IN R 

DIXI 

NO. 90-604 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1992 

E THE MARRIAGE OF JOHN L. McKEON, 

Petitioner and Respondent, 

and 

c i-d fP 

E McKEON, -- 0. df*&g 

Sop~~FnE 

OF &mq;:uRlr Respondent and Appellant. 

APPEAL FROM: District Court of the Second ~udicial District, 

In and for the County of Silver Bow, 

The Honorable Mark P. Sullivan, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Deirdre Caughlan, Dunlap & Caughlan, Butte, Montana. 

For Respondent: 

Daniel R. Sweeney, Attorney at Law, Butte, Montana. 

Filed: 

Submitted on Briefs: December 4, 1991 

Decided: February 11, 1992 

Clerk 
Justice John Conway Harrison delivered the Opinion of the Court. 

This matter comes to us on appeal from the District Court of 

the Second Judicial District, Silver Bow County, Montana, regarding 

respondent John L. McKeon and appellant Dixie McKeon's marriage of 

thirty-three years which was dissolved by final decree of the 

District Court in September of 1979. Since that time there have 

been two modifications of the original property settlement 

agreement and this matter concerns the District Court's judgment of 

November 8, 1990, wherein it relieved the respondent of his 

obligation to pay maintenance of $300 per month to the appellant 

for life. We reverse and remand to the District Court. 

The background facts of this marriage are as follows: 

John L. "Lukem McKeon (Luke) and Dixie McKeon (Dixie) married 

in 1946. Four children were born to the couple during the course 

of the marriage with only the youngest, John, being seventeen at 

the time of the dissolution in 1979, and had therefore not reached 

the age of majority. Prior to the dissolution of the marriage, on 

August 20, 1979, Luke and Dixie entered into a property settlement 

agreement which was incorporated into the final decree of 

dissolution entered by the District Court on September 12, 1979. 

Luke pursued a legal career and was admitted first to the bar 

in 1951 and again in 1982. At the time of the hearing on his 

petition to be relieved of Dixie's maintenance payments, Luke was 

involved in a professional corporation practicing law with his son, 

Timothy. 
Dixie was employed outside of the home only during the last 

few years of the marriage. ~vidence at trial indicated that Dixie 

had limited education, no professional training, has had long-term 

emotional and health problems and at the time of the filing of 

these briefs was 67 years old. 

Luke petitioned the court for the dissolution in 1979 and 

Dixie signed the petition and property settlement agreement which 

had been prepared by Luke. In 1980 Dixie moved to set aside the 

decree on the grounds of undue influence and fraud alleging that 

she was in poor health and was unduly influenced by the 

circumstances affecting her ability to enter into the property 

settlement agreement. In its Findings of Fact and Conclusions of 

Law dated June 15, 1981, the court upheld the agreement. However, 

the court found that the property settlement agreement had been 

voluntarily modified by Luke and found that Luke's obligation to 

pay the rent on the property in which Dixie lived would be 

I1continuing unless the Respondent remarries, and should the rent of 

the Respondent be increased, that cost shall be borne by Petitioner 

and such sum shall be deemed support and maintenance payments to 

Respondent." 

The original property settlement agreement also provided, in 

Paragraph 111, that following the payment of the mortgages on some 

business properties that the parties owned during the marriage that 

"the wife shall receive the net income for said property for life. 

(Emphasis added.) 

Dixie never received an income under the provisions of 
Paragraph I11 of the property settlement agreement, and in 1984 the 

parties amended the property settlement agreement by striking that 

paragraph in its entirety and substituting the following language: 

That the Wife shall receive as maintenance for life 

the sum of $300.00 per month from the Husband. That this 

sum shall commence in the month of February, 1984, and 

shall continue to be paid to the Wife each and every 

month for life. [Emphasis added.] 

The amendment to the Property Settlement Agreement contained 

language permitting Luke to take the maintenance deduction 

consistent with the provision for alimony under the Internal 

Revenue Code as a deduction and continued: 

However, it is specifically understood that the 

maintenance herein provided shall continue for life 

(barring the prior death of the Husband) regardless of 

the future marital status of the Wife. 

