                                       No.    80-460

           I N THE SUPREME COURT O THE STATE O M N A A
                                  F           F OTN

                                             1981



MARY ELLEN HEINTZELMAN,

                                       P l a i n t i f f and Respondent,

           VS   .
E E Y HEINTZELMAN,
 MR

                                       Defendant and A p p e l l a n t .



Appeal from:         D i s t r i c t Court of t h e Eighth J u d i c i a l D i s t r i c t ,
                     I n and f o r t h e County o f Cascade.
                     Honorable H. W i l l i a m Coder, J u d g e p r e s i d i n g .

Counsel o f Record:

     For A p p e l l a n t :

           Randono and Donovan, G r e a t F a l l s , Montana
           Ralph Randono a r g u e d , G r e a t F a l l s , Montana

     For Respondent:

           Conner, B a i z and O l s o n , G r e a t F a l l s , Montana
           Thomas A. B a i z Jr. a r g u e d , G r e a t F a l l s , Montana



                                        Submitted:         J u n e 1 2 , 1981

                                             Decided:      J u l y 9, 1981
Filed:   JUL 9      - 1981

                             v               " Clerk
Mr. Chief Justice Frank I. Haswell delivered the Opinion
of the Court.
     Emery Heintzelman appeals from a judgment entered in
District Court, Cascade County, awarding his former wife
a one-fourth interest in his FELA settlement, past main-
tenance and permanent maintenance of $250 per month.   We
affirm in part and reverse in part.
     In June 1974, Mary Ellen Heintzelman filed a complaint
seeking a dissolution from appellant, Emery Heintzelman.
A decree was entered on December 11, 1974, but was later

set aside upon motion of Mary Ellen.   A final decree was
eventually entered on June 30, 1976, specifying that appel-
lant was to pay1'$250 per month as and for permanent alimony
[maintenance]."   The decree was silent as to the date the
marriage was terminated, so upon stipulation of the parties

it was later amended to relate back to December 11, 1974.
     In April 1976, prior to entry of the final dissolution
decree, Emery was injured while working for the Burlington
Northern Railroad; he stopped working in December 1976.
The injury left him permanently disabled, and, as a result,

he petitioned the District Court in February 1977 asking
that he be relieved of his obligation to pay maintenance.
Following a hearing on the petition, the decree was modi-
fied, eliminating the maintenance requirement.
     Mary Ellen filed a motion for a new trial on the ground

that Emery had not shown changed circumstances so as to make
the maintenance payments unconscionable.   In support of her
motion, Mary Ellen pointed out to the court that Emery had
an unsettled claim against Burlington Northern under the
Federal Employers' Liability Act (FELA).   That award, though
still speculative at the time of hearing, would compensate
Emery for past and future wage loss as well as for pain and
suffering.   The motion for a new trial was denied, and Mary
Ellen appealed to this Court.      Heintzelman v. Heintzelman

(1980)I - Mont .         ,   609 P.2d 295, 37 St.Rep. 653.   While
the appeal was pending, Emery reached settlement.      Thus, we
dismissed the appeal without prejudice and remanded the
cause to District Court for a determination of the amount
of Emery's FELA settlement and whether Mary Ellen was entitled

to any share of it.
     Upon remand, and after hearing, the District Court
concluded that Mary Ellen was entitled to a reinstatement
of the maintenance award, plus arrearages, and that she was
to receive one-fourth of the net FELA settlement obtained
by Emery.    From this order, Emery appeals, raising several

issues which we frame as follows:

     (1) Did the District Court have jurisdiction to award
any part of the FELA settlement to Mary Ellen?

     (2) Did the District Court err in awarding respondent
alimony in the amount of $250 per month?

     Emery Heintzelman contends initially that the District
Court lacked jurisdiction in 1980 to disturb the property
settlement that was entered in this case in 1976.      By
awarding Mary Ellen a portion of the FELA award--which was

not before the court in 1976--the district judge, in effect,
reopened the property settlement, contrary to the dictates of
section 40-4-208, MCA.       We agree that the district judge
was without jurisdiction to do this.

