           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


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



                                 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 L a w 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 w e 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
