                                                 NO. 89-166
                    IN THE SUPREME COURT OF THE STATE OF MONTANA
                                                    1990



IN RE THE MARRIAGE OF
LORRAINE ALICE BOURQUE,
                                   Petitioner and Respondent,
         and
JOSEPH HENRI BOURQUE,
                                  Respondent and Appellant.




APPEAL FROM:                      District Court of the Eighteenth ~udicialDistrict,
                                  In and for the County of Gallatin,
                                  The Honorable Thomas Olson, Judge presiding.

COUNSEL OF RECORD:
         For Appellant:
                                  Eula Compton, Bozeman, Montana
         For Respondent :
                                  Linda McNiel, Bozeman, Montana



                                                    Submitted on ~riefs: Aug. 17, 1989
                                                         Decided: January 9, 1990
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Justice John C. Sheehy delivered the Opinion of the Court.
      ~orraine Bourque          petitioned       the    District     Court,
Eighteenth    Judicial     ~istrict, Gallatin           County,      seeking
modification of the parties' property settlement.                 Respondent
Joseph     Bourque   petitioned      for     a   modification       of   the
maintenance agreement.      The court granted Lorraine Bourque's
motion for property settlement modification, denied Joseph
Bourque's motion to modify maintenance, and awarded Lorraine
Bourque $7,404.25       in maintenance arrearages and education
support.    Joseph Bourque appeals.
      The issues raised by Joseph Bourque are:
      1)   Whether   the   District        Court   erred     in    awarding
Lorraine Rourque house sale proceeds in excess of $30,000.
      2)   Whether the District Court erred in denying Joseph
Bourque's     request    that     his     maintenance      obligation      be
terminated.
      Joseph and Lorraine Bourque were divorced in 1980.                 The
parties entered into a support and property settlement that
provided that Joseph would pay Lorraine the sum of $500 per
month, with yearly increases commensurate with increases in
Joseph's earnings.       At the end of eight years, the payments
were to be reduced by half, with further reductions allowed
to reflect increases in Lorraine's earnings.                 ~ e d i c a l and
educational costs were          also provided      to ~orraine, to be
terminated upon remarriage, attainment of "ample employment"
or   the   conclusion of    eight years          from the date of        the

agreement.    F'inally, the agreement provided that the parties
                                  - 2 -
would divide equally the proceeds from the sale of their
house.
     Efforts to sell the house for $95,000 were unsuccessful.
In   1982,   an     offer   of   $70,000   was    made     for    the   house.
Lorraine Eourque was reluctant to accept the offer until
Joseph agreed to modify the property settlement to provide
Lorraine with $30,000 from the proceeds, the remainder to go
to him.      A proposed modification agreement was drafted but.

apparently never executed.         However, an escrow agreement was
prepared. by      ~orraine Bourque's       lawyer, and signed by all
parties.       An    attached    exhibit    to   the     escrow    agreement
provided as follows:
             Prepayments and the balloon
             payment shall first be used
             to satisfy the existing
             encumbrances and the balance
             to ~orraineBourque and Joseph
             Bourque in such a manner that
             Lorraine Bourque shall have
             received a total of $30,000.00
             from the net proceeds of
             this sale (including the down
             payment) and Joseph Bourque
             shall receive the balance of
             the net proceeds.
     The     escrow    agreement     itself      however     assigned      the
balances on a percentage basis, with ~orraineto receive 72%
and Joseph 28%.
     Joseph asserts that this 72/28 split contemplated only
the monthly payments made by the buyers and not the balloon
payment.     Buyers made 60 payments totaling $12,180.00.                   Of
this, Lorraine received $8,769.60, or approximately 72%, and

Joe received $3,420.00, or approximately 28%.
       Problems arose when the purchasers of the Bourque home
paid the entire principal remaining, $51,499.59, in August of
1987.    The First Security Bank of Bozeman paid out $5,342.75
in miscellaneous     costs, leaving   $46,156.84   to be divided
between Joe and Lorraine.    The bank paid Lorraine $33,232.92,
or 72% of the balance.      Joe was paid the remaining 2890, or
$12,923.91.     Lorraine had previously been paid $5,000.00 from
down payments.     The controversy centered on the amount paid
to Lorraine.     Joseph asserted that Lorraine was to receive
only $25,000.00 in the final payment, giving her a total of

$30,000.00.     Joseph claimed that ~orrainehad been overpaid
by $8,232.92, and req.uested Lorraine to remit that amount to
him.     In a    letter to Joseph, ~orraine admitted she had
expected a $25,000 payment, but attributed that figure to
error by Joseph in the division, and ref.used to give him the
$8,232.92.
       Joseph contacted the bank and escrow agent, informing
them of the alleged overpayment.      The Bank in turn suggested
to Joseph to mitigate his damages by withholding maintenance
payments due Lorraine.      On advice of his attorney, Joseph
ceased his maintenance payments to ~orraine. He then moved
for a stay of execution of the 1980 decree of dissolution,
which was granted on March 8, 1988.
       On April 4, 1988, Lorraine Bo.urq.uemoved for an order of
modification of decree, compelling maintenance, medical and
education payments, and for attorney's fees.
     Trial was held on September 2 and September 14, 1988,
and judgment entered on November 30, 1988.              The court ruled
the escrow agreement to be a valid modification of the decree
of dissolution, and the payments therefore correct.                     The
court   also    found    Joseph     owed   $7,213.50    in   maintenance
arrearages     and   $290.75   in    education    costs.       The    court
determined that maintenance payments were to be reduced to
$343.50 per month as of August 1988.          No attorney's fees were
granted.   From that judgment, Joseph appeals.
     Joseph     contends   that     the    District    Court    erred    in
awarding   ~orraine Bourque more           than   $30,000.00     from   the
proceeds of the house sale.          The basis of his contention is
that the court wrongfully interpreted the escrow agreement
and the attached exhibit which provided for a $30,000.00
payout to Lorraine Bourque.
    When the issue of modification first surfaced in 1982,
the attorney for Lorraine drafted an agreement wherein both