     Section 40--4-208,MCA, provides that a property settle-
ment may not be revoked or modified unless "the court finds
the existence of conditions that justify the reopening of a

judgment under the laws of this state.'      We note that Mary
Ellen did not petition the court to reopen the property
settlement for a consideration of the FELA award, nor did
the district judge make any findings of conditions requiring
relief from the judgment.    As a basis for modification, Mary
Ellen instead directs our attention to the opinion of this
Court, dated April 1980, in which we remanded this cause to the
District Court "for further proceedings to determine whether
the wife is entitled to any share of the [FELA] settlement
by the husband."                                   ,
                   Heintzelman, supra, - Mont. at - 6 0 9
P.2d at 297-298, 37 St.Rep. at 6 5 6 .
     This order was not a directive to the district judge or
the parties to relitigate the property settlement.    If the
opinion in Heintzelman, supra, is read in its entirety, it
is clear that we intended the District Court to consider the
FELA award only in relationship to the maintenance award.        In
fact, we noted in that opinion that the sole issue being con-
sidered by this Court in that appeal was the propriety of the
judge's order setting aside the maintenance award.    The issue
of the FELA award as an I t e ~ marital property was never
                              of

properly before the court.    Therefore, we vacate that portion

of the judgment ordering Emery to pay a portion of his FELA
settlement to Mary Ellen.
     We need not address the contention raised by Emery
Heintzelman that the FELA award is not marital property, but
rather is separate property and as such is not subject to
division.   1n.view of our finding that the District Court
lacked jurisdiction to reopen the property settlement, this
question is not before the Court at this time.
     Emery Heintzelman next argues that the district judge
abused his discretion in reinstating the $ 2 5 0 per month
maintenance award.    He contends that his injury is of such a
nature that he cannot work, and that i b is unconscionable to
                                      -
require him to pay maintenance.     Mary Ellen argued before the

District Court in 1978 and before this Court, that Emery
Heintzelman was not able to show "changed circumstances so

substantial and continuing as to make the [maintenance] terms
unconscionable."     Section 40-4-208, MCA.
        Permanent maintenance was awarded in June 1976, following
Emery's injury, but prior to his receipt of the FELA settle-
ment.     After Emery quit working in December 1976, he peti-
tioned the court for a vacation of the maintenance award.
The district judge entered an order Bn October 1978 eliminating

that award, finding changed circumstances in that Emery was
no longer able to work.     From that order, Mary Ellen appealed,
arguing that despite the fact that Emery could not work, his

financial circumstances had not changed drastically because of
his pending FELA award.     On appeal, we agreed that this award
could affect Emery's ability to pay and should be considered
by the district judge.     Heintzelman, supra,   - Mont.   at -I



609 P.2d at 297, 37 St.Rep. at 655.     For that reason, we
remanded the case for a consideration of the effect of the
FELA award.
        On remand, the district judge concluded that the "husband
has failed to make a showing of change of circumstances so

substantial and continuing as to make the terms of the alimony
award unconscionable."    We will not overturn that finding absent
a showing of abuse of discretion.    Our review of the record
convinces us that there was no such abuse here.

     Emery argues, as he did with respect to the property
settlement issue, that the District Court should not look at

the FELA award in considering his financial circumstances,
because the FELA settlement constitutes separate property.
He contends that property not reachable in a property divi-
sion is likewise not available indirectly through a main-
tenance award.   We disagree.   Whether his FELA award was
subject to division as marital property is not necessary to a
determination of the maintenance issue.       Rather, we find it
appropriate that the district judge considered the FELA award
in evaluating Emery's financial circumstances with respect to
paying maintenance.    We approved such a practice by the
district judge in Karr v. Karr (1981),         Mont .     , 628
P.2d 267, 38 St.Rep. 506, 511, and find it relevant here:
     "'While [the husband's] pension cannot be
     included in the marital property, or used as
     a set-off, it can be considered as a source
     of income in arriving at an equitable appor-
                                     -
     tionment required by the statute. iust as it
                                          2


     may be used in determining alimony or main-
     tenance .   .
                 . The federal law may hold our
     wrist from reaching into [the husband's]
     retirement salary, but it need not blind our
     eyes to the reality of the situation.'"
     (Emphasis added.)
See also sections 40-4-202 and 40-4-203, MCA.
     Based on the foregoing, we affirm the district judge's
order reinstating permanent maintenance, as of August 1980.
We vacate that ,portion of the judgment awarding arrearages
from February 1977 through July 1980.     The maintenance encom-
passed in that time period was vacated by order dated October
1978 because of circumstances existing at that time.       That
vacation order was not modified until the September 1980
order was entered, which reinstated maintenance, again on the

basis of circumstances existing at the time.       Thus Mary Ellen
is entitled to arrearages only for the period from July 1976
to February 1977, less credit for Emery's overpayment of child
support, and the payments obtained by Mary Ellen in executing
on Emery's accounts.     She is also entitled to $250 per month
permanent maintenance.
     This cause is remanded to the District Court for pro-
ceedings in conformity with this opinion.




                                     Chief Justice


We concur:
