance 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 

settlement to Mary Ellen. 

We need not address the contention raised by Emery 

Heintzelman that the FELA award is not marital property, but 

rather is separate property and as such is not subject to 

division. 1n.view of 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 $250 per month 

maintenance award. He contends that his injury is of such a 
nature that he cannot work, and that i-b is unconscionable to 

require him 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. 

Permanent maintenance was awarded in June 1976, following 

Emery's injury, but prior to his receipt of the FELA settlement. After Emery quit working in December 1976, he petitioned the court for a vacation of the maintenance 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 circumstances had 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 to make a showing of change of circumstances so 

substantial and continuing as to make 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 the property 

settlement issue, that the District Court should not look at 

the FELA award in considering his financial circumstances, 

because the FELA settlement constitutes separate property. 
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 as marital property is not necessary to a 

determination of the maintenance 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 relevant here: 

"'While [the husband'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 2 as it 

may be used in determining alimony or maintenance . . . 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.'" 

(Emphasis added.) 

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 ,portion of the judgment awarding arrearages 

from February 1977 through July 1980. The maintenance encompassed in that time period was vacated by order dated October 

1978 because of circumstances existing at that time. That 

vacation order was not modified until the September 1980 

order was entered, which reinstated maintenance, again on the 

basis of circumstances existing at the time. Thus Mary Ellen 

is entitled to arrearages only for the period 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 $250 per month 

permanent maintenance. 
This cause is remanded to the District Court for proceedings in conformity with this opinion. 

Chief Justice 

We concur: