No. 80-145 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1980 

IN RE THE MARRIAGE OF 

M. J. COLLETT, 

Petitioner and Appellant, 

EVELYN COLLETT, 

Respondent and Respondent. 

Appeal from: District Court of the Fifth Judicial District, 

In and for the County of Jefferson, 

The Honorable Frank E. Blair, Judge presiding. 

Counsel of Record: 

For Appellant: 

Skedd and Ashley, Helena, Montana 

For Respondent : 

Jardine & McCarthy, Whitehall, Montana 

Submitted on Briefs: October 24, 1980 

Decided : *CAN 1 2 19% 
Mr. Chief Justice Frank I. Haswell delivered the Opinion of the 

Court. 

The Jefferson County District Court entered a decree of 

dissolution in this case on December 7, 1979. M. J. Collett, the 

husband, appeals from the provisions of that decree relating to 

the valuation of the marital estate, the property distribution, the 

award of maintenance and the award of attorney fees. 

Following nineteen years of marriage, the husband filed a 

petition for dissolution in the Jefferson County District Court on 

May 24, 1979. A hearing was held on August 1, 1979. The main 

subject of the hearing was the value of several marital assets and 

the respective contributions of the parties. 

The husband testified that at the time the petition for 

dissolution was filed, he had approximately $17,000 on deposit at 

the Helena Credit Union. He further testified that he sold a 

boat for $9,000 after the petition was filed. However, the 

record is not clear as to what was done with these funds between 

the filing of the petition and the time of the hearing. 

M. J. Collett and Evelyn Collett, the wife, substantially 

agreed on the approximate value of most of the items comprising 

the marital estate. The main controversy on appeal involves the 

amount of cash included in the District Court's valuation of the 

marital estate and the court Is determination of the contribution 

of the parties to the marital estate. 

The appellant's primary focus is upon the proceeds from 

the sale of a tract of land and house. The husband's 

grandmother, Rose Squires, purchased the property in 1967 for 

$18,500. Title was held by Rose Squires and the husband in joint 

tenancy until 1972, when Mrs. Squires quitclaimed her interest in 

the property to the husband. Shortly after this transfer, the 

husband created a joint tenancy in the property with the wife. 

The parties and their two children lived on the property from 

1967 through June of 1978, when the property was sold for 

$65,000. Of the $65,000 in sale proceeds, $28,380 was used as a 

down payment on a parcel of land and trailer home and $17,000 was 
placed in the Helena Credit Union. The remainder of the proceeds 

is not accounted for. 

Following the hearing, the District Court entered an order 

requiring each party to file a verified statement of the marital 

assets valued as of May 24, 1979, the date the petition was 

filed. The order further provided that either party could request 

a hearing on the substance of the verified statements. Both parties filed statements of the marital assets. The wife's statement values the net marital assets at $79,130. The husband's 

statement indicates a net marital estate of $60,465. Although 

the wife's statement includes several items not included in the 

husband 's statement, the major differences are: husband Is statement states that cash on deposit at the credit union totalled 

$9,000, while the wife stated the correct amount was $17,000; 

wife's statement includes a $3600 camper trailer while the husband states that it was purchased af ter May 24, 1979; wife's statement includes a $1500 cooler while husband's statement is 

silent as to this item; husband's statement includes a $2315 

liability without explanation and several items had different 

valuations assigned by the parties. Neither party requested a 

hearing on the valuation. 

The wife sought child support for the couple's minor child 

and the use of the family's home until the child attains 

majority. She also sought attorney fees. The parties agreed 

that the marital estate should be equally divided, and maintenance was never sought by either spouse. 

The District Court entered its findings of fact, conclusions of law, and decree of dissolution on December 7, 1979. The 

District Court found that the husband exercised dominion over the 

$17,000 cash proceeds from the 1978 real estate sale by 

withdrawing the funds from the credit union af ter the filing of 

the petition for dissolution and that he also exercised dominion 

over $9000 received from the sale of a boat af ter the filing of 

the petition. The court purported to equally divide the marital 
estate; however, the wife was given the use and possession of the 

family trailer home until the 12 year old minor reaches majority. 

It was further stated that the house and land are to be sold 

when the child attains majority, with the proceeds equally 

divided by the parties at that time. The court found that the 

wife required additional assistance and ordered the husband to 

pay $150 per month child support and $100 per month maintenance 

plus providing health and dental insurance. Husband was also 

required to pay reasonable attorney fees of $350. In addition, 

the court concluded that the husband "be required to pay the 

remaining balance remaining unpaid upon said home and land as it 

becomes due in partial recompense for the failure of petitioner 

to account to respondent for her share of the [proceeds of the 

1978 real estate sale.]" 

M. J. Collett raises the following issues on appeal: 

1. Whether the District Court abused its discretion in 

valuing and distributing the marital assets? 

2. Whether the District Court abused its discretion in 

awarding maintenance to the wife when it was never requested? 

3. Whether the District Court abused its discretion in 

awarding attorney fees without any finding or evidence upon 

necessity or reasonableness? 

The husband first contends that the District Court abused 

its discretion in valuing the marital estate by valuing items 

upon which no competent evidence was presented. We agree. 

