No. 93-308
IN THE SUPREME COURT OF THE STATE OF MONTANA
IN THE MATTER OF THE ESTATE OF
FRED ALCORN,
deceased.
APPEAL FROM: District C o u r t of the Eighth Judicial District,
In and for t h e County of Cascade,
The Honorable Thomas M. McKittrick, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Donald J. Hamilton and Steven T. Potts; Jardine,
Stephenson, Blewett & Weaver, Great Falls, Montana
For Respondent:
Donald L. Ostrern; Graybill, Ostrem & Crotty, Great
Falls, Montana
. - submitted on B r i e f s : December
CLERK OF SUPREME COURS
STATE OF MONTANA
Justice John Conway Harrison delivered the Opinion of the Court.
This is an appeal from the Eighth Judicial District Court,
Cascade County. Appellant Robert A. Alcorn (Robert), as personal
representative of his father's estate, appeals the District Court's
determination that a common-law marriage existed between respondent
Kathee Melinda Young (Kathee) and Fred "Fritz1'Alcorn (Fred), the
decedent. In this matter of probate, Kathee asserted rights to an
elective share of the augmented estate, a homestead allowance, an
exempt property allowance and a family allowance. Robert appeals.
Fred and Kathee met on August 27, 1981, at Metra Park, a horse
racetrack in Billings, Montana. At the time of their meeting,
Kathee was separated from her husband, Fred Young (Young).
Kathee's divorce from Young was complete in May 1985. From the day
they met in August 1981, Fred and Kathee cohabited until Fred died
on May 10, 1991. The couple first lived together in Great Falls,
but soon moved to Fred's ranch house in Vaughn, Montana.
Kathee, 46, has been a Delta Airlines flight attendant for
seventeen years. Fred, who died at age 59, owned and operated an
automobile dealership in Great Falls. The couple shared a common
interest in horses and in horse racing. In fact, they jointly
owned race horses and regularly attended horse races together.
Throughout her relationship with Fred, Kathee retained her last
name and filed her tax returns as a single person; however, the
couple did share joint bank accounts at First Liberty Credit Union
in Great Falls.
During the time Kathee and Fred were together, Fred was
plagued with physical ailments--including heart problems, back
problems which required surgery, throat cancer which required
surgery, and a lung removal which required related surgeries. Fred
died of a heart attack on May 10, 1991.
In his will, Fred designated his son, Robert, as the personal
representative of his estate. On October 1, 1991, Kathee filed a
Notice of Election Against Will by Surviving Spouse. Kathee
contends that she and Fred had a common-law marriage from the day
they met until the day Fred died. Robert challenges this
assertion.
By will, Fred devised to Kathee one-half of the net value of
his ranch and all of his household furniture and household goods.
Kathee additionally sought the following entitlements: one third
of the augmented estate, pursuant to 5 72-2-223, MCA; a homestead
allowance of $20,000, pursuant to 5 72-2-412, MCA; an exempt
property allowance not to exceed $3,500, pursuant to 5 72-2-413,
MCA; and a family allowance, pursuant to 1 72-2-814, MCA.
The District Court conducted a non-jury trial in July and
August 1992, and entered its findings of fact, conclusions of law
and judgment on February 22, 1993. The District Court concluded
that Kathee was Fred's common-law wife and, therefore, granted her
the entitlements she sought as Fred's surviving spouse.
The sole issue before this Court is whether the District Court
properly determined that a common-law marriage was established by
Kathee Young.
The standard we apply in analyzing a district court's
findings of fact is whether they are clearly erroneous. Steer,
Inc. v. Dep't of Revenue (1990), 245 Mont. 470, 474, 803 P.2d 601,
603: see also Interstate Production Credit v. DeSaye (1991), 250
Mont. 320, 323, 820 P.2d 1285, 1287. When reviewing conclusions of
law, we determine whether the court's interpretation of law is
correct. Steer, Inc., 803 P.2d at 603.
Montana recognizes the validity of common-law marriages.
Section 40-1-403, MCA. A rebuttable presumption exists in favor of
a valid marriage when "[a] man and a woman deporting themselves as
husband and wife have entered into a lawful contract of marriage."
Section 26-1-602 (3O), MCA.
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.
In re Marriage of Geertz (1988), 232 Mont. 141, 145, 755 P.2d 34,
37 (citation omitted).
Robert argues that Kathee failed to prove that she and Fred
were ever married. Robert contends that Kathee was not competent
to marry Fred until May 1, 1985, when her divorce with Young was
finalized. According to Robert, Kathee failed to introduce
evidence that she and Fred agreed to marry one another after her
divorce in 1985. Robert asserts that "marriage cannot occur in a
piecemeal fashion, but rather comes instantly into being or does
not come at all." Estate of White (1984), 212 Mont. 228, 231, 686
P.2d 915, 916. This Court addressed the same issue in Estate of
Murnion (1984), 212 Mont. 107, 686 P.2d 893. In deciding that this
concept was not determinative, we stated:
In addition to the consent required for a valid common-
law marriage, there must be cohabitation and public
repute of the marriage. The latter two factors do not
take place instantly, but are continuing factors that
extend through the life of the marriage.
