Estate of Alcorn, Matter of, 93-308

• Decision Date: 11 February 1994
• Docket Number: No. 93-308,93-308
• Citation: 868 P.2d 629,263 Mont. 353
• Parties: In the Matter of the ESTATE OF Fred ALCORN, Deceased.
• Court: Montana Supreme Court

Page 629

868 P.2d 629

263 Mont. 353

In the Matter of the ESTATE OF Fred ALCORN, Deceased.

No. 93-308.

Supreme Court of Montana.

Submitted on Briefs Dec. 2, 1993.

Decided Feb. 11, 1994.

Donald J. Hamilton and Steven T. Potts, Jardine, Stephenson, Blewett & Weaver, Great Falls, for appellant.

Donald L. Ostrem, Graybill, Ostrem & Crotty, Great Falls, for respondent.

HARRISON, Justice.

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 "Fritz" 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 § 72-2-223, MCA; a homestead allowance of $20,000, pursuant to § 72-2-412, MCA; an exempt property allowance not to exceed $3,500, pursuant to § 72-2-413, MCA; and a family allowance, pursuant to § 72-2-414, 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(30), 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 (1926), 78 Mont. 370, 254 P. 179).

The following exchange occurred at the August 17, 1992, hearing:

Q. [By Donald Ostrem, Kathee's 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 40-1-401(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 Kathee 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 "Young" to "Alcorn;" 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...