### 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 theFirst 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 tovacate
a portion of 

### a judgment made and entered in

### a divorce proceeding
some fiveyears ago. The district court denied themotion and this appeal followed. After some thirty years of marriage the wife instituted proceedings for separatemaintenance in 1969. The husband counterclaimed asking for a divorce. Following a hearing the districtcourt 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 tothe husband. In addition, the court ordered the husband topay $400 per month alimony. Immediately following the decree thewife filed a motion for 

### a new 

### trial alleging irregularities inthe proceedings by the court, inthat 

### it did not rule on material factspertaining tothe assets of the parties. Hearing
was had on themotion but the court took no action. No appeal
was taken from the decree. Thereafter the husband sought enforcement of thatportion of the decree directing the signing over of certain property to him and the districtcourt found the wife incontempt and ordered her toexecutecertaindeeds and documents tothe husband. She complied and the husband made the $400 monthly payments until 1975when he moved to set aside the alimony award payments on the grounds they were void because the divorce 

### was granted tohim. The districtcourt found the alimony award was void, but held the husband was estopped from denying 

### itsvalidity after relying upon the decree tocompel the wife to transfer certainproperty tohim. The husband appeals and raises these issues:

### 1. The district court was without jurisdiction, power or authority toaward 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 tothe wife indivorce actions 

### is unconstitutional under Article 11, Sections 4 and 17, 1972 Montana Constitution; Article 111, Section 27 of the 1889Montana Constitution; and the Fifth and FourteenthAmendments of the United StatesConstitution. The trialjudge inthis case had difficulty intrying tounder stand what had moved the 

### trial judge inthe original divorce action in terming the award tothe wife asalimony. In
a memorandum and order he noted: "There 

### isno 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, asdescribed, but payments tobe made 

### as a part of a property settlement, not agreed upon between the parties. The firstorder of the court provides for four payments of $2,500.00 each 

### 'as 

### a partial property settlement.' No reference ismade toany other part of the 'property 

### settlement', which suggests, inferentially, that the other partmay be thepayments that were denominated 'alimony.' However, the third part of the order deepens themystery by providing formodification of the 'alimony' upon proper showing. If the 'alimony' 

### were tobe deemed 

### a part of the 'property settlement' then modification would not be appropriate. We are, then, at

### a loss todetermine just exactly what was intended by the court inregard tothe payments the defendant now wishes to 

### set aside. "Nor do I have any doubt that thepayments made to date incompliance with the 'alimony' order do not and cannot constituteratificationof 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 tohold that due to the fact appellant had successfully taken affirmative action toenforce

### 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 itmade 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 considerableproperty. 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 $400payments 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 Commissionv. Milanovich, 142Mont. 410, 384 P.2d 752; Clark v. Worrall, 146Mont. 374,

The judgment is affirmed. L


### Justice 

# / \ 

### We concur: \



### Justi I


### sitting in place of Mr. Chief Justice