                                                No. 8 1 - 5 5 7

                   IN THE SIJPREIIE COIJRT OF THE STATE OF MONTANA
                                                       1953




LYNN G   .   SHITLT Z ,

                        P l a i n t i f f and A p p e l l a n t ,

       VS    .
BERTON N .       SHULTZ,

                        D e f e n d a n t and R e s p o n d e n t .




Appeal from:          D i s t r i c t Court of t h e Fourth J u d i c i a l D i s t r i c t
                      I n a n d f o r t h e County o f Missoula
                      H o n o r a b l e J o h n S . Henson, J u d g e p r e s i d i n g .

Counsel o f Record:

    For Appellant :


             M i l o d r a g o v i c h , D a l e 6 Dye, M i s s o u l a , Montana
                 M . J . M i l o d r a g o v i c h , Argued
    For Respondent:

             D a t s o p o u l o s , Macnonald 4 L i n d , M i s s o u l a , Montana
                 M i l t o n D a t s o p o u l o s , Argued


                                                Submitted:            March 4 , 1 9 8 3

                                                    Decided:          July 27, 1983


Filed:       JuL 2 7 1983
                    F




   -
                              &r
                                                    Clerk
Mr. Justice Fred J. Weber delivered the Opinion of The Court.
     This is an appeal from a Fourth Judicial District Court
judgment terminating respondent's maintenance and insurance
obligations       under       a        marital    and     property       settlement
agreement, which was incorporated by reference into the 1973
dissolution decree.           The issue is whether the District Court
erred    as    a matter       of       law   in modifying maintenance            and
insurance terms under the agreement and decree.                          We affirm
the judgment of the district court in part and remand for
further proceedings.
     Appellant contends that the district court lacked the
power to modify the maintenance and insurance terms because
they were an integral part of an agreement negotiated by the
parties'       counsel    and          signed    by     the   parties.      It    is
appellant's position that such terms are not modifiable under
section 40-4-208(2) (b), MCA, but can be altered only by
consent of the parties, pursuant to subsection (3) (a) of the
same statute.         As support for this position, appellant relies
on a line of cases following Washington v. Washington (1973),
162 Mont. 349, 512 P.2d 1300.
        In Washington, this Court held that alimony payments
were not subject to modification because they constituted an
integral       part      of       an     agreement        fully     supported    by
consideration.          Labels such as "alimony" or "maintenance"
were found to be inconclusive indicators of the parties'
intent under a marital and property settlement agreement.
Factors       which    proved      to     be     determinative      included     the
recitation in the agreement that the wife had given up rights
to   future      support,         relinquished         her    interests    in    the
husband's separate property, and agreed to be responsible for
all her future obligations and a portion of her husband's
existing      obligations         in     return       for monthly    payments     of
$750.00    until her death, irrespective of remarriage.                         We
concluded in Washington that the support provision could not
be severed from the agreement and modified without destroying
the parties' contract.
     Shortly thereafter, this Court had another opportunity
to review a marital and property settlement agreement in
light of a maintenance modification petition.                     In Movius v.
Movius    (1974), 163 Mont.              463, 517 P.2d     884, we held that
modification          of    maintenance     was   permissible       because    the
maintenance       and        property     division   provisions       were     not
interrelated.              Unlike Washington, the agreement in Movius
provided        that        the    wife's    maintenance      payments        were
automatically         terminated         upon her marriage and            that the
wife's receipt of maintenance was not conditioned upon her
relinquishment of a more favorable property division or an
assumption of pre-existing indebtedness.                    We concluded that
absent mutual interdependence of provisions pertaining to
alimony and property division, a maintenance award is subject
to modification by a court on a proper showing of changed
circumstances.
     The Shultz property settlement agreement was executed on
August     6,    1973        and   was    incorporated     into     the    court's
dissolution decree that same date.                The Uniform Marriage and
Divorce Act (UMDA) was ena.cted in 1975.                 Both Washington and
Movius were decided before Montana adopted the UMDA.                        Unlike
Washington and Movius, the Shultz case placed the district
court     in    the    peculiar      situation of     interpreting a          1973
agreement under uniform               law enacted     in    1975.         For this
