IN RE ESTATE OF OBER, 02-438.

• Decision Date: 23 January 2003
• Docket Number: No. 02-438.,02-438.
• Citation: 2003 MT 7,62 P.3d 1114,314 Mont. 20
• Parties: In the Matter of the ESTATE OF John Louis OBER, Deceased.
• Court: Montana Supreme Court

62 P.3d 1114

2003 MT 7

314 Mont. 20

In the Matter of the ESTATE OF John Louis OBER, Deceased.

No. 02-438.

Supreme Court of Montana.

Submitted on Briefs October 31, 2002.

Decided January 23, 2003.

Rehearing Denied February 13, 2003.

Gale R. Gustafson, Gustafson & Rohrer, Conrad, Montana, For Appellants.

Dirk Larsen, Larsen Law Firm, Great Falls, Montana, For Respondent.

Justice PATRICIA O. COTTER delivered the Opinion of the Court.

¶ 1 Joseph Ober (Joseph) was informally appointed the personal representative of the estate of his brother, John Louis Ober (John). Selma Klein (Selma) objected to Joseph's appointment, and filed a petition requesting to be appointed the personal representative of John's estate in the Ninth Judicial District Court, Teton County. Following a bench trial, the District Court issued its findings of fact, conclusions of law and judgment, in which it concluded that Selma was the common-law wife of John, and granted Selma's petition to be appointed personal representative of John's estate. Joseph appeals. We affirm the judgment of the District Court.

¶ 2 We restate the sole issue on appeal as follows:

¶ 3 Did the District Court err in finding that Selma Klein was the common-law wife of John Ober?

FACTUAL AND PROCEDURAL BACKGROUND

¶ 4 John died on September 30, 2001. On October 5, 2001, John's brother Joseph filed an application to be informally appointed the personal representative of John's intestate estate. The Clerk of the District Court granted Joseph's application that same day. On October 12, 2001, Selma filed an objection to Joseph's appointment as the personal representative of John's estate. Selma's objection asserted that, as the surviving wife of John, she was entitled to be appointed the personal representative of John's estate.

¶ 5 On October 19, 2001, Selma filed a petition requesting to be appointed the personal representative of John's estate. On December 7, 2001, the District Court issued an order, precluding Joseph from making disbursements from John's estate without: (1) Selma's consent; or (2) an order of the District Court. Joseph submitted an inventory of John's estate on December 30, 2001.

¶ 6 A bench trial was conducted on February 28 and March 1, 2002. On May 15, 2002, the District Court issued its findings of fact, conclusions of law and judgment. The District Court found Selma to be the common-law wife of John, and granted Selma's petition to be appointed the personal representative of John's estate. On May 24, 2002, Joseph filed a motion requesting that the District Court amend its findings of fact, conclusions of law and judgment. Leonard Ober (Leonard), brother of John and Joseph, joined in the motion. The District Court denied Joseph and Leonard's motion on May 28, 2002. Joseph and Leonard appealed the District Court's findings of fact, conclusions of law and judgment on May 30, 2002.

STANDARD OF REVIEW

¶ 7 This Court reviews a district court's findings of fact to determine whether they are clearly erroneous. Matter of Estate of Alcorn (1994), 263 Mont. 353, 355, 868 P.2d 629, 630. When reviewing a district court's conclusions of law, we determine whether the court's interpretation of the law is correct. Alcorn, 263 Mont. at 353, 868 P.2d at 630.

DISCUSSION

¶ 8 Did the District Court err in finding that Selma Klein was the common-law wife of John Ober?

¶ 9 The State of Montana recognizes common-law marriages. See § 40-1-403, MCA. However, in order to establish a common-law marriage, the party asserting the existence of the common-law marriage must prove that: (1) the parties were competent to enter into a marriage; (2) the parties assumed a marital relationship by mutual consent and agreement; and (3) the parties confirmed their marriage by cohabitation and public repute. Matter of Estate of Hunsaker, 1998 MT 279, ¶ 32, 291 Mont. 412, ¶ 32, 968 P.2d 281, ¶ 32.

¶ 10 In the instant case, Joseph and Leonard (the Appellants) concede that both John and Selma were competent to enter into a marriage. The Appellants further concede that John and Selma lived together in Selma's home for several years prior to John's death. They allege, however, that Selma failed to establish that she and John assumed a marital relationship by mutual consent, and that their marriage was confirmed by public repute.

¶ 11 The Appellants contend that the evidence introduced at trial establishes that neither John nor Selma consented to assume a marital relationship. The Appellants support their contention with the following evidence introduced at trial: (1) Selma did not assume John's last name; (2) John and Selma maintained separate property and bank accounts; (3) John and Selma filed their taxes as "single" taxpayers; (4) John and Selma filed documents with the Farm Service agency as "single" persons; (5) John did not designate Selma as the beneficiary on his life insurance policy; (6) John did not report Selma as his spouse to his employer; (7) John granted his brother Benno Ober power of attorney in three separate documents; (8) John continued to pay rent on an apartment in Conrad, Montana, after he moved into Selma's home near Power, Montana; and (9) Selma continued to receive her widow's survivor benefit from the Social Security Administration under the name of her deceased husband, Frank Klein. The Appellants further maintain that no evidence exists to prove that Selma called John her husband, or that John called Selma his wife. The Appellants also question Selma's testimony that John proposed to her in 1987, and that the couple exchanged rings later that year. Finally, the Appellants assert that John was not wearing a ring in any of the photographs introduced into evidence at trial.

¶ 12 Selma counters that substantial evidence was introduced at trial to establish that she and John assumed a marital relationship by mutual consent. Specifically, Selma testified that John proposed to her in 1987. Selma stated that she accepted John's proposal, and that the couple discussed details of a marriage ceremony, such as location and potential members of the wedding party. Selma also testified that she and John exchanged rings shortly after his proposal. Selma stated that she wore her ring almost continuously during her common-law marriage to John, but that John wore his ring only sporadically. Selma further testified, as did Selma's grandson, that John's ring was cut off several years ago after John was involved in a minor accident which caused his hand to swell. Selma produced both her ring and John's "cut" ring at trial.

¶ 13 Selma testified that she was unaware her accountant had designated her a "single" person for tax purposes until it was brought to her attention by parties to the instant case. Additionally, Selma introduced address labels at trial which read "John or Selma Ober." Selma's granddaughter testified that John used address labels like those introduced every month when he paid his bills. Selma also introduced a photograph of herself at trial, which John had carried in his wallet. On the back of the photograph, in John's handwriting, were the words "my wife." Finally, Selma notes on appeal that no evidence was offered by the Appellants at trial to contradict the testimony regarding John's handwritten comment on the back of the photograph.

¶ 14 The facts of the instant case are similar to those in both Hunsaker and Alcorn. In Hunsaker, the surviving spouse testified that she had received a ring from her common-law husband. Hunsaker, ¶ 35. The surviving spouse further testified that the couple had displayed a grandfather clock in their home, which was engraved with their first initials intertwined over the letter "H." The "H" on the clock represented Hunsaker, her common-law husband's last name. Hunsaker, ¶¶ 7, 36. This Court determined that the ring and grandfather clock, combined with the surviving spouse's testimony that she "felt married," constituted sufficient evidence to establish that the couple mutually consented and agreed to a marital relationship. Hunsaker, ¶ 37.

¶ 15 In...