                             NO.     94-530
           IN THE SUPREME COURT OF THE STATE OF MONTANA
                                    1995


IN RE THE MARRIAGE OF
CHARLES HENRY EICKMEYER,
           Petitioner and Respondent,
     and
ARLENE GRACE EICKMEYER,
           Respondent and Appellant.




APPEAL FROM:    District Court of the First Judicial District,
                In and for the County of Broadwater,
                The Honorable Dorothy McCarter, Judge presiding.


COUNSEL OF RECORD:
           For Appellant:
                R. J. "Jim" Sewell,        Jr., Smith Law Firm,
                Helena, Montana
           For Respondent:
                Thomas S. Winsor,     Attorney at Law,
                Helena, Montana



                                   Submitted on Briefs:     March 30, 1995
                                                 Decided:   May 23, 1995
Filed:                                             -cd
Justice Karla M. Gray deli&red the Opinion of the Court.


      Arlene Eickmeyer (Arlene) appeals from an order of the First

Judicial         District     Court,      Broadwater        County,     granting Charles

Eickmeyer's         motion      to      dismiss       her    petition     for     increased

maintenance.         We affirm, holding that the District Court did not

err   in concluding that § 40-4-208(2) (a),                       MCA,     bars Arlene's

petition.

      The facts           necessary to our resolution of this case are

undisputed.        The marriage of Charles Eickmeyer (Charles) and Arlene

was dissolved in 1987. The dissolution decree incorporated Charles

and   Arlene's          marital      settlement       agreement       which     stated, in

pertinent         part,      that      "[nleither      of    us   seeks    an    award    of

maintenance."
      Arlene filed a Petition for Increased Maintenance in 1994.

She alleged that a change of circumstances had occurred since the
dissolution "which is so substantial as to be unconscionable."

She requested monthly maintenance in the amount of $750 and

attorney's fees incurred in bringing the petition.                            Charles   moved

to dismiss the petition,                arguing that it was barred by § 40-4-

208(2)    (a),   MCA.       The District Court granted the motion to dismiss

and Arlene appeals.


      Did the District Court err in concluding that Arlene's
      petition was barred by § 40-4-208(2)(a), MCA?

         Post-dissolution maintenance proceedings are governed by § 40-

4-208,     MCA, which provides in pertinent part:
                                                  2
       Whenever the decree proposed for modification does not
       contain provisions relating to maintenance or support,
       modification under subsection (1) may only be made within
       2 years of the date of the decree.

Section 40-4-208(2) (a), MCA. The District Court concluded that the

statement       "[nleither   of   us   seeks an   award of maintenance,"
incorporated into the decree from Charles and Arlene's marital

settlement      agreement, did not constitute a "provision relating to

maintenance" under 5 40-4-208(2) (a), MCA.         Thus,   according to the
court,      Arlene's petition for maintenance was barred because it was

not brought within two years of the decree.

         The interpretation and application of a statute are matters of

law.      Matter of E-Z Supply (Mont. 1994), 883 P.2d 833, 835, 51

St.Rep.      1029.   We review a district court's conclusions of law to
determine if they are correct.          In re Marriage of Barnard       (1994),

264 Mont. 103, 106, 870 P.Zd 91, 93.

         The function of courts in interpreting statutes is to

effectuate the intent of the legislature.          E-Z SUPPLY,    883   P.2d at
835 (citations omitted).          "Our primary tool for ascertaining the

legislature's intent is the plain meaning of the words used." E-Z

S!iG%?LY,    883 P.2d at 835; quoting Sagan v.       Prudential     Insurance

Company of America (1993), 259 Mont. 506, 509, 857 P.2d 719, 722.

"If the legislature's         intent can be determined from the plain

meaning of the words used in the statute, we will go no further."

E-Z Supply, 883 P.2d at 835; quoting State ex rel. Neuhausen v.

Nachtsheim (1992), 253 Mont. 296, 299, 833         P.2d 201, 204.