In 1989, Luke unilaterally discontinued paying the $300 

monthly maintenance payments. Dixie filed a motion and citation in 

August 1989, to compel payment. In lieu of a hearing in this 

matter, Luke made maintenance payments through the month of 

September 1989. In November 1989, Luke again unilaterally 

discontinued paying the maintenance and no payments have been made 

since that time. In December 1989, Luke filed several documents 

including: a rrMotion For Order To Show Cause," rrSupplemental 

Affidavit," rrMemorandum In Support Of Petition To Modify Support 

Paymentsrr and a "Petition To Amend Order Of Court Relative To 

Support Payments. Ir This matter was heard on June 25, 1990. On the 

same date, Dixie submitted rrProposed Findings Of Fact And 

Conclusions Of Law." The parties were given ten additional days to 

file "Supplemental Findings And ~onclusions.~ In October 1990, 
Dixiet s attorney wrote to the presiding Judge, Mark P. Sullivan, to 

check on the status of the case. This letter was copied to counsel 

for Luke and within approximately one week counsel received, on 

October 31, 1990, the "Supplemental Findings Of Fact, Conclusions 

Of Law And Judgment." On November 2, 1990, Dixie filed a IfMotion 

And Brief To Strike Petitioner's Proposed Findings Of Fact, 

Conclusions Of Law And Judgmentw as untimely as well as objecting 

to several specific findings as not conforming to the evidence. 

Thereafter, on November 8, 1990, the District Court filed its 

Findings of Fact, Conclusions of Law and Judgment relieving Luke of 

the responsibility of paying maintenance of $300 per month to Dixie 

for the term of her life. 

The issues presented to this Court for consideration are: 

1. Whether the District Court erred in creating a new 

contract from the amendment to property settlement agreement. 

2. Whether the District Court erred in failing to allow 

inquiry into the original property settlement agreement. 

3. Whether Luke presented credible financial evidence to 

justify modification of the terms of the amended property 

settlement agreement. 

The first issue presented is whether the District Court erred 

in interpreting the property settlement agreement on maintenance 

"for life." In the words of the property settlement agreement 

these are words of contract. Section 40-4-201(5), MCA (1989), 

provides that marital or property settlement agreements are 

governed by the laws of contract. Quinn v. Quinn (1981) , 191 Mont. 
133, 136, 622 P.2d 230, 232. Here, the maintenance provision was 

a contract between the parties and was for life, not until Dixie 

reached any age or received any specific benefits. 

We find Luke's testimony, that it was "my understandingl1 or it 

was a "belief on my part" that the maintenance would continue until 

social security became effective, to be incredible. However, when 

asked by counsel of his definition of "for life" the following 

testimony was taken: 

Q. [By Appellantls counsel] Would you please tell 

me what "for lifew means to you? 

A. [By Luke] For life means for my life or her life. 

[Emphasis added.] 

By this response it is clear that Luke, who was a practicing 

attorney, understood what his obligation was under the terms of the 

maintenance agreement. The words "for lifew are not open to any 

other interpretation than the plain meaning of these words on their 

face. Sections 28-3-303, 28-3-401 and 28-3-501, MCA, are important 

in reviewing the interpretation of this contract. Section 28-3- 

303, MCA, provides that the writing generally determines intention: 

When a contract is reduced to writing, the intention 

of the parties is to be ascertained from the writing 

alone if possible, subject, however, to the other 

provisions of this chapter. 

Here the language of the contract is plain and unambiguous. The 

language alone controls and there is nothing for the Court to 

interpret or construe. Payne v. Buechler (1981), 192 Mont. 311, 

This Court has held in numerous cases and the law is well 

established that where there is no ambiguity the court is without 
power to insert new provisions into the contract. See City of 

Billings v. Public Serv. Commln (Mont. 1981), 631 P.2d 1295, 1307, 

38 St.Rep. 1162, 1173. In Danielson v. Danielson (1977), 172 Mont. 

55, 58, 560 P.2d 893, 895, this Court held that it is the duty of 

the district court to enforce contracts not to make new ones for 

the parties, however unwise the terms may appear. 

