NO. 12658 

### INTHE SUPREME COURT OF THE STATE OF MONTANA 19 74

JOHN J

# .CLONTZ

## ,SR. 

## , Plaintiff and Respondent,
-VS

# - ELENA CLONTZ

## , ~efendant and Appellant.

Appeal from: District Court of theTwelfth Judicial District, Honorable ReDoMcPhillips, Judge presiding. Counsel of Record: For Appellant: Hoyt, Bottomly and Gabriel, Great Falls, Montana Richard V. Bottomly, argued, Great Falls, Montana For Respondent

### : Church, Harris, Johnson and Williams, Great Falls,

Montana Douglas C. Allen and Robert P. Groff, argued,

Great Falls, Montana

Submitted: November 15, 1974 Decided

### :

### FEB 14

## 1975 ~iled :

# FEE ! 4 

# !9FMr. Justice Gene B. Daly delivered the Opinion of the Court.
This 

### is an appeal from a judgment of the district court, Hill County. The judgment appealed amends a judgment entered by the
same court on October 16, 1973, which modified alimony provisions of
an original decree entered January 5, 1971. The original action was commenced inthe fallof 1970 by plaintiff husband who sought a divorce. He alleged mental cruelty
as

### grdsand requested a division of property. Defendant wife answered by a general denial and crossclaimed for separate maintenance and attorney fees. She too requested a division of property. 

### On January 5, 1971, the district court held that each partywas guilty of extreme mental cruelty and each was entitled toa divorce; but, since the husband was the only party who petitioned for divorce, he was granted the divorce. In the division of property, the husband was awarded the jointly owned farm and was required topay thewife forher interest in the land which was found tobe $19,350. She was paid $3,000 down and the remaining amount was tobe paid in 120 monthly installments with interest atthe rate of 6%per annum on the unpaid balance. She was alsogiven a lifeestate inthe mineral interest
on the farm land. The district court further vested title to a lot inFlathead County inthe husband. The court gave thewife her choice of household furniture; one half of the proceeds of the sale of certain Burlington Railway stock; a 1968Volkswagen; and, awarded her $125 per month alimony. The wife on January 15, 1971, petitioned for a modification of the decree seeking further relief as to the value of the property settlement. After furtherhearings, the court on March 3, 1971, modified the decree by raising the wife's interest in the farm land from $19,350 to $20,276.50. On February 28, 1973, thewife filedher petition formodification of the decree requesting an increase inalimony payment, division of property, and attorney fees alleging a change of circum-stances since the granting of the original decree. At the time the original action was filedthe parties had been married thirty-three years. Husband 

### is employed as a railroad engineer and earned $17,783 gross earnings in 1971; $19,200 gross earnings in 1972; $1,700 inJanuary 1973; and, $1,568 inFebruary 1973. When the first two months of 1973 are averaged for the balance of the year it would amount toa yearly income of approximately $19,600 for that year. The farm yielded 1,000bushels of wheatin 1973, but generally harvests 2,000 bushels a year. The husband has remarried. He and his wife are living on the farm. 

### Hispresent wife has a son and the husband 

### is helping put him through college. The wife, on the other hand, was never employed during the marriage of thirty-three years and has no skills for employment. Out of necessity she 

### ispresently livingwith her mother, receiving freerent and utilities,and 

### is sharing the cost of the monthly grocerieswith her mother. She claimed she lacked privacy and desired toget her own apartment but was unable to do sobecause the alimony payments she received were too low. She also had significant medical expenses and had paid her own medical insurance. After a hearing on the petition formodification the court on October 16, 1973, denied the change inproperty valuation, awarded thewife an increase of $35 per month inalimony and ordered the husband to pay $400 of the $1,200 attorney fees owed by thewife. In addition, the court ordered the husband to carry thewife on his medical and hospitalization insurance program, ifpermissible under his program. Both parties took exception to thenew order. In his petition to amend the amended decree new attorneys appeared for the husband. The wife challenged the new decree as awarding an insufficient amount of alimony to support herself. The husband challenged the increase inalimony asbeing unconstitutional since section 21-139, R.C.M. 1947, provides for alimony only for thewife and thereby discriminates against the husband which is inviolation of Art. 11,

### Sec. 

### 4of the 1972Montana Constitutionwhich prohibits discrimination on the basis of sex. He also challenges the award of attorney fees as being unconstitutional, since section 21-137,R.C.M. 1947, allows only the wife to recover attorney fees, it is in violation of the sameArt. 11, Sec. 

