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NO. 90-604

IN THE SUPREME COURT OF THE STATE OF MONTANA
1992

IN RE THE MARRIAGE OF JOHN L. McKEON,

Petitioner and Respondent,
and

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DIXIE McKEON,

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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.
Submitted on Briefs: December 4, 1991

Decided: February 11, 1992
Filed:

Clerk

Justice John Conway Harrison delivered the Opinion of the Court.

This matter comes to us on appeal from the District Court of
the Second Judicial District, Silver Bow County, Montana, regarding
respondent John 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 this matter 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. "Lukem McKeon (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 in a professional corporation practicing law with his son,
Timothy.

Dixie was employed outside of the home only during the last

few years of the marriage. ~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 67 years 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 the Respondent remarries, and should the rent of
the Respondent be increased, that cost shall be 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 the mortgages on some
business properties that the parties owned during the marriage that
"the wife shall receive the net income for said property for life.

(Emphasis added.)

Dixie never received an income under the provisions of

Paragraph I11 of the property settlement agreement, and in 1984 the

parties amended the property settlement agreement by striking that
paragraph in its entirety and substituting the following language:
That the Wife shall receive as maintenance for life
the sum of $300.00 per month from the Husband. 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. [Emphasis added.]
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 maintenance payments. 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
discontinued paying the maintenance and no payments have been made

since that time. In December 1989, Luke filed several documents
including: a rrMotion For Order To Show Cause," rrSupplemental
Affidavit," rrMemorandum In Support Of Petition To Modify Support
Paymentsrr and a "Petition To Amend Order Of Court Relative To
Support Payments. Ir This matter was heard on June 25, 1990. On the
same date, Dixie submitted rrProposed Findings Of Fact And
Conclusions Of Law." The parties were given ten additional days to
file "Supplemental Findings And ~onclusions.~ In October 1990,

Dixiets attorney wrote to the presiding Judge, Mark P. Sullivan, to
check on the status of the case. This letter was 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 Judgmentw as 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
Findings of Fact, Conclusions of Law and Judgment relieving Luke of
the responsibility of paying maintenance of $300 per month to Dixie
for the term of her life.

The issues presented 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 issue presented 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 governed by the laws of contract. Quinn v. Quinn (1981) , 191 Mont.
133, 136, 622 P.2d 230, 232. Here, the maintenance 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 it was "my understandingl1 or it

was a "belief on my part" that the maintenance would continue until
social security became effective, to be incredible. However, when
asked by counsel of his definition of "for life" the following
testimony was taken:

Q. [By Appellantls counsel] Would you please tell
me what "for lifew means to you?

A. [By Luke] For life means for my life or her life.
[Emphasis added.]

By this response it is clear that Luke, who was a practicing
attorney, understood what his obligation was under the terms of the
maintenance agreement. The words "for lifew are not open to any
other interpretation than the plain 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 the writing generally determines intention:

When a contract is reduced to writing, 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 without

power to insert new provisions into the contract. See City of
Billings v. Public Serv. Commln (Mont. 1981), 631 P.2d 1295, 1307,
38 St.Rep. 1162, 1173. In Danielson v. Danielson (1977), 172 Mont.
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 in not allowing inquiry into the original property 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 original property settlement agreement, was concerned only with
the present status of the parties rather than the intent of the
parties entering into the property settlement agreement. The very
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 she was to receive income. Here the
maintenance provision of the agreement replaced a property

settlement and the agreement was quasi-maintenance and quasi-
property. Dixie was entitled to' maintenance especially when the
court could have heard evidence that she was granted no property
under the original property settlement agreement with the exception
of some income from office property of the parties which she
testified she never received. As noted the provision for receiving
the above income from office property of the parties was modified
out of the original agreement and Luke received all other property
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 to property settlement. See In
re the Marriage of Robertson (1989), 237 Mont. 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.

Luke presented testimony that he had a reduced income from his
professional corporation, but we note that he refused to turn over
pertinent financial data such as the corporationts income 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 was dissolved; and was twenty-eight years old in 1990, the
time that the husband still claimed to be supporting him. 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 from his 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 the property settlement agreement and while
he was not satisfied with it, it is clear that he failed to provide
substantial credible evidence to allow the maintenance provision to
be modified.

This case is reversed and remanded to the District Court in
conformance with this Opinion.

We concur:

Justice Terry N. Trieweiler dissenting.

I dissent from the majority opinion.

It is first necessary to point out that the majority adopts as
true allegations in the appellantls brief which are not supported
by the record.

For example, the majority opinion states that the original
property settlement agreement provided for income to the wife from
property owned by the parties. Paragraph I11 of the original
settlement agreement, however, actually pertains to property that
was conveyed to the children during the marriage. It provided 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 1984 modification, it would have observed that the 1984 modification gave Dixie maintenance for life in lieu of property from which she was to receive income. Here the maintenance provision of the agreement replaced a property settlement and the agreement was quasi-maintenance and quasi-property. . . . Here Dixie gave up the right to property in exchange for maintenance and the District Court erred in not allowing inquiry into the parties1 original
property  settlement  agreement  and  in  modifying  
maintenance  payments  without  conside ring  necessary  
information.  

The original property settlement agreement did not give Dixie
property from which she was to receive income. It simply provided
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
maintenance payment (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 is that 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 . . . .
In this case, the District Judge, 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
conditionsas required by MCA 40-4-208 so substantial and
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~se s.~'  
After  reviewing  the  transcript  of  Luke's  and  Dixie's  

testimony, I conclude that the District Court's finding of a change
in circumstances which made the prior maintenance payments
unconscionable was not clearly erroneous.

Subsequent to the time that the parties entered into the
maintenance agreement, Dixie qualified 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 condition both
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 1990 his income had declined even further due to health problems
which included a serious heart condition, colitis, an ulcer,
shoulder surgery, and impending surgery on his neck. It was
anticipated that his income would decline even further based on his
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 to make 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 expenses were $3,535, and his estimated monthly income from
all sources was $2,382.

Dixie's living expenses, including food, shelter, electricity,
and utilities were provided for at the home where 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 the parties 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 maintenance provision, and there was no

14

reason to consider circumstances prior to the 1984 amendment in the
District Court's determination of whether circumstances had changed
since that amendment.

For these reasons, I would affirm the judgment of the District
Court.

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