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, 

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### &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

ClerkJustice John Conway Harrison delivered the Opinion of the Court.

This matter comes to us on appeal from the District Court of the SecondJudicial District,SilverBow County,Montana, regarding respondentJohn 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 thismatter 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. "LukemMcKeon (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 inaprofessional corporationpracticing law withhis son, Timothy.Dixie was employed outside of the home only during the last fewyears of themarriage. ~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 67years 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 theRespondent remarries,and should therent of theRespondentbe increased, that cost shallbe 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 themortgages on some businessproperties that theparties ownedduring themarriage that "thewife shall receivethe net income for said property for life. (Emphasisadded.) Dixie never received an income under the provisions ofParagraphI11of theproperty settlement agreement,and in 1984 the parties amended theproperty settlement agreementby striking that paragraph in its entirety and substitutingthe following language: That theWife shall receive asmaintenance for life the sum of $300.00 permonth fromtheHusband. 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. [Emphasisadded.] 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 maintenancepayments. 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 discontinuedpaying themaintenance and no payments have been made since that time. In December 1989, Luke filed several documents including: a rrMotionFor Order To Show Cause," rrSupplemental Affidavit," rrMemorandum In Support Of Petition To Modify Support Paymentsrrand a "Petition To Amend Order Of Court Relative To Support Payments.Ir Thismatter washeard on June 25, 1990. On the

same date, Dixie submitted rrProposedFindings Of Fact And ConclusionsOf Law." Theparties were given ten additionaldays to file "Supplemental Findings And ~onclusions.~In October 1990,Dixiet s attorneywrote to thepresiding Judge,Mark P. Sullivan,to check on the status of the case. This letterwas 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 Judgmentwas 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 Findingsof Fact,Conclusions of Lawand Judgmentrelieving Luke of the responsibilityof paying maintenance of $300per month to Dixie for the term of her life. The issuespresented 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 issuepresented 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 governedby the laws of contract. Quinnv. Quinn (1981)

## , 191Mont.133, 136, 622 P.2d 230, 232. Here, themaintenance 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 itwas "myunderstandingl1or it

was a "belief onmy part" that themaintenancewould continueuntil social security became effective, tobe incredible. However,when asked by counsel of his definition of "for life" the following testimony was taken: Q. [ByAppellantlscounsel] Would you please tell me what "for lifewmeans to you? A. [ByLuke] For life means formy life orher life. [Emphasisadded.] By this response it is clear that Luke, who was a practicing attorney,understood what his obligationwas under the terms of the maintenance agreement. The words "for lifew are not open to any other interpretationthan theplain 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 thewriting generally determines intention: When a contract isreducedtowriting, 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 withoutpower to insert new provisions into the contract. See City of Billings v. Public Serv. Commln (Mont. 1981), 631P.2d 1295, 1307, 38 St.Rep. 1162, 1173. InDanielsonv. Danielson (1977), 172Mont. 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 innot allowing inquiry into the originalproperty 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 originalproperty settlement agreement,was concernedonly with the present status of the parties rather than the intent of the parties entering into theproperty settlement agreement. Thevery 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 shewas to receive income. Here the maintenance provision of the agreement replaced a propertysettlement 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 originalproperty settlement agreement with theexception of some income from office property of the parties which she testified shenever received. As noted theprovision for receiving the above income from office property of the parties was modified out of the original agreement and Luke received all otherproperty 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 toproperty settlement. See In

re theMarriage of Robertson (1989), 237Mont. 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. Lukepresented testimony thathehad a reduced income fromhis professional corporation,but we note thathe refused to turn over pertinent financial data such as the corporationtsincome 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 wasdissolved; andwas twenty-eightyears old in 1990,the time that thehusband still claimed to be supportinghim. 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 fromhis 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 theproperty settlement agreement andwhile he was not satisfied with it, it is clear thathe failed toprovide substantial credible evidence toallowthemaintenance provision to be modified. This case is reversed and remanded to the District Court in conformancewith this Opinion.We concur:Justice Terry N. Trieweiler dissenting. Idissent from themajority opinion. It is first necessary topoint out that themajority adopts as true allegations in the appellantlsbrief which are not supported by the record. For example, the majority opinion states that the original property settlement agreementprovided for income to thewife from property owned by the parties. Paragraph I11 of the original settlement agreement, however, actually pertains to property that

was conveyed to the childrenduring themarriage. Itprovided 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 1984modification, it would have observed that the 1984 modification gave Dixiemaintenance for life in lieu ofproperty from which she was to receive income. Here the maintenance provision of theagreementreplacedaproperty settlement and the agreement was quasi-maintenance and quasiproperty. 

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# . Here Dixie gave up the right toproperty in exchange formaintenance 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 originalproperty settlement agreement did not give Dixie property fromwhich she was to receive income. It simplyprovided 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 maintenancepayment (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 isthat 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 

# . . . . Inthis case,the DistrictJudge,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 conditionsasrequiredbyMCA 40-4-208 sosubstantialand 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, Iconclude that the District Court's finding of a change in circumstances which made the prior maintenance payments unconscionablewas not clearly erroneous. Subsequent to the time that the parties entered into the maintenance agreement,Dixiequalified 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 conditionboth 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 1990his incomehad declined even furtherdue to health problems which included a serious heart condition, colitis, an ulcer, shoulder surgery, and impending surgery on his neck. It was anticipated thathis incomewould decline even furtherbased onhis 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 tomake 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 expenseswere $3,535,and his estimated monthly income from all sources was $2,382. Dixie's living expenses, including food,shelter, electricity, and utilities wereprovided for at thehomewhere 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 theparties 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 maintenanceprovision,and therewasno 14reason to consider circumstances prior to the 1984 amendment in the District Court's determination ofwhether circumstanceshad changed since that amendment. For these reasons, Iwould affirm the judgment of the District Court.