No. 79-27 

VIVIAN 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1980 

COOK, 

Petitioner and Respondent, 

-vsALFRED C. COOK, 

Respondent and Appellant. 

Appeal from: District Court of the Eighteenth Judicial District, 

In and for the County of Gallatin, The Honorable 

W. W. Lessley, Judge presiding. 

Counsel of Record: 

For Appellant: 

Ann L. Smoyer, Helena, Montana 

For Respondent: 

Keller, Reynolds, Drake, Sternhagen and Johnson, 

Helena, Montana 

Submitted on Briefs: May 27, 1980 

1~1- 1 7 1980 Decided: A 

Filed: . 

q- j\ 7 
Mr. Justice John Conway Harrison delivered the Opinion of 

the Court. 

This appeal arises out of a proceeding for a dissolution of marriage and the equitable apportionment of assets 

of a marital estate filed in the District Court of the 

Eighteenth Judicial District, the Honorable W. W. Lessley 

presiding. Appellant husband appeals from the District 

Court's apportionment of the marital estate. 

Appellant husband and respondent wife were married in 

Bozeman, Montana, on December 11, 1955. On October 18, 

1977, after twenty-two years of marriage, wife petitioned 

the court for a dissolution of marriage and the equitable 

apportionment of assets of their marital estate. At the 

time of the filing of the petition, husband was 45 years old 

and wife was 42 years old. Husband had a college education 

and worked in various occupations during the marriage: 

foreman and ranch hand, insurance agent, teacher, and automobile salesman. Wife had approximately two years of college and worked primarily as a housewife, although she was 

employed at different times throughout the marriage as a 

waitress, newspaper reporter, and retail clerk. 

Five childre.? were born to the parties during their 

mzrriage. One child, Kevin, is a minor who presently lives 

with wife in Helena, Montana. Three children have attained 

the age of majority, and the remaining child died in an 

accident during the marriage. 

The assets accumulated by the parties during the marriage include a family home in Bozeman, two cars, a motorcycle, several shares of corporate stock, a boat, home 

furnishings, clothing and other incidental items of personal 

property. In 1965, wife also received an inheritance from 
her grandmother, Ada Smith. The inheritance consisted of a 

cash bequest, which was used for family expenses, and a 

remainder interest in certain farm and ranch land near Saco, 

Montana (hereinafter referred to as the Smith Ranch). The 

value of the land was stipulated by the parties as being between one and two million dollars before taxes. The interest 

is subject to a life estate held by wife's father, Hugh C. 

Smith. From this interest, the parties have received approximately $39,554.15 in the form of mineral royalty payments 

and life estate principal and income distribution. These 

proceeds have also been applied toward family living expenses. 

During the marriage, husband left a $5,500 teaching 

contract in White Sulphur Springs in 1958, and the parties 

moved to the Smith Ranch, where husband worked as foreman 

and ranch hand. Husband continued in this capacity for six 

years at a salary of $250 per month plus housing. During 

this time an additional 100 acres of wheat were put into 

production. In 1964, because of financial reasons, the 

parties moved from the ranch into the town of Saco, where 

husband taught vocational agriculture in the public school 

system. In 1971, because of wife's desire to leave Saco, 

the parties moved to Bozeman. Husband cashed his teacher's 

retirement fund and some smaller life insurance policies to 

finance the move. 

Wife presently works as a clerk in state government in 

Helena, Montana. Husband is presently unemployed, having 

been terminated from his job in early 1977 and working for 

only four months in 1978. Husband has suffered both emotional and physical problems since the parties' separation 

and has incurred substantial medical and hospital expenses. 
The marriage of the parties was dissolved by the District Court on April 10, 1978. The court apportioned the 

assets of the marital estate on February 15, 1979. Several 

of the assets were distributed pursuant to a stipulation of 

the parties. An agreement was made between the parties to 

equally split that portion of the proceeds which represented 

equity resulting from the sale of their Bozeman residence. 

