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, Judge presiding. 

Counsel of Record: 

For Appellant: 

Thomas A. 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. 

The wife appeals from an order of the Cascade County 

District Court modifying the maintenance 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 in maintenance 

to the wife. At the time of the dissolution, the husband 

was employed as a brakeman by Burlington Northern, Inc. earning 

approximately $24,000 per year, and financially able to pay 

maintenance. 

In April 1976, however, the husband was injured while 

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 $200 monthly from two Prudential Insurance Co. 

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 received while 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 maintenance provision. He stated in his affidavit 

that he had sustained a loss of income which will continue, 

and that he was unable to comply with 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 

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had a monthly income of $228.40 and monthly expenses of 

$273.62, resulting in a monthly 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 continue paying 

child support in the amount of $150 per month for the support 

of the parties' daughter. However, the trial court eliminated 

the maintenance provision 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 this motion was 

denied by the District Court on December 13, 1978. This 

appeal followed. 

The sole issue on appeal is whether the trial court 

erred in modifying the original dissolution decree by eliminating 

the maintenance award. 

The wife 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 circumstances are 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 respect he argues that the changed circumstances 

must be examined at the time the motion for modification is 

made. He therefore argues that the trial court was not in 

error by failing to consider a potential settlement of the 

FELA claim. 

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Under section 40-4-208, MCA, a district court may 

modify an original dissolution decree as to an award of 

maintenance only upon a showing of changed circumstances so 

substantial and continuing as to make 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), 174 Mont. 209, 569 P.2d 

929. The parties 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 

following manner: 

". . . the person seeking modification must 

show that circumstances have changed since 

the date of the original order so that the 

order is unconscionable at the time the motion 

is made and will continue to be unconscionable 

unless modified. This strict standard is 

intended to discourage repeated or insubstantial 

motions for modification." Uniform Marriage and 

Divorce Act, S316. 

The record shows that the husband had received periodic 

advances, which he stated would be deducted from a final 

settlement reached with the Burlington Northern. The FELA 

claim was pending at the time of the modification hearing, 

but, the trial court concluded that the possible FELA 

settlement was too speculative to be properly considered in 

the modification proceeding. The husband suggested that 

should he obtain the FELA settlement, it would 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 the merits of the question raised here. 

Needless to say, if the husband here received his 

settlement from the railroad, the question raised here would 
be moot for the case would have to be remanded to determine if the wife was entitled to a share in any of the 

settlement money received, and if so, how much. That is 

precisely the question that exists here. Upon questioning 

from the bench, counsel for the husband reluctantly revealed 

that in fact a settlement had 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 real problem here, however, is that after the 

appeal was 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 the wife'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 settlement had 

been reached, we could have dismissed the appeal without 

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 become moot. 

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 settlement reached by the 

- husband. 

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Justice 
We Concur: 

Chief Justice 

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Justices