Heintzelman v. Heintzelman , 187 Mont. 220 ( 1980 )

No. 14737
IN THE SUPREME COURT OF THE STATE OF MONTANA
1979
MARY ELLEN HEINTZELMAN,
Plaintiff and Appellant,
EMERY HEINTZELMAN ,
Defendant and Respondent.
Appeal from: District Court of the Eighth Judicial District,
Honorable Joel G. Roth, Judge presiding.
Counsel of Record:
For Appellant:
Thomas A. Baiz, Jr., Great Falls, Montana
Kenneth R. Olson argued, Great Falls, Montana
For Respondent:
Ralph Randono argued, Great Falls, Montana
Submitted: November 8, 1979
Decided :
Mr. Justice Daniel J. Shea delivered the Opinion of the
Court.
The wife appeals from an order of the Cascade County
District Court modifying the maintenance prcvision of an
original dissolution decree.
The original dissolution decree provided for child
custody, child support, and a property division. The decree
also required the husband to pay $250 per month in maintenance
to the wife. At the time of the dissolution, the husband
was employed as a brakeman by Burlington Northern, Inc. earning
approximately $24,000 per year, and financially able to pay
maintenance.
In April 1976, however, the husband was injured while
on the job and as a result his employment was terminated in
December 1976. The husband is not employable. Since March
1977, he has been receiving $529.13 per month disability
payment from the Railroad Retirement Board, and those payments
were increased to $569.29 in June or July of 1978. Additionally,
he received $200 monthly from two Prudential Insurance Co.
policies &hough those payments were scheduled to terminate
in December 1978. At the time of the modification hearing,
the husband also had a FELA claim pending as a result of
injuries received while on the job.
On February 3, 1977, the husband filed an affidavit and
petition for an order to show cause seeking the elimination
of the maintenance provision. He stated in his affidavit
that he had sustained a loss of income which will continue,
and that he was unable to comply with the maintenance award
contained in the original dissolution decree.
On October 18, 1978, a hearing was held. On the next
day, the trial court entered findings of fact, conclusions
of law, and an order. The trial court found that the wife
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had a monthly income of $228.40 and monthly expenses of
$273.62, resulting in a monthly deficit of $45.22. The
trial court concluded, furthermore, that there had been a
drastic reduction in the husband's income since December
1976, due to the industrial accident which resulted in his
unemployment. Finally, the trial court found that the
husband was unable to meet the needs of the wife while
meeting his own needs, and therefore modified the decree.
The trial court ordered the husband to continue paying
child support in the amount of $150 per month for the support
of the parties' daughter. However, the trial court eliminated
the maintenance provision in the original dissolution decree,
to be effective on February 1, 1977. On October 27, 1978,
the wife filed a motion for a new trial and this motion was
denied by the District Court on December 13, 1978. This
appeal followed.
The sole issue on appeal is whether the trial court
erred in modifying the original dissolution decree by eliminating
the maintenance award.
The wife does not dispute that the husband's disability
and reduction in income represents substantial changed
circumstances. She does argue, however, that the husband's
changed circumstances are not continuing. She argues that
the trial court erred in not considering the effect of the
husband's impending FELA settlement. The husband contends,
on the other hand, that his permanent injury constitutes
changed circumstances, and that he has no further earning
capacity. In this respect he argues that the changed circumstances
must be examined at the time the motion for modification is
made. He therefore argues that the trial court was not in
error by failing to consider a potential settlement of the
FELA claim.
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Under section 40-4-208, MCA, a district court may
modify an original dissolution decree as to an award of
maintenance only upon a showing of changed circumstances so
substantial and continuing as to make the terms unconscion-
able, or upon written consent of the parties. Kronovich v.
Kronovich (1978), - Mont . , 588 P.2d 510, 35 St-Rep.
1946; Gianotti v. McCracken (1977), 174 Mont. 209, 569 P.2d
929. The parties here did not consent in writing to the
modification of the original dissolution decree. With
respect to the modification of maintenance provisions, the
commission comment discusses the standard imposed in the
following manner:
". . . the person seeking modification must
show that circumstances have changed since
the date of the original order so that the
order is unconscionable at the time the motion
is made and will continue to be unconscionable
unless modified. This strict standard is
intended to discourage repeated or insubstantial
motions for modification." Uniform Marriage and
Divorce Act, S316.
The record shows that the husband had received periodic
advances, which he stated would be deducted from a final
settlement reached with the Burlington Northern. The FELA
claim was pending at the time of the modification hearing,
but, the trial court concluded that the possible FELA
settlement was too speculative to be properly considered in
the modification proceeding. The husband suggested that
should he obtain the FELA settlement, it would perhaps con-
stitute a changed circumstance which would permit another
modification.
BecauGe of disclosures made to this Court in response
to questions from the bench during oral argument, we decline
to reach the merits of the question raised here.
Needless to say, if the husband here received his
settlement from the railroad, the question raised here would
be moot for the case would have to be remanded to deter-
mine if the wife was entitled to a share in any of the
settlement money received, and if so, how much. That is
precisely the question that exists here. Upon questioning
from the bench, counsel for the husband reluctantly revealed
that in fact a settlement had been received. He pointed out,
however, that he was not personally involved as the husband's
attorney in effectuating the settlement. It appears that
the husband dealt with the railroad on his own.
The real problem here, however, is that after the
appeal was filed in this case, and during its pendency,
counsel for the wife did not bother to ask counsel for the
husband if the husband had received a settlement. Counsel
for the husband did not bother to inform the wife's counsel
that a settlement had been achieved. If this had been done,
the parties would then have been in a position to petition
to dismiss the appeal without prejudice. This is a clear
instance of the failure of counsel to communicate with each
other and to inform this Court as to the status of the case.
Obviously, if we had been informed that a settlement had
been reached, we could have dismissed the appeal without
prejudice. This Court should not be burdened with preparing
for and hearing appeals that are either premature) or
because of intervening circumstances occurring between the
time of filing the notice of appeal and the time of hearing,
have become moot.
For the foregoing reasons the appeal is dismissed
without prejudice and this cause remanded to the District
Court for further proceedings to determine whether the wife
is entitled to any share of the settlement reached by the
-
husband.
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Justice
We Concur:
Chief Justice
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Justices