That figure amounted to approximately $11,200. With respect 

to the other assets, the parties stipulated, with the exception of a few items, who was to receive each asset, but left 

the particular valuation of each asset to the court. The 

property was distributed and valued by the District Court in 

the following manner: Wife was awarded a 1967 model car 

(less than $1,000); a wedding ring ($800); home furnishings 

(unvalued) ; china closet (unvalued) ; clothing and other 

inzidental items of personal property. Husband received a 

1977 Buick Riviera automobile ($3,500); a Honda 90 ($150); a 

boat ($2,700); corporate shares of stock funvalued); home 

furnishings (unvalued); clothing and other incidental items 

of personal property in his possession. It should be mentioned that the District Court noted in its findings that 

husband paid remaining purchase money mortgages on the 1977 

car and the boat out of the proceeds received from the sale 

of the house. 

The District Court further found that husband had not \ 

contributed to the maintenance of wife's remainder interest 

and awarded her sole ownership of the interest on the basis 

of the property distribution and as an alternative to maintenance. The District Court ordered husband to assume the 

remaining debts of the marriage, pay $110 per month for the 

support of the parties' minor child until he reached the age 

of majority and pay wife's attorney fees. 
We consider three issues on appeal: 

1. Whether the District Court erred or abused its 

discretion in apportioning the assets of the marital estate? 

2. Whether the District Court erred in awarding wife 

sole ownership of the remainder interest as an alternative 

to maintenance? 

3. Whether the District Court erred in ordering husband to pay wife's attorney fees? 

The first issue raises the question of whether it is 

necessary for a District Court in a dissolution proceeding 

to first place a value upon all of the assets within a 

marital estate and determine the net worth of the parties 

before distributing property within that marital estate. In 

this case, the District Court distributed the marlt~~l estate 

without determining the net worth of the parties or valuing 

the following items of the marital estate: the china closet, 

the corporate shares of stock, and the home furnishings 

received by husband and wife. 

Husband contends it was error for the court to apportion the assets without undertaking such preliminary matters. 

Husband relies upon several cases in which this Court has 

stressed the importance of valuing assets and determining 

the net worth of parties in dissolution proceedings before 

distributing property within the marital estate. See 

Herring v. Herring (19791, Mont. - , 602 P.2d 1006, 36 

St.Rep. 2052; In Re Marriage of Brown (1978), - Mont . 

, 587 P.2d 361, 35 St.Rep. 1733; Martinez v. Martinez 

(1978), 175 Mont. 280, 573 P.2d 667, 35 St-Rep. 61. 

Wife argues that the District Court did not err in 

apportioning the assets of the marital estate. She asserts 

there was no need for the District Court to concern itself 
with the valuation of certain assets or with the determination of the net worth of the parties because there was a 

stipulation entered into between the parties regarding the 

distribution of assets. Wife contends, because of the 

stipulation, that this case is distinguishable from the 

authority relied upon by husband. Further, on the basis of 

Penn v. Burlington Northern, Inc. (1980), Mont. I 

605 P.2d 600, 37 St.Rep. 93, wife contends that husband is 

precluded from raising any issues relating to the stipulation on appeal. 

In Penn both parties agreed that certain documentary 

evidence did not need to be introduced at trial if the 

railroad would admit that it had notice of the dangerous 

nature of a railroad crossing. The railroad admitted 

notice, and the plaintiff did not attempt to introduce the 

documents for other purposes at trial. On appeal, however, 

the plaintiff argued that the evidence was relevant to the 

issue of notice and punitive damages. We refused to consider that issue, however, because of the stipulation. 

The transcript very clearly indicates in this case that 

there was a stipulation entered into between the parties. 

However, the transcript further indicates, unlike Penn, that 

the stipulation was limited in nature. The parties here 

agreed only as to which party would receive particular 

assets and not to a particular valuation. The valuation of 

assets wzs left to the coart. The following colloquy occurred at the beginning of the trial: 

"THE COURT: This is the time set by the Court 

and Counsel of Record in 24041 to hear the matter 

of property division and gentlemen you may proceed. 

"MR. KOMMERS: Thank you, your Honor, I represent 

the petitioner and I have some proposed findings 
for the Court and I realize that some of these 

will have to be changed, but I submit that now. 

