NO. 93-091
IN THE SUPREME COURT OF THE STATE OF MONTANA
1993
IN THE MATTER OF THE ESTATE OF
CHARLES G. VANDENHOOK, a/k/a
CHUCK VANDENHOOK, Deceased.
APPEAL FROM: District Court of the Eighteenth Judicial District,
In and for the County of Gallatin,
The Honorable Larry W. Moran, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Karl P. Seel, Bozeman, Montana
For Respondent:
Joseph W. Sabol, II, Bozeman, Montana
David G. Davies, Phoenix, Arizona
Submitted on Briefs: May 20, 1993
Decided: June 23, 1993
---“..
Chief Justice J. A. Turnage delivered the Opinion of .;he Court.
Sharon Groth appeals from a ruling of the District Court for
the Eighteenth Judicial District, Gallatin County, that she did not
establish a claim against the estate of Charles Vandenhook as his
common law wife. We affirm.
The issue is whether the District Court erred in entering
summary judgment denying Groth's claim againstvandenhook's estate.
Vandenhook was seventy-six years old at the time of his death
in October 1991. Groth, who was in her forties, had been intro-
duced to him through a mutual friend in Utah in late 1990. Because
Groth lived in Oklahoma and Vandenhook lived in Montana, their
relationship initially consisted of letters and telephone calls.
In March 1991, Groth visited Vandenhook at his home in
Belgrade, Montana, for five days. During that visit,. Vandenhook
presented Groth with a diamond ring which she says they considered
as an engagement ring. Groth returned to Oklahc'ma and the
relationship continued through the mail and over the telephone.
Groth conveyed to Vandenhook her concerns about his wish that she
join him in Montana, which would require her to leave behind her
Oklahoma home, friends, and job.
Groth made a second trip to Montana in September 1991. She
stayed with Vandenhook at his home for four days. On the last day
of her visit, they exchanged the original diamond ring for one with
a larger stone. Groth then returned to Oklahoma.
2
Vandenhook died on October 22, 1991. His holographic will
executed on that date states:
SEVENTH: I give and devise and bequeath to Sharon, my
wife, after special bequests, all of my remaining stocks,
bonds, real estate, cash, contracts and personal proper-
ty-
EIGHTH: Sharon is to act as Personal Representative of my
estate . . .
His proposed first codicil, also dated October 22, 1991, states:
Sharon and I are not married yet. Any reference to her
name is hereby deleted on page 2.
Sharon is to receive my 1985 Cadillac.
. . .
Anna Lee Purdy is to act as my personal representative.
Groth is presumed to be the "Sharon" mentioned in Vandenhook's will
and codicil.
Anna Lee Purdy and another person were appointed as co-
personal representatives of Vandenhook's estate. Groth filed a
demand for notice and a statement of her interest in the estate as
Vandenhook's common law wife and a beneficiary under the will. She
contends that she and Vandenhook entered a common law marriage
during her September 1991 visit to Montana.
The co-personal representatives moved for summary judgment,
supporting their motion with their own affidavits and those of
others. Groth filed a brief in opposition to the motion for
summary judgment. The District Court granted the motion, conclud-
ing:
3
The undisputed facts are insufficient to elevate the
parties' relationship to that of a valid common law
marriage. There was no mutual long-term commitment to a
relationship of husband and wife; there was no cohabita-
tion as husband and wife after the date Petitioner
alleges the marriage "probably" took place, September 24,
1991; the parties did not generally hold themselves out
to, or in any way indicate to, their friends, relatives,
or members of the general community that their relation-
ship was that of husband and wife.
Groth appeals.
Did the District Court err in entering summary judgment
denying Groth's claim against Vandenhook's estate?
Summary judgment is appropriate when, based on the pleadings,
depositions, answers to interrogatories, admissions, and any
affidavits filed, there are no genuine issues of material fact and
the moving party is entitled to judgment as a matter of law. Rule
56(c), M.R.Civ.P. Once the moving party meets its initial burden
of proof, it is up to the non-moving party to establish that
genuine issues of material fact exist. Simmons v. Jenkins (1988),
230 Mont. 429, 432, 750 P.2d 1067, 1069. Our standard of review is
the same as that of the district court. Shimsky v. Valley Credit
Union (1984), 208 Mont. 186, 189-90, 676 P.2d 1308, 1310.