         The dispute    in this case centers on the meaning of the

"provisions relating to maintenance" language in 5 40-4-208(2) (a),

                                        3
MCA.     The ordinary and plain understanding of the word "provision"
is "to provide" something.                   Indeed,     this    common   understanding is
reflected in the dictionary definition of "provision" as "the act

of      supplying            .    ;     something      provided."        American     Heritage

Dictionary 1459 (3rd ed. 1992).                       Thus, a "provision       relating    to
maintenance"             under the statute is             an    affirmative    and action-

oriented undertaking; it is a present undertaking or action of

providing          maintenance          for a    SpOUSe   ,     providing     other    assets

specifically in lieu of maintenance, or providing for the payment
or seeking of             maintenance   in the future upon the occurrence of a

specified event.

        The       language "neither of us seeks an award of maintenance"

does not constitute a                   "provision     relating     to    maintenance"    when

compared to the plain meaning of "provision."                             The language does

not provide maintenance for a party in any form, or even provide

for maintenance as a future possibility. The mere inclusion of the

word "maintenance" in a decree via incorporation, such as occurred

in     this       case,     does not        constitute         a provision relating to

maintenance under § 40-4-208(2) (a), MCA.

        Arlene relies on Marriage of Cooper (1985), 216 Mont. 34, 699

P.2d 1044, and Marriage of Rush (1985), 215 Mont. 498, 699 P.2d 65,

in     arguing        that       the    language in her           agreement     and decree

constitutes          a    provision       relating to maintenance under 5 40-4-

208(2)     (a),   MCA.       Both cases are inapposite here.

         In Cooper, we addressed an issue entirely different from the

issue presently before us.                   There,     the issue was which decree or


                                                 4
order    constituted    the   "d@cree proposed for modification"            for
purposes of applying § 40-4-208(2) (a), MCA.          Cooper,   699 P.Zd at
1045.     In addressing that issue,         we observed that the original
dissolution decree contained a provision relating to maintenance

requiring Mr. Cooper to pay $4,200 in seven equal installments of

$600 to his former wife, and permitting the former wife to petition

for maintenance on the completion of those payments.            Cooper, 699
P.2d at 1045.      We did not define or interpret the "provision

relating to maintenance" language in 5 40-4-208(2) (a), MCA.              Thus,
CooDer is inapplicable here and nothing therein supports Arlene's

argument.

        In Rush
           -I     the former wife petitioned to modify a 1975

dissolution decree regarding maintenance more than two years after

entry of the decree.       Rush
                           -!     699 P.2d at 66.     The decree contained
maintenance provisions requiring payment of $400 per month until

the payments reached a total of $24,000; all required maintenance
payments had been made.           The   district   court   entertained,     but
denied, the former wife's petition to modify.          The issue on appeal

was whether the court erred in determining that the former wife had

not satisfied the requirements of 5 40-4-208(b), MCA.             RushI
                                                                  -         699

P.2d at 66-67.

        Prior to addressing that issue, we determined the fact that
the maintenance required by the decree             had been paid did not

preclude an additional maintenance award as a matter of law. Rush,

699 P.2d at 66.        In doing so, we did not specifically address the
"provisions relating to maintenance" language in § 40-4-208(2) (a),


                                        5
MCA.     Thus,     nothing   in Rush supports Arlene's   argument   here.
Indeed, any analogy which could be drawn to Rush would support our

statutory     interpretation     in this case since it is   clear that,
there,   the original decree contained provisions for the payment of

maintenance.       RushI
                   -       699 P.2d at 66.
       We conclude that the dissolution decree incorporating the

parties'    marital settlement agreement did not contain a provision

relating to maintenance. We hold, therefore, that the District

Court did not err in concluding that 5 40-4-208(2) (a), MCA, bars

Arlene's petition and in granting Charles' motion to dismiss.

       Affirmed.




           Chief Justice




                                       6