The Petitioner and Respondent in this matter have 

reached agreements with respect to several matters 

in dispute here, and we would stipulate for the 

record that the following items are true and need 

no proof. With respect to the personal properties 

acquired by the couple during the term of the 

marriage, property has been divided and the Petitioner is in possession of a 1967 automobile, 

home furnishings, and a wedding ring, and the 

Respondent is in possession of a 1977 Buick Riviera 

automobile, a Honda 90, a certain number of Life 

and Montana corporate shares, a boat, and certain 

home furnishings. The evaluation of -- the property 

could -- not be agreed to b~ the parties --- and will be 

provided - in testimonybefore the Court today. 

"With respect to real estate acquired by the parties during the term of the marriage, it is agreed 

to be true and requires no further proof that the 

home consisted of real estate. The family home 

consisted of real estate acquired by them which 

was sold for the fair market value of $55,400 at 

which Petitioner and Respondent share equally in 

the net proceeds in the amount of approximately 

$11,458.86. That with respect to other sources 

of income of the parties and it is at issue today 

with respect to the future interest of Petitioner, 

the parties have agreed on a valuation of monies 

received from the estate of Ada Smith, and that 

these monies were received and used by the couple 

equally during the term of the marriage . . ." 

(Emphasis added.) 

Here, counsel did not agree to an overbroad stipulation. 

There was no agreement, for example, that the distribution 

of assets would remain the same if the value of the estates 

received by each individual party were inequitable and 

disproportionate. To the contrary, the stipulation was 

well-defined and limited. Assuming that the court would 

undertake a division of property that was equitable, the 

parties only agreed as to who would receive particular 

assets and left the valuation of the assets to the court. 

Under these circumstances, we find that husband is not 

precluded from raising his arguments on appeal. 

This Court has held ir, many 1)revious cases that, before 

a trial court may properly apportion the assets of a marital 
estate, it must first determine the net worth of the parties. Herring, supra; Brown, supra; Martinez, supra. We 

have also stressed the importance of valuing each asset of 

the marital estate. In Herrinq, where the District Court 

made no findings as to the net worth of the parties or as to 

the present fair market value of the substantial assets of 

the marital estate, we remanded and stated: 

"We have held in a number of cases that, before 

there may be a proper distribution of marital 

property, the District Court must first determine the net worth of the parties. [Citations 

omitted.] Here, the District Court made no such 

finding. While the District Court did indicate 

that the only significant assets were the diamond rings and the lot and the home, there was 

- no attempt to place a present, fair market value 

upon these items -- or to determine -- the net worth 

-- of the parties ---- at the time of their divorce." 

Herring, 602 P.2d at 1007, 36 St.Rep. at 2054. 

(Emphasis added.) 

In Martinez, where it was argued that we should take 

judicial notice of certain property values by looking to 

state appraisals because no evidence was introduced regarding property values at trial, we stated: 

"Whether or not in retrospect these figures provide an accurate indication of fair market value 

of the Billings property, however, begs the issue. 

Section 48-321, R.C.M. 1947, requires the trial 

judge to consider the property values. Neither 

the appraised valuation nor the assessed valuation were introduced as evidence at trial; nothing 

-- in the judge's findings --- of fact or conclusions of 

law shows --- that he ever considered the assessed or 

appraised value --- of the land prior --- chis property 

disposition order. 

"Respondent also maintains that the Mexican propperty is irrelevant to the property disposition 

because it is of negligible value and because a 

Montana District Court is of no effect in Mexico. 

The record - is silent --- as to the value of -- the Mexican 

property. The Mexican property is relevant to a 

property distribution because, although Montana 

Court orders encumbering or transferring title to 

Mexican property may be of no legal effect in 

Mexico, that Mexican property still is of value 

to the owner, is part of the owner's estate, will 

affect the owner's future needs and therefore must 

be considered under section 48-321." Martinez, 

573 P.2d at 669-670, 35 St.Rep. at 64. (Emphasis added. ) 
We find in this case that the District Court erred in 

not placing a value upon the aforementioned items of the 

marital estate and in not determining the net worth of the 

parties at the time of their divorce. The valuation of 

assets and the determination of net worth are two important 

steps which must be made by District Courts in the apportionment process, regardless of whether parties enter into 

any stipulations concerning their marital estate. From 

these determinations, a basis is provided from which a 

~istrict 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 mean in no way to discourage 

parties in dissolution proceedings from entering into stipulations such as the case here. To the contrary, stipulations 

provide an economical and efficient way to handle such 

proceedings. We intend only to reemphasize the importance 

of taking certain preliminary steps before 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. 

