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 Seventeenth Judicial 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 

Clerk 
Justice 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 a property settlement and in issuing Findings of Fact 

and Conclusions of Law based 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 on May 26, 1992, Prior to this date, 

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.; they were 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: I will do so in the morning and get you 

a copy, Rich [attorney for husband] and you guys can look 

at it before we submit it to the Judge. 

HUSBANDfS ATTORNEY: Agreed. 

WIFE'S ATTOFWEY: OK. 

THE COURT: And then once you've done that I will admit 

that into evidence and I will sign a Proposed Decree 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 for a trial, Further, the husband 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 agreement was 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 Bank v. Springs (l987), 225 Mont. 62, 731 P.2d 

332. Therefore, we do not 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 court understood the importance of having the agreement reduced 

to writing. And while we commend the court for its efforts in 

getting the parties to reach a settlement agreement, such agreement 

of necessity needs to be specific to avoid the type of controversy 

presented here. The record does 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 the property settlement and remand to 

the District Court for its further consideration in light of this 

opinion. 

Chief Justice 

February 2, 1993 

CERTIFICATE OF SERVICE 

I hereby certify that the following order was sent. by United States mail, prepaid, to the following 

named: 

Robert D. Morrison 

Baron, Hauge, Swenson & Morrison 

P.O. Box 2328 

Havre, MT 59501 

Matthew W. Knierim 

Christoffersen & Knierim 

P.O. Box 29 

Glasgow, MT 59230 

ED SMITH 

CLERK OF THE SUPREME COURT 

STATE OF MONTANA