No. 14737 IN THE SUPREME COURT OF THE STATE OF MONTANA 1979

MARY ELLEN HEINTZELMAN, Plaintiff and Appellant,

EMERY HE INTZELMAN

## , Defendant and Respondent.
Appeal from: District Court of the Eighth Judicial District, Honorable Joel G. Roth, Judgepresiding. Counsel of Record: For Appellant: ThomasA. Baiz, Jr., Great Falls,Montana Kenneth R. Olson argued,Great Falls,Montana For Respondent: Ralph Randono argued, Great Falls,Montana

Submitted: November 8, 1979 Decided:Mr. Justice Daniel J. Shea delivered the Opinion of the Court.
Thewife appeals from an order of the Cascade County District Courtmodifying themaintenance prcvision of an original dissolution decree. The original dissolution decree provided for child custody, child support, and a property division. The decree also required the husband to pay $250 per month inmaintenance to the wife. At the time of the dissolution, the husband
was employed as a brakeman by Burlington Northern, Inc. earning approximately $24,000per year, and financially able to pay maintenance. 

### InApril 1976, however, the husband was injuredwhile
on the job and as a result his employment was terminated in December 1976. The husband is not employable. Since March 1977,he has been receiving $529.13 per month disability payment from the Railroad Retirement Board, and those payments
were increased to $569.29 in June or July of 1978. Additionally, he received $200monthly from two Prudential InsuranceCo. policies &hough those payments were scheduled to terminate in December 1978. At the time of the modification hearing, the husband also had a FELA claim pending as a result of injuries receivedwhile on the job. On February 3, 1977, the husband filed an affidavit and petition for an order to show cause seeking the elimination of the maintenanceprovision. He stated in his affidavit that he had sustained a loss of incomewhich will continue, and that he was unable to complywith the maintenance award contained in the original dissolution decree. On October 18, 1978,a hearing was held. On the next day, the trial court entered findings of fact,conclusions of law, and an order. The trial court found that the wife -2-had amonthly income of $228.40 and monthly expenses of $273.62, resulting in amonthly deficit of $45.22. The trial court concluded, furthermore,that there had been a drastic reduction in the husband's income since December 1976,due to the industrial accident which resulted in his unemployment. Finally, the trial court found that the husband was unable to meet the needs of the wife while meeting his own needs, and therefore modified the decree. The trial court ordered the husband to continuepaying child support in the amount of $150per month for the support of the parties' daughter. However, the trial court eliminated the maintenanceprovision in the original dissolution decree, to be effective on February 1, 1977. On October 27, 1978, the wife filed a motion for a new trial and thismotion was denied by the District Court on December 13, 1978. This appeal followed. The sole issue on appeal iswhether the trial court erred inmodifying the original dissolution decree by eliminating the maintenance award. Thewife does not dispute that the husband's disability and reduction in income represents substantial changed circumstances. She does argue, however, that the husband's changed circumstancesare not continuing. She argues that the trial court erred in not considering the effect of the husband's impending FELA settlement. The husband contends,
on the other hand, that his permanent injury constitutes changed circumstances,and that he has no further earning capacity. In this respecthe argues that the changed circumstances must be examined at the time themotion for modification is made. He therefore argues that the trial courtwas not in
error by failing to consider a potential settlementof the FELA claim. -3-Under section 40-4-208,MCA, a district courtmay modify an original dissolution decree as to an award of maintenance only upon a showing of changed circumstances so substantial and continuing as tomake the terms unconscionable, or upon written consent of the parties. Kronovich v. Kronovich (1978), -Mont

# . , 588 P.2d 510, 35 St-Rep. 1946;Gianotti v. McCracken (1977), 174Mont. 209, 569 P.2d 929. Theparties here did not consent in writing to the modification of the original dissolution decree. With respect to the modification of maintenance provisions, the commission comment discusses the standard imposed in the followingmanner: 

# ".

. . the person seekingmodificationmust show that circumstances have changed since the date of the original order so that the order isunconscionable at the time the motion ismade and will continue to be unconscionable unless modified. This strict standard is intended to discourage repeated or insubstantial motions formodification." UniformMarriage and DivorceAct, S316. The record shows that the husband had received periodic advances, which he stated would be deducted from a final settlementreachedwith the Burlington Northern. The FELA claimwas pending at the time of the modification hearing, but, the trial court concluded that the possible FELA settlementwas too speculative to be properly considered in themodificationproceeding. The husband suggested that should he obtain the FELA settlement, itwould perhaps constitute a changed circumstance which would permit another modification. BecauGe of disclosures made to this Court in response to questions from the bench during oral argument,we decline to reach themerits of the question raised here. Needless to say, if the husband here received his settlement from the railroad, the question raised here wouldbe moot for the case would have to be remanded to determine if the wife was entitled to a share in any of the settlementmoney received, and if so,howmuch. That is precisely the question that exists here. Upon questioning from the bench, counsel for the husband reluctantly revealed that in fact a settlementhad been received. He pointed out, however, that he was not personally involved as the husband's attorney in effectuating the settlement. It appears that the husband dealt with the railroad on his own. The realproblem here, however, is that after the appealwas filed in this case, and during its pendency, counsel for the wife did not bother to ask counsel for the husband if the husband had received a settlement. Counsel for the husband did not bother to inform thewife's counsel that a settlement had been achieved. If this had been done, the parties would then have been in a position to petition to dismiss the appeal without prejudice. This is a clear instance of the failure of counsel to communicate with each other and to inform this Court as to the status of the case. Obviously, if we had been informed that a settlementhad been reached,we could have dismissed the appealwithout prejudice. This Court should not be burdened with preparing for and hearing appeals that are either premature) or because of intervening circumstances occurring between the time of filing the notice of appeal and the time of hearing, have becomemoot. For the foregoing reasons the appeal is dismissed without prejudice and this cause remanded to the District Court for further proceedings to determine whether the wife is entitled to any share of the settlementreached by the

- husband.

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------------------L---------- JusticeWe Concur:

Chief Justice



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