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Supreme Court of Montana. In the Matter of the ESTATE OF Michael W. MURNION, Deceased. No. 83-385. Submitted March 13, 1984.
(109, 895) Regnier, Lewis & Boland, Tom L. Lewis argued, Great Falls, Garlington, Lohn & Robinson, Missoula, for appellant. Sandall, Cavan & Smith, Robert C. Smith and John J. Cavan, Jr., argued, Billings, Crowley, Haughey, Hanson, Toole & Dietrich, Billings, for respondent. SHEEHY, Justice. Sherry Lynn Hart, as guardian of Katrina P. Murnion, a minor, appeals from a judgment and order of intestacy and determination of heirs entered by the District Court, Sixteenth Judicial District, Rosebud County, in the probate proceedings of the estate of Michael W. Murnion, deceased, to the effect that the decedent was survived by Pauline (110) Jean Imel, his wife at the time of his death, and by Katrina P. Murnion, his daughter by a prior marriage. The issue, sine qua non, which pervades this case is whether Pauline Jean Imel was the common-law wife of the decedent, Michael W. Murnion at the time of his death. The District Court determined that she was his surviving wife. We affirm the judgment of the District Court. Michael W. Murnion died as a result of a fall from a scaffolding apparatus upon which he was working in the course of construction of unit no. 4 at Colstrip, Montana. As explained by respondent in her brief, his heirs are entitled to receive Workers' Compensation benefits in the amount of approximately $240 per week which would be split equally between the deceased's daughter, Katrina, and his surviving wife, Pauline, should she be found to be his spouse. If not, Katrina is entitled to the full amount of Workers' Compensation benefits until age 25, if she attends college. A surviving wife is entitled to Workers' Compensation benefits until death or remarriage. As a surviving spouse, Pauline would be entitled to share equally in the distribution of Michael's estate which includes the proceeds of the survival portion of a civil action pending. The civil action is one for survival and wrongful death, brought against Shurtleff and Andrews, Inc., a Utah corporation, and Bechtel Power Corporation, Montana Power Company, Puget Sound Power and Light Company, Portland General Electric Company, Pacific Power and Light Company, and Washington Power Company. These defendants in the civil action did not appear in the estate proceedings. The proceeds of the civil action for survival and wrongful death may be substantial. Katrina and Pauline, if she is the surviving spouse, have independent causes of action for wrongful death, and both will be entitled to recover on their claims from the proceeds of the third party suit in accordance with a court apportionment. If, however, Katrina is the sole heir, she would be the sole beneficiary of the estate, (111) and of the third party action for wrongful death. In addition, there are life insurance benefits payable through the Boilermaker's Union, of which Michael was a member; $1,089.63 of those benefits are payable to the estate, and $46,000 is payable to his surviving spouse, and if none, to his child, Katrina. In attacking the judgment of the District Court, the guardian of Katrina raises these issues: 1. The District Court under choice of law principles, improperly applied Montana substantive law to an alleged common-law marriage by oral agreement which was illegal in the State of Washington. (896) 2. The District Court's findings of fact and conclusions of law which determine that Pauline was a common-law wife of the decedent are not supported by substantial credible evidence, are clearly erroneous, and are contrary to law. 3. The District Court's alternative conclusion of law that even if Pauline was not a common-law wife, she is entitled to the rights of a putative spouse under section 40-1-404, MCA, is clearly erroneous in this case. In resolving these issues, we look first to the findings of fact to determine if under Rule 52(a), the fact findings are clearly erroneous, for if so, the conclusions which the District Court drew from such findings must clearly fall. In equitable causes, if the issues are close, a degree of deference is accorded the findings of the trial court since it is in a better position to make decisions of fact; and the duty of the Supreme Court in reviewing an action of an equitable nature is to proceed under section 3-2- 204(5), MCA, and to review independently all questions of fact as well as questions of law; which still allows us to uphold the District Court on questions of fact unless there is a decided preponderance of the evidence against its findings. Rase v. Castle Mountain Ranch, Inc. (Mont.1981), 631 P.2d 680, 38 St.Rep. 992. The District Court, in making its findings of fact, outlined the essential portions of the evidence upon which it relied, (112) and gave reasons for distinguishing the items of fact relied upon by the guardian to dispute the common-law marriage. Rather