NO. 94-530
IN THE SUPREME COURT OF THE STATE OF MONTANA
1995
IN RE THE MARRIAGE OF
CHARLES HENRY EICKMEYER,
Petitioner and Respondent,
and
ARLENE GRACE EICKMEYER,
Respondent and Appellant.
APPEAL FROM: District Court of the First Judicial District,
In and for the County of Broadwater,
The Honorable Dorothy McCarter, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
R. J. "Jim" Sewell, Jr., Smith Law Firm,
Helena, Montana
For Respondent:
Thomas S. Winsor, Attorney at Law,
Helena, Montana
Submitted on Briefs: March 30, 1995
Decided: May 23, 1995
Filed: -cd
Justice Karla M. Gray deli&red the Opinion of the Court.
Arlene Eickmeyer (Arlene) appeals from an order of the First
Judicial District Court, Broadwater County, granting Charles
Eickmeyer's motion to dismiss her petition for increased
maintenance. We affirm, holding that the District Court did not
err in concluding that § 40-4-208(2) (a), MCA, bars Arlene's
petition.
The facts necessary to our resolution of this case are
undisputed. The marriage of Charles Eickmeyer (Charles) and Arlene
was dissolved in 1987. The dissolution decree incorporated Charles
and Arlene's marital settlement agreement which stated, in
pertinent part, that "[nleither of us seeks an award of
maintenance."
Arlene filed a Petition for Increased Maintenance in 1994.
She alleged that a change of circumstances had occurred since the
dissolution "which is so substantial as to be unconscionable."
She requested monthly maintenance in the amount of $750 and
attorney's fees incurred in bringing the petition. Charles moved
to dismiss the petition, arguing that it was barred by § 40-4-
208(2) (a), MCA. The District Court granted the motion to dismiss
and Arlene appeals.
Did the District Court err in concluding that Arlene's
petition was barred by § 40-4-208(2)(a), MCA?
Post-dissolution maintenance proceedings are governed by § 40-
4-208, MCA, which provides in pertinent part:
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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.
Section 40-4-208(2) (a), MCA. The District Court concluded that the
statement "[nleither of us seeks an award of maintenance,"
incorporated into the decree from Charles and Arlene's marital
settlement agreement, did not constitute a "provision relating to
maintenance" under 5 40-4-208(2) (a), MCA. Thus, according to the
court, Arlene's petition for maintenance was barred because it was
not brought within two years of the decree.
The interpretation and application of a statute are matters of
law. Matter of E-Z Supply (Mont. 1994), 883 P.2d 833, 835, 51
St.Rep. 1029. We review a district court's conclusions of law to
determine if they are correct. In re Marriage of Barnard (1994),
264 Mont. 103, 106, 870 P.Zd 91, 93.
The function of courts in interpreting statutes is to
effectuate the intent of the legislature. E-Z SUPPLY, 883 P.2d at
835 (citations omitted). "Our primary tool for ascertaining the
legislature's intent is the plain meaning of the words used." E-Z
S!iG%?LY, 883 P.2d at 835; quoting Sagan v. Prudential Insurance
Company of America (1993), 259 Mont. 506, 509, 857 P.2d 719, 722.
"If the legislature's intent can be determined from the plain
meaning of the words used in the statute, we will go no further."
E-Z Supply, 883 P.2d at 835; quoting State ex rel. Neuhausen v.
Nachtsheim (1992), 253 Mont. 296, 299, 833 P.2d 201, 204.
The dispute in this case centers on the meaning of the
"provisions relating to maintenance" language in 5 40-4-208(2) (a),
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MCA. The ordinary and plain understanding of the word "provision"
is "to provide" something. Indeed, this common understanding is
reflected in the dictionary definition of "provision" as "the act
of supplying . ; something provided." American Heritage
Dictionary 1459 (3rd ed. 1992). Thus, a "provision relating to
maintenance" under the statute is an affirmative and action-
oriented undertaking; it is a present undertaking or action of
providing maintenance for a SpOUSe , providing other assets
specifically in lieu of maintenance, or providing for the payment
or seeking of maintenance in the future upon the occurrence of a
specified event.
The language "neither of us seeks an award of maintenance"
does not constitute a "provision relating to maintenance" when
compared to the plain meaning of "provision." The language does
not provide maintenance for a party in any form, or even provide
for maintenance as a future possibility. The mere inclusion of the
word "maintenance" in a decree via incorporation, such as occurred
in this case, does not constitute a provision relating to
maintenance under § 40-4-208(2) (a), MCA.
Arlene relies on Marriage of Cooper (1985), 216 Mont. 34, 699
P.2d 1044, and Marriage of Rush (1985), 215 Mont. 498, 699 P.2d 65,
in arguing that the language in her agreement and decree
constitutes a provision relating to maintenance under 5 40-4-
208(2) (a), MCA. Both cases are inapposite here.
In Cooper, we addressed an issue entirely different from the
issue presently before us. There, the issue was which decree or
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order constituted the "d@cree proposed for modification" for
purposes of applying § 40-4-208(2) (a), MCA. Cooper, 699 P.Zd at
1045. In addressing that issue, we observed that the original
dissolution decree contained a provision relating to maintenance
requiring Mr. Cooper to pay $4,200 in seven equal installments of
$600 to his former wife, and permitting the former wife to petition
for maintenance on the completion of those payments. Cooper, 699
P.2d at 1045. We did not define or interpret the "provision
relating to maintenance" language in 5 40-4-208(2) (a), MCA. Thus,
CooDer is inapplicable here and nothing therein supports Arlene's
argument.
In Rush
-I the former wife petitioned to modify a 1975
dissolution decree regarding maintenance more than two years after
entry of the decree. Rush
-! 699 P.2d at 66. The decree contained
maintenance provisions requiring payment of $400 per month until
the payments reached a total of $24,000; all required maintenance
payments had been made. The district court entertained, but
denied, the former wife's petition to modify. The issue on appeal
was whether the court erred in determining that the former wife had
not satisfied the requirements of 5 40-4-208(b), MCA. RushI
- 699
P.2d at 66-67.
Prior to addressing that issue, we determined the fact that
the maintenance required by the decree had been paid did not
preclude an additional maintenance award as a matter of law. Rush,
699 P.2d at 66. In doing so, we did not specifically address the
"provisions relating to maintenance" language in § 40-4-208(2) (a),
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MCA. Thus, nothing in Rush supports Arlene's argument here.
Indeed, any analogy which could be drawn to Rush would support our
statutory interpretation in this case since it is clear that,
there, the original decree contained provisions for the payment of
maintenance. RushI
- 699 P.2d at 66.
We conclude that the dissolution decree incorporating the
parties' marital settlement agreement did not contain a provision
relating to maintenance. We hold, therefore, that the District
Court did not err in concluding that 5 40-4-208(2) (a), MCA, bars
Arlene's petition and in granting Charles' motion to dismiss.
Affirmed.
Chief Justice
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