No. 87-551
IN THE SUPREME COURT OF THE STATE OF MONTANA
1988
IN RE THE MARRIAGE OF
DONNA J. GEERTZ,
Petitioner and Appellant,
and
KEITH D. GEERTZ,
Respondent and Respondent.
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and for the County of Yellowstone,
The Honorable William J. Speare, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Mary E. Westwood, Billings, Montana
For Respondent:
Christopher P. Thimsen, Billings, Montana
Submitted on Briefs: May 6, 1 9 8 8
Decided: May 2 4 1 1 9 8 8
Clerk
Mr. Justice John C. Sheehy delivered the Opinion of the
Court.
Donna Geertz appeals from the judgment and order of the
District Court of the Thirteenth Judicial District,
Yellowstone County, which determined the parties had not
entered into a common law marriage. We affirm.
The issues before the Court are:
1. Did the District Court properly bifurcate the
proceeding in order to determine whether a common law
marriage existed before addressing other issues?
2. Is there substantial credible evidence to support
the District Court's findings of fact?
3. Did the District Court erroneously conclude that
Donna failed to establish that the parties assumed a marital
relationship by consent and agreement?
Donna and Keith Geertz were married on May 24, 1980. A
son was later born of the union.
Like many young couples starting a new life, Donna and
Keith soon purchased a home. The title to the home was held
jointly. The couple also filed a joint income tax return,
held joint insurance policies, held joint bank accounts and
held other property jointly.
On July 10, 1981, Donna and Keith's marriage was
dissolved. At that time the parties entered into a
separation agreement, which was adopted by the court, whereby
Keith was awarded custody of their son. The parties concede
that the controversy at hand arises in large part due to the
placement of the custody of the child with Keith. Donna was
not represented by counsel during the initial divorce and
apparently was led to believe that an unemployed parent could
not receive custody.
Following the divorce and division of the marital
estate, Donna obtained her own residence. However, the
couple soon resumed living together. On or about November 8,
1981, Donna moved back into the family home. The nature of
the renewed relationship is hotly contested. Donna filed a
dissolution petition alleging common law marriage on February
5, 1984. Keith denied the existence of the marriage.
Donna testified that the couple resumed a marital
relationship upon returning to the family home. In support
of her contention, she introduced an automobile loan
agreement which was co-signed by Keith as well as the joint
title to the automobile. Donna also presented evidence that
Keith had occasionally introduced her as his wife.
Keith testified that Donna returned to the family home
on an experimental basis, in order to attempt to work out
their differences. He acknowledged that although he had
introduced Donna as his wife on a few occasions, he did so
merely to avoid embarrassment. In his opinion, the parties
had not renewed the marital relationship at any time.
The evidence revealed that following the 1981 divorce,
both parties filed tax returns designating themselves as
single individuals. In addition, following the divorce, the
parties maintained separate bank accounts; with the exception
of Donna's car, held property separately; applied for several
loans in which each party listed themselves as single or
divorced; and maintained separate insurance. The parties
also agree that Donna had asked Keith to remarry her on more
than one occasion during the course of the cohabitation.
Following a hearing solely on the issue of the common
law marriage, the District Court determined that Donna had
"failed to show the parties assumed a marital relationship by
consent and agreement." This appeal followed.
The first specification of error concerns the District
Court's bifurcation of the proceedings in order to determine
whether there was a common law marriage before hearing
evidence on custody, property distribution and maintenance.
Donna contends that 40-4-104(l)(d), MCA, prohibits
bifurcation of the proceeding in the instant case. We find
Donna's argument is without merit.
The legislative intent, as demonstrated by the plain
language employed, clearly indicates that 5 40-4-104 (1)(d),
MCA, was designed to consolidate, expedite, and finalize
dissolution proceedings. In the ordinary case, the
prohibition of bifurcated and compartmentalized dissolution
proceedings fulfills the legislative design. However, the
statute presumes, and the parties generally do not contest,
the existence of a lawful marriage. Such is not the case
here. We therefore conclude that S 40-4-104(1) (d), MCA, is
inapplicable.
The district courts of this state are charged with the
duty of achieving substantial justice. A necessary
prerequisite to the performance of this judicial function is
the authority to fashion rules and procedures commensurate
with the task at hand. The district courts have therefore
been vested with wide discretion in the manner of the
performance of their office. See S $ 3-1-111, -113, MCA.
Inherent in this grant of discretion is the authority to
bifurcate a proceeding when equity, sound legal reasoning,
and judicial economy so dictate. See 5 3-1-113, MCA.
In the instant case, the court lacked the authority to
grant the relief requested until a determination of the
marital relationship of the parties was completed. Put
simply, a court can not dissolve or equitably distribute the
fruits of that which does not exist. The court's decision to
bifurcate the proceedings with a view towards conserving the
time and resources of the parties, as well as those of the
court, was not an abuse of discretion.
Donna next contends that the District Court's findings
of fact, specifically no. 6, 8, and 9, are clear error.
However, a review of the record demonstrates that the court's
findings of fact no. 8 and 9 accurately summarize the
testimony. We therefore confine our discussion to finding of
fact no. 6.
Finding of fact no. 6 states that the parties "did not
hold property in joint ownership" during the course of their
post divorce cohabitation. In light of the evidence that
Donna and Keith held joint title to her automobile, the
District Court's finding is in error. However, we find the
error to be harmless.
Keith testified that while he had agreed to co-sign the
automobile loan, he was not aware that he held an ownership
interest in the automobile. In addition, the remainder of
the parties property was held separately. The court's
failure to provide that Keith did not "knowingly" hold
property in joint ownership with Donna does not constitute a
denial of substantial justice, nor would an isolated instance
of joint ownership have a significant impact on the result.
Under such circumstances, we conclude the error was harmless.
The third specification of error concerns the District
Court's determination that Donna failed to establish a common
law marriage. Although Donna argues that the issue is the
District Court's failure to apply the presumption of marriage
contained within 26-1-602(30), MCA, and that the court's
decision is in violation of the public policy of this state,
the real issue is whether Donna carried her burden of proof.
In order to establish the existence of a common law
marriage, the party asserting the marriage must show (1) the
parties are competent to enter into a marriage;
(2) assumption of such a relationship by mutual consent and
agreement; and (3) cohabitation and repute. Stevens v.
Woodmen of the World (1937), 105 Mont. 121, 141, 71 P.2d 898,
905. Although the public policy of this state, as
demonstrated by the presumption contained within 9
26-1-602(30), MCA, generally favors a finding of a valid
marriage, the burden of proof remains upon the person
asserting a common law marriage. The District Court found
that Donna failed to carry her burden of proof.
Contrary to Donna's assertion, the District Court did
not find that the parties had failed to consent to a common
law marriage solely on the basis of Keith's denial of the
marital relationship. The record demonstrates that the
majority of the property was held separately; that both
parties filed single income tax returns; that Donna asked
Keith to get remarried after they had allegedly assumed a
common law marriage; that both parties maintained separate
insurance and bank accounts; that Keith generally referred to
Donna as his ex-wife; and that Keith listed himself as single
on various loan applications. The evidence presented
demonstrates that the parties' actions did not manifest an
understanding that they had entered into a contract of common
law marriage. The evidence is also sufficient to rebut any
statutory or common law presumption of marriage.
The judgment of the District Court is affirmed.