than attempting to paraphrase the findings of the District Court, we find it simpler here, for the benefit of the reader, to set them forth in full as an appendix to this proposed opinion. The guardian's attack against the propriety of the findings of fact is based on (1) inconsistent items of fact, (2) the presumption that cohabitation illicit in its inception is presumed to be illicit throughout, and (3) the argument that the facts do not indicate that the parties contemplated a present assumption of marriage, but rather an intention to marry in the future. The guardian insists that the following items of fact refute an existing common-law marriage between Michael and Pauline at the time of his death: She utilized the name Pauline G. Imel on her October 21, 1981, application for employment; she did not identify on that application the name of Pauline Murnion, although she identified other names that she had used; she transferred bank accounts to Colstrip in the name of Pauline G. Imel; Michael listed his marital status as "single" on his employment application; they purchased a trailer as tenants-in-common using their own names; they purchased an apartment house in Billings, also using their own names as tenants-in- common; and similar documentary evidence. Those items of fact, standing alone, would negate the assumption of a common-law marriage between the parties. Each item, however, was explained in the testimony, and the District Court accepted the explanation as valid. The issue of marriage really depended on the credibility of Pauline G. Imel. The District Court, having an opportunity to observe her and her demeanor on the stand, accepted the explanations. Moreover, the close members of Michael's family, his father and mother, and his brother, all supported Pauline in her contention that she was married to Michael. In our review of the facts, giving deference as we (113) do to the trial court because it sees and hears the witnesses, we find that substantial credible evidence supports the District Court in its findings, and they are not clearly erroneous. The evidence here is not weak but strong that the parties held themselves out as husband and wife during their period of residence in Montana. On appeal, we review evidence in the light most favorable to the prevailing party, and the credibility of witnesses and the weight accorded their testimony we leave to the District Court's determination in nonjury trials. Farmers State Bank v. Mobile Homes, Unlimited (1979), 181 Mont. 342, 593 P.2d 734. (897) The second consideration relating to the findings of fact is the guardian's argument that when a relationship is illicit in its inception between a man and a woman, the illicit relationship is presumed to have continued throughout the period of cohabitation. That is a proper statement of the law, and the burden rests upon the party asserting a valid marriage, in this case Pauline, to show that the relationship changed to a lawful relation by a marriage. Stevens v. Woodmen of the World (1937), 105 Mont. 121, 71 P.2d 898. The effect of a presumption, of course, is to place the burden on the other party to overcome the presumption. We determine that Pauline has met that burden by showing that their original meretricious relationship changed into a lawful one with their agreement to marry. It is to be remembered, however, that there is a counter presumption, though disputable, that a man and woman deporting themselves as husband and wife have entered into a lawful contract of marriage. Section 26-1-602(30), MCA. This Court in Welch v. All Persons (1926), 78 Mont. 370, 384, 254 P. 179, 182, stated that the presumption in favor of matrimony is one of the strongest known to the law and that every intendment of the law is in favor of matrimony, which presumes morality and not immorality, marriage and not concubinage, legitimacy and not bastardy. Estate of Swanson (1972), 160 Mont. 271, 502 P.2d 33. (114) The third attack on the findings is that the parties contemplated doing something further to formalize the marriage and until that was done, no marriage had occurred. Again the District Court explained in its findings that although the parties intended to do something further to formalize their marriage, to please Michael's parents, and to accommodate society, this intention to formalize did not conflict with the agreement they had made to become husband and wife. We agree with the District Court in this conclusion. We turn now to a further issue raised by the guardian against the order of the District Court, the guardian's claim that under Washington law, which does not recognize common-law marriage, the alleged marriage between Michael and Pauline was invalid, and that Washington law should apply in this case. The guardian's choice of law argument comes in two main thrusts, (1) that if Washington law applies, a common-law marriage is invalid and (2) that if Montana substantive law applies, the common-law marriage must