Murnion, 686 P.2d at 899 (citing Welch v. All Persons (l926), 78
Mont. 370, 254 P. 179).
The following exchange occurred at the August 17, 1992,
hearing:
Q. [By Donald Ostrem, KatheeJs attorney] Okay. Now
there are several items that you and I have talked
about involving common law marriage. Did you feel
that you were married to Fritz Alcorn?
A. Yes, I did.
Q. And did you during the entirety of your relationship
feel that you were married to Fritz Alcorn?
A. Yes, I did.
Q. Now, did you state that you--when you first started
living together, you were in the process of getting
a divorce from your previous husband. And you did
get that divorce?
A. Yes.
Q. So you also had the capability of consent at the time
that you got that divorce is that correct?
A. Yes.
Kathee testified that she and Fred were capable to consent to
marriage. She also testified that neither she nor Fred were
incompetent or suffering from any disabilities.
We determine, as a matter of law, that Kathee and Fred were
incapable of consenting to marriage until Kathee's divorce with
Young became final on May 1, 1985. However, persons who cohabit
after the removal of the impediment may become lawfully married as
of the date of the removal of the impediment. Section 4O-l-401(2),
MCA; see also Murnion, 686 P.2d at 899; Estate of Schanbacher
(1979), 182 Mont. 176, 595 P.2d 1171. Therefore, when Kathee's
divorce to Young became final, the impediment to her common-law
marriage to Fred was removed.
Having determined that Kathee and Fred were competent to marry
after May 1, 1985, we turn our discussion to whether Xathee and
Fred assumed a common-law marriage by mutual consent and agreement.
See Geertz, 755 P.2d at 37. In support of her contention that she
and Fred mutually consented and agreed to marriage, Kathee claims
to have a wedding ring given to her by Fred. The ring, which she
wore to the August 17, 1992, hearing, contains two intertwining
horseshoes made with Yogo sapphires. According to Kathee, "Fritz
had it designed and had it made. And the bracelet--he got a
bracelet for me to match." In addition to the ring and bracelet,
Kathee and Fred incorporated the intertwining horseshoe design into
their home in Vaughn. The couple had horseshoes cemented into the
concrete walkway leading to their house, with their names etched
into the concrete beneath the horseshoes.
At the August 17th hearing, the following question was asked:
"Did you both agree that you were married, that you were husband
and wife?" Kathee responded, "Yes, we did." The combination of
Kathee's wedding ring, the concrete design at the couple's home in
Vaughn, and Kathee's testimony indicates that Kathee and Fred
mutually consented and agreed to a common-law marriage.
We look finally to cohabitation and repute. See Geertz, 755
P.2d at 37. It is clear from the record, and Robert agrees, that
Kathee and Fred cohabited for about nine years--from the day they
met until the day Fred passed away. They lived together for a
short time in Great Falls before moving to Fred's house in Vaughn.
In fact, it is apparent that the couple invested a great deal of
time and money in decorating and refurbishing their home. However,
as Robert correctly asserts, marriage "does not result from mere
cohabitation alone." Miller v. Townsend Lumber Co. (1968), 152
Mont. 210, 219, 448 P.2d 148, 152 (citation omitted). Therefore,
we now turn our attention to repute.
Robert contends that Kathee and Fred admitted in writing that
they were not married after May 1, 1985. In support of his
contention, Robert presented evidence that Kathee: 1) never
changed her last name from "Youngn to uAlcorn;v 2) did not list
Fred as a beneficiary on her employee life insurance, health
insurance or retirement forms; and 3) filed her tax returns as a
single person throughout her entire relationship with Fred.
Moreover, Fred stated in his will that he was a single man.
Kathee testified that she chose to keep the last name "Youngn
for professional reasons. Kathee testified that her mother was
listed as beneficiary on her insurance, health and retirement
forms. Kathee also testified that she filed her tax returns as a
single person because she thought she could not file as "married"
unless the marriage was a matter of record and because her
accountants " t o l d [her] to f i l e it that w a y . "
This Court is unaware of any legal requirement that a wife
assume the last name of her husband or that she list her husband as
beneficiary on her insurance, retirement or health forms. The
District Court accepted Katheefs explanations--including her
rationale for filing her tax returns individually rather than as a
married person--as valid. The District Court was in the best
position to observe Kathee and her demeanor. See Marriage of Ernst
(1990), 243 Mont. 114, 122, 793 P.2d 777, 782. We determine that
the District Court's finding a to this issue is not clearly
erroneous.
