                                         No. 88-278
                  IN THE SUPREME COURT OF THE STATE OF MONTANA
                                             1988



IN RE THE MARRIAGE OF
KAREN GAUSTAD NELSON,
                           Petitioner and Respondent,
            and
HOWARD HARRY NELSON,
                           Respondent and Appellant.




APPEAL FROM:               District Court of the Fifth Judicial District,
                           In and for the County of Madison,
                           The Honorable Frank M. Davis, Judge presiding.
COUNSEL OF RECORD:
            For Appellant:
                           Douglas D. Harris, Lineberger    &   Harris, Bozeman,
                           Montana
            For Respondent :

                  8.   -
                           Arnold Huppert; Huppert   &   Swindlehurst, Livingston,
                       :   Montana



                                             Submitted on Briefs:      Nov. 3, 1988
                                              Decided:       December 22, 1988
Fil ed r1
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                                            Clerk
Mr. Justice John Conway Harrison delivered the Opinion of the
Court.


      This appeal comes from a iudgment of the District Court
of the Fifth Judicial District, Madison County, Montana.
Respondent moved the District Court to enforce a maintenance
provision in the settlement agreement incorporated into the
parties' dissolution decree.    The District Court concluded
the parties intended the monthlv payments to be a division of
marital property, not maintenance, and ordered the appellant
to draft a promissory note payable to the respondent. This
appeal arises from that order. We affirm in part, reverse in
part, and remand.
      In 1384, respondent    Karen   Nelson   (Karen) filed   a
petition for dissolution o+ her marriage to Howard Nelson
(Howard).  On May 2 3 , 1-984, the District Court ordered the
dissolution of the marriaqe and approved and incorporated
into the decree the parties' separation agreement.   Contained
in the agreement is a maintenance clause which provides in
part as follows:
                         Maintenance

                The husband shall pay to wife the
          sum    of   Twelve    Thousand   Dollars
          ($12,000.00) per year in equal annual
          payments for a period of ten (10) years
          with the first payment being due and
          payable to wife two (2) years from the
          date   that the    court  approves this
          property settlement agreement.


                 Husband's obliqation to continue to
          pay   maintenance to w i f e as h e r e s
          described shall - terminated upon wife's
                            be
          remarriage or husband's physical or
          mental    disability which   renders -
                                        --P
                                                 him
           incapable of generating   income through
           new bushes%-ventures.