parties agreed Lorraine would receive $30,000.00 from the
sale, Joseph the remainder.           However, no executed copy of
this agreement has been           found, and cannot, therefore, be
relied upon.
     ~orraine Bourque's        attorney    also drafted        the   escrow

agreement, which the court relied upon.               Section I1 of the
agreement is headed "Payments."            Subparagraph B is headed

"Unpaid Balance."       Listed under that heading are two checked
provisions.     One denotes that payments will be made monthly.

The second provision checked is "Other."            Typed following is
                                   - 5 -
language that a balloon payment of the balance is due July 1,
1988.     Directly following is subparagraph C, which provides
the method of distributing payments.                   The heading "Other'"
appears again, with explanation of how the balance is to be
paid:     72% to Lorraine Bourque and 28% to Joseph Bourque.
        Joseph's contention that the 72/28 ratio applies only to
monthly payments is not borne out by the escrow document.
Reference to "Other" appear to speak to the balloon payment,
not the monthly payment.         The escrow agreement in and of
itself is clear.       Taken with the attached exhibit, it is not
clear.     The question then arises:               why would Joseph sign a
document that has two distinct provisions which cannot be
reconciled?      The answer is unclear, but it must be considered
that     72%   ratio   was   supposed        to     come   to   approximately
$30,000.00.         Unfortunately,           the    computation      did    not
approximate      $30,000.00.     $30,000.00           is   roughly    65%   of
$46,156.84, the amount to be divided between the parties.
       Faced with this document so lacking in clarity, the
~istrictCourt attempted to reconcile the irregularities and
reach a reasonable interpretation.                 The court looked to the
intent of the parties in entering an agreement to modify the
division of property.          The modification' s purpose was to
serve both parties.      ~orrainewas to be guaranteed sufficient
funds from a substantially lower sale price than she thought

otherwise      acceptable.     Joe Bourque was             to get a    needed

infusion of cash quickly, rather than wait for a buyer to

meet the original $95,000.00 sale price.
                                 -   6   -
          The district judge took into account that Joseph, though
not       the     drafter       of    the    escrow     agreement/dissolution
modification, was the instigator of the modification.                          The
court took this and other factors into consideration during
its inquiry into the intent of the agreement.
          The court specifically found              the 72/28 provision to
rule,       and    so     discarded     the     unclear     attached     exhibit
provision.           In       interpreting    the     instrument,     the     court

specifically inquired as to the instrument's intent and its
legal consequences, and confine its inquiry as to what was
intended in the language of the instrument.                   This is properly
within the court's scope under S S 28-2-1613 and 28-2-1611,
MCA   .
          Joseph contends that if the conflicting portions cannot
both be taken together so as to give effect to every part of
the       contract      and     the   intentions      of   the     parties,    the
modification should be voided and the original 50/50 split
contained in the dissolution should rule.                    However, it is a
time-honored         maxim       of   jurisprudence        which    states      "an
interpretation which gives effect is preferred to one which
makes void."         section 1-3-232, MCA.            Such an interpretation
is acceptable if it is reasonable.                     Section 1-3-233, MCA.
The District Court's interpretation was reasonable, and this
Court will not set aside findings by                       the District Court
unless clearly erroneous.              Rule 52(a), M.R.Civ.P.

          Joseph next contends that the District Court erred in

not terminating his maintenance obligation.                        ~pecifically,
                                        - 7 -
Joseph contends that ample evidence exists that Lorraine is
able to support herself.     In addition, he contends her living
situation is quasi-marital in nature, and that he should not
have to aid in the financial support of her household.
     The parties' 1980 support settlement agreement provided
$500 per month to ~orraine Bourque, with annual increases
each October 11 as Joseph's income increased.       At the end of
the eight years the payments were to be reduced "to a maximum
of one-half of the then current payment."      In addition, those
payments were to be reduced as l,orrainelsearnings increased.

The District Court halved the support payments as of August
1988 to $343.50 per month.

     Joseph contends that the support should be terminated
altogether due to changed circumstances.       He is now retired
and receives $1,189 per month in retirement benefits.          He
contends that Lorraine Bourque was not forthright with the
~istrictCourt, and is currently receiving income from $1,700
to $2,000 per month, substantially more than she claimed.
     Joseph presents this Court with evidence that Lorraine
Bourque altered documents to hide her true income from the
District Court.   While it appears these charge has some basis
in fact, he did not raise an issue of fraud in the lower
court proceedings, and this Court will not consider issued
raised on appeal for the first time.       Wyman v. DuBray Land
Realty   (Mont.   1988),   752   P.2d   194,   45   St.Rep.   621.
     Joseph also presented evidence at the lower level that
Lorraine Bourque lives with another man in a "quasi-marital"
relationship.    Lorraine denies this.
     Both the parties' support agreement and the guidelines
of 5 40-4-208, MCA, provide that maintenance will cease upon
remarriage, which    has not occurred.   The District Court
properly retained one-half of the support obligation.
     Affirmed.




We Concur:           / ,   /    i .-
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f-      Chief Justice




  The HO$.
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             L. C. Gulbrandson
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