August 17 2010
DA 09-0669
IN THE SUPREME COURT OF THE STATE OF MONTANA
2010 MT 183N
IN RE:
THE ESTATE OF ROBERT CHARLES BOTHAMLEY
APPEAL FROM: District Court of the Ninteenth Judicial District,
In and For the County of Lincoln, Cause No. DP 07-046
Honorable Michael C. Prezeau, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Scott G. Hilderman, Kai Groenke; Johnson, Berg, McEvoy & Bostock,
PLLP; Kalispell, Montana (Cynthia Zimmerman)
For Cross Appellant:
Dean D. Chisholm; Chisholm & Chisholm; Columbia Falls, Montana
(Pamela Bisson)
For Appellee:
Darin K. Westover; Law Office of George B. Best;
Kalispell, Montana (Carolyn Norstebon)
Submitted on Briefs: July 21, 2010
Decided: August 17, 2010
Filed:
__________________________________________
Clerk
Justice W. William Leaphart delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(d)(v), Montana Supreme Court 1996 Internal
Operating Rules, as amended in 2006, the following memorandum decision shall not be
cited as precedent. It shall be filed as a public document with the Clerk of the Supreme
Court and its case title, Supreme Court cause number and disposition shall be included in
this Court’s quarterly list of noncitable cases published in the Pacific Reporter and
Montana Reports.
¶2 Appellant Cynthia Zimmerman (Zimmerman) and Cross Appellant Pamela Bisson
(Bisson) appeals the decision of the Nineteenth Judicial District Court. Zimmerman
argues that the court erred in concluding that Appellee Carolyn Norstebon (Norstebon)
and Decedent Robert Charles Bothamley (Bothamley) were married at the time of
Bothamley’s death. Zimmerman also argues on appeal that the District Court abused its
discretion by admitting an address book into evidence shortly before the trial began.
¶3 We review a district court’s findings of facts to determine whether they are clearly
erroneous. In re the Estate of Alcorn, 263 Mont. 353, 355, 868 P.2d 629, 630 (1994). A
finding of fact is clearly erroneous if it is not supported by substantial evidence, if the
district court misapprehended the effects of the evidence or if our review of the record
convinces us the district court made a mistake. In re the Marriage of Swanner-Renner,
2009 MT 186, ¶ 13, 351 Mont. 62, 209 P.3d 238. We review a district court’s
conclusions to determine whether the district court’s interpretation of law is correct.
Alcorn, 263 Mont. at 355, 868 P.2d at 630. Lastly, we review evidentiary rulings for an
2
abuse of discretion. Stevenson v. Felco Industries, Inc., 2009 MT 299, ¶ 16, 352 Mont.
303, 216 P.3d 763.
¶4 The District Court held that Norstebon had proved by a preponderance of the
evidence the elements necessary to establish that she and Bothamley were in a common
law marriage at the time of Bothamley’s death. We have reviewed the District Court’s
Conclusions of Law and hold that it correctly interpreted the law of common law
marriage under § 40-1-403, MCA, and our own pertinent precedent. The District Court
heard testimony from 28 witnesses and received 83 exhibits regarding the nature of
Norstebon and Bothamley’s relationship under the factors necessary to prove the
existence of a common law marriage. See In re Ober, 2003 MT 7, ¶ 9, 314 Mont. 20, 62
P.3d 1114. We find no indication that the District Court’s Findings of Fact were not
supported by substantial evidence, that the District Court misapprehended the evidence’s
effects or that the District Court made a mistake.
¶5 Lastly, we consider whether the District Court abused its discretion in admitting
the address book. We review the admission of this evidence to determine whether the
trial court acted arbitrarily without employment of conscientious judgment or exceeded
the bounds of reason resulting in substantial injustice. Circle S Seeds of Montana, Inc. v.
T & M Transporting, Inc., 2006 MT 25, ¶ 14, 331 Mont. 76, 130 P.3d 150. The District
Court heard testimony regarding how Norstebon only recently found the address book in
an unexpected location in the home. The District Court considered the parties’ arguments
regarding the late disclosure of this evidence. In reviewing the District Court’s decision
to admit the evidence, we find nothing indicating that the court acted arbitrarily without
3
conscientious judgment or exceeded the bounds of reason resulting in substantial
injustice.
¶6 We have determined to decide this case pursuant to Section I, Paragraph 3(d)(v) of
our 1996 Internal Operating Rules, as amended in 2006, which provides for
memorandum opinions.
¶7 Affirmed.
/S/ W. WILLIAM LEAPHART
We concur:
/S/ MIKE McGRATH
/S/ PATRICIA COTTER
/S/ JAMES C. NELSON
/S/ MICHAEL E WHEAT
4