### No. 93-576 

### IN THE SUPREME COURT OF THE STATE 

### OF MONTANA 1994



### IN RE MARRIAGE OF MARGARET HAYES, 

### Petitioner and Respondent,

ROBERT HAYES, 

### Respondent and Appellant.

APPEAL 

### FROM: District 

### Court of 

### the Seventeenth Judicial District, In and 

### far the County of Valley, The Honorable Leonard Langen, 

### Judge presiding.

COUNSEL OF 

### RECORD: 

### For Appellant: Robert D. 

### Morrison, Morrison 

### Law Firm, Whitefish, Montana 

### For Respondent: 

### Matthew W. 

### Knierim, Christoffersen & 

### Knierim, Glasgow,MontanaJustice Fred S. Weber delivered the Opinion of the Court. This is an appeal from the amended Findings of Fact and Conclusions of Law and Dissolution in a marriage dissolution filed in the District Court for the Seventeenth Judicial District,Valley County. We reverse and remand. We restate the issue on appeal: 

### Did 

### the District Court err in itsamended Findings of 

### Fact and Conclusions of Law and Dissolution by relying on an oral property agreement between the parties? 

### The petitioner wife brought this action for dissolution on July 18, 1990. Thehusband filed his response on October 26, 1990. The matter of the dissolution of the parties was set for trial on May 26, 1992. 

### At 9:00 

### a.m. on the morning 

### of the trial, the parties agreed to attempt to settle. Throughout the day, negotiations between the parties continued and at 4:55 p.m. the court reconvened for the purpose of considering the terms of the settlement. The court indicated that judgment would be entered 

### once the stipulated oral settlement agreement had 

### been reduced to writing and resubmitted to the court. The oral agreement did not contain specific property valuations nor was 

### it ever reduced to writing. Despite counsel's failure to reduce the agreement to writing, the court entered its Findings of Facts and Conclusions 

### of Law and Dissolution without that formal statement of the agreement. ThisCourt on appeal held that the settlement agreementneeded to be 

### more specific 

### to avoid the 

### type of controversy presented 

### in 2this case and that the record did not establish an agreement between theparties. Marriage of Hayes (1993)

## , 256Mont. 266, 268, 846 P.2d 272, 273 (Hayes I). The cause was remanded to the District Court which issued an Amended Findings of Fact and Conclusions 

### of Law. 

### The amended version contained parts 

### of the transcript verbatim but no written version of the parties' agreement. In its amended findings, the court determined that the settlement was not unconscionable and that it was not necessary that a written agreement

### be entered into. The court indicated that it was correcting 

### a "clerical error" in the original document issued by the court. No hearing was conducted 

### on remand 

### and no evidence was presented to the court in support of 

### the amended findings

## . The husband appeals the amended findings of 

### the court as inappropriate because of a lack of formal written agreement between the parties. Did the District Court err in its amended Findings of Fact and Conclusions of 

### Law and Dissolution by relying on an oral property agreement between the parties 

### to the underlying dissolution? Appellant husband contends that just as the 

### initial findings

were inadequate because they were not based upon 

### a written agreement, so too are the amended findings inadequate because the agreement was never reduced to writing on remand. The husband argues that the court's amended findings were incorrectly taken

### from the record and that he never had 

### a chance to review the findings 

### or approve them. Further, the 

### husband argues that the

required whether a valid 

### agreement 

### exists between the 

### parties or 

### not. Respondent wife argues that the court's responsibility in 

### a divorce proceeding is to determine whether or not the agreement made by 

### theparties is llunconscionable.ll According to the wife, 

### 5 40-4-201(2),MCA,

### makes the 

### terms of an agreement binding upon the court unless it concerns support,custody 

### or visitation. The wife 

### contends that all the court could do in 

### this instance is 

### to determine whether the agreementwas unconscionable. We review a 

### ~istrict Court's interpretation of the law as 

### to whether it is correct. Steer Inc.v. Department of 

### Revenue (1990)

### , 245 Mont. 470, 803 P.2d 601. 

### This case was remanded once because

no 

### written agreement had 

### been entered into the record. Haves, 256 

### Mont. at 268, 846 P.2d 

### at 273. 

### Since 

### Hayes 

### I was decided, we decided another case that, relying on Haves I, specifically interpreted 5 

### 40-4-201(1), MCA, 

### as requiring 

### a written agreement. See Simmsv. Simms (1994),Cause No. 93-110, handed down March 28, 1994. We 

### stated in 

### ~imms: Section 40-4-201,MCA, 

### provides that the district court isbound by 

### the parties' separation agreement inmatters of 

### property distribution and maintenance 

### if the court finds that the separation agreement is not unconscionable. However, the only separation agreement referred to in 

### the statute is 

### the written separation agreement. Absent a written separation agreement, there is 

### nothing for the district court to review and on whichto make a finding regarding conscionability. Under such circumstances, the district court has no alternative but to try the case on the merits and to dispose of the property, maintenance, support, 

### custody and visitation issueson thebasis of the applicable statutory criteria, evidenced by the entry 

### of appropriate findings 

### of fact, conclusions 

### of 

### law and judgment. (Emphasis in original.) Simms, 

### page 7 and 8,slip opinion. Our statute clearly requires a written agreement: 40-4-201. Separationagreement. (1)Topromote amicable settlement of disputes between parties to a marriage attendant upon their separation or the dissolution of their marriage, the parties may enter into a written separation asreement containing provisions for disposition of any property owned 

### by either of them, maintenance of either of them, and support, custody, and visitation of their children. (Emphasis added.) Section 40-4-201(1), MCA. The parties in this case do not have a written agreement. All that exists in the record 

### is a transcript of oral stipulations concerning property which, as 

### we stated in Simms r are insufficient for court 

### determine whether the agreement itself is unconscionable. Further, appellant alleges that the court'stransfer of those stipulations into its findings resulted in several errors. We conclude the District Court erroneously relied upon the oral agreement between theparties. 

### The District Court here had no alternativebut to try the case on themerits and todispose of the 

### property and other issues on 

### the basis 

### of the applicable statutory criteria, and the rule 

### set forth in Simms, evidenced by the entry of appropriate findingsand conclusions. We hold that the District Court erred in its amended Findings of Fact and Conclusions of Law and Dissolution

### by relying

### on

### an oralproperty settlement agreementbetween the parties to the underlying dissolution. Reversed and remanded. 

### I I

### March31, 1994 

### CERTIFICATE

### OFSERVICE 

### Ihereby certify

### thatthe

### followingcertified

### orderwassent

### by

### United States

### mail,prepaid,to

### the 

### following

### named:

Robert

### D.Morrison MorrisonLaw

### Firm P.O.

### Box

### 1929 

### Whitefish,

### MT 59937 

### MatthewW.

### Knierim CHRISTOFFERSEN&

### KNZERIM,P.C. P.O.Box

### 29 Glasgow,MT

### 59230 

### EDSMITH CLERKOFTHESUPREME

### COURT STAW

### OF. 

### MONTANA