Despite the statements of counsel, that was not done here. 

The remaining issues in this case are directly affected 

by and intertwined with our holding regarding husband's 

first issue. The second issue concerns whether the District 

Court erred in awarding wife sole ownership of the remainder 

interest on the basis of the property distribution and as an 

alternative to maintenance. The District Court found: 
"The Court concludes that the respondent has made 

no contributions which have facilitated maintenance or [sic] the property subject to the life 

estate and petitioner's remainder interest, and 

therefore, has no claim for any portion of petitioner's remainder interest. Petitioner should 

retain sole ownership of the remainder interest. 

This award constitutes a portion of the property 

disposition and as an alternative to maintenance 

arrangements in favor of petitioner which would 

otherwise be required from the respondent." 

Husband's primary argument is that he is entitled to a 

portion of the remainder interest because of his contributions while working on the Smith Ranch and his sacrifices in 

surrendering employment opportunities to accommodate his 

wife's desire to move. We decline to rule upon this issue 

in view of our holding in the first issue and leave husband's 

arguments to the District Court for consideration on remand. 

Whether wife is entitled to sole ownership of the remainder 

interest, especially as an alternative to maintenance, 

depends upon the property distribution. Maintenance is 

properly awarded only after the property is apportioned 

between the parties. In Re Marriage of Herron (1980), 

Mont. , 608 P.2d 97, 102, 37 St-Rep. 387, 394; Vivian 

v. Vivian (1978), Mont. , 583 P.2d 1072, 1075, 35 

St.Rep. 1359, 1362. The spouse seeking maintenance must 

lack sufficient property to provide for his/her reasonable 

needs and be unable to support himself/herself through 

appropriate employment or be the custodian of a child whose 

conditions or circumstances make it appropriate that the 

custodian not be required to seek employment outside the 

home. Section 40-4-203(1), MCA. 

Conceivably, on remand, when the District Court places 

a value upon all of the assets of the marital estate and 

determines the net worth of the parties, the findings may 

reveal that a different apportionment is appropriate. In 
this connection, if the court finds that the award of the 

remainder interest to wife is appropriate partly as ac 

al-ternative to maintenance, it should make findings pursuant 

to section 40-4-203(1), MCA. Those findings are not present 

here. 

The third issue in this case concerns whether the 

District Court erred in ordering husband to pay wife's 

attorney fees. For attorney fees to be awarded in dissolution proceedings, necessity must be shown. In Re Marriage 

of Kaasa (1979), Mont. , 591 P.2d 1110, 1114, 36 

St.Rep. 425, 430. Here again, whether wife is able to 

demonstrate necessity for an award of attorney fees depends 

to some extent upon the court's apportionment of marital 

assets. In this regard, we also note that while husband was 

terminated from his job in 1977 and worked for only four 

months in 1978, wife is presently employed. We leave this 

issue to the District Court for consideration on remand. 

This cause is remanded to the District Court to proceed 

in accordance with this opinion. 

We concur: 

Chief Justice 

Mr. Justice John C. Sheehy and Mr. Justice Gene B. Daly dissent 

and will file a written dissent later. 
DISSENT 

No. 79-27 

............................................................... 

COOK V. COOK 

............................................................... 

Opinion handed down July 17, 1980 and authored by Mr. Justice 

John C. Harrison--Dissent authored by Mr. Justice John C. 

Sheehy and Mr. Justice Gene B. Daly 

............................................................... 

DATED : 

November 7, 1980 

- 

&LED:( OF SUPREME COUa 

'\ STATE. OE NOO-!aEd6 
Mr. Justice John C. Sheehy and Mr. Justice Gene B. Daly 

dissenting: 

What does Alfred Cook hope to accomplish by this appeal? 

He hopes to receive a portion of Vivian's inheritance. He 

recites in his brief: 

"Thus, Vivian's inheritance, received during the 

pendency of her marriage to Al, was a marital 

asset to be apportioned equitably as required by 

48-321, R.C.M. 1947--40-4-202, MCA. It should 

also be noted that this section also requires a 

valuation of the wife's estate at the time of the 

divorce, even though a portion of the estate may 

be subject to distribution by her death." 