                  It is the intent of this provision
           that the total amount of maintenance that
           wife is to receive under this provision
           shall not exceed One Hundred Twenty
           Thousand Dollars ($120,000.00) regardless
           of the manner of payment.       (Emphasis
           added. )
      The record shows that Karen did not have the benefit of
her own counsel's advice prior to the execution of the
property settlement agreement.     The initial payment under
this clause was not made, and in December, 1986, Karen sought
to enforce the terms of the agreement by moving the District
Court for a show cause order. Howard responded to the motion
by alleging that his obligations were terminated under the
terms of the agreement because of his numerous physical and
mental disabilities.
      A trial of the issues was held before the court,
without a jury, on February 2, 1988.       The witnesses who
testified at trial were John Atkins, the attorney who drafted
the agreement; Bruce Gerlach, the vice president of the bank
which handled Howard's business loans; Joseph Rau, Howard's
personal friend; Debbie Nelson, the parties' daughter;
Howard; and Karen.
      After hearing the witnesses, considering the exhibits
and arguments of counsel, the District Court declined to cite
Howard with contempt hut concluded that the escape clause was
vague, ambiguous, meaningless, and unenforceable. The court
further found that enforcement of the clause in Howard's
favor would be unconscionable, because to do so would be
"contrary to the clear intent of the parties as to a
substanti-ally equitable division of their marital property. "
The court declared the maintenance provision to be null and
void. Judgment was entered in favor of Karen for $24,000 for
the two payments which by this time had been missed.      The
court also required Howard to execute and deliver to Karen a
promissory note in the sum of $96,000. The judgment required
the note "to be secured by a mortgage on all of Respondent's
real property, or such substitute security as will make the
note reasonably secure."
      We conclude it was error for the District Court to
completely remove the maintenance provision, recalculate the
parties' property distribution, class the payments as a part
of the property distribution, and require Howard to execute a
promissory note secured by a mortgage lien.           Such a
modification of the property settlement and maintenance
provision could not be made without the parties' consent.
Taylor v. Taylor (1975), 167 Mont. 164, 537 P.2d 483. The
entire agreement certainly raises questions as to whether it
partakes more of the nature of a maintenance agreement than a
property settlement agreement, and the provisions are clearly
contradictory. As a result, the factual conclusions on the
part of the District Court are certainly supported by the
record. However, the District Court was without authority to
modify the property disposition in the settlement agreement.
      We have reviewed the transcript which demonstrates that
counsel for both Howard and Karen agreed that the District
Court should make an order clarifying the maintenance
provisions of the contract so that it would not be necessary
to burden the court with questions every year. Counsel for
Howard stated that "[wle are agreeing on the record that this
proceeding may be used to read that agreement and interpret
that agreement however the Court may choose to interpret it
on whatever theory the Court chooses to interpret it . .  . "
We conclude that the consent of counsel for both parties to
the modification of the maintenance agreement meets the
requirements of $ 40-4-208(2) (b), MCA, which provides in
pertinent part:
           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; or
          (ii) upon    written   consent   of   the
          parties.
      We agree with the conclusions of the District Court
that the so-called escape clause was vague, ambiguous and
largely meaningless. We conclude that such an escape clause
is unnecessary under the facts of this case because the above
cited 5 40-4-208(2) (b), MCA, provides that if Howard shoc~~s
changed circumstances so substantial and continuing as to
make the terms of the maintenance agreement unconscionable,
he may secure from the District Court an order changing such
agreement.     That   statutory provision gives adequate
protection for the theory urged by Howard.
      We conclude that the District Court, by reason of the
consent of the parties, was given the power to make a
modification in the terms of the maintenance agreement. We
conclude that the District Court should enter its judgment
providing that the previously quoted maintenance agreement
should now be changed to read as follows:
                          Maintenance
                The husband shall pay to wife the
          sum    of   Twelve   Thousand   Dollars
          ($12,000.00) per year in equal annual
          payments for a period of ten (10) years
          with the first payment being due and
payable to wife two (2) years from the
date   that the court approves this
property settlement agreement. However,
if husband should sell his interest in a
certain tract of real property located in
Gallatin County, State of Montana, and
more particularly described as follows:
      That portion of Tract 38R of
      Certificate    of   Survey    897A
      presently used as a automobile
      repair facility, automobile show
      room and adjacent parking lots as
      appears on the plat on file in the
      office of the Clerk and Recorder,
      County   of  Gallatin,  State   of
      Montana.
within two (2) years of the date hereof,
then husband shall pay to wife, in I ieu
of the above, as maintenance:
(a) the sum of Twelve Thousand Dollars
($12,000.00) per year for ten (10) years
beginning one year from the date of this
agreement, if the above-described real
property is sold within one year of the
date of this agreement; or
 (b) the sum of Twenty-Four Thousand.
Dollars ($24,000.00) within two years of
the date of this agreement if the
above-described real property is sold
within two years of the date of this
agreement and the sum of Twelve Thousand
Dollars ($12,000.00) per year for eight
years thereafter.
      Husband's obligation to continue to
pay   maintenance to wife      as herein
described shall be terminated upon wife's
remarriage or otherwise modified as
determined by the District Court having
jurisdiction upon the application of
either party for modification under the
provisions of S 40-4-208(2) (b), MCA. All
payments for wife's maintenance shall be
mailed directly to wife at her current
mailing   address, unless     husband  is
           otherwise notified in writing, to-wit:
           P.O. Box 1201, Livingston, Montana 59047.

                 It is the intent of this provision
           that the total amount of maintenance that
           wife is to receive under this provision
           shall not exceed One Hundred Twenty
           Thousand Dollars ($120,000.00) regardless
           of the manner of payment.
      Because the District Court concluded that the provision
should be classed as a property settlement in its
modification, we are not certain whether or not the court
concluded that Howard had submitted sufficient proof under
the provisions of the statute to demonstrate a showing of
changed circumstances so substantial and continuing as to
make the payment unconscionable. It will be necessary that
the District Court make that determination. If it finds that
Howard has failed to submit sufficient evidence on that
point, the District Court should enter its judgment for the
payment of $24,000 at the present time.
      As a part of this remand, we further conclude that
under the circumstances of this case it is not appropriate to
use a real estate mortgage and therefore direct the District
Court that neither a note or mortgage shall be used. We do,
however, agree that it would be appropriate for the District
Court to order that the obligation to pay the maintenance
shall become a lien upon the property of Howard, in the same
manner as a judgment lien, should the District Court conclude
that it remains to be an appropriate protection required for
the benefit of Karen.
      Reversed   and   remanded   to   the   District   Court   for
appropriate action consistent with this Opinion.
We c o n c u r :