take place immediately, come instantly into being, or it does not come into being at all. Under the facts found by the District Court, Michael and Pauline were residents and domiciliaries of Washington at the time of the alleged agreement to marry. Both were employed in Washington, and both had all of their property in Washington at the time. They had each resided in Washington for a lengthy period prior to the agreement; their entire relationship had commenced and continued in Washington until the date of the purported agreement and even thereafter for a period of at least one month. The State of Washington does not recognize common-law marriages. In Re Gallagher's Estate (1950) 35 Wash.2d 512, 213 P.2d 621; Willey v. Willey (1900) 22 Wash. 115, 60 P. 145. Both parties cite us to the Washington case of Gallagher,
supra. In that case, the parties entered into a ceremonial (115) marriage
in 1925, but the marriage was invalid because the wife then had a living
husband from whom she had not been divorced. The couple moved to Michigan,
and then to other states, and lived together as husband and wife until
1945, when he died. The husband left property in Washington, which became
the subject of a dispute with his blood relatives, who claimed that
the ceremonial marriage to the wife was invalid, and that a common-law
marriage is not recognized in Washington. We interpret the decision
in Gallagher to mean that in Washington, although the state does not
recognize common-law marriages originally (898) contracted and consummated
in the state, the validity of such a marriage will be sustained if it
had been contracted and consummated in another state where it is lawful.
Common-law marriages were recognized in the State of Michigan. In the
Gallagher case, the former husband obtained a divorce without the knowledge
of his former wife, then living with Gallagher. In upholding the validity
of the common-law marriage consummated in the State of Michigan, the
Washington court said: It is probable, judging from Gallagher, that had this case arisen in the State of Washington, under the same facts, the validity of the marriage of Michael to Pauline would be sustained. (116) In Gallagher, a ceremonial marriage ripened into a common-law marriage, in another state where such marriages were valid. In this case, Pauline contends that her common-law marriage, invalid in Washington, ripened into a valid common-law marriage in Montana where such marriages are valid. We have, however, no direct case authority from Washington precisely tracking the facts of the case at bar. In this situation, the guardian contends that Montana must follow the choice of law rule that the local law of the state where the marriage is alleged to have occurred governs the question of the validity of the marriage. Cross v. Cross (1940), 110 Mont. 300, 102 P.2d 829. In Re Estate of Dauenhauer (1975), 167 Mont. 83, 535 P.2d 1005. In Cross, however, we had a case of Montana domiciliaries who had been married in Idaho, and who returned to Montana. There we determined there was no public policy difference between the State of Idaho and the State of Montana, and held invalid a marriage by a child who was not of the statutory age to be married and who had not the parent's consent. In Dauenhauer, this Court recognized the invalidity of a common-law marriage in California, but the marriage domicile was never established in Montana by the parties. We must determine therefore, under choice of law rules whether Montana's substantive law can be applied to uphold the marriage between Michael and Pauline, and if so, what is the substantive law to be applied to the case at bar. Restatement Second of Conflicts, § 283, provides: The principles set forth in Restatement Second of Conflicts,
§ 6, are: Under comment (f), to Restatement Second of Conflicts,
§ 283, it is said: In the application of Restatement Second of Conflicts, § 6, we come down on the side of applying Montana law every time. Montana is strongly inclined to recognize the validity of marriage; it specifically recognizes common-law marriages by statutory (section 40-1-403, MCA,) and case law; the amount of Workers' Compensation benefits will be determined by Montana law; the wrongful death causes will be determined by Montana law; Washington retains no interest in the outcome of the validity of the marriage in this case; and the applicable Montana law is more easily determined in a case of this kind than is the Washington law. We therefore look to Montana's substantive law relating to common-law marriages and their validity, to apply to this case. The public policy of this state with respect to marriages can be gathered from the statutes under our marriage code. First, the act is to be liberally construed to promote its underlying purposes, one of which is to strengthen and preserve the integrity of marriage and to safeguard family relationships. Section 40-1-101, MCA. Certain marriages are prohibited in Montana, such as bigamous