reason, a comparison of the current and former divorce law
pertaining to maintenance may be helpful.
     Under both the old and new law, parties can agree to a
support provision in their separation agreement.                     In pre-UMDA
cases where the parties did not so agree, the court could
award support only if the divorce was granted "for an offense
of     the    husband."         Section    21-139,          R.C.M.     1947.     This
condition having been met, the court had discretion to award
"such suitable allowance to the wife for her support during
her life or for a shorter period, as the court may deem just,
having       regard     to      the    circumstances            of     the     parties
respectively."            Section      21-139,        R.C.M.         1947.     Absent
agreement of the parties, an award for support was thus
dependent upon the court's determination of fault and what
was just under the circumstances.                    The court had discretion
to withhold allowance of support if the wife had a "separate
estate       sufficient to give her proper                   support."         Section
21-141, R.C.M.        1947.     The court's discretion was not limited
by any statutory definition of proper support.
       The standard for a court decree of maintenance under the
UMDA is slightly different.              The parties may still agree upon
a support provision in their separation agreement.                           However,
absent such provision, the court may order support only if
the spouse seeking maintenance "(a) lacks sufficient property
to provide for his reasonable needs; and                        (b) is unable to
support       himself     through     appropriate        employment          . . .".
Section 40-4-203 (1), MCA.            Whereas support under the old law
was determined on the basis of fault and what the court
deemed just and proper, support under the UMDA is dependent
upon a showing of need.
       The     standard       for   modifying        maintenance        awa.rds also
differs.      Under UMDA, the court may modify its support decree
only     " (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."
Section      40-4-208 (2) (b), MCA.             The unconscionability            test
presents a stricter standard for modification than the broad
discretion formerly afforded district courts.
          Former law gave the trial court power to modify its
orders "from time to time," but specified that support must
terminate upon the wife's remarriage.                    Section 21-139, R.C.M.
1947.        Unless otherwise expressly agreed by the parties,
support terminates under present law upon the death of either
party or the remarriage of the party receiving maintenance.
Section 40-4-208 (4), MCA.              The parties can preclude or limit
modification of maintenance terms set forth in the decree if
their separation agreement so provides.                      Section 40-4-201(6),
MCA   .     No     such    option      to   extend      support payments          past
remarriage existed             under      former      law.     Thus, a pre-1975
provision        for      "support"       after       remarriage       was     stronger
evidence that the parties intended to create a contractual
obligation, than such a provision would be under post-UMDA
law.        In both instances provision for "maintenance" after
remarriage is a factor in determining whether the parties
intended      to      create    a modifiable           support provision          or   a
non-modifiable contractual obligation.
          Provisions       must      be      interpreted           in        historical
perspective.              In   Washington,        a    pre-UMDA     case, monthly
payments were to continue irrespective of remarriage.                                  In
Movius, another pre-UMDA case, payments were automatically
terminated upon the wife's remarriage.                           The    1973 Shultz
agreement did not specify when the monthly payments would
terminate. Neither the decree nor the separation agreement
precluded        or    limited      the     court's      power     to    modify    the
"support" provision.
          The marital and property settlement agreement executed
by    the Shultzes upon termination of                       their eighteen year
marriage      contained thirteen            separate provisions regarding
child custody, tax exemptions, special education expenses,
existing        indebtedness,       moving    costs,        attorneys'      fees,
property      distribution, support for the              children and         for
appellant, medical and hospital care, and life insurance.                      By
the terms of the latter three provisions, respondent agreed
(1) to pay to appellant "the sum of $450.00 per month as and
for alimony for her care, support and maintenance," such
amount     to    be    increased     by   ten    percent       on    the    fifth
anniversary of         the agreement;        (2) to    provide       sufficient
medical and hospital insurance coverage for appellant until
she remarried or until              further court order; and               (3) to