What inheritance of the wife is Alfred Cook talking about? 

Under the terms of the probated Will of Ada Smith, the grandmother 

of Vivian Cook, Ada Smith left her residuary estate to her son, 

Hugh C. Smith, during his natural life, and upon his death to 

his five children, including Vivian Smith Cook, the respondent 

here. 

We are told that the total estate has a value of between 

$1 to $2 million and it is obvious that Vivian's share is onefifth of whatever value the estate may eventually have, - presupposing that Vivian Cook outlives her father -- Hugh C. Smith. 

At the time of the dissolution of the marriage, and the order 

of the court dividing the property, although Vivian Cook was 

the vested remainderman in a one-fifth interest in the estate, 

subject to the life estate of her father, she has absolutely no 

right in the estate until his death and if she predeceases her 

father, her share will descend to her children by virtue of other 

provisions in the Will of Ada Smith. 

By any ability tJ~c?.t we have to judge, the value of her 

remainder estate ----- at the time of the dissolution -- of the marriage 

was nil. She had no right to dispose of any of the underlying 

assets comprising the remainder estate unless she had met someone 

who had recently purchased the Brooklyn Bridge. 

-12- 
This is not a case which requires the application of 

section 40-4-202, MCA, regarding the factors to be considered 

by the court in the determination of a fair division of 

property. The reason is that in this case, the parties had 

stipulated between them as to the respective spouses to whom 

their items of property would go. 

In Morse v. Morse (1977), Mont . , 571 P.2d 1147, 

34 St.Rep. 1334, this Court stated that the possibility of 

receiving future monies by a spouse could not be considered by 

the courtand specifically the court refused to consider the 

possibility that the wife would receive an inheritance from her 

mother sometime in the future. 

The District Court specifically found in finding of fact 

no. 13 that "the respondent has made no contributions which have 

facilitated maintenance of the properties subject to the life 

estate of Hugh Smith and the remainder interest of the petitioner." 

The value of the remainder interest therefore, if it had any, 

was quite beside the point. The District Court did Alfred Cook 

a favor when it provided that the wife should receive no maintenance 

from Alfred Cook in view of her possible remainder interest. 

The remaining unvalued items are a china closet, household 

furnishings and corporate stock which was awarded to Alfred Cook. 

His dissatisfaction arises, if we may believe his brief, from 

the situation that "here the wife's inheritance may exceed the 

worth of all other material assets combined and it is certainly 

a major asset whether it is considered a marital asset or part 

of her estate. Thus, 'to deny the husband a share of the wife's 

inheritance would stand on the same footing as denying the wife 

a share of the large sum in windfall profits from the husband's 

business or investments acquired just prior to the divorce.'" 

Alfred Cook's premise is groundless. He may not count a marital 

asset a future conditional interest not in the possession of his 

wife at the time of the marital dissolution. The majority has 

failed to grasp at this point. 

-13- 
The futility of remand here is manifest. The District 

Court on reconsideration will assign a minimum value to the 

future interest, award that future interest to the wife because 

it has no other legal option and provide that such future interests shall be in lieu of maintenance for the husband. We have 

assigned to the District Court the performance of a useless task. 

Under Rule 52(a), M.R.Civ.P., the findings of the District 

Court should not be set aside unless clearly erroneous. We 

do not see any error in the way this matter was handled by 

the District Court, in view of the stipulation that the parties 

adopted respecting the distribution of the property. A factor 

which makes the decision of the majority seem even worse is 

that Alfred Cook made no effort to bring before the District 

Court a valuation of the future interest, although he now complains 

that the District Court made no such valuation. This is the trial 

testimony from Alfred Cook respecting that point: 

"Q. Did you obtain an appraisal of the property 

that is covered by the future interest? A. I 

did not. 

"Q. And what was the reason for not obtaining the 

appraisal? A. Really, when this first started, I 

saw no need for it, and the provisions and what 

was promised by me, I didn't see any need for an 

appraisal. Later, I could see no need for it and 

probably because of the expense, it was not deemed 

unnecessary to have it appraised as that is not what 

is important." 

The position of the majority in this case is inexplicable. 

bfe wo'ilLd af firm on all counts. 

A Justice 

/ Justice 1