                                                      No.    92-108
             IN THE SUPREME COURT OF THE STATE OF MONTANA
                                                            1992



IN RE THE MARRIAGE OF
ANNE ECCLESTON LANDERS,
now known as ANNE ECCLESTON,
                      Petitioner and Appellant,
     and
PATRICK RILEY LANDERS,
                      Respondent and Respondent.




APPEAL FROM:          District Court of the Sixth Judicial District,
                      In and for the County of Park,
                      The Honorable Byron L. Robb, Judge presiding.


COUNSEL OF RECORD:
             For Appellant:
                      Brenda Riley Cole, Swandal, Douglass, ~razier &
                      Cole, Livingston, Montana
             For Respondent:
                      Karl Knuchel, Attorney at Law, Livingston, Montana
                          "   ~       v   a d *




         A UG 6   - 7992;                                   Submitted on Briefs:
                                                                       Decided:
                                                                                   June 4, 1992
                                                                                   August
Filed:   ~   ~    ~   p   &       (       ,
    CLERK OF SUPHErfiE COURT
       STATE O F MONTANA



                                                  f     Clerk
Justice Terry N. Trieweiler delivered the opinion of the Court.
     On August 24, 1990, Anne Eccleston Landers petitioned the
Sixth Judicial District Court in Park County for legal separation
from Respondent, Patrick Riley Landers.     On January 10, 1992, the
District Court dissolvedthe marriage and entered its final decree.
From that judgment, Anne appeals.     We affirm in part, reverse in

part, and remand for further proceedings.
     This appeal raises two issues.
     1.    Did the District Court abuse its discretion when it
modifiedthe inheritance provision of an oral separation agreement?
     2.    Was there a factual basis for the District Court's
evaluation of the husband's estate?
     In its Findings of Fact, the Court found that the parties
stipulated in open court that Patrick "will designate the parties1
children as beneficiaries of one-half of his estate held at the
time of his death.   All stipulations except this one were adopted
by the court. The court modified this stipulation by finding that:
          8.    [Tlhe father's obligation to leave at least
     one-half of his estate to said children should be limited
     to one-half of his present net estate and not one-half of
     everything he acquires in the future. The court finds
     one-half of respondent's present net worth as about
     $75,000.00, so that he should be required to leave only
     a minimum of $25,000.00 to each of the three children.
     The terms of the agreement were read into the record at a
property   settlement hearing on November 4,     1991.   The Court
directed the parties to reduce the terms of the agreement to
writing, and informed both parties that they would be directed to
carry it out after the parties signed it and presented it to the
Court.    At the close of the property settlement hearing, the court
stated:
       There's liable to be something you haven't thought of
       maybe that hasn't been mentioned here today or may come
       up in the future.   ... you can return to court if need
       be and file a petition and the Court would hear it if
       necessary.
       On January 7, 1992, the parties returned to Court for a
further hearing after Patrick refusedto sign the agreement because
of the aforementioned inheritance provision.    He testified that he
misunderstood the stipulation.      He thought it required him to
provide for his children in his will only until the children were
eighteen.     This was based on his understanding that the court had
no jurisdiction after the children reached adulthood. Moreover, he
intended to leave only half of the ranch not half of his estate.
Patrick intended the inheritance provision to substitute for a life
insurance policy in order to provide funding for the children's
college education.
       Anne   contends that the District   Court   cannot alter the
agreement without finding unconscionability pursuant to   40-4-201,
MCA.    Next, she argues that the Court cannot modify the agreement
under ordinary principles of contract law.   Finally, Anne contends
that public policy requires that separation agreements should be
upheld by the courts.
       All three arguments ignore the fact that the agreement was
never signed. All separation agreements, to be binding, must be in
writing and executed by the parties before they are enforceable.
5 5 40-2-303, -312, and 40-4-201, MCA.
        Therefore, we conclude that the District Court did not abuse
its discretion when it modified that portion of the oral settlement
agreement which pertained to Patrickls estate.             The trial judge
held Patrick to the stipulation by requiring him to leave one-half
of his current estate to the children at the time of his death, not
one-half of the ranch as he requested.           The only modification is
that Patrick is required to leave one-half of his current estate,
not his future estate.
        This modification takes into account Anne's           intent that
one-half of what she built with Patrick during their marriage be
passed on to the children.       Anne argues that she compromised her
claim against the ranch in exchange for the provision for the
children's inheritance.        The Court's order guarantees that the
children will receive at least one-half of the current estate.            In
essence, the children will receive Anne's            half of the current
marital estate upon Patrick's death.
        We hold that the District Court did not abuse its discretion
when it settled a dispute regarding the inheritance provision of an
unsigned separation agreement which was orally stipulated to in
court.
      However, we find no evidence in the record upon which to base
the   District    Court's    finding    that   Patrick's   estate   has   an
approximate value of $150,000.         Therefore, we reverse that part of
the District Court's judgment which provides that Patrick is to
leave    each   child   at   least   $25,000   and   remand   for   further
evidentiary proceedings so that evidence can be offered regarding
the value of Patrick's estate.
     Following that hearing, judgment should be entered consistent
with the evidence and this opinion.
     Pursuant to Section I, Paragraph 3(c), Montana Supreme Court
1988 Internal Operating Rules, this decision shall not be cited as

precedent and shall be published by its filing as a public document
with the Clerk of the Supreme Court and by a report of its result
to Montana Law Week, State Reporter and West Publishing Company.




We concur:




    ~ h k f
          Justice
