TJo. 84-566 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1985 

IN RE THE MARRIAGE OF 

JEAN PURDY COOPER, 

Petitioner and 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, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

James J. Sinclair, Billings, Montana 

For Respondent: 

Janice K. Whetstone; Kirwan & Barrett, Bozeman, Montana 

- 

Submitted on Briefs: March 28, 1985 

Decided: May 2, 1985 

iil If " - ?, r 984 

Filed: 

Clerk 
Mr. 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, on August 19, 1975 after 

29 years of marriage. Three children were born and raised by 

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 agreement was a 

provision relating to maintenance which provided that 

T,awrence Cooper pay $4,200 in seven equal installments of 

$600 to his former wife. The decree further provided that at 

the termination of said installments, if the parties hereto 

are unable to agree upon the amount of alimony to be paid to 

the wife, if any, the wife 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 

a1 imony . 

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 (hereinafter appellant) , pay respondent the 

sum of $1,500 per month for her maintenance. Appellant moved 
to 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 $750 per month to respondent for her 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 all matters 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 decree may 

be modified to award respondent maintenance. Section 

40-4-208, MCA, provides in pertinent part: 

"40-4-208. 

provisions 

disposition 

40-4-201 (6) 

- for 

,a decree may be modified by a court as 

to maintenance or suppo;t only as to installments 

accruing subsequent to the motion for modification. 

" (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 decree proposed for modification 

contains provisions relating to maintenance or 

support, modification under subsection (I) may only 

be made: 

"(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 still possible when the 

decree contains a provision relating to maintenance. When 

maintenance payments are currently manda-ted under 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 for maintenance 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. In many cases the amount and 
duration of maintenance payments recited in the decree are 

bargained for and this fact must 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 1.982 was 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 any maintenance. The effect of this order was 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. 

/ 

--- A h. & 

Justice 

We Concur: / 

J Chief Justice