                                                          NO.    90-318

               IN THE SUPREME COURT OF THE STATE OF MONTANA
                                                                1992



IN RE THE MARRIAGE OF
ALLEN WAYNE JOHNSON,
               Petitioner and Respondent,
     and
JUDITH ANN JOHNSON,
               Respondent and Appellant.




APPEAL FROM:         District Court of the Fourth Judicial District,
                     In and for the County of Missoula,
                     The Honorable John S. Henson, Judge presiding.


COUNSEL OF RECORD:
               For Appellant:
                     Helen Hayes Orendain, Attorney at Law,
                     Missoula, Montana
               For Respondent:
                     Richard A. Reep, Graham, Reep                           &   Spoon,
                     Missoula, Montana


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           ~',:AR 1 9 1392                                                Decided: March 19, 1992
Filed:
                           .   .
Justice William E. Hunt, Sr., delivered the opinion of the Court.
     Judith Ann Johnson and Allen Wayne Johnson were granted a
dissolution of marriage on April 1, 1981. Judith filed a petition
for modification of maintenance with the District Court on June 23,
1989. Allen filed a motion to dismiss the petition.       The District
Court granted the motion to dismiss on April 9, 1990.           Judith
appeals the    dismissal    of   the   petition   for modification   of
maintenance.   We affirm.
     The issues before this Court are as follows:
     1.    Did the District Court err in dismissing appellant's
petition for modification of maintenance?
     2.    Did the doctrine of res judicata bar the District Court
from considering the issues of statute of limitations and the
mutual release language in the separation agreement?
     3.   Did the District Court abuse its discretion when it
initially determined in 1981that the marital separation agreement
was not unconscionable?
     4.   Is respondent entitled to attorney fees?
     In light of our holding on the first issue we need not discuss
the second, third and fourth issues.
     Appellant and respondent were married on January 27, 1964.
The parties have two children. On April 1, 1981, the parties were
granted a dissolution of marriage.          A custody, support, and
property settlement agreement (agreement) signed by appellant was
incorporated into the final decree of dissolution.       Appellant was
not represented by counsel during this time period and did not
appear at the hearing on the dissolution of the marriage during
which the District Court determined that the property settlement
agreement was not unconscionable.       The agreement provided that
appellant would receive maintenance in the amount of $125 per month
for 24 months, or until her death or remarriage, whichever occurred
first. The agreement further provided that It[s]aid maintenance is
temporary, and in no event shall it continue for more than
twenty-four (24) months.I1 Respondent complied with the agreement
concerning payments of maintenance and March 1983 the maintenance
obligation had been paid in full.
     Since March 1983, the appellant has struggled financially due
to a number of significant setbacks. Appellant, believing that her
changed circumstances were of such a substantial and continuing
nature so as to render the prior agreement unconscionable, filed
with the District Court a petition for modification of the
maintenance   provision   of   the   agreement   on   June   23,   1989.
Respondent filed a motion to dismiss the petition for modification.
The District Court denied respondent's motion to dismiss on
November 6, 1989.
     Respondent then filed a second motion to dismiss based upon an
alleged lack of subject matter jurisdiction. Appellant then filed
a motion to set aside the 1981 decree of dissolution on the basis
of extrinsic fraud.   Prior to ruling on either of these motions,
the District Court Judge withdrew from the case and was replaced by
another Judge.      The court then granted respondent's motion to
dismiss for lack of subject matter jurisdiction.
        Appellant brought an appeal alleging that the District Court
erred in granting respondent's motion to dismiss.                Following
briefing, this Court determined that a final judgment had not been
entered in the underlying action, in that the appellant's motion
before the District Court to set aside the decree of dissolution on
the grounds of extrinsic fraud had not yet been ruled upon.             On
November 15, 1990, this Court stayed the appeal and remanded the
cause to the District Court for either a final decision on the
appellant's motion     or certification pursuant to Rule           54(b),
M.R.Civ.P., that a final decision regarding maintenance had been
made.     On remand, the District Court, on April 4, 1991, denied
appellant's motion to set aside the decree of dissolution on the
grounds of extrinsic fraud. On May 23, 1991, this Court lifted the
stay of this appeal.         Appellant does not appeal the District
Court's dismissal of the motion to set aside the decree of
dissolution on the grounds of extrinsic fraud.
     The issue to be discussed is whether the District Court erred
in   dismissing   appellant's petition        for modification    of   the
maintenance agreement incorporated into the 1981 final decree of
dissolution.
     Appellant     brought   the   petition    for    modification     of
maintenance pursuant to 5 40-4-208, MCA, which provides in part:
          (1) Except as otherwise provided in 40-4-201(6), a
     decree may be modified by a court as to maintenance or
     support only as to installments accruing subsequent to
     actual notice to the parties of the motion for
     modification.


