*1
CLONTZ, SR., Plaintiff
JOHN J.
v. ELENA
Respondent,
Appellant.
CLONTZ, Defendant and
No. 12658.
Submitted Nov.
1974.
Decided Feb.
1975.
Hoyt, Gabriel, & Great Richard rBottomly appellant. Falls, for defendant and
Church, Harris, Williams, Douglas & C. Allen Johnson respond- argued, Falls, plaintiff and Robert Goff Great for P. ent. Opinion DALY
MR. delivered the Court. JUSTICE court, appeal judgment Hill an from a of the district This is appealed judgment County. judgment amends a entered The by 16,1973, which modified the same court October provisions January 5, 1971. of an decree entered by original action in the fall of 1970
The was commenced alleged plaintiff sought who a divorce. He mental cruelty grounds requested property. a division De- general by a denial and crossclaimed fendant wife answered requested separate for maintenance and fees. She too property. a division 5, 1971, party court January.
On the district held each cruelty guilty of extreme mental and each was entitled divorce; but, only party since the husband was the who to a petitioned for he was the divorce. property,
In division of the husband was awarded the jointly required pay the wife owned farm and was $19,350. interest in the land was found be paid paid $3,000 remaining to be down and the amount was monthly in 120 at the rate of installments with interest 6% per given life unpaid annum also a balance. She was estate in farm land. the mineral interest County in the court further vested title to a lot Flathead gave of household husband. the wife her choice Bur- furniture; proceeds of certain one half of the of the sale lington Railway stock; Volkswagen; a 1968 and awarded January 15, 1971, petitioned a modification
The wife on prop- seeking of the decree further relief as to the value erty hearings, on March After further the court settlement. raising wife’s interest modified the decree $19,350 $20,276.50. the farm land from February 28, 1973, petition for modifi- On the wife filed her *3 alimony payment, requesting an increase in cation of the decree change attorney alleging a of property, of and fees division original granting of the decree. circumstances since the parties had filed the At the time the action was years. thirty-three been married engineer and earned employed as a railroad Husband is 1972; gross earnings in earnings 1971; $19,200 $17,783 gross in February 1973. 1973; and, $1,568 in "When $1,700 January in averaged balance of 1973 for the months of are the first two approximately yearly income of year amount to a it would yielded 1,000 of wheat year. The farm bushels $19,600for that year. 2,000 bushels a The generally harvests in but living are on the and his wife remarried. He husband has helping husband present has a son and the is His wife farm. college. through put him hand, wife, employed during other was never on the thirty-three years marriage of and has no skills em- necessity presently living is Out of she with
ployment.
209 sharing mother, utilities, rent and free and claimed monthly groceries her mother. She cost of the with apartment but get her privacy she lacked and to own desired alimony payments to she received was unable do so because the expenses significant were too low. also had medical paid her own medical had insurance. hearing petition for the court
After a modification valuation, change property in October denied the alimony in awarded wife an increase of attorney $1,200 pay and ordered of the the husband to In court ordered hus- addition, fees owed the wife. carry hospitalization in- to on medical band the wife his program. program, permissible if under surance his peti- exception In parties the new order. his Both took to attorneys appeared new tion amend the amended decree challenged new as for the decree husband. wife support awarding her- an insufficient amount being challenged self. increase in as The husband R.C.M.1947,provides for 21-139, section unconstitutional since thereby alimony only against for the wife and discriminates Art. 1972 II, the husband which is violation Sec. prohibits Montana Constitution discrimination challenges fees of sex. also award basis He unconstitutional, 21-137, R.C.M.1947, being section as since attorney fees, it only violation allows the wife recover II, 1972 Montana Constitution. of the same Art. Sec. of the original granting ali- Finally, challenges the the husband jurisdiction mony beyond since being R.C.M.1947, only be 21-139, provides can section granted a divorce for an granted to a wife who has been and, case her husband since offense of *4 award granted court could not the the 28, February 1974, hearing The district court after a petitions, found increase and the award attorney the wife of fees to to be unconstitutional and there-
n ¡
fore void. found, however, It that since the had appeal failed to paid from the award of and has alimony to 1971, wife since the- award in it would against public be policy to husband, pas- allow the after the sage of this time, amount of to set aside award. preceding
These depict facts it case as stands before this Court. present The wife and husband three issues to be by resolved this Court:
1) Was the in alimony increase from to month so insufficient as to constitute an abuse discretion by the trial court?
2) theWas jurisdiction court without to award ali- mony and later to increase alimony, the award of since the husband was the divorce and the divorce granted, to the wife for an offense of the husband?
3) Are sections 21-137 21-139, R.C.M.1947, unconstitu- tional under the 1972 prohibits Montana Constitution which on the basis of sex? .discrimination Issue number 3 will not be decided Court it improperly before the Court. M.R.App.Civ.P., Rule states : “It duty shall be challenges counsel who the consti- tutionality any act of the legislature Montana any suit or proceeding supreme in the court to which the state of Mon- tana, any or agency thereof, any or employee officer or there- of, employee, as such officer or party, upon is not a filing give the record to writing immediate notice in question, existence of said specifying the section of chapter or Code of the session law to be construed. n thereupon certify clerk shall such fact to attorney general of the state of Montana.”
Here, Rule was not resulting followed in no notice general. attorney general given must be an opportunity under the circumstances set forth in Rule appear in legislative defense of a act which being chal- lenged grounds. on constitutional
211 with court was number 2—whether Issue that- to increase alimony and later jurisdiction to award out wife: granted to the the divorce award of since R.C.M.1947,. 21-139, husband. Section an offense of the for part: pertinent provides in hus- granted an offense for a divorce is “Where * * * such, make may compel him to
band, the court life, support during her allowance to the wife suitable * * just may deem period, as the court or for a shorter granted the divorce was argues that since The husband jurisdiction to award without him, the court was 381, 3 402. He ac- Grush, 90 P.2d v. Mont. and cites Grush distinguish- of Grush are knowledges in his brief that the facts granted, in that case was The divorce able from the case here. although and wife- grounds desertion, the husband initiated- living together the divorce was were at time upon agree- challenge agreed the divorce The wife not to ruled that in a di- pay The court ment that he wife, ali- granted to the husband for an offense vorce agreement was held collusive- mony awarded. The could not be however, policy. court, held effect against public decree, accepted the bene- was awarded the that the husband from, seeking estopped from relief divorce, and he is fits of a writing. agreed by him in burdens, its exception.. brought can be under the same The instant case agreed to- of the divorce and husband took the benefit property proposal. pay alimony part a settlement This- proposed property original action, a settle- proposal in the 8, 1970,. dated October form of a communication ment counsel to wife’s. from husband’s distinguished further from Grush
This case can also be
finding
court found in its
of fact No. IY and
that the district
parties
guilty
of law No.
that both
were
of ex-
conclusion
cruelty
both were entitled
a
mental
divorce.
treme and
requested a divorce
have
Therefore, had the wife
she would
granted
been
so;
one. She failed to do
instead she filed
separate
According
maintenance which was denied.
to the hus-
interpretation
band’s
of section
R.C.M.1947,
only
21-139,
prevents
factor which
wife from
she failed to ask for
a
separate
but rather asked for
maintenance.
interpretation
We find such
much too. harsh.
Neither do we
properly
feel that it
reflects the intent of the
legislature when it
statute,
enacted
particularly
in view
of the doctrine that
where a divorce is
to both hus-
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wife,
band and
this Court has allowed an
award of
to the
Burns,
wife. Burns
v.
145 Mont.
The final discussion, issue for 1,No. issue is whether the the district court abused its discretion in its award of urges the wife. that an insufficient amount. reviewing facts, After we find no abuse discretion part of the district court. We eonsidered all concerning evidence parties; both money amount of payment wife is in for her land; royalty share land; interest her ali mony payments; assumption by respon the husband of sibility policy health payments; insurance and the finding of the district court capable that the wife was of some employment help pay living for her own costs. judgment February 26, entered on appealed 1974 and to this judgment Court is reversed. entered trial court on October entirety. is reinstated in its Each party appeal. to bear or his her own costs on
MR. CHIEF JUSTICE JAMES T. HARRISON and MR. JUSTICES JOHN C. HARRISON and HASWELL concur. (concurring part
MR. JUSTICE CASTLES dissenting part): I I here; read, concur in the result can reinstates judgment of October 1973. really I if I have to wonder understand the reasons. The Again, I given. have However, I reasons dissent as majority really reasons. The to wonder if I understand the ruling that is, court’s 3;No. that the district first considers issue R.C.M.1947, are unconstitutional. 21-137 and 21-139, sections general issue because the We to rule on the refuse meaning any view of the Aside from notified. Appellate Rules, what effect is our Rule of this Court’s holding review the district court’s to have? We refuse to unconstitutionality—which applied holding here affirms holding? just I holding. Or, we do not have reversed dissenting I know, my but basis for believe constitutionalty of rule on the these statutes. should