No 

No. 97-569

IN THE SUPREME COURT OF THE STATE OF MONTANA

1998 MT 279

295 Mont. 46

983 P.2d 327

IN THE MATTER OF THE ESTATE OF

MAURICE L. HUNSAKER, Deceased.

ANNE BARNETT, an individual,

Petitioner and Appellant, 

vs.

SHORLAND HUNSAKER, 

Respondent and Cross-Appellant.

APPEAL FROM: District Court of the First Judicial District,

In and for the County of Broadwater,

The Honorable Dorothy McCarter, Judge presiding.

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COUNSEL OF RECORD:

For Appellant:

James A. McLean, Drysdale, McLean & Nellen, Bozeman, Montana

For Respondent:

Sarah Nash Zimmer, Nash, Guenther & Zimmer, Bozeman, Montana

Submitted on Briefs: January 30, 1998

Decided: November 17, 1998

Filed:

__________________________________________

Clerk

Justice James C. Nelson delivered the Opinion of the Court.

¶1. Anne Barnett (Anne) appeals from the July 17, 1997 Findings of Fact, 

Conclusions of Law and Order of the District Court for the First Judicial District, 

Broadwater County, determining that she was not the common-law wife of decedent 

Maurice L. Hunsaker (Maurice) and was therefore not an heir to his estate. Shorland 

Hunsaker (Shorland), one of Maurice's brothers, cross-appeals the District Court's 

determination that Maurice died intestate. We reverse and remand for further 

proceedings consistent with this opinion.

Factual and Procedural Background

¶2. Sometime in 1985, Maurice and Anne met at a restaurant where Anne worked as 

a waitress. At that time, Anne was married to Raymond Price; Maurice had never 

married. Maurice and Anne became close friends initially, but they did not share an 

intimate relationship until sometime later. Anne separated from her husband in 

December 1986 and was divorced on February 30, 1987. 

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¶3. After Anne separated from her husband, she moved into a mobile home that 

Maurice bought for her. Maurice and Anne moved her personal effects into the 

mobile home the week prior to Christmas 1986. Anne testified that Maurice gave her 

a gift on every day of that week and that, on Christmas Day, Maurice gave her an 

engagement ring along with a matching wedding band and asked her to marry him. 

Anne wore the engagement ring at times, but she did not wear the wedding band. 

Anne stated that she never wore the wedding band because she did not believe that 

she had the right to wear it since she and Maurice did not have a formal wedding 

ceremony. 

¶4. Maurice stayed nights with Anne at the mobile home until October 1987, when 

they moved into Maurice's house near Toston. The title and mortgage on the house 

were in Maurice's name alone. Maurice and Anne lived together in the house until 

Maurice's death on September 27, 1996.

¶5. During their relationship, Maurice farmed and ranched at his family's ranch 

near Toston. Anne worked as an insurance clerk and receptionist at the Family 

Medical Clinic in Townsend.

¶6. Leonard Lambott (Lambott), a Toston area farmer and grain-elevator operator 

who knew Maurice and Anne for many years, testified at the bench trial on this 

matter that a sign in front of the house read, "Hunsakers, Home of the 

Classics" (referring to Maurice's and Anne's classic car collection). Lambott further 

testified that the message on the telephone answering machine, recorded by Anne, 

stated, "this is the Hunsaker residence." 

¶7. Anne testified that she and Maurice purchased a large grandfather clock together 

and displayed the clock in the living room of the house. Maurice had the pendulum of 

the clock engraved with an "H" for Hunsaker in the center of the pendulum and an 

"M" for Maurice intertwined with the left side of the "H" and an "A" for Anne 

intertwined with the right side of the "H." Anne stated that she and Maurice were 

proud of the clock and showed it to people who came to the house.

¶8. Anne further testified that she and Maurice shopped, traveled and vacationed 

together, and went out to eat together every Friday night. In addition, Anne stated 

that they operated a classic car business together, took care of the yard together, and 

decorated the house for the Christmas season together. Anne testified that they often 

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cooked dinner for each other.

¶9. Even though they lived together and did many activities together, Anne and 

Maurice kept separate bank accounts. Because Maurice had poor credit, Anne 

purchased many personal items for Maurice and he bought many items with Anne's 

credit. Anne testified that Maurice generally reimbursed her for these purchases. 

¶10. Maurice and Anne owned shares of stock in two companies as joint tenants. 

