                                            NO.     96-029
                     IN THE SUPREMECOURT OF THE STATE OF MONTANA
                                                  1996


BARBARA0. KING,
                    Petitioner      and Respondent,
         “.


TRUDY KING, Personal Representative    of the
Estate of HUGH G. KING, BUD KING CONSTRUCTION
COMPANY, a Montana Corporation,    KING MOUNTAIN
ROCK,         a Colorado     Corporation,         KING   LOGGING,
a Montana Corporation, and SUNRISE SILVER
MINES, INC., a Montana Corporation,
                    Respondents       and Appellants.




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


COUNSEL OF RECORD:
                    For Appellants:
                           David B. Cotner,  Cynthia K. Staley;
                           Boone, Karlberg  & Haddon, Missoula,                  Montana
                    For Respondent:
                           Sherman V. Lohn; Garlington,               Lohn & Robinson,
                           Missoula, Montana


                                                    Submitted       on Briefs:      May 2, 1996
                                                                      Decided:      May 29, 1996
Filed:
Justice         W. William                Leaphart          delivered            the Opinion             of the Court.
          Trudy            King,     Personal          Representative                of the Estate                   of Hugh G.
King      (the Estate),                  appeals        from the opinion                 and order             of the Fourth
Judicial             District            Court,        Missoula          County,           denying            her      motion      to
modify         the         Estate's           monthly        maintenance             obligation.                     We affirm.
The following                    dispositive            issue      is raised            on appeal:
     Did the District                           Court err          in concluding   that the separation
agreement precludes                           modification           of the maintenance award?
         Hugh G. King                    (Hugh) and Barbara                0. King          (Barbara)           were married
in      1965 and their                    marriage           was dissolved                 in    1990.              The parties
entered             into         a separation            agreement              which      provided             that     Barbara
would         receive            $3,000        per month in maintenance                           for        five      years     and
$3,500 per month thereafter.                                  The maintenance                   obligation             continues
"for      the        duration            of     [Barbara's]            life"       and does not                 terminate          in
the event             of her remarriage.
         Hugh          died         in        July     of     1992,        and       his        daughter             Trudy       was
appointed             personal           representative                of his estate.               Before           his death,
Hugh began construction                              of a golf         course       near Frenchtown,                    Montana.
According             to the Estate,                  the golf         course       has been unprofitable                        and
has      become             a drain            on the         Estate's            resources             as     well       as     the
resources             of     the Bud King Construction                             Company.              Accordingly,             on
behalf        of the Estate,                   Trudy     filed      a motion            to substitute                the Estate
as      the     proper             party         to    the       dissolution               action            and     sought       to
terminate                  the      maintenance               obligation                based           on      "substantial
financial             problems"               and changed              circumstances.                   Barbara          filed      a
brief          in      opposition                asserting             that        under         the         terms       of      the
separation             agreement              the maintenance                  provision         was non-modifiable.
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Following            the     submission                 of additional             briefs           and oral           argument,
the    District            Court         concluded             that       the maintenance                   obligation            was
not modifiable,                   and,       on that           basis,       issued          its     opinion          and order
denying        the Estate's                  motion        to terminate                maintenance.              The Estate
appeals        from this            determination.
         In     reviewing                a     district               court's          conclusions              of       law       we
determine         whether           the court's                interpretation               of the law is correct.
Stratemeyer             v.        Lincoln               County        (Mont.      1996),           _         P.2d      ___t        53
St.Rep.         245,         246     (citing              Steer,         Inc.     v.        Department           of      Revenue
(1990),        245 Mont.            470,           474-75,          803 P.2d 601,             603-04).           The Estate
argues         that         the     District               Court         erred         in    concluding               that        the
separation             agreement              precluded              modification.                     In    addition,            the
Estate        asserts        that        the separation                  agreement           is ambiguous              and that
the parties            intended              for        the agreement            to be modifiable.                     Finally,
the Estate            asserts        that          if    the Court determines                     that       the separation
agreement         is non-modifiable                        then a mutual           mistake             has occurred.               We
are unpersuaded                   by each of the Estate's                          arguments.
         Barbara           asserts        that          the maintenance             obligation               is an integral
part     of the property                     division               and cannot         be modified              without           the
consent         of         the     parties.                    In     addition,             she        argues         that        the
separation            agreement              contains          a valid          and enforceable                modification
clause        which        requires           the written                mutual        consent          of both        parties.
The District               Court     agreed with                 Barbara        on both theories.                     The court
determined            that       the modification                    clause      requires          the written           mutual
consent         of     the        parties               and,        independently             of       the     modification
provision            of the agreement,                     a maintenance                requirement             which        is    an