### 4of the 1972Montana Constitution. Finally, the husband challenges the original granting of alimony as being beyond the jurisdiction of the court since section 21-139, R.C.M. 1947,provides alimony can only be granted to a wife who has been granted a divorce for an offense of her husband and, since the husband in this casewas granted the divorce, the court could not award alimony. The district court on February 28, 1974,after a hearing on the petitions, found the increase in alimony and the award of attorney fees to the wife to be unconstitutional and therefore void. It found,however, that since the husband had failed to appeal from the award of alimony and has paid alimony to the wife since the original award in 1971, it would be against public policy to allow the husband, after the passage of this amount of time, to set aside the alimony award. These preceding facts depict the case it stands before this Court. Thewife and husband present three issues to be resolved by this Court: 1) Was the increase in alimony from $125 to $160 per month so insufficient as to constitute an abuse of discretionby the trial court? 2) Was the district court without jurisdiction to award alimony and later to increase the award of alimony, since the husband was granted the divorce and the divorcewas not granted to thewife for
an offense of the husband? 3) 

### Are sections 21-137and 21-139,R.C.M. 1947, unconstitutional under the 1972Montana Constitution which prohibits discrimination
on the basis of sex?Issue number 

### 3 willnot be decided by this Court as it 

### is improperly before the Court. Rule 38, M.R.App.Civ.P., states: "It shallbe the duty of counsel who challenges the constitutionalityof any Act of the Montana legislature in any suit or proceeding inthe supreme court towhich the state of Montana, or any agency thereof, or any officer or employee thereof, as such officer or employee, 

### isnot a party, upon the filingof the record togive immediate notice inwriting to the court of the existence of said question, specifying the section of the Code or the chapter of the session law tobe construed. The clerk shall thereupon certify such fact to the attorney general of the stateof Montana. II Here, Rule 38 was not followed resulting inno notice tothe attorney general. The attorney general must be given an opportunity under the circumstances set forth inRule 38, toappear indefense of a legislative actwhich 

### isbeing challenged on constitutional grounds. Issue number 2--whether the district court was without jurisdiction to award alimony and later toincrease that award of alimony since the divorce was not granted tothewife for an offense of the husband. Section 21-139, R.C.M. 1947, provides in pertinent part:"Where a divorce 

### isgranted for an offense of the husband, the court may compel him to

# **

# * make such suitable allowance to thewife forher support during her life, or for a shorter period, as the court may deemjust

# ***." The husband argues that since the divorce was granted tohim, the court was without jurisdiction toaward alimony and cites Grush


### v. Grush, 90 Mont. 381, 

### 3 P.2d 402. He acknowledges inhisbrief that the facts of Grush are distinguishable from the case here. The divorce in that casewas granted on the grounds of desertion, although the husband and wife were living together atthe time the divorce was initiated. The wife agreed not to challenge the divorce upon the agreement that he pay her alimony. The court ruled that ina divorce granted to the husband for an offense of thewife, alimony could not be awarded. The agreement was held collusive and against public policy. The court, however, held in effect that the husband was awarded the decree, accepted the benefits of 

### a divorce, and he is estopped from seeking relief from 

### itsburdens, agreed toby him inwriting.The instant case can be brought under the same exception. The husband took the benefit of the divorce and agreed topay alimony
as part of 

### a property settlement proposal. This proposal in the original action, was a proposed property settlement in the form of
a communication dated October 

### 8, 1970, from husband's counsel to wife's. This case can alsobe further distinguished from Grush in that the district court found in its finding of fact No. 

### IV and conclusion of lawNo. I that both partieswere guilty of extreme mental cruelty and both were entitled toa divorce. Therefore, had the wife requested
a divorce shewould have been granted one. She failed todo so; instead she filed for separate maintenance which was denied. According to the husband's interpretation of section 21-139, R.C.M. 1947, the only factor which prevents thewife from receiving alimony 

### is that she failed toask for 

### a divorce, but rather asked for separate maintenance. We find such interpretation much too harsh. Neither do
we feel that it properly reflects the intent of the legislature when it enacted the statute, particularly inview of the doctrine that where a divorce 

### is granted toboth husband and wife, this Court has allowed an award of alimony to thewife. Burns 

### v. Burns, 145 Mont. 

### 1, 

### 400 P.2d 642. The final issue for discussion, issue No. 

### 1, iswhether the district court abused 

### its discretion in

### itsaward of $160 per month alimony to thewife. She urges that $160 

### is an insufficient amount. After reviewing the facts, we find no abuse of discretion on the part of the district court. We considered allthe evidence concerning both parties; the amount of money thewife 

### isreceiving in payment forher share of the land; her royalty interest in the land; her alimony payments; the assumption by the husband of responsibility forher health insurance policy payments; and the finding of the district court that thewife was capable of some employment tohelp pay forher 

### own living costs.The judgment entered on February 

### 26, 1974 and appealed to this Court is reversed. The judgment entered by the trial court
on October 

### 16, 1973, 

### isreinstated in

### its entirety. Each party tobear his orher own costs on appeal.

Justice

We Concur:

Chief ~us'tice



# ................................ Justices.

### Mr. JusticeWesley Castles concurring in part and dissenting in part:
I concur in the result here;which, if 

### I can read reinstates the judgment of October 16, 1973. However, 

### Idissent as to the reasons given. Again, 

### Ihave to wonder if 

### Ireally understand the reasons. The majority first considers IssueNo. 3; that is, the district court's ruling that sections 21-137and 21-139,R.C.M. 1947, are unconstitutional. We refuse to rule on the issuebecause the attorney generalwas not notified. Aside from any view of the meaning of Rule 38 of this court'sAppellate Rules,what effect is our holding to have? We refuse to review the district court's holding of unconstitutionality---whichas applied here affirms the holding. Or, have we reversed the holding? 

### I just do not know,but my basis for dissenting is that I believe this Court should rule on the constitutionality of these statutes.