NO. 12658 

IN THE 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 the Twelfth Judicial District, 

Honorable Re Do McPhillips, 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 !9F 
Mr. 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 in the fall of 1970 by 

plaintiff husband who sought a divorce. He alleged mental cruelty 

as grds and 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 party was 

guilty of extreme mental cruelty and each was entitled to a 

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 to pay the wife for her interest 

in the land which was found to be $19,350. She was paid $3,000 

down and the remaining amount was to be paid in 120 monthly installments with interest at the rate of 6% per annum on the unpaid 

balance. She was also given a life estate in the mineral interest 

on the farm land. The district court further vested title to a 

lot in Flathead County in the husband. The court gave the wife her 

choice of household furniture; one half of the proceeds of the sale 

of certain Burlington Railway stock; a 1968 Volkswagen; 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 further hearings, 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, the wife filed her petition for modification of the decree requesting an increase in alimony 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 filed the 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 

in January 1973; and, $1,568 in February 1973. When the first 

two months of 1973 are averaged for the balance of the year it 

would amount to a yearly income of approximately $19,600 for that 

year. The farm yielded 1,000 bushels of wheat in 1973, but generally 

harvests 2,000 bushels a year. The husband has remarried. He 

and his wife are living on the farm. His present 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 is presently living with her mother, receiving 

free rent and utilities,and is sharing the cost of the monthly 

groceries with her mother. She claimed she lacked privacy and 

desired to get her own apartment but was unable to do so because 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 for modification the court on 

October 16, 1973, denied the change in property valuation, awarded 

the wife an increase of $35 per month in alimony and ordered the 

husband to pay $400 of the $1,200 attorney fees owed by the wife. 

In addition, the court ordered the husband to carry the wife on his 

medical and hospitalization insurance program, if permissible under 

his program. 

Both parties took exception to the new 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 in alimony as being unconstitutional since section 21-139, 

R.C.M. 1947, provides for alimony only for the wife and thereby 

discriminates against the husband which is in violation of Art. 11, 
Sec. 4 of the 1972 Montana Constitution which 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 same Art. 11, Sec. 4 of the 1972 Montana 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 case was 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. The wife 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 discretion by 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 divorce was not granted to the wife for 

an offense of the husband? 

3) Are sections 21-137 and 21-139, R.C.M. 1947, unconstitutional 

under the 1972 Montana Constitution which prohibits discrimination 

on the basis of sex? 
Issue number 3 will not be decided by this Court as it is 

improperly before the Court. Rule 38, M.R.App.Civ.P., states: 

"It shall be the duty of counsel who challenges the constitutionality of any Act of the Montana legislature in 

any suit or proceeding in the supreme court to which the 

state of Montana, or any agency thereof, or any officer 

or employee thereof, as such officer or employee, is not 

a party, upon the filing of the record to give immediate 

notice in writing to the court of the existence of said 

question, specifying the section of the Code or the 

chapter of the session law to be construed. The clerk 

shall thereupon certify such fact to the attorney general 

of the state of Montana. I I 

Here, Rule 38 was not followed resulting in no notice to the 

attorney general. The attorney general must be given an opportunity 

under the circumstances set forth in Rule 38, to appear in defense 

of a legislative act which is being challenged on constitutional 

grounds. 

Issue number 2--whether the district court was without 

jurisdiction to award alimony and later to increase that award of 

alimony since the divorce was not granted to the wife for an offense 

of the husband. Section 21-139, R.C.M. 1947, provides in pertinent 

part : 

"Where a divorce is granted for an offense of the 

husband, the court may compel him to * * * make 

such suitable allowance to the wife for her support 

during her life, or for a shorter period, as the court 

may deem just * * *." 

The husband argues that since the divorce was granted to him, 

the court was without jurisdiction to award alimony and cites Grush 

v. Grush, 90 Mont. 381, 3 P.2d 402. He acknowledges in his brief 

that the facts of Grush are distinguishable from the case here. 

The divorce in that case was granted on the grounds of desertion, 

although the husband and wife were living together at the 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 

in a divorce granted to the husband for an offense of the wife, 

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 its burdens, agreed to by 

him in writing. 
The instant case can be brought under the same exception. The 

husband took the benefit of the divorce and agreed to pay 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 also be further distinguished from Grush in that 

the district court found in its finding of fact No. IV and conclusion 

of law No. I that both parties were guilty of extreme mental cruelty 

and both were entitled to a divorce. Therefore, had the wife requested 

a divorce she would have been granted one. She failed to do 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 the wife from receiving alimony 

is that she failed to ask 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 in view of the doctrine that 

where a divorce is granted to both husband and wife, this Court 

has allowed an award of alimony to the wife. Burns v. Burns, 145 

Mont. 1, 400 P.2d 642. 

The final issue for discussion, issue No. 1, is whether the 

district court abused its discretion in its award of $160 per month 

alimony to the wife. 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 all the evidence concerning 

both parties; the amount of money the wife is receiving in payment 

for her share of the land; her royalty interest in the land; her 

alimony payments; the assumption by the husband of responsibility 

for her health insurance policy payments; and the finding of the 

district court that the wife was capable of some employment to help 

pay for her 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, is reinstated in its entirety. Each party 

to bear his or her own costs on appeal. 

Justice 

We Concur: 

Chief ~us'tice 

................................ Justices. 
Mr. Justice Wesley Castles concurring in part and dissenting 

in part: 

I concur in the result here; which, if I can read reinsta tes 

the judgment of October 16, 1973. 

However, I dissent as to the reasons given. Again, I have 

to wonder if I really understand the reasons. The majority first 

considers Issue No. 3; that is, the district court's ruling that 

sections 21-137 and 21-139, R.C.M. 1947, are unconstitutional. 

We refuse to rule on the issue because the attorney general was 

not notified. Aside from any view of the meaning of Rule 38 

of this court's Appellate Rules, what effect is our holding to 

have? We refuse to review the district court's holding of unconstitutionality---which as 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.