The second issue concerns itself of whether the District Court 

erred in not allowing inquiry into the original property settlement 

agreement. It would appear from the record that the trial judge, 

in refusing to allow evidence or consideration to be given as to 

the original property settlement agreement and as to the basis for 

the original property settlement agreement, was concerned only with 

the present status of the parties rather than the intent of the 

parties entering into the property settlement agreement. The very 

fact that the District Court Judge concluded that the payment of 

social security benefits to Dixie was a sufficient reason to 

eliminate the obligation already in existence in the property 

settlement agreement, proves the court did not consider that there 

is no mention in the property settlement agreement eliminating 

maintenance at any future time upon the receipt of social security 

payments to Dixie. 

Had the court allowed inquiry into the original property 

settlement agreement and the 1984 modification, it would have 

observed that the 1984 modification gave Dixie maintenance for life 

in lieu of property from which she was to receive income. Here the 

maintenance provision of the agreement replaced a property 
settlement and the agreement was quasi-maintenance and quasiproperty. Dixie was entitled to' maintenance especially when the 

court could have heard evidence that she was granted no property 

under the original property settlement agreement with the exception 

of some income from office property of the parties which she 

testified she never received. As noted the provision for receiving 

the above income from office property of the parties was modified 

out of the original agreement and Luke received all other property 

that the parties had, including any other income consuming or 

income producing property. We believe that the inquiry into the 

original property settlement agreement was appropriate because 

maintenance was intricately linked to property settlement. See In 

re the Marriage of Robertson (1989), 237 Mont. 406, 773 P.2d 1213. 

Here Dixie gave up the right to property in exchange for 

maintenance and the District Court erred in not allowing inquiry 

into the parties' original property settlement agreement and in 

modifying maintenance payments without considering necessary 

information. 

The third issue concerns whether Luke presented substantial 

credible financial evidence to justify the modification of terms 

that would amend the property settlement agreement. 

Luke presented testimony that he had a reduced income from his 

professional corporation, but we note that he refused to turn over 

pertinent financial data such as the corporationts income tax 

returns. In addition, he claimed to be supporting the partiest 

children. We note the fact that the youngest of the children, 
John, was seventeen years of age in 1979, the time the parties' 

marriage was dissolved; and was twenty-eight years old in 1990, the 

time that the husband still claimed to be supporting him. We note 

further, that the husband's tax returns provided in the 

interrogatories reflected that his 1989 wages were approximately 

$40,000; that in 1988 his adjusted gross income was $57,901 

including dividend income from his professional corporation in the 

amount of $5,566; that in 1987 his adjusted gross income reflected 

a sum of $72,565; and his 1986 adjusted gross income was $47,274. 

While Luke reached the age of 65 in 1990, there was no substantial 

evidence showing his medical status or his inability to provide 

finances to live up to his $300 per month obligation to Dixie as 

provided for in the dissolution decree. 

Here, Luke drew up the property settlement agreement and while 

he was not satisfied with it, it is clear that he failed to provide 

substantial credible evidence to allow the maintenance provision to 

be modified. 

This case is reversed and remanded to the District Court in 

conformance with this Opinion. 
We concur: 
Justice Terry N. Trieweiler dissenting. 

I dissent from the majority opinion. 

It is first necessary to point out that the majority adopts as 

true allegations in the appellantls brief which are not supported 

by the record. 

For example, the majority opinion states that the original 

property settlement agreement provided for income to the wife from 

property owned by the parties. Paragraph I11 of the original 

settlement agreement, however, actually pertains to property that 

was conveyed to the children during the marriage. It provided that 

after the mortgages were paid off on those properties in 1984 and 

1985 the net income would be paid to the wife for life. 

However, before those mortgages were ever paid, the wife, 

while represented by an attorney, proposed an amendment to 

Paragraph I11 which substituted the $300 per month maintenance 

payment which was the subject of this petition for modification. 