To establish a common law marriage in Montana, the party
alleging the existence of the marriage has the burden of proving:
1) that the parties were capable of consenting to the marriage; 2)
that the parties assumed such a relationship by mutual assent and
agreement; and 3) that the parties established the marriage by
4
cohabitation and repute. In re Marriage of Geertz (1988), 232
Mont. 141, 145, 755 P.2d 34, 37. All three elements must be
present.
In this case, the parties' capability to consent to the
marriage is not disputed, although there is some evidence that
Vandenhook's alcoholism impaired his judgment. The presence of the
second element, consent by mutual assent and agreement, is put into
question by two letters submitted to the District Court.
In an October 1, 1991 letter, the matchmaking friend from Utah
wrote to Vandenhook:
You take care of yourself + try + build your strength up.
I am really looking forward to you coming to St-George --
so hurry! We will find you a good doctor here + I will
see to it you will not need for anything like shopping
for household needs, etc., until Sharon makes up her
mind, etc.
In a letter to Groth dated October 22, 1991, Vandenhook wrote:
I am just too mixed up to go through with our
arrangement.
We have not been able to see enough of each other.
Montana is really my home and I don't really know
how you will feel about that.
I am so much older and less active than you are. I
would be very lucky to have you, but we need to get each
other thinking better.
I feel this will maybe disappoint you but we really
are not close enough yet that your heart will be broken.
I still hope we will get to know each other better
and I want to keep our friendship going. I think you
understand and have had doubts about leaving your job and
Oklahoma, where you have always lived.
5
It is the third element of common law marriage, cohabitation
and repute, which is decisive in determining the motion for summary
judgment. In her deposition, Groth testified that she and
Vandenhook felt they were married after he gave her the second
diamond ring in September 1991. However, the only time thereafter
during which the couple can possibly be said to have cohabitated
was that afternoon, before Groth returned to Oklahoma.
As to repute, a common law marriage cannot be kept secret by
the parties, and if the relationship is kept secret, no valid
common law marriaye exists. Miller v. Sutherland (1957), 131Mont.
175, 184-85, 309 P.2d 322, 327-28. Groth testified that, right
after Vandenhook gave her the second ring, he took her out to lunch
with Anna Lee Purdy but that they did not mention to her or to
anyone else they saw that day that they were married.
Also, the co-personal representatives filed affidavits stating
that, despite their close personal relationships with Vandenhook,
he never indicated to them that he had entered into a marriage
relationship with Groth. They stated that they had made efforts to
locate any friend, relative, associate, or acquaintance of
Vandenhook to whom he had held out Groth as his wife, but that
their efforts were unsuccessful. Several other personal friends of
Vandenhook filed affidavits stating that they were aware that
Vandenhook was corresponding with Groth, but that Vandenhook never
indicated expressly or by implication that he had entered into a
marriage of any sort with her.
6
The co-personal representatives further filed an affidavit by
the jeweler who sold the second diamond ring to Vandenhook and
Groth. The jeweler stated that he did not recall hearing any
statements between Groth and Vandenhook that the purchase of the
ring constituted a marriage between them.
Groth testified by deposition that she did not change her
credit cards or income tax withholding to indicate that she was
married. She and Vandenhook had no jointly held property or bank
accounts and did not name each other as beneficiaries on their
insurance policies. Groth filed her 1991 income tax return under
"single," not "married," status.
Groth also testified in her deposition that she told her son,
the friend in Utah who introduced her to Vandenhook, and a coworker
that she was married. However, she failed to include with her
brief opposing the motion for summary judgment any affidavits to
support these claims.
Groth has not met her burden of demonstrating a genuine issue
of fact as to the third element necessary to show a common law
marriage, cohabitation and repute. We therefore hold that the
District Court did not err in entering summary judgment that Groth
has failed to prove her claim that she was the common law wife of
Charles Vandenhook.
Affirmed.
8
June 23, 1993
CERTIFICATE OF SERVICE
I hereby certify that the following order was sent by United States mail, prepaid, to the following
named:
Karl P. See1
Attorney at Law
1705 W. College, Suite A
Bozeman, MT 59715
David G. Davies
Attorney at Law
5110 N. 4oth St., Suite 236
Phoenix, AZ 85018-2198
Joseph W. Sabol, II
Attorney at Law
225 East Mendenhall
Bozeman, MT 59715
ED SMITH
CLERK OF THE SUPREME COURT