Robert next contends that each witness testified either that
Fred and Kathee were not married or that they merely assumed or
considered the couple as married. According to Robert, the fact
that people assumed or considered the couple as married does not
demonstrate that Kathee ever held herself out to be Fredfs wife.
See Estate of Slavens (l973), 162 Mont, 123, 2 6 509 P.2d 293,
295.
The record, however, is replete with evidence and testimony
that Kathee and Fred held themselves out to be husband and wife.
Kathee and Fred shared joint checking accounts at First Liberty
Credit Union. Kathee wore a wedding ring designed and made
especially for her, compliments of Fred. The record indicates that
Kathee and Fred spent all of their time--excepting work--together
for nine years. Because the couple had a large home, they
regularly hosted members from both Fred and Kathee's families for
holidays. Christmas at the Vaughn ranch became a tradition. The
couple hosted barbecues and pool parties in the summer for family
and friends. Kathee's family members referred to Fred as "Uncle
Fritz."
Fred spent about eight years of his time with Kathee in poor
health. Throughout Fred's illnesses, Kathee was by his side. The
record indicates that Kathee cared for Fred through chemotherapy
and through visits to Seattle for treatment.
Robert's daughter and Fred's granddaughter, Kara Alcorn,
testified that she and her brother, Robert, who live in Washington,
would visit Fred and Kathee in Vaughn. Kara testified that she
considered Kathee and Fred to be married, that she received
Christmas cards from the couple, and that she received information
concerning changes in Fred's medical condition from Kathee.
Robert Layton, Karats brother and Fred's grandson, testified
that the relationship between Kathee and Fred was always portrayed
to him as that of husband and wife. I e further testified that he
I
visited them every summer, that they "always were together" and
that he considered them to be married. On occasion, Robert would
go to the horse racetrack with Fred, who would introduce Robert as
his "grandsonu and Kathee as his "wife."
Judge John McCarvel, a district court judge in Cascade County,
was a long-time friend of Fred's. Judge McCarvel used to see Fred
run his horses at racetracks in Spokane, Billings and Great Falls.
The Judge testified that he considered Fred and Kathee to be
married, that Fred always introduced Kathee as his wife, and that
he I1thought they were married all the time." On one occasion, as
he left the Great Falls Airport, Kathee was waiting in the truck to
pick up Fred. The Judge testified that 'I[Kathee] hollered to me,
' s my husband on that plane?'"
I
Janice Mountan, Kathee's sister, testified that IfFritz
introduced us as his in-laws. .. . Everyone knew Fritz as being
Kathee's husband and Kathee as Fritz's wife." We need not belabor
the record. It is abundantly clear that Kathee and Fred cohabited
and held themselves out to the community as being husband and wife.
Robert challenges the District Court's findings of fact as
erroneous and contradicted by the record. Robert contends that the
court omitted from its findings references to testimony which
indicated that Fred and Kathee were not married. Specifically,
Robert points to the testimony of Donna and Chuck Plant--friends of
Fred--who stated that Fred had told them after 1985 that he was not
married to Kathee. Robert also notes the absence of Robert Ernmonsl
testimony from the findings. Emmons, an attorney, testified that
Fred represented that he was a single man in each of the three
wills Emmons drafted for Fred.
It cannot be said that the District Court failed to consider
all the testimony merely because it chose not to reference all the
testimony it heard in its findings of fact and conclusions of law.
The court heard testimony from fifteen witnesses. It found
capability of consent to a common-law marriage between Fred and
Kathee, mutual assent and agreement to a common-law marriage,
cohabitation, and repute in the community as husband and wife.
The court was in the best position to judge the credibility of
the witnesses. We will not substitute our judgment for that of the
District Court even where there is evidence in the record to
support contrary findings. See Trad Industries, Ltd. v. Brogan
(1991), 246 Mont. 439, 447, 805 P.2d 54, 59 (citation omitted).
After a careful review of the record, we determine that the
District Court's findings of fact were not clearly erroneous. We
hold that the District Court correctly interpreted the law when it
concluded 1) that the relationship between Kathee Young and Fred
Alcorn constituted a valid common-law marriage; and 2) that Kathee
is entitled to claim the elections set forth in her Notice of
Election Against the Will filed with the District Court on October
1, 1991.
Affirmed.
We concur: ,- /
February 11, 1994
CERTIFICATE OF SERVICE
I hereby certify that the following order was sent by United States mail, prepaid, to the following
named:
Donald J. Hamifton, Esq; Steven T. Potts, Esq.
Jardine, Stephenson, Blewett & Weaver, P.C.
P.O.Box 2269
Great Falls, MT 59403
Donald L. Ostrem, Esq.
Graybill, Ostrem & Crotty
#18-6thSt. No., Ste. 200
Great Falls, MT 59401
ED SMITH
CLERK OF THE SUPREME COURT
STATE-OF MONTANA