The majority opinion states: 

Had the court allowed inquiry into the original 

property settlement agreement and the 1984 modification, 

it would have observed that the 1984 modification gave 

Dixie maintenance for life in lieu of property from which 

she was to receive income. Here the maintenance 

provision of the agreement replaced a property settlement 

and the agreement was quasi-maintenance and quasiproperty. . . . Here Dixie gave up the right to property 

in exchange for maintenance and the District Court erred 

in not allowing inquiry into the parties1 original 

property settlement agreement and in modifying 

maintenance payments without considering necessary 

information. 
The original property settlement agreement did not give Dixie 

property from which she was to receive income. It simply provided 

that at some future date she would receive income from property 

owned by her children after her husband paid off the mortgage. 

There is no record regarding the amount of net income that was to 

be expected. The 1984 amendment simply substituted one form of 

maintenance payment ($300 per month) for a different form of 

maintenance payment (an unspecified amount of net income). At the 

time of the 1984 amendment Dixie was represented by counsel. In 

fact, it was her counsel who proposed the form of the 1984 

amendment. It is assumed that the amendment was in her best 

interest and she understood all the legal implications of 

maintenance payments. 

One of the legal implications of receiving maintenance is that 

pursuant to 5 40-4-208(2)(b), MCA: 

Whenever the decree proposed for modification 

contains provisions relating to maintenance or support, 

modification under subsection (1) may only be made: 

(i) upon a showing of changed circumstances so 

substantial and continuing as to make the terms 

unconscionable . . . . 

In this case, the District Judge, after listening to testimony 

from Luke and Dixie, and after receiving documentary evidence 

regarding their financial circumstances, found as a fact: 

11. That there has been a showing of changed 

conditions as required by MCA 40-4-208 so substantial and 

continuing as to make the terms of the Property 

Settlement Agreement incorporated in the decree now 

unconscionable. 
The majority has set aside that finding of fact. However, 

pursuant to Rule 52(a), M.R.Civ.P., "[flindings of fact shall not 

be set aside unless clearly erroneous, and due regard shall be 

given to the opportunity of the trial court to judge the 

credibility of the witne~ses.~' 

After reviewing the transcript of Luke's and Dixie's 

testimony, I conclude that the District Court's finding of a change 

in circumstances which made the prior maintenance payments 

unconscionable was not clearly erroneous. 

Subsequent to the time that the parties entered into the 

maintenance agreement, Dixie qualified for social security benefits 

in an amount equal to that amount being paid for maintenance. 

Therefore, her income increased. 

On the other hand, Luke's health and financial condition both 

deteriorated dramatically. 

From 1987 until 1989 Luke's annual income declined steadily 

from $72,000 to $42,000. The evidence was that in the first half 

of 1990 his income had declined even further due to health problems 

which included a serious heart condition, colitis, an ulcer, 

shoulder surgery, and impending surgery on his neck. It was 

anticipated that his income would decline even further based on his 

retirement at the age of 65 on October 7, 1990. After that time 

his primary income was to be from social security retirement 

benefits and from the public employees retirement system at $870 

and $570 per month respectively. 
In addition, Luke owed the federal government $129,000 for 

taxes, and had to borrow money from a financial institution in 

order to make payments on that debt. At the time of trial, he had 

a debt over and above his tax debt in the amount of $80,000. His 

monthly expenses were $3,535, and his estimated monthly income from 

all sources was $2,382. 

Dixie's living expenses, including food, shelter, electricity, 

and utilities were provided for at the home where she resided. The 

cost of residing at the home was paid by her son in exchange for 

office space provided to him by his father. The fact that these 

expenses were provided enabled Dixie to live within the amounts 

received as social security and workers' compensation benefits. 

Although the proportion is uncertain, the evidence was that any 

additional amounts paid to her by Luke would simply increase the 

amount charged for her living expenses at the home where she 

resided. 

This is not a case of the District Court rewriting a contract 

to provide for something beyond the original terms of the 

agreement. Neither is this a case where the court failed to give 

proper consideration to the earlier distribution of property. 

This is simply a case of the parties substituting one form of 

maintenance payment for an earlier more uncertain form of payment 

and a modification of that obligation, based on a change in 

circumstances. There was absolutely no property given up by Dixie 

in exchange for the amended maintenance provision, and there was no 

14 
reason to consider circumstances prior to the 1984 amendment in the 

District Court's determination of whether circumstances had changed 

since that amendment. 

For these reasons, I would affirm the judgment of the District 

Court.