provide life insurance with appellant named as owner and
beneficiary.
        It is not evident from the face of the agreement that
the     maintenance      and    medical      insurance       provisions      were
dependent upon or related to the property division or other
sections of the agreement.            The agreement specifies that the
monthly    payments were          to provide    for appellant's            "care,
support and maintenance."            The parties recognized the court's
power    to     retain   jurisdiction and        to modify          the medical
insurance term.         The medical and hospital insurance provision
specifically       refers      to    continuation      of     benefits      until
appellant's remarriage or "further order of the Court."
        The life insurance provision differs from the medical
and     hospital      insurance     provision   in    two     respects.        No
contingency for termination or modification by the court is
specified in the life insurance provision.                     Secondly, the
wife was to be named as the owner as well as the beneficiary
of the life insurance policy.
        The fact that Mrs. Shultz was to be the policy owner is
significant.          Pursuant to the 1973 dissolution decree, she
was to enjoy not only equitable rights to future proceeds as
the policy's named beneficiary, but also vested ownership
rights in the policy.           Had Mrs. Shultz been named as the
policy owner as directed by the 1 9 7 3 decree, it is likely
that the company would have given her the option to maintain
the policy by paying the premiums herself once the court
modified the husband's obligation to pay premiums.                     During
oral argument before this Court, counsel indicated that the
policy was still in force and that the partiest children had
been named beneficiaries.        There is no other evidence in the
record explaining what happened to the policy.                  When asked at
the   1 9 8 1 modification   hearing whether the life insurance
policy was still in effect and whether she had received any
notifications      or   correspondence         about      it,   Mrs.   Shultz
answered, "Never, no.        I don't know anything about that."
There is no other evidence pertaining to the life insurance
policy.      Evidently the district court's modification order
not   only   relieved Mr.       Shultz    of    his    obligation to pay
insurance premiums, it also divested Mrs.                   Shultz of her
property rights in the policy.
      Because of (1) the lack of evidence regarding management
of the policy, (2) the fact that no purpose for the life
insurance     provision   was    stated        in   the    1973    separation
agreement, ( 3 ) the absence of a finding of fact stating that
purpose, and (4) the absence of a conclusion of law that the
life insurance provision was             severable from the property
settlement contract, we hold that the husband's obligation to
maintain a life insurance policy, naming his wife as owner
and beneficiary, was improperly terminated.
      We reverse as to that part of the district court's
judgment and remand for such further proceedings as are
necessary     to   determine the ownership and              status of     the
policy, the extent to which the life insurance provision is
severable from the settlement agreement, and a determination
consistent with this decision.
      Regarding          the        maintenance            and   medical      insurance
provisions, the undisputed testimony at the hearing was that
appellant was           unemployed          in    1973 and       unable to     support
herself.       Though      she had           a teaching degree, she lacked
current certification and was, therefore, unable to seek
employment in her field.                    Both parties stated that it was
their      understanding            that    the    maintenance         provision   was
intended to address appellant's basic living expenses.
      Since       the    dissolution,             appellant      has    received   her
teaching certification and has been employed in the Minnesota
school     system       since       1976.         As   a    teacher, appellant is
provided with medical and dental insurance, although the
coverage     arguably          is    not     as    extensive      as    the   policies
maintained by respondent.                   Appellant also has held a job in
private     business.           During the             four years preceding        the
modification hearing, the combined total of her adjusted
gross income, excluding maintenance payments, increased from
$17,000 to $30,000.
     While appellant testified that she accepted maintenance
in   lieu    of    pursuing          any    interests        she could assert to
respondent's business properties, respondent testified that
the maintenance and property division provisions were not
reciprocal.
     We find substantial credible evidence in the record to
support the district court's conclusion that the maintenance
and medical insurance provisions are not integral to the
parties' property settlement agreement and are, therefore,
subject to modification upon a proper showing.                          The treatment
by   the    district      court        of    the new modification             statute,
section 40-4-208, MCA, in its findings of fact, conclusions
of law and order was excellent.
     We    affirm and ratify the severability principles of
Washington, but we distinguish the terms of this agreement.
Absent     a   clear   and   undisputed    interrelationship between
property       distribution      and      "maintenance"   provisions,
modification is permissible upon a proper showing of changed
circumstances and unconscionability.
     We remand for further proceedings with regard to the
life insurance policy and with that exception affirm the




We concur:                        h




 k\ n      ~       ~    bA
                         &   d lcMvL -