They also owned a time-share condominium at Island Park, Idaho as joint tenants. 

Maurice listed Anne as the secondary beneficiary to his sister on his Department of 

Veterans Affairs life insurance policy. Anne was listed as Maurice's spouse on the 

Designation of Beneficiary forms for that policy. Although most of one form was 

filled in by Maurice, Anne testified that she filled in the word "spouse" on that form. 

Maurice had another life insurance policy that listed Shorland as the sole 

beneficiary. 

¶11. Maurice and Anne filed separate income tax returns each year listing themselves 

as single instead of married. Anne testified that they filed as single persons because 

Maurice told her that he was in trouble with the IRS and that he did not want to get 

her involved with his financial problems. Anne testified that she did not know that 

she could have filed as married filing jointly. Gary Spitzer (Spitzer), the accountant 

who prepared Maurice's income tax returns until 1993, testified that Maurice did not 

indicate to him that Maurice was married. 

¶12. Steven Shapiro (Shapiro), a Montana City attorney who represented Maurice in 

several matters starting in the fall of 1993, testified that he once introduced Anne to a 

mediator as "Annie Hunsaker, Morrie's wife." Shapiro stated that neither Maurice 

nor Anne corrected his introduction. Shapiro sent Christmas cards to Maurice and 

Anne and addressed the cards to "Maurice and Anne Hunsaker." Shapiro testified 

that he thought that Anne and Maurice were married and was surprised to read in 

Maurice's obituary that Anne's last name was not Hunsaker. 

¶13. Lambott also testified that Anne and Maurice presented themselves as husband 

and wife and that he therefore perceived them as a married couple. Lambott further 

testified that Maurice referred to Anne as "my wife." Tom Stonecipher 

(Stonecipher), a Bozeman attorney who had represented Maurice in the past, 

however, testified that Lambott once stated that Maurice and Anne were not married 

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but just "long-term boy and girlfriend."

¶14. Anne testified that she felt that she was married to Maurice during their 

relationship. She also testified that she thought that Maurice felt married to her.

¶15. Evidence introduced at trial showed that Anne was named as Maurice's spouse 

on his Department of Veterans Affairs life insurance policy, on his death certificate, 

and in a magazine article written about Maurice. Anne was also listed as "Anne 

Hunsaker" on a membership card to a classic car club and on a receipt from a store 

in Townsend. Additionally, Anne introduced into evidence two wedding invitations 

that Shorland's daughters sent to the house. Both invitations were addressed to "Mr. 

and Mrs. Maurice Hunsaker."

¶16. Lee Stokes, a Bozeman attorney, represented a client that was purchasing land 

from Maurice and two of his brothers and their spouses. He testified that, in trying to 

make sure that the title to the land was clear, he asked Maurice if he had any 

premarital agreements with Anne and that Maurice responded that Anne was not his 

wife and that he did not involve her in business. 

¶17. Shorland testified that Maurice called Anne his "sweetheart," but not his wife. 

Shorland also testified that he was close enough to Maurice that if Maurice had been 

married, he would have told Shorland. Thomas Hunsaker, one of Maurice's 

brothers, testified that he did not know if he considered Maurice and Anne to be 

married.

¶18. Maurice was listed as Anne's "significant other" on two hospital consent forms 

that Anne signed. One of the consent forms initially listed Maurice as Anne's 

"husband." However, the word "husband" was crossed out and replaced with 

"significant other." Betsie Rasmussen, the nurse who filled out the consent forms, 

testified that she filled them out with information that Anne gave her. 

¶19. Shortly before his death, Maurice and Lambott had a conversation about wills. 

Maurice told Lambott that he wanted to leave his entire estate to Anne. Lambott 

advised Maurice to talk with an attorney. 

¶20. On September 25, 1997, Maurice contacted Stonecipher about preparing a will. 

Stonecipher testified that Maurice told him that Anne was his "common-law wife" 

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and that he wanted to leave everything to her. Stonecipher further testified that 

Maurice said that he did not have a will and that his family would "eat [Anne] alive" 

if he died without a will leaving his estate to her. Because Stonecipher usually does 

not prepare wills, he and Maurice decided to speak again the following week to make 

arrangements for the preparation of a will. However, two days after their initial 

conversation and before a will could be drafted, Maurice died. He was 63 years old. 

