IN THE SUPREME COURT OF THE STATE OF MONTANA 

No. 14514 

GLADYS THELMA DOWNS, 

Plaintiff and Respondent, 

v. 

ROBERT FRED DOWNS, 

Defendant and Appellant. 

ORDER 

This Court having considered the petition for rehearing and 

the petition for clarification filed by appellant in the above 

entitled cause, the Opinion of this Court is amended as follows: 

Page 7 is deleted in its entirety (except for signatures) and the 

following paragraphs are to be inserted in its place: 

The final matter for consideration is directed 

at the award of attorney fees in the amount of $50,000. 

The record discloses it was stipulated and agreed to 

by counsel for both respondent and appellant that 

respondent's attorney fees were to be paid by the 

respondent, Mrs. Downs, out of any judgment received 

by her. Therefore, the cases of this Court cited by 

appellant, Crncevich v. Georgetown Recreation Corp. 

(1975), 168 Mont. 113, 541 P.2d 56; First Security 

Bank of Bozeman v. Tholkes (1976), 169 Mont. 422, 547 

P.2d 1328; and In re Marriage of Barron (1978), 

Mont. , 580 P.2d 936, 35 St.Rep. 891, are not applicable. Therefore, the fees set by Judge Gulbrandson 
and agreed to by stipulation of the parties, to be 

paid by respondent, Mrs. Downs, are approved. 

The judgment of the trial court is affirmed. 

The petition for rehearing is hereby denied. 

DATED this day of April, 1979. 

XLd! We.&' 

CMef Justice 

Mr. Justice John C. Sheehy did not participate. 
No. 14514 

IN THE SUPRTDE cow OF THE: STATE OF mm 

1979 

GLADYS TiBlNA DOWNS, 

Plaintiff and Respondent, 

ROm FRED ms, 

Defendant and Appellant. 

Appeal fm: District Court of the Thirteenth Judicial District, 

Hon. L. C. Gulbrandson, Judge presiding. 

Counsel of Record: 

For Appellant: 

Mbert L. Stephens, Jr., Billings, Mntana 

Hibbs, Sweeney & Colberg, Billings, rJbntana 

For Respondent: 

Lucas and Pbnaghan, Miles City, mntana 

Jams E. Seykora, Hardin, Mntana 

Suhitted on briefs: February 16, 1979 

Decided: i!f(fl"- : :c7~ 

Filed: i ' 27f 
Mr. Justice John Conway Harrison delivered the Opinion of 

the Court. 

This is an appeal by respondent Robert Downs from a 

judgment entered in the District Court of the Thirteenth 

Judicial District, Big Horn County, Montana, the Honorable 

L. C. Gulbrandson presiding. 

This case was previously before this Court in 1976 

wherein on appeal we reversed the judgment of the lower 

court and ordered a new trial concerning the distribution of 

marital property. See Downs v. Downs (1976), 170 Mont. 150, 

551 P.2d 1025. 

The fact situation is set forth in the above cited 

action and will serve for the facts in this case. 

Appellant sets forth four issues for review: 

1. Did the District Court err in failing to make 

specific findings of fact and conclusions of law concerning 

the elements specified in section 48-321, R.C.M. 1947, now 

section 40-4-202 MCA? 

2. Did the District Court err in entering a judgment 

which contained material variances from its findings of fact 

and conclusions of law? 

3. Did the District Court abuse its discretion in its 

distribution of the assets and liabilities of the parties? 

4. Did the District Court err in making an award of 

attorney's fees without evidence of amount or reasonableness? 

We note that three of the issues concern whether or not 

the District Court erred in its distribution of the assets 

of the marriage. We will discuss these issues together. 

This Court, in returning the first appeal, noted the 

unreliability of the record as to the net worth of appellant at the time of the marriage and at the time of the 
divorce. For this reason the judgment in the earlier trial 

was set aside. It is also to be noted that counsel on 

appeal is not the same counsel that tried either of the 

cases below but appears here only as counsel of record on 

ap2eal. The case was remanded to the lower court to determine the true net worth of appellant at the time of his 

marriage. 

In again reviewing this record after two years, we note 

that efforts were made to schedule the matter for trial on 

two separate occasions. Additional discovery was accomplished and new testimony and documentary evidence has been 

introduced for our consideration on this second hearing. 

Appellant's main thrust on appeal is that the lower court 

erred in not setting forth specific findings of fact, conclusions of law, and that the record does not support the 

findings of fact and conclusions of law. 

We observe that throughout both the first and the 

second hearing, appellant was neither eager nor helpful in 

giving the trial court sufficient information concerning his 

net worth at the time of the marriage in 1956. Throughout 

the two-year period it was respondent who seems to have made 

the efforts to locate, uncover and discover appellant's 

assets at the time of the marriage. Two depositions were 

taken of appellant to solicit the information needed to 

establish the assets at the time of the marriage and at the 

time of the divorce. It appears from the record that appellant made little effort and was resistant to the efforts of 

respondent in acquiring the information needed to decide the 

question of assets. We do not feel that the trial judge 

must become an appraiser, an accountant, a computer, and an 

all-around genius to appropriately decide the facts as 
established by the documentation given at trial. It is the 

parties' duties to assist the trial court in getting this 

information so a proper judgment is made as to their mutual 

assets. 

The elements for the trial court's consideration in 

making a disposition of marital property are detailed in 

section 48-321, R.C.M. 1947, now section 40-4-202 MCA. This 

Court has held in a number of recent cases that the trial 

court must make specific findings concerning the value of 

the parties' assets at the time of marriage and at the time 

of dissolution. Appellant sets forth a number of cases: In 

re Marriage of Jorgenson (1979), Mont . - P.2d 

, 36 St.Rep. 233; Vivian v. Vivian (1978), Mont. 

, 583 P.2d 1072, 35 St.Rep. 1359; Capener v. Capener 

(1978) Mont. , 582 P.2d 326, 35 St.Rep. 1026; 

and, In re Marriage of Johnsrud (1977), Mont. I 

572 P.2d 902, 34 St.Rep. 1417. 

In Jorgenson this Court affirmed a District Court 

decision which awarded the husband assets valued at approximately $693,000 and the wife assets valued at approximately 

$83,000. There the District Court relied upon the fact that 

a substantial portion of the assets were acquired by the 

husband prior to the marriage and had increased in value 

solely by reason of inflation. Jorgenson can be factually 

distinguished from the present case. In Jorgenson most of 

the assets of the husband had been given to him by his 

father prior to the marriage. In this case the base of 

appellant's wealth occurred in the swapping of and purchasing of farm property. At the time of the marriage the value 

could not have been more than approximately $120,000. It 

was on this basic acquisition of property that appellant was 
able to develop an estate that, at the time of the separation and divorce, was valued at over two million dollars. 

We hold that Jorgenson is not controlling in this 

matter, but rather look to another recent case of this 

Court, Robertson v. Robertson (1978), Mont. 590 

P.2d 113, 35 St.Rep. 1889. In Robertson we found that the 

trial court did not weigh the factors enumerated in section 

48-321, R.C.M. 1947, now section 40-4-202 MCA, in considering the distribution of the assets of the couple; nor was 

there any indication that the court assessed the value of 

the total marital estate and made an effort to equitably 

apportion it. Here, we have a situation where the trial 

court carefully weighed all the factors involved in assessing 

the value of the marital estate. It made a valiant attempt 

to equitably apportion the assets even though it was not 

given the full support of appellant in ascertaining those 

assets. 

At trial respondent, through her attorney, gave the 

trial court a breakdown showing the assets at the time of 

the first trial, at the second trial, and at the date of 

marriage, by both testimony and documentary evidence. The 

figures show that, at the time of his marriage, appellant's 

assets were valued somewhere between $92,035.57 and $132,610. 

These assets increased in value during the marriage to 

$2,500,000. 

The trial court did all it was required to do under the 

statute to determine the assets of the parties involved. We 

find no error. 

Appellant argues that there are great variances among 

the findings of fact, conclusions of law and judgment which 

are not supported by the record. We find no merit to this 
argument. he record reveals that both parties were uncertain of the trial court's original findings of fact and 

conclusions of law. Several documents were filed before the 

court to amend its conclusions and to clarify some of the 

issues, On June 1, 1978, an instrument was executed by the 

then attorneys and filed on June 5, 1978, giving the trial 

court power to determine all matters relating to the final 

disposition based on the hearing of June 1, 1978. The court 

made its final judgment based upon amended conclusions. 

This judgment does not show sufficient variance from the 

findings of fact and conclusions of law as to necessitate a 

rehearing. 

We next consider whether or not the effect of the 

decree distributing the assets of the parties is in conformity with present law. There are sufficient facts here, 

under section 48-321, R.C.M. 1947, now section 40-4-202 MCA, 

to indicate that the trial court assessed the value of the 

total marital estate and did its best to equitably apportion 

the same. The findings and conclusions reflect a net worth 

of the parties at the time of the divorce. Although there 

were small variations concerning the principle and payments 

on a promissory note, this does not change the basic finding 

of the value of the property at the time of the marriage and 

value at the time of the divorce. 

Appellant argues that the court did not take into consideration the tax consequences of its judgment. We find no 

merit to this argument. The court carefully considered the 

testimony given by Mr. Bob White, a tax expert, his testimony did not in any way defeat the type of property settlement made here by the trial court. 
The final matter for consideration is the award of 

attorney's fees. Pursuant to a stipulation between counsel 

in this matter, the trial court awarded attorney's fees in 

the amount of $50,000. Appellant argues that recent cases 

of this Court hold that a showing must be made on the reasonableness of attorney's fees. Crncevich v. Georgetown 

Recreation Corp. (1975), 168 Mont. 113, 541 P.2d 56; First 

Security Bank of Bozeman v. Tholkes (1976), 169 Mont. 422, 

547 P.2d 1328; and, In re Marriage of Barron (1978), 

Mont. , 580 P.2d 936, 35 St.Rep. 891. Respondent 

argues that counsel, by stipulation and by a copy of a 

letter to the trial court, gave the trial judge the power to 

award attorney's fees, as he did in the judgment. 

In the above cited cases, this Court held that a 

hearing must be held on attorney's fees. The matter is 

therefore returned for that purpose. 

Judgment of the trial court on the merits is affirmed. 

The cause is remanded to the trial court for an evidentiary 

hearing to determine attorney's fees. 

P 

We concur: 

Justices