T o 84-566
J.
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
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Submitted on Briefs: March 28, 1985
Decided: May 2 , 1985
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i lI f
i
?,
" 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 -for
disposition
40-4-201 (6), 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. 1 9 8 5 )
(Supreme Court No. 84-527, Decided April 3 0 , 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 i , y a t e d .
s
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A h. &
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Justice
We Concur: /
J Chief Justice