          (b) 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 ....
     Modification of maintenance may be obtained upon a showing of
changed circumstances, except as provided for in 5 40-4-201(6),
MCA, which states that:
          Except for terms concerning the support, custody, or
     visitation of children, the decree may expressly preclude
     or limit modification of terms set forth in the decree if
     the separation agreement so provides. Otherwise, terms
     of a separation agreement set forth in the decree are
     automatically modified by modification of the decree.
     The statutes on modification of maintenance are clear that the
parties are free to preclude or limit any future modification of
maintenance.   If it is determined that the separation agreement
incorporated into the final decree precludes modification, the
analysis ends. The issue of whether there has been a change in
circumstances so substantial and continuing so as to make the
agreement unconscionable only arises after a determination that
modification is permitted under the agreement.        Marriage of
Robertson (1989), 237 Mont. 406, 773 P.2d 1213.
        The custody, support, and property agreement incorporated into
the 1981 final decree provided that wife would receive maintenance
for 24 months and that "[slaid maintenance is temporary, and in no
event shall it continue for more than twenty-four (24) months."
The agreement also contained mutual release language which stated
that Iteachparty hereto releases and forever discharges the other
party     . . .   from any and    all rights, claims, demands and
obligations, except as herein specifically provided         . . .    .I1



Finally, concerning modification, the agreement provided that
"[ilnsofar as is legally permissible, the provisions of this
agreement may not be modified by any court.11 The District Court
found that this language in the agreement expressly prohibited any
attempt to modify the maintenance provision of the original decree.
We agree.      The clear language of the agreement indicates the
parties intent that there be no modification of the maintenance
provision.     We have previously approved the statement that "where
a   separation    agreement   expressly   precludes   modification   or
limitation of maintenance, a District Court is barred from later
modifying the terms of the agreement.l1 Marriage of Bolstad (1983),
203 Mont. 131, 135, 660 P.2d 95, 97.
     Additionally, the District Court based its decision on the
language contained in 5 40-4-208(1), MCA, which states that "a
decree may be modified by a court as to maintenance or support only
as to installments accruing subsequent to actual notice to the
parties of the motion for modification." The District Court erred
in     finding that because the maintenance provision had        been
fulfilled and no payments could accrue, that the appellant could
not     seek modification    of the maintenance.    This Court has

previously construed this portion of the statute stating that    [w]e
find nothing in this statute which requires that there be payments
currently accruing.         The language of the statute precludes
modification of payments whose due date has passed but that is
all."    Fraunhofer v. Price (1979), 182 Mont. 7, 19, 594 P.2d 324,
331.    In a recent decision of this Court, we stated that I t e mere
                                                            'h
fact that a party is not currently paying maintenance does not
necessarily preclude modification." Marriage of Hagemo (1988), 230
Mont. 255, 259, 749 P.2d 1079, 1081.           The District Court s
misinterpretation of this portion of the statute is harmless in
light of the court's correct finding that the agreement precludes
any modification of the maintenance provision.
       In granting respondent's motion to dismiss, the District Court
also relied on this Court's decision in Marriage of McFate (1989),
239 Mont. 492, 781 P.2d 759. McFate involved a dispute over child
support payments. In McFate, the separation agreement incorporated
into the final decree provided that the obligation for child
support would terminate once the children reached the age of
majority.    After the children reached the age of majority the wife
filed a motion to modify husband's child support obligation.      In
affirming the District Court's denial of the motion, this Court
stated that:
         Once the party who owes the duty of support fulfills that
         obligation according to the terms of the agreement or the
         decree, the district court loses jurisdiction over the
         matter and can no longer entertain motions for
         modification or continuation of support.
    McFate, 781 P.2d at 760.      In light of our holding that the
    agreement expressly prohibits modification, we need not address at
    this time whether the McFate decision, which clearly involves
    issues of support and not maintenance, would govern in the present
    situation. The order of the District Court dismissing appellant's
    petition for modification is affirmed.
                                    1




We concur:
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        Justices
