                                                  No.    81-122

                      I N THE SUPREME COURT O F THE S T A T E O F MONTANA

                                                         1982




I N RE THE MARRIAGE OF

GERALD E.        ROWEW,

                        P e t i t i o n e r and R e s p o n d e n t ,

            -vs-

MARY HELEN ROWEN,

                        R e s p o n d e n t and A p p e l l a n t .




Appeai from:           D i s t r i c t C o u r t of t h e S i x t e e n t h 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 C o u n t y of R o s e b u d , T h e H o n o r a b l e
                       A l f r e d B. C o a t e , Judge p r e s i d i n g .


C o u n s e l of R e c o r d :

          For A p p e l l a n t :

                        Holmstrom,         D u n a w a y & West, ~ i l l i n g s ,M o n t a n a


          For R e s p o n d e n t :

                        Berger,       Sinclair        & Nelson,         Billings,      Montana




                                                  S u b m i t t e d on B r i e f s :   May 6,      1982

                                                                        Decided:       ~ u g u s t11, 1 9 8 2
Mr. Justice John C. Sheehy delivered the Opinion of the
Court.

    Mary Rowen appeals from an amended judgment entered by
the Rosebud County District Court, Sixteenth Judicial District,
denying her motion to hold her former husband Dr. Gerald E.
Rowen in contempt for failing to make maintenance payments
to her as provided in the decree, and for a modification of
her maintenance payments up to a monthly sum of $1,250.
     Instead, the District Court ordered the husband to pay
the wife arrearages totaling $2,229 and one-half of her
attorney fees in the sum of $625.
     The 30 year marriage of the parties was dissolved on
September 7, 1976, upon the petition of the husband, who
appeared in the action with counsel.   Wife did not contest
the dissolution action.   The District Court incorporated in
its decree a separation and property settlement agreement
that had been executed between the parties on August 11,
1976. The record does not show the wife was then represented
by counsel.
     On September 2 3 , 1980, wife filed her motion in the
District Court for a show cause order commanding husband to
appear and show cause why he should not be held in contempt
for his failure to pay delinquent maintenance monies to her,
for reasonable attorney fees, and for a modification of the
maintenance award contained in the decree to $1,250 per
month for her support.    Hearing was had on her motion,
findings and conclusions were submitted by both parties,
and on November 14, 1980, the District Court entered its
findings of fact and conclusions of law.   Her motion for
contempt was denied, as was her motion to increase the
monthly maintenance award to her, the District Court finding
that there was no showing of changed circumstances so substantial
and continuous as to make the terms of the property settle-
ment agreement unconscionable.     However, the District Court
did determine that by interpreting the property settlement
agreement, that the husband was in arrears on maintenance
payments to the wife in the total sum of $2,229 and that
husband should pay $625 to the wife toward her attorney fees
and costs.    It is from this order, as amended on January 19,
1981, that wife appeals.
     The center of controversy is the following paragraph in
the property settlement agreement between the parties which
is incorporated in the decree of dissolution and which
provides for a monthly maintenance award to the wife:
     "To pay to the Wife as alimony the sum of $750.00
     per month commencing on September 1, 1976, and
     continuing each and every month thereafter, subject
     to the following contingencies: (1) This amount
     of $750 per month is based upon 13 percent of the
     Husband's taxable income and if said income should
     rise or fall then the $750 shall be adjusted to
     provide that the Wife shall receive 13 percent of
     the Husband's taxable income each calendar year.
     In this regard, the Husband will agree to make any
     tax returns or other business records available
     to the Wife. The alimony payable hereunder shall
     be adjusted on May 1 of each year, based on the
     previous calendar year's taxable income." (Emphasis
     added. )
     The District Court found that the term "taxable income"
has a definition set forth in section 63 of the Internal
Revenue Code (26 U.S.C.A.   §   63).   It further found that
deductions permitted under the code are (1) expenses, (2)
alimony, (3) exemptions, (4) Keogh plan, and (5) zero bracket
deductions.
     However, the District Court determined that the husband
should not be permitted to deduct alimony in determining his
taxable income as that would create a "double deduction";
and also that the exemptions claimed by the husband should
not be allowed as "that would give the doctor an opportunity
to unilaterally reduce his alimony payments to an uncon-
scionable figure."
    Based upon its interpretation of the term "taxable
income" foregoing, the District Court recomputed the amounts
that the husband should have paid to the wife and determined
an arrearage in the total of $2,229.
     The attorney who represented the husband (there is an
indication in the transcript that he may have represented
both parties in the original divorce action, but that does
not otherwise appear in the court record) testified that in
drawing up the property settlement agreement and providing
for the monthly maintenance award to the wife he had used
the figure of $69,623 as the taxable income of the husband
for 1975 to determine a monthly payment of $750 per month
based upon 13 percent of the husband's taxable income.   The
figure of $69,623 had been given to the attorney either by
the husband or the husband's accountant. The attorney also
testified that there was discussion in his office between
the parties as to what the income from the medical profession
would be, and that the husband had concern that the income
could fall or rise and accordingly the monthly maintenance
should be adjusted.   The attorney also testified that in
determining the taxable income, he would not have deducted
the alimony payments, although the Internal Revenue Code
section provides that alimony is a deduction in determining
taxable income for income tax purposes.
     In truth, in the year 1975, immediately preceding the
marital dissolution, the gross income rather than the taxable
income of the husband had been $69,623.
     In the years following the marital dissolution, the
husband made monthly payments to the wife based upon his
taxable income as shown in his income tax returns.     The
following table taken from his income tax returns will
indicate the gross income, deductions, taxable income,annual
maintenance and monthly maintenance paid to the wife using
the taxable income figures:


Gross Income    $79,118      $75,912   $68,231    $80,494   $69,623
Deductions       27,459       25,504    24,696     22,519    19,030
Taxable Income 51,659         50,408    43,535     57,975    50,593
Annual Mainten-
  ance (13%)      6,716        6,553     5,660     7,537       6,577
Monthly Mainten-
  ance ;( 12)       560          546        472      628         549

        The husband paid wife $750 per month until the adjust-
ment occurred in the year 1977.    Thus, the monthly maintenance
to wife dropped from $750 to $628 on May 1, 1977; decreased
to $472 per month on May 1, 1978; increased to $546 per
month on May 1, 1979; and increased to $559.64 on May 1,
1980.
        The District Court further found that wife was capable
of earning $5,200 annually over and above the maintenance

she was receiving from the petitioner and that the husband
had not had an increase in his income sufficient to meet the
requested amount of increase by the wife.
        On appeal, the wife contends that the District Court
erred (1) in not interpreting the term "taxable income" to
mean "total income" of husband; (2) in its determination of
the amount of arrearages due wife; and, (3) in failing to
adopt the findings and conclusions submitted by wife which
would have held the maintenance award provision in the
decree to be unconscionable and permitted modification.
        The property settlement, incorporated in the decree,
provides that the maintenance payments shall terminate upon
the remarriage of wife.    This language shows clearly that

the payments are for support and maintenance.     See Bertagnolli
                                ,
v. Bertagnolli (1979), - Mont. - 604 P.2d 299, 36
St.Rep. 2250.      The separation agreement does not expressly
preclude or limit modification of its maintenance terms.
The District Court therefore has power to modify such provisions
by modifying the decree.    Section 40-4-201(6), MCA.   The

District Court may modify maintenance provisions in a decree
upon a showing of changed circumstances so substantial and
continuing as to make the terms unconscionable.     Section 40-
4-208 (2) (b)(i), MCA.
     The District Court chose not to modify the maintenance
provision.   It chose instead to interpret the term "taxable
income", so as to exclude alimony and personal exemptions as
deductions in determining taxable income.    There is support
in the record for the exclusion of alimony based upon the
attorney's intention (not the parties') that alimony should
not be a deduction in determining income for purposes of
maintenance between the parties.    There is no support in the
record for a determination that personal exemptions were not
to be deducted in determining taxable income.     Undoubtedly
the District Court felt that interpreting "taxable income"
in strict accordance with the Internal Revenue Code definition
would be unconscionable as far as the wife was concerned and
attempted to ameliorate that unconscionability.
     We determine that the maintenance provision in the
decree, incorporated from the separation agreement, is
indeed unconscionable as to the wife, and that the facts in
the case as a matter of law show changed circumstances so
substantial and continuing as to make the maintenance provision
unconscionable.     In support thereof, we cite these facts
from the record:
     At the time of the decree, when his gross income was
$69,623, husband agreed to pay wife the sum of $750 per
month.    In fact his taxable income at that time was $50,593.
The husband agreed therefore to pay 18 percent of his taxable
income in maintenance in the first year.    The husband made
payments of $750 per month until May 1, 1977.    At that time,
he calculated his taxable income for 1976 in the sum of
$57,975, and reduced his monthly payments to his wife to the
sum of $628.    In the ensuing years through 1979, husband's
gross income varied from 98 percent of $69,623 (his 1975
gross income) to 116 percent thereof.     In the same period of
years his $750 payments to his wife varied from 63 percent
to 75 percent thereof.    The tax returns of the husband for
the period 1976 through 1979 show items which make the
calculation of the maintenance award based upon taxable
income unconscionable both to the husband and the wife.    For
example, the husband sold a residence in that period for
which he received a capital gain, and that capital gain income
was included in the computation of taxable income which

meant a gain to the wife.    On the other hand, husband spent
$1,293 in 1978 attending professional meetings but $4,142 in
1979.    Each of these professional costs constitute deductions
in calculating the wife's maintenance.    Thus, husband has it
in his power by various charge-offs to his business and
other items substantially to reduce the monthly payments of
maintenance to his wife. We do not say that he has exercised
this power; the very existence of the power in the decree
makes it unconscionable as to the wife.
        These facts, incontrovertible from the record, constitute
as a matter of law changed circumstances so substantial and
continuing as to make the terms unconscionable.     See ~ronovich
v. Kronovich (1978),               ,
                            Mont. - 588 P.2d 510, 35 St.Rep.
1946; section 40-4-208,(2) (i), MCA.
                         (b)            The amount of
maintenance in this case is beyond the control of the wife
and within the control of the husband and for that reason the
District Court is empowered by section 40-4-208, MCA, to
reopen the judgment and modify the maintenance provision.
See In Re Marriage of Jorgensen (1979), - Mont.          , 590
P.2d 606, 36 St.Rep. 233.
     The judgment of the District Court as to contempt and
attorney fees in the prior District Court action is affirmed.
The determination of the District Court with respect to
arrearage and maintenance is reversed and the cause is

remanded with instructions to the District Court after
hearing to find and determine a proper sum for maintenance
to be paid by husband to the wife from and since the date of
her application for modification with credits thereon to be

accorded the husband for any amounts of maintenance paid in
that period.   The District Court shall further determine

such attorney fees as may be proper for the prosecution of
this appeal to be awarded to the wife, plus her costs in
this Court, and any other further relief meet in the cause,
including additional attorney fees and costs in any retrial
of the maintenance issue.




                                   I
                                        Justice           /
We Concur:
