No. 80-145 INTHE SUPREME COURT OF THE STATE OF MONTANA 1980

INRE THE MARRIAGE OF M. J. COLLETT, Petitioner and Appellant,

EVELYN COLLETT, Respondent and Respondent.

Appeal from: DistrictCourt 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

## 12

## 19%Mr. Chief Justice Frank I. Haswell delivered theOpinion 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 thatdecree 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 intheJefferson County DistrictCourt 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 thepetition for dissolution

### was filed, he had approximately $17,000 on deposit at theHelena CreditUnion. He furthertestified thathe sold a boat for $9,000 afterthe petition 

### was filed. However, the record is not 

### clear 

### as to what was done with these funds between the filingof the petition and the 

### timeof 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 inthe District Court's valuation of the 

### marital estate and the courtIsdeterminationof 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 1967for $18,500. Titlewas held by Rose Squires and the husband injoint tenancy until 1972, when Mrs. Squires quitclaimed her interest in theproperty tothe husband. Shortly after thistransfer, the husband created a joint tenancy in the property with thewife. The parties and their 

### two children lived on the property from 1967through June of 1978, when the property 

### was sold for $65,000. Of the $65,000 in 

### saleproceeds, $28,380 

### was used 

### as a down payment on 

### a parcel of land and 

### trailer home and $17,000 

### wasplaced 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 statementof the 

### marital assets valued 

### as 

### of May 24, 1979, the date the petition 

### was filed. The order further provided that eitherparty 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 netmarital 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 inthe husband's statement, the major differences 

### are: husband Isstatement 

### 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 coolerwhile husband's statement is silent as to this item; husband's statement includes a $2315 liabilitywithout 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 thatthe 

### marital estate should be equallydivided, and maintenance 

### was never sought by eitherspouse. The DistrictCourt 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 1978real estate saleby withdrawing the funds from the creditunion af

### ter the filing of the petition for dissolution and thathe 

### also exercised dominion

over $9000 received from the 

### sale of a boat af

### ter the filing of the petition. The courtpurported to equallydivide the 

### marital

### estate; however, the 

### wife 

### was given the use and possession of the family 

### trailer home until the 12year oldminor 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 permonth maintenance plusproviding 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 topay the remaining balance remaining unpaid upon said home and land as it becomes due inpartial recompense for the failureof petitioner to account to respondent forher shareof the [proceedsof the 1978real 

### 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 

### itsdiscretion in awarding maintenance to the wife when 

### it 

### was never requested? 3. Whether the District Court abused 

### its discretion in awarding attorney feeswithout any finding orevidence upon necessity 

### or reasonableness? The husband firstcontends that the District Court abused its discretion invaluing 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 inrecent years. The valuation and distributionof the marital estate is governed by section 40-4-202, MCA. The statutevests 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 theremust 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), 176Mont. 307, 577 P.2d 1230. Inthe present case, there

### was no evidence presented on the existence of several items of property 

### or the values thereof. The District Court relied exclusivelyon 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 

### itematthe 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 statementof assets

### were purchased afterthe 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. Inaddition, the District Court purported 

### to equally divide the 

### estate. This, however, 

### was not done. The court stated that the equity inthe family trailer home and land should be equally divided, but then required the husband tomake all futurepayments on the property in "partial recompense" forhis prior conduct. This specific conclusion, which is previously quoted, is akin 

### to an assessment of punitive damages. Section 40-4-202, MCA, expresslyprovides that the court is not 

### to considerany

### marital misconduct indisposing of the 

### marital assets. As

### we stated inCook v. Cook (1980), Mont

# . , 614 

## 311 ,I\ "The valuation of assets and the determination of networth are two important stepswhich 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, oran appellatecourt 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 estatemay be distributed on thisbasis."By our decision today, we 

# ..

# . intend only to reemphasize the importance of taking certain preliminary stepsbe£

### ore property is distributed. Where parties cannot agree as to the value of 

### a particular 

### asset, we further encourage counsel toprovide ample testimony for the DistrictCourt 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 "toprovide ample testimony for the District Court regarding values." We therefore remand thiscause tothe District Court to require the parties 

### to submit competent evidence on the value of disputed 

### items of marital property and therefore 

### to equitablydistribute the 

### assetspursuant to the factorsprovided in section 40-4-202, MCA. The husband on appeal argues thathe should be given credit for the value of the land gifted tohim by hisgrandmother. 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 hiswife. However, pursuant to section 40-4-202, MCA, the acquisitionof property by gift 

### is only one factor 

### to be considered indetermining the respective contributions of both spouses. We have construed the provisions of the statutein 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 section 40-4-202, MCA, and these cases indetermining 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 basedits award of maintenance on three erroneous orunsupported findings: (1)Wife receives a net sum of $400permonth from her employment; (2)she is entitled 

### to welfare assistance; and (3) husband has only furnished wife with $400 forthe support of the family within the 

### last nine months. The record discloses that the wife is employed by the Stateatthe Boulder River School, but no evidence regarding the wife's earnings

### was presented. WifeIstestimony establishes that she was eligible forwelfare assistance 

### at

### a timewhen she

### was on strikebut there

### was no evidence presented on her current status. With regard 

### to the amount furnished by husband for support, testimony reveals thathe paid $400-$500 pluspaying the utility charge account and other 

### similarbills in the threemonths prior 

### to the hearing. Aspreviously stated, neither party soughtmaintenance. Further, 

### at the hearing thewife testified that she would be satisfied with

an equal divisionof the 

### marital 

### estate, $200

### per month in child supportplus health benefits and an equal divisionof the house and land payments. Upon remand the District Court should consider the guidelines provided in section40-4-203, MCA, if maintenance is awarded. Next appellant 

### asserts that the court erred inawarding attorney fees 

### to the wife. 

### We agree. Again, the District Court made no findingsof necessity fororreasonableness of the award of $350. Also, the record does not disclose thatthe 

### 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 furtherproceedings consistent with thisopinion and the provisions of sections 40-4-202 and 40-4-203, MCA. For 

### all concerned it is best thatthere be a fullhearing upon the valuation of and contributionto the marital estate as 

### well

asthe statusof the parties, taking into account the factors provided in the Uniform Marriage and Divorce Act.