This Court has addressed numerous issues involving the 

valuation of marital estates in recent years. The valuation and 

distribution of the marital estate is governed by section 

40-4-202, MCA. The statute vests the District Court with broad 

discretion to equitably apportion the marital assets, and our 

scope of review is limited to determining whether the trial court 

has abused its discretion. However, the factors listed in section 40-4-202, MCA, must be considered and referred to in the 

court's findings and conclusions and there must be competent evi- 
dence presented on the values of the property. See In re 

Marriage of Herron (1980), Mont. , 608 P.2d 97, 37 St.Rep. 

387; Dahl v. Dahl (1978), 176 Mont. 307, 577 P.2d 1230. 

In the present case, there was no evidence presented on 

the existence of several items of property or the values thereof. 

The District Court relied exclusively on statements of and 

valuations of assets submitted by the parties. Where one item 

appeared on one of the parties' statement and not on the other 

parties' statement the court included the item at the value 

stated. When the parties disagreed on a valuation the court 

assigned a value halfway between the two submitted valuations. 

The husband also asserted that several of the items listed on the 

wife's statement of assets were purchased after the filing of the 

petition, and therefore, these items were considered twice -- 

once in the amount of cash on hand on May 24, 1979, and again on 

the amount of the asset purchased after said date. 

In addition, the District Court purported to equally 

divide the estate. This, however, was not done. The court 

stated that the equity in the family trailer home and land should 

be equally divided, but then required the husband to make all 

future payments on the property in "partial recompense" for his 

prior conduct. This specific conclusion, which is previously 

quoted, is akin to an assessment of punitive damages. Section 

40-4-202, MCA, expressly provides that the court is not to consider any marital misconduct in disposing of the marital assets. 

As we stated in Cook v. Cook (1980), Mont . , 614 

311 ,I\ 

"The valuation of assets and the determination 

of net worth are two important steps which must 

be made by the District Courts in the apportionment process . . . From these determinations, a 

basis is provided from which a District Court 

may make, or an appellate court may decide, that 

an apportionment is equitable. Without these 

determinations, the equitable distribution of 

marital assets amounts only to guesswork. This 

case must, therefore, be remanded to the 

District Court so that the parties' marital 

estate may be distributed on this basis. 
"By our decision today, we . . . intend only to 

reemphasize the importance of taking certain 

preliminary steps be£ ore property is 

distributed. Where parties cannot agree as to 

the value of a particular asset, we further 

encourage counsel to provide ample testimony for 

the District Court regarding values. . ." 

In the present case, the District Court's valuation of 

many of the marital assets amounts to "guesswork," primarily due 

to the attorneys' failure "to provide ample testimony for the 

District Court regarding values." We therefore remand this cause 

to the District Court to require the parties to submit competent 

evidence on the value of disputed items of marital property and 

therefore to equitably distribute the assets pursuant to the factors provided in section 40-4-202, MCA. 

The husband on appeal argues that he should be given 

credit for the value of the land gifted to him by his grandmother. To paraphrase his argument, the District Court should 

give the husband credit for the value of the land exclusive of 

the appreciation occurring after 1972, when he created a joint 

tenancy with his wife. However, pursuant to section 40-4-202, 

MCA, the acquisition of property by gift is only one factor to be 

considered in determining the respective contributions of both 

spouses. We have construed the provisions of the statute in the 

context of the receipt of a gift or inheritance in several recent 

cases. In re Marriage of Herron, supra; In re Marriage of 

Metcalf ( 1979 ) , Mont . , 598 P.2d 1140, 36 St.Rep. 1559; In 

re Marriage of Balsam (1979), Mont . , 589 P.2d 652, 36 

St.Rep. 79; In re Marriage of Brown (1978), Mont. , 587 

P.2d 361, 35 St.Rep. 1733. Upon remand the District Court 

should consider the guidelines provided by sect ion 40-4-202, MCA, 

and these cases in determining the respective contributions of 

the parties. 

With regard to the award of maintenance, the District 

Court failed to consider the guidelines provided in section 

40-4-203, MCA, and made no specific findings with regard to the 

award of maintenance. It appears that the District Court based 
its award of maintenance on three erroneous or unsupported 

findings: (1) Wife receives a net sum of $400 per month from her 

employment; (2) she is entitled to welfare assistance; and (3) 

husband has only furnished wife with $400 for the support of the 

family within the last nine months. The record discloses that 

the wife is employed by the State at the Boulder River School, 

but no evidence regarding the wife's earnings was presented. 

Wife Is testimony establishes that she was eligible for welfare 

assistance at a time when she was on strike but there was no evidence presented on her current status. With regard to the amount 

furnished by husband for support, testimony reveals that he paid 

$400-$500 plus paying the utility charge account and other similar bills in the three months prior to the hearing. As previously stated, neither party sought maintenance. Further, at 

the hearing the wife testified that she would be satisfied with 

an equal division of the marital estate, $200 per month in child 

support plus health benefits and an equal division of the house 

and land payments. Upon remand the District Court should consider 

the guidelines provided in section 40-4-203, MCA, if maintenance 

is awarded. 

Next appellant asserts that the court erred in awarding 

attorney fees to the wife. We agree. Again, the District Court 

made no findings of necessity for or reasonableness of the award 

of $350. Also, the record does not disclose that the trial court 

considered how the property distribution, child support, maintenance and award of attorney fees interrelate. 

The judgment of the District Court is vacated and the 

cause remanded for further proceedings consistent with this opinion and the provisions of sections 40-4-202 and 40-4-203, MCA. 

For all concerned it is best that there be a full hearing upon 

the valuation of and contribution to the marital estate as well 

as the status of the parties, taking into account the factors 

provided in the Uniform Marriage and Divorce Act.