No. 13231 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1976 

DANNIE ENGLUND , 

Plaintiff and Respondent, 

-vs - 

CLINTON E. ENGLUND, 

Defendant and Appellant. 

Appeal from: District Court of the First Judicial District, 

Honorable Gordon R. Bennett, Judge presiding. 

Counsel of Record: 

For Appellant : 

Smith and Harper, Helena, Montana 

Charles A. Smith, 111 argued, Helena, Montana 

For Respondent : 

Thomas A. Dowling argued, County Attorney, Helena, 

Montana 

Submitted: March 1, 1976 

Decided: /h/\ti 2 $ 13/o 

I, ;*b Filed : ,. , ' 
Mr. Justice John Conway Harrison delivered the Opinion of the 

Court. 

This is an appeal from the district court, Lewis and 

Clark County. The action was instituted as a motion to vacate 

a portion of a judgment made and entered in a divorce proceeding 

some five years ago. The district court denied the motion and 

this appeal followed. 

After some thirty years of marriage the wife instituted 

proceedings for separate maintenance in 1969. The husband 

counterclaimed asking for a divorce. Following a hearing the 

district court granted the husband a divorce. The decree ordered 

a property division consisting of four installment lump sum payments of $2,500 each, over a two year period, by the husband to 

the wife, with corresponding real property conveyances from the 

wife to the husband. In addition, the court ordered the husband 

to pay $400 per month alimony. Immediately following the decree 

the wife filed a motion for a new trial alleging irregularities 

in the proceedings by the court, in that it did not rule on 

material facts pertaining to the assets of the parties. Hearing 

was had on the motion but the court took no action. No appeal 

was taken from the decree. 

Thereafter the husband sought enforcement of that portion 

of the decree directing the signing over of certain property to 

him and the district court found the wife in contempt and ordered 

her to execute certain deeds and documents to the husband. She 

complied and the husband made the $400 monthly payments until 

1975 when he moved to set aside the alimony award payments on the 

grounds they were void because the divorce was granted to him. 

The district court found the alimony award was void, but held the 

husband was estopped from denying its validity after relying upon 

the decree to compel the wife to transfer certain property to him. 

The husband appeals and raises these issues: 
1. The district court was without jurisdiction, 

power or authority to award alimony to the wife because the 

divorce was not granted to the wife for an offense of the 

husband. 

2. Section 21-139, R.C.M. 1947, the section governing 

the award of alimony only to the wife in divorce actions is 

unconstitutional under Article 11, Sections 4 and 17, 1972 

Montana Constitution; Article 111, Section 27 of the 1889 Montana 

Constitution; and the Fifth and Fourteenth Amendments of the 

United States Constitution. 

The trial judge in this case had difficulty in trying 

to under stand what had moved the trial judge in the original 

divorce action in terming the award to the wife as alimony. In 

a memorandum and order he noted: 

"There is no question that the provision of the 

decree (denominated 'Findings of Fact, Conclusions 

of Law and Judgment' and filed May 14, 1970) providing for alimony payments by the defendant, who 

was granted the divorce, was void ab initio, as 

such. It should be noted, however, that the court's 

order itself suggests that the payments required 

were not alimony, as described, but payments to be 

made as a part of a property settlement, not agreed 

upon between the parties. The first order of the 

court provides for four payments of $2,500.00 each 

'as a partial property settlement.' No reference 

is made to any other part of the 'property settlement', which suggests, inferentially, that the other 

part may be the payments that were denominated 

'alimony.' However, the third part of the order 

deepens the mystery by providing for modification 

of the 'alimony' upon proper showing. If the 

'alimony' were to be deemed a part of the 'property 

settlement' then modification would not be appropriate. 

We are, then, at a loss to determine just exactly 

what was intended by the court in regard to the 

payments the defendant now wishes to set aside. 

"Nor do I have any doubt that the payments made to 

date in compliance with the 'alimony' order do not 

and cannot constitute ratification of that order, 

if the order itself is void. It is well settled 

that a void order cannot be made effective by compliance. " 

However, the trial court goes on to hold that due to the 

fact appellant had successfully taken affirmative action to enforce 
the decree, he was estopped from challenging its validity. 

We agree. 

We do not agree that the order was void. 

- The court was in jurisdiction at the time it made 

its decree and what obviously was intended to be a part of the 

"property settlement" became mistakenly labeled "alimony". Here 

the wife who had worked for most of the marital years in the 

business office of appellant's plumbing business, helped in the 

accumulation of considerable property. She signed over those 

interests at a time after she incurred a serious physical nerve 

disease and could no longer be a productive part of the labor 

market. Her medical and drug expenses had become far more costly 

than those of a person of her age. We find the $400 payments to 

be a part of the "property settlement" and not walimony" as referred to by the district court. 

Appellant's second issue relates to the constitutionality 

of section 21-139, R.C.M. 1947. Having decided the alimony argument, it is unnecessary to discuss the constitutional issue, but 

we note the question was not raised in the district court and 

could not on appeal be argued before this Court. It is fundamental 

that on appeal this Court will consider for review only those 

issues raised before the trial court. Spencer v. Robertson, 151 

Mont. 507, 445 P.2d 48; State Highway Commission v. Milanovich, 

142 Mont. 410, 384 P.2d 752; Clark v. Worrall, 146 Mont. 374, 

The judgment is affirmed. 

L 

Justice 

/ \ 

We concur: \ 

Justi I 

sitting in place of Mr. Chief Justice