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integral     part      of     the     property           distribution         cannot        be modified
without     the consent         of the parties.                 Since,    based on our case law,
we hold     that     a maintenance            provision          which    is an integral             part      of
the property        distribution             is not modifiable            without        the consent           of
the   parties,         we do          not      reach       the     question         of      the      correct
interpretation           of     the     modification             provision          of     the     parties'
agreement.
       In its      opinion      and order         the District            Court     noted        that:
      However, while the Court is deeply concerned with the
      current financial    difficulties       the Estate is experiencing
      as a result    of Mr. King's unfortunate        business decision,
      Mrs. King's monthly maintenance represents            her equitable
      interest    in the marital        assets as they existed     at the
      time of the 1990 dissolution          decree and, as such, she is
      as valid a creditor     against the Estate under the terms of
      the Agreement      as is any other          creditor.     [Emphasis
      added.]
The   District         Court        stated        that       although        Hugh's         decision           to
construct        a restaurant         and golf      course may have been an unfortunate
business     decision,         the decision         was exclusively               Hugh's     and that          it
is not unconscionable               to require           him,    and subsequently            his     estate,
to shoulder        any losses.              The District          Court    also     found        that:
               The     parties'       intent        that      lifetime          monthly
       maintenance and use of the Canyon Gate home represented
       Mrs.     King's      interests      in     the marital           property       is
       evidenced in the Recitals               .     . This intent          is further
       evidenced by the fact that the businesses were actually
       joined      as parties         to     the     dissolution          proceeding,
       reflecting      the nature of the businesses                   as integral      to
       the marital         estate,     and the further               fact     that   the
       property     division     provision      of the Agreement provided in
       relevant     part:
                        It    is    agreed    that     none   of      the
                 corporations               shall     be required       to
                 disburse    any assets.'  Said corporations      shall
                 remain intact     in,its  [sic]    present form with
                 its [sic] present officers,       present directors,
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                      and      shareholders.           Wife       releases   and
                      relinquishes      all   rights,      title,     claim, and
                      demand in any property          which belongs to these
                      corporations         . . . [Emphasis added.]
Thus,     it        is clear              that         the District                   Court held that                 the maintenance
provision             was,            in         fact,                a means             to    provide          Barbara           with        her
equitable             interest                   in        the marital                    assets       without         dissolving              the
various            corporate                   entities                owned or controlled                   by Hugh.
         When the parties                             label            a provision              in the separation                  agreement
as "maintenance,"                          this        Court             is not bound by that                    label.            Hopper v.
Hopper         (1979),               183 Mont.                    543,        550,        601 P.2d 29, 33.                    That      is,     if
the      maintenance                       award                 is      an      integral            part        of         the     property
distribution                and that                  was the intent                        of the parties             at the time              of
the     agreement,                   the         district                court            may find       that         the     maintenance
award         is     part            of        the         property              division            and cannot              be modified
without             the     consent                   of         the      parties.               Washington             v.        Washington
(1973),            162 Mont.                   349,        354,         512 P.2d 1300,                 1302-03.
         In Washinston,                          this            Court        considered             a maintenance                 provision
which     was to            continue                       for         nine    years           and did      not        terminate              upon
remarriage.                 The Court                  determined                    that      the support            provision           could
not      be        severed            from             the            property             settlement           agreement             without
destroying                the        contract.                         Washinaton,               512 P.2d         at        1302-03.            We
noted          that             in             consideration                         of        the      agreement,                the         wife
"relinquished                   all            claims             against            property          owned by the husband."
Washinston,               512 P.2d at 1303.
         Similarly,                       in      the            instant             case,       the     separation                agreement
between             the     parties                   specified                  that          the     maintenance                obligation
"shall             continue               for         the             duration            of     [Barbara's]            life."                 The
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agreement          also     provided          that:
          [Nlone of the corporations            . . . shall be required      to
         disburse     any assets.     Said corporations       shall remain in
         its   [sic] present form with its [sic] present officers,
         present directors,       and shareholders.        Wife releases    and
         relinquishes     all rights,    title,    claim, and demand in any
         property    which belongs to these corporations            . . . .
Thus,       our         analysis        in        Washinston                 is        applicable            here.            The
maintenance             provision       was intended                     to provide            the wife's          equitable
interest          in the marital             estate.
         In In re Marriage              of Robertson                      (1989),       237 Mont.           406,     773 P.2d
1213,      this         Court      stated         "it        is     clear         to    this        Court     that        wife's
monthly      payments were an inseverable                                   part       of a property            settlement
arrangement.                The obligation                        was undertaken                by     the      husband            in
exchange          for     the wife's          forbearance                   in     regard           to the property            of
the marital             estate."        Marriage              of Robertson,                 773 P.2d at 1216.                      In
the     instant           case,       based         on        the        separation                 agreement        and      the
arguments           presented,              the         District             Court         determined              that       the
maintenance             obligation          represented                  Barbara's         equitable           interest        in
the marital             assets.        As in Washinston                          and Marriacre              of Robertson,
the maintenance                 provision          was integral                   to the property               settlement
and,       absent         the      consent              of        the     parties,             is     not     modifiable.
Marriaqe          of Robertson,              773 P.2d at 1216;                         Washinston,            512 P.2d at
1302-03.
        Accordingly,               we determine                   that      the District               Court       correctly
denied      the Estate‘s             motion        to terminate                  the maintenance               obligation.
        Affirmed.




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We concur:




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