and incestuous marriages. Section 40-1-401(1), MCA. In those prohibited (118) marriages however, persons who cohabit after the removal of the impediment are lawfully married as of the date of the removal of the impediment. Section 40-1-401(2), MCA. Common-law marriages are specifically not invalidated. Section 40-1-403, MCA. The rights of putative spouses are protected in section 40-1-404, MCA, where any person has cohabited with another to whom he is not legally married in the good faith belief that he was married. In Estate of Schanbacher (1979), 182 Mont. 176, 595 P.2d 1171, we set aside a summary judgment on the ground that a bigamous marriage may have ripened into a common-law marriage after the death of the decedent's first spouse. Thus in Montana, under statutory and case law, a marriage prohibited by law in Montana may yet ripen into a valid marriage when the impediment is removed. We see no difference in logic, and therefore hold that a marriage which may be invalid where contracted, but which would be valid in Montana, will be recognized by this State as valid if the marriage otherwise comports with our marriage laws, and if under choice of law rules, Montana law is to be applied. The guardian contends, however, that even under Montana law, we may not recognize a valid common-law marriage here because under our law, a common-law marriage must take place immediately, or not at all. Estate of McClelland (1975), 168 Mont. 160, 541 P.2d 780. While that statement appears in the case cited, and others,
it is not determinative here. 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.
See Welch v. All Persons (1926), 78 Mont. 370, 254 P. 179. Here the
beginning date of the common-law marriage was the date of their mutual
consent to be married, September 4, 1982. At the time of their original
consent, their marriage was invalid in the State of Washington. On their
removal to (119) Montana, however, a different law applied. In this
case Pauline gave up her job, with its prospects for promotion, her
residency in the State of Washington, transferred her bank accounts
and property, and devoted herself and her property to Michael in performance
of her marriage agreement. The requirement for certainty of time for
the beginning of the common-law marriage was met when the parties moved
to Montana, a state where common-law marriages are valid, and where
thereafter they cohabited, and by (900) public repute were husband and
wife. We are buttressed in this by the United States Supreme Court case
of Travers v. Reinhardt (1906), 205 U.S. 423, 27 S.Ct. 563, 51 L.Ed.
865, which states: Under our applicable law, therefore, we hold the common-law marriage of Michael and Pauline Imel Murnion to be valid. As a final issue, the guardian attacks the statement of the District Court under section 40-1-404, MCA, that Pauline was a putative spouse so that even if she was not legally (120) married in Montana, but cohabited with Michael in the good faith belief that she was married, she was entitled to all the rights of a putative spouse. What we have said foregoing respecting the validity of the marriage removes any need to discuss this issue. The District Court added the putative spouse provision as a further reason for upholding the marriage. Argument could be made, as the guardian has argued, that Pauline was not possessed of a good faith belief that she was legally married because her marriage was originally invalid under Washington law. On the other hand, the facts found by the District Court seemed to indicate that she did in fact entertain a good faith belief that her common-law marriage was valid. In any event, the issue makes no difference because we have determined that in this case she was legally married to Michael Murnion at the time of his death. Affirmed. WEBER, GULBRANDSON, MORRISON and SHEA, JJ., concur. * * * * HASWELL, Chief Justice, dissenting: I question the trial court's legal conclusion that the evidence supports a finding of common law marriage. We have traditionally phrased our test of the existence
of a common law marriage in terms of consent, habit and repute. Cohabitation
with habit and repute are merely the means of proving the first, and
primary, element of any marriage--consent. Newman involved a rape charge and an alleged, and very brief, marriage. Both parties were alive at the time of trial. Our cases more often involve an estate or insurer and a spouse or alleged spouse claiming common law marriage. This is true in the present case. "[T]he best evidence of the exchange of marriage consent between the parties would come from those who were personally present when they mutually agreed to take each other as husband and wife, and to assume all the responsibilities of that relation." Travers v. Reinhardt (1907), 205 U.S. 423, 436, 27 S.Ct. 563, 567, 51 L.Ed. 865. Rarely is more than one of those "personally present" available to testify at trial. Our law has developed in an attempt to guide the courts in their