IN THE SUPREME COURT OF THE STATE OF MONTANA 1992

IN RE THE MARRIAGE OF MARGARET HAYES, Petitioner and Respondent, and ROBERT HAYES, Respondent and Appellant.

APPEAL FROM: District Court of the SeventeenthJudicial District, In and for the County of Valley, The Honorable Leonard H. Langen, Judge presiding.

COUNSEL OF RECORD: For Appellant: Robert D. Morrison, Whitefish, Montana For Respondent: Matthew 

### W. Knierim, Glasgow, Montana

Filed: Submitted on Briefs: December 22, 1992 Decided: February 2, 1993

ClerkJustice Fred J. Weber delivered the Opinion of the Court. This is an appeal from the Seventeenth Judicial District, Valley County, involving a portion of a marital dissolution judgment dividing property between the parties. 

### we vacate the judgment as to the property settlement and remand for further consideration by the court. We consider the following issue on appeal: Did the District Court 

### err in determining that both parties had agreed to aproperty settlementand 

### in issuingFindings of Fact and Conclusions of Lawbased upon that agreement? In July of 1990, Margaret Hayes filed a petition for dissolution of her marriage to Robert Hayes. The case was regularly scheduled for trial onMay 26, 1992, Prior to thisdate, the court asked that each party provide it with a written report. The parties and their counsel appeared before the court at 9:00 

### a.m.; theywere asked if 

### any possibility existed that a settlement could be reached. The parties then proceeded to engage in negotiations which lasted until approximately 5:00 p.m. At that time the court reconvened for 

### the purpose of considering the terms of the settlement. Following the reading of the settlement into the record, the court asked counsel to reduce the agreement to 

### a formal document: 

### THE COURT: All 

### right. 

# . . , 

### I really think it would be best 

### if you could incorporate the terms of 

### this Settlement Agreement into a formal document, written document.WIFE'S ATTORNEY: 

### Iwill do so in themorning and getyou a copy,Rich [attorneyforhusband] and youguys can look at 

### it before we submit it to the Judge. HUSBANDfSATTORNEY: Agreed. WIFE'S ATTOFWEY: OK. THE COURT: And then once you've done that Iwill admit that into evidence and Iwill signa ProposedDecree that one of you can prepare. Do you want to prepare that? WIFE'S ATTORNEY: I'll prepare it. However, 

### no formal agreement was ever prepared. The court nonetheless entered its Findings of Fact and Conclusions of Law and Dissolution Decree on May 29, 1992. On appeal, the husband argues that because the agreement was
never reduced to 

### writing as required 

### by 5 40-4-201, MCA, and the court, the property settlement should be vacated and the 

### case remanded 

### fora trial, 

### Further,thehusband contends that the court never valued the property and did not reach 

### a net value for the entire estate. The wife argues that a separation agreement does not need to be written 

### but can also be in the 

### form of an oral stipulation. According to the wife, 

### the court was not 

### asked to value the property because a separation agreementwas in existence and, therefore, the 

### court could only make a finding of unconscionability to change 

### it. In addition, the wife 

### asks 

### us consider letters written by her counsel to opposing counsel concerning the parties1 agreement to the proposed decree and findings. Copies of these letters are attached to respondent wife's brief.The position of this Court 

### is that 

### we will not consider on appeal 

### facts 

### unsubstantiated by the record 

### in the case. 

### First National Bank of Cut Bankv. Springs (l987), 225Mont. 62, 731 P.2d 332. Therefore,we donot consider these letters on appeal as they
are not part of the record. On remand the District Court may choose to receive such proof regarding 

### any purported agreement as to the Findings and Conclusions. The pivotal question here is whether an agreement exists between the parties upon which the court could have based its Findings and Conclusions. The record does not contain a written separation agreement. The record does contain the court's directive to counsel to prepare such a document. It is clear that the courtunderstood the importanceofhaving the agreementreduced to writing. And while we commend the court for its efforts in getting theparties 

### to reacha settlementagreement, suchagreement of necessity needs to be specific 

### to avoid the type of controversy presented here. The recorddoes not establish the agreement of the parties to the Findings and Conclusions of the District Court. We vacate the District Court's Findings of Fact and Conclusions of 

### Law concerning theproperty settlement and remand to the District Court for its further consideration 

### in light of this opinion.

Chief JusticeFebruary2, 1993 CERTIFICATEOFSERVICE Ihereby certify that the followingorderwas sent. by United States mail,prepaid,tothe following named:

Robert

### D.Morrison Baron, Hauge, Swenson&Morrison P.O. Box2328 Havre,MT 59501 MatthewW. Knierim Christoffersen&Knierim P.O. Box29 Glasgow,MT 59230


### EDSMITH CLERKOFTHESUPREME COURT STATEOFMONTANA