At the time of his death, Maurice had five surviving brothers and one surviving 

sister. One brother, Harper Hunsaker, died shortly after Maurice. 

¶21. On October 8, 1996, the District Court appointed Anne special administrator of 

Maurice's estate. Anne petitioned the court on October 25, 1996, to appoint her 

personal representative of the estate. Anne claimed in her petition that she was 

Maurice's surviving spouse. On December 3, 1996, Richard Hunsaker, one of 

Maurice's brothers, petitioned the court to appoint an unrelated third party as 

personal representative of Maurice's estate or, in the alternative, to appoint "Anne 

Barnett, the surviving spouse of the Decedent," as personal representative.

¶22. On February 5, 1997, Shorland filed a reply to Anne's petition to be named 

personal representative. Shorland asserted that Anne was not Maurice's surviving 

spouse and that Maurice was not married at the time of his death. Shorland also 

asserted that a document that he filed with the District Court on October 18, 1996, 

was Maurice's valid, unrevoked will. Shorland requested that the District Court 

appoint Shorland and his siblings as co-personal representatives of Maurice's estate.

¶23. Both parties agreed in the Pre-Trial Order filed on February 11, 1997, that if it 

was determined that Anne and Maurice had a common-law marriage then Anne 

would receive the entire probate estate and that there would be no need to determine 

the validity of the purported will that Shorland filed with the District Court. Trial 

was held on February 14, 1997, March 7, 1997, and April 25, 1997, to determine if 

Anne was Maurice's common-law wife. At the March 7, 1997 session, the District 

Court appointed Anne and Spitzer to serve as co-personal representatives pending its 

determination of whether Anne was Maurice's common-law wife. 

¶24. On July 17, 1997, the District Court issued its Findings of Fact, Conclusions of 

Law and Order wherein the court concluded that Anne was not Maurice's commonlaw wife. The court therefore ruled that Anne was not an heir to Maurice's estate and 

it denied Anne's petition to be named personal representative of that estate. The 

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District Court also ruled that Maurice died intestate. From this order, Anne appeals 

the court's ruling that she was not Maurice's common-law wife and Shorland crossappeals the court's ruling that Maurice died intestate. 

Standard of Review

¶25. The standard of review of a district court's findings of fact is whether the 

findings are clearly erroneous. Daines v. Knight (1995), 269 Mont. 320, 324, 888 P.2d 

904, 906 (citing Columbia Grain International v. Cereck (1993), 258 Mont. 414, 417, 

852 P.2d 676, 678). See also Rule 52(a), M.R.Civ.P.

¶26. This Court adopted a three-part test in Interstate Production Credit v. DeSaye

(1991), 250 Mont. 320, 820 P.2d 1285, to determine whether a district court's finding 

of fact is clearly erroneous. A finding of fact is clearly erroneous under the DeSaye

test if it is not supported by substantial evidence, if the district court misapprehended 

the effect of the evidence, or if, after reviewing the record, this Court is left with a 

definite and firm conviction that a mistake has been made. DeSaye, 250 Mont. at 323, 

820 P.2d at 1287. See also Daines, 269 Mont. at 325, 888 P.2d at 906.

¶27. The standard of review of a district court's conclusion of law is whether the 

court's interpretation of the law is correct. Carbon County v. Union Reserve Coal Co., 

Inc. (1995), 271 Mont. 459, 469, 898 P.2d 680, 686 (citing Steer, Inc. v. Department of 

Revenue (1990), 245 Mont. 470, 474-75, 803 P.2d 601, 603-4). See also Kreger v. 

Francis (1995), 271 Mont. 444, 447, 898 P.2d 672, 674.

¶28. We have reviewed the record and conclude that, although substantial evidence 

exists to support the District Court's findings of fact, the District Court 

misapprehended the effect of the evidence.

Discussion

¶29. Because our decision regarding the issue raised in Anne's appeal is dispositive, 

we address only that issue:

¶30. Did the District Court err in concluding that Anne was not Maurice's commonlaw wife? 

¶31. Montana recognizes common-law marriages. Section 40-1-403, MCA. There is a 

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disputable presumption that "[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. 

¶32. We have long held that the party asserting that a common-law marriage exists 

has the burden of proving: (1) that the parties were competent to enter into a 

marriage; (2) that the parties assumed a marital relationship by mutual consent and 

agreement; and (3) that the parties confirmed their marriage by cohabitation and 

public repute. Matter of Estate of Alcorn (1993), 263 Mont. 353, 356, 868 P.2d 629, 

630 (quoting In re Marriage of Geertz (1988), 232 Mont. 141, 145, 755 P.2d 34, 37). 

The party asserting the existence of a common-law marriage must prove all three 

elements. Matter of Estate of Vandenhook (1993), 259 Mont. 201, 204, 855 P.2d 518, 

520. Public policy generally favors the finding of a valid marriage. Geertz, 232 Mont. 

at 145, 755 P.2d at 37 (citing § 26-1-602(30), MCA).

¶33. In the case at bar, we first consider whether Maurice and Anne were competent 

to enter into a marriage. Under § 40-1-401(1)(a), MCA, a party may not enter into a 

marriage prior to the dissolution of an earlier marriage. Thus, Anne was not 

competent to enter into a marriage with Maurice, as a matter of law, until her 

dissolution of marriage from Price was finalized on February 30, 1987. See Alcorn, 

263 Mont. at 357, 868 P.2d at 631. After Anne's divorce was finalized, the record 

shows that both she and Maurice were competent to enter into marriage. Thus, Anne 

has carried her burden as to this element.

¶34. Second, we consider whether Maurice and Anne assumed a marital relationship 

by mutual consent and agreement. The mutual consent of the parties does not need to 

be expressed in any particular form. In re Estate of Slavens (1973), 162 Mont. 123, 

126, 509 P.2d 293, 295 (quoting Welch v. All Persons (1929), 85 Mont. 114, 133, 278 P. 

110, 115). Mutual consent can be implied from the conduct of the parties. Miller v. 

Townsend Lumber Co. (1968), 152 Mont. 210, 216, 448 P.2d 148, 151. See also State v. 

Newman (1923), 66 Mont. 180, 188, 213 P. 805, 807. This Court has stated that the 

mutual consent "must always be given with such an intent on the part of each of the 

parties that marriage cannot be said to steal upon them unawares." Newman, 66 

Mont. at 188, 213 P. at 807. 

¶35. In Alcorn, Kathee, who asserted that she was common-law married to Fred, 

proved that she and Fred mutually consented and agreed to marriage. Fred gave 

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Kathee a wedding ring that he designed. The ring contained two interlocking 

horseshoes made with Yogo sapphires, which reflected the couple's shared interest in 

horses. Kathee testified that Fred designed the ring and gave her a matching 

bracelet. The couple also used the interlocking horseshoe design at their home by 

cementing horseshoes into the walkway leading to their house and etching their 

names below the horseshoes. Kathee also testified that she and Fred agreed that they 

were husband and wife. The combination of these factors led to our holding in that 

case that they mutually consented and agreed to a marriage. Alcorn, 263 Mont. at 

357, 868 P.2d at 631.

¶36. Similar evidence found in the record in the case at bar shows that Maurice and 

Anne agreed to a marital relationship. Anne wore an engagement ring that Maurice 

gave her. While we recognize that Anne did not wear the accompanying wedding 

band, she explained that she did not wear the wedding band only because they did 

not have a "formal" wedding ceremony.

¶37. Likewise, the grandfather clock engraved with Maurice's and Anne's initials 

that they prominently displayed in their home has the same effect as the horseshoe 

design in the walkway in Alcorn. Both of these displays are evidence that the parties 

living together in the home mutually consented and agreed to a marital relationship. 

Finally, Anne testified that she felt married to Maurice. Anne also testified that she 

believed that Maurice felt married to her. The engraving on the pendulum of the 

grandfather clock is evidence of this in that Maurice considered Anne a Hunsaker. 

Thus, the effect of the evidence in the record is that Anne carried her burden of 

proving that she and Maurice mutually consented and agreed to a marital 

relationship. 

¶38. Finally, we consider whether Anne proved that she and Maurice confirmed their 

marriage by cohabitation and public repute. There is no dispute that Maurice and 

Anne lived together for almost nine years. As to public repute, we consider how the 

public views the couple. Miller, 152 Mont. at 219, 448 P.2d at 152. Relevant to this 

inquiry is whether the couple held themselves out to the community as husband and 

wife. See Alcorn, 263 Mont. at 358-59, 868 P.2d at 632. A common-law marriage does 

not exist if the parties have kept their marital relationship secret. Vandenhook, 259 

Mont. at 205, 855 P.2d at 