examination of surviving fact as proof of the thoughts and intentions of the missing partner to the marriage. A marriage may be inferred from cohabitation and reputation as husband and wife. Once these facts are brought forward, we shift to the opponent the burden of disproving the marriage. Elliott v. Industrial Accident Board (1956), 101 Mont. 246, 53 P.2d 451. The proponent will, however, continue to bear the burden of proof where the relationship was illicit at its inception. Welch v. All Persons (1927), 78 Mont. 370, 384, 254 P. 179, 182. The rule is not a sanction or condemnation. It is, again, our way of protecting the intent of parties who can no longer speak for themselves. In the case relied on in Welch, the proponent ably bore the burden of proof: a brief meritricious relationship preceded a public proclamation and twelve-year marriage. Howard v. Kelly (1916), 111 Miss. 285, 71 So. 391. In Estate of Swanson (1972), 160 Mont. 271, 502 P.2d 33, the couple, after an allegedly illicit beginning, privately celebrated their marriage and continued to live together for eight years. The relationship, here, was admittedly illicit at its inception, and the parties knew it was illicit. We need not resort to state law, for the parties, themselves, did not intend a (137) marriage at that time. Pauline testified that later, on September 4, 1981, while still in Washington, the couple agreed that they were married knowing such marriage was illegal under Washington law. I do not question Pauline's credibility or the weight given her testimony. I do question the effects of time and circumstances. The facts clearly show that (909) the couple lived together as man and wife, but the facts also show a wavering, perhaps tenuous commitment to marriage. Both Michael and Pauline conducted a part of their lives as single people. Michael designated himself as a single person on his employment records. Pauline applied for work, kept her savings accounts, and purchased insurance in her own name without mention of Michael or marriage. A woman's continued use of her maiden name will not, in itself, defeat a claim of common law marriage. Swanson, supra. Although not legally determinative, Pauline's willingness to conduct a part of her life--particularly, but perhaps not surprisingly, the financial part of her life--as a single person, raises questions of the certainty of her commitment. Now, when only the rewards remain, human nature may choose to strengthen, in retrospect, that which was tentative at the time. The couple lived together ten months. They filed separate tax returns, taking advantage of the lower tax accorded two single people rather than be taxed on their combined income as a married couple. We have already voiced our disapproval of marriage claimed only for financial convenience. Estate of Peltomaa (Mont.1981), 630 P.2d 215, 38 St.Rep. 943. The same can be said of a convenient claim of single. Michael and Pauline purchased their mobile home and apartment house as tenants in common rather than as joint tenants with rights of survivorship. Few married couples of moderate means choose to hold property as tenants in common. We have always offered a true common law marriage the same protections given formal marriage. By necessity, the same duties are imposed. A couple may not walk in and out (138) of their marriage at whim. Michael and Pauline appear to have left the door open. The majority, in discussing the question of Montana validity of the Washington marriage, fails to give proper attention to our requirement that a man and woman give mutual consent to a present assumption of the marriage status. Newman, supra. The question is not whether the marriage ripened into legal marriage in Montana but whether the couple, knowing their present consent to be ineffective and predicating its validity upon a future move, consented to a present assumption of the marriage status. The majority relies on Travers to hold the earlier consent effective upon the move to Montana. The cases are not analogous. Travers involved only legal recognition of a marriage freely consented to at its inception. The Traverses lived together as man and wife for eighteen years, openly and constantly, conducting themselves towards each other for such a length of time as to produce a general belief that they were married. The Travers will verified the relationship as one of marriage. Travers, supra, 205 U.S. at 441, 27 S.Ct. at 569. Michael and Pauline lived together for ten months. Their reputation as man and wife is inconsistent, at best. Their steps toward formal marriage or formal solemnization of the marriage that existed, if it existed, were only haltingly taken. There is, here, no bright line or long mosaic of marriage. The facts do not support a finding of common law marriage. I would reverse.
I concur in the foregiong dissent of Mr. Chief Justice Haswell. 686 P.2d 893, 212 Mont. 107 END OF DOCUMENT |
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