INTHE 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 inthe 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 tobe inserted in

### its place: The finalmatter for consideration is directed atthe award of attorney fees inthe amount of $50,000. The record discloses it 

### was stipulated and agreed to by counsel for both respondent and appellant that respondent's attorney feeswere to be paid by the respondent, Mrs. Downs, out of any judgment received by her. Therefore, the cases of this Court citedby appellant, Crncevich v. Georgetown Recreation Corp. (1975), 168Mont. 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, arenot applicable. Therefore, the fees 

### set by Judge Gulbrandsonand 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 INTHE SUPRTDE

## cow OF

### THE:STATEOF

## mm 1979

GLADYS TiBlNA DOWNS, Plaintiff 

### and Respondent,

ROm FRED

## ms, Defendant andAppellant.
Appeal fm: District Courtof the ThirteenthJudicialDistrict, Hon. L. C. Gulbrandson, Judgepresiding. Counselof 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

Suhittedon briefs: 

### February 16, 1979 Decided: i!f(fl"- ::c7~ Filed: i' 27fMr. Justice John Conway Harrison delivered the Opinion of the Court. This 

### is an appeal by respondent Robert Downs from a judgment entered inthe 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 infailing tomake 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 inentering 

### 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 liabilitiesof the parties? 

### 4. Did the District Court err inmaking 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 itsdistribution of the assets of themarriage. We

### willdiscuss these issues together. This Court, inreturning the firstappeal, noted the unreliability of the record asto the net worth of appellant atthe 

### timeof the marriage and atthe time of thedivorce. For this reason the judgment inthe earlier trial
was 

### set aside. It 

### isalso tobe noted that counsel on appeal 

### is not the same counsel that tried either of the
cases below but appears here only ascounsel of record on ap2eal. The case was remanded tothe lower court todetermine the true net worth of appellant atthe time of his marriage. In again reviewing thisrecord after two years, 

### we note that effortswere made to schedule thematter 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 innot 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 firstand the second hearing, appellant 

### was neither eager nor helpful in giving the trial court sufficient information concerning his net worth atthe 

### timeof themarriage in 1956. Throughout the two-year period 

### it was respondent who seems tohave made the efforts to locate, uncover and discover appellant's assets atthe time of themarriage. Two depositions were taken of appellant to solicitthe information needed to establish the assets atthe time of themarriage and atthe time of the divorce. It appears from the record that appellantmade littleeffort and was resistant to the efforts of respondent inacquiring the information needed to decide the question of assets. We do not feel that the trialjudge must become an appraiser, an accountant, a computer, and an all-around genius to appropriately decide the facts asestablished by the documentation given at

### trial. It 

### is the parties' duties to assist the trial court ingetting this information so a proper judgment 

### ismade 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 ina number of recent cases that the 

### trial court must make specific findings concerning the value of the parties' assets atthe time of marriage and atthe 

### 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 reMarriage of Johnsrud (1977), Mont. I 572 P.2d 902, 34 St.Rep. 1417. InJorgenson thisCourt affirmed a DistrictCourt decision which awarded the husband assets valued atapproximately $693,000 and the wife assets valued atapproximately $83,000. There the District Court relied upon the fact that
a substantialportion of the assets

### were acquired by the husband prior tothemarriage and had increased invalue 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 tohim by his father prior to themarriage. In this case the base of appellant's wealth occurred inthe swapping of and purchasing of farm property. Atthe 

### timeof the marriage the value could not have been more than approximately $120,000. It
was on this basic acquisition of property that appellant

### wasable to develop an estate that, 

### atthe 

### time of the separation and divorce, 

### wasvalued atover two million dollars. We hold that Jorgenson 

### isnot controlling inthis matter, but rather look toanother 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, inconsidering 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 toequitably apportion 

### it. Here, we have a situation where the trial court carefully weighed allthe factors involved in assessing the value of the marital estate. Itmade a valiant attempt toequitably apportion the assets even though itwas not given the full support of appellant inascertaining those assets. Attrialrespondent, through her attorney, gave the 

### trial court a breakdown showing the assets 

### atthe 

### timeof the first

### trial, atthe second 

### trial, and atthe date of marriage, by both testimony and documentary evidence. The figures show that, atthe time of hismarriage, appellant's assetswere valued somewhere between $92,035.57 and $132,610. These assets increased invalue during themarriage to $2,500,000. The trialcourt did allitwas required to do under the statute todetermine the assets of the parties involved. We find no error. Appellant argues that there aregreat variances among the findings of fact, conclusions of law and judgment which
are not supported by the record. We find no 

### merittothisargument. he record reveals that both parties 

### were uncertain of the trial court's original findings of fact and conclusions of law. Several documents were filedbefore the court toamend 

### its conclusions and toclarify 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 courtpower todetermine allmatters relating to the final disposition based on the hearing of June 1, 1978. The court made 

### its finaljudgment 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 inconformity 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 trialcourt assessed the value of the total marital estate and did its best toequitably apportion the same. The findings and conclusions reflect a net worth of the parties atthe 

### timeof the divorce. Although there
were 

### smallvariations concerning the principle and payments
on a promissory note, this does not change the basic finding of the value of the property atthe time of themarriage and value atthe 

### timeof the divorce. Appellant argues that the court did not take into consideration the tax consequences of 

### itsjudgment. We find no 

### meritto this argument. The court carefully considered the testimony given by Mr. Bob White, a tax expert, his testimony did not inany way defeat the type of property settlement made here by the trial court.The finalmatter for consideration 

### is the award of attorney's fees. Pursuant to a stipulationbetween counsel inthismatter, 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), 168Mont. 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 trialjudge the power to award attorney's fees, ashe did inthe judgment. In the above cited cases, thisCourt 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 

### isremanded tothe 

### trial court for an evidentiary hearing to determine attorney's fees.

P

Weconcur:

Justices