TJo. 84-566 IN THE SUPREME COURT OF THE STATEOF MONTANA 1985

IN RE THEMARRIAGE OF JEAN PURDYCOOPER, Petitionerand Respondent, and LAWRENCE PETER COOPER,JR.

## , Respondent and Appellant.

APPEAL FROM: District Court of the Eighteenth Judicial District, In and for the County of Gallatin, The Honorable Roy Rodeghiero, Judgepresiding.

COUNSELOF RECORD:

ForAppellant:
JamesJ. Sinclair,Billings, Montana

For Respondent: JaniceK. Whetstone;Kirwan & Barrett, Bozeman,Montana

- Submitted on Briefs: March 28, 1985 Decided: May 2, 1985

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ClerkMr. Justice John C. Sheehy delivered the Opinion of the Court.

The parties, Lawrence and Jean Cooper, obtained a dissolution of marriage in the District Court, Thirteenth Judicial District, Gallatin County, onAugust 19, 1975 after 29 years ofmarriage. Three childrenwereborn and raisedby the parties. They were all emancipated at the time of the dissolution. The parties entered into a property settlement agreement which was incorporated into and made a part of the 1975 decree of dissolution. Included in this agreementwas a provision relating to maintenance which provided that T,awrence Cooper pay $4,200 in seven equal installments of $600 to his formerwife. Thedecree furtherprovided that at the termination of said installments, if the parties hereto
are unable to agree upon the amount of alimony to be paid to thewife, if any, thewife reserves the right to present this matter to the court having jurisdiction for a determination of the amount of money to which she would be entitled for a1imony

# . Lawrence Cooper paid the $4,200 pursuant to the above provision. In August 1976, Mrs. Cooper filed a petition requesting a determination of alimony pursuant to the provision in the original decree. After a hearing on November 22, 1976,the District Court issued an order denying Mrs. Cooper any maintenance. The order was not appealed. On November 17, 1982, nearly six years later, Mrs. Cooper (hereinafter respondent), filed a petition requesting modification of the original divorce decree and requesting that Mr. Cooper (hereinafterappellant)

## , pay respondent the
sum of $1,500per month forher maintenance. Appellantmovedto dismiss respondent's petition on the grounds that it was barred by res judicata. The District Court denied appellant's motion and set a hearing for May 24, 1983 to consider evidence of changed circumstances. Appellant and respondent were both present and testified at the hearing. On October 25, 1984, the District Court entered findings of fact,conclusions of law,and an order requiring appellant to pay the sum of $750per month to respondent forher support. It is from this order that appellant appeals. Appellant contends that the respondent's petition is barred by the doctrine of res judicata. Basically, res judicata a.pplies when a court of competent jurisdiction renders a final judgment on the merits. The judgment is conclusive and binding on the parties and their privies in all later suits on allmatters determined in the former suit. The general principle of res judicata has been altered by statute in Montana for cases involving the dissolution of marriage. Section 40-4-208,MCA, governs the modification of maintenance and property disposition provisions contained in the dissolution decree. We must interpret this statute to determine whether under the facts of this case the decreemay be modified to award respondent maintenance. Section 40-4-208, MCA, provides inpertinent part: "40-4-208. provisions disposition 40-4-201(6)for 

### - ,a decreemay be modified by a court as to maintenance or suppo;t only as to installments accruing subsequentto the motion formodification. 

### "(2)(a) Whenever the decree proposed for modification does not contain provisions relating to maintenance or support, modification under subsection (1)may only be made within 2 years of the date of the decree."(b) Whenever the decreeproposed formodification contains provisions relating to maintenance or support,modification under subsection (I)may only bemade: "(i) upon a showing of changed circumstances so substantia-l.and continuing as to make the terms unconscionable;or "(ii) upon written consent of the parties." A petition for modification with respect to maintenance must be considered by the District Court if it is filed within two years of the date the decree is rendered, regardless of whether the decree contains provisions for maintenance or whether maintenance payments are currently being paid. If two years has expired since the dissolution decree was rendered,modification is stillpossible when the decree contains a provision relating to maintenance. When maintenance payments are currentlymanda-tedunder the decree,
a modification petition must be considered by the District Court. We recently sta.ted in Rush v. Rush (Mont. 1985)

(Supreme Court No. 84-527, Decided April 30, 1-985), that although no maintenance payments were being paid and none
were required to be paid under the decree at the time modification is sought, the petition for modification is not barred as a matter of law. This is true because the decree in force at the time modification is sought still contains a provision formaintenance although the payments due under the provision have been satisfied. We are constrained by the language of $ 40-4-208 to so hold. However, the fact that maintenance payments are no longer due under the decree and the length of time that has passed since the maintenance obligation has been fully satisfied must be weighed by the district courts when ruling whether or not ma-intenance payments should be reinstated. Inmany cases 

### the amount andduration of maintenance payments recited in the decree are bargained for and this factmust be considered. Rush, supra. Respondent contends that the same rule should apply in the instant case. She argues that since the original decree contained a maintenance provision, the District Court was correct in entertaining her petition for modification. We disagree. In this case the decree in force in 1982 when respondent petitioned for modification did not contain a maintenance provision. The decree in force in 1.982was the decree as modified. by the 1976 order of the District Court. In the 1976 order, the court ruled the respondent was not entitled to

### anymaintenance. The effect of this orderwas to delete the maintenance provision from the decree. Hence, the decree proposed for modification by respondent did not contain a provision for maintenance and could only be modified before November 22, 1978. Since we hold that respondent's petition for modification is barred by $ 40-4-208(2)(a), MCA, we do not reach the remaining issues presented by appellant. The judgment of the District Court is reversed a.nd the order granting respondent maintenance is, yated. / 

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# & Justice We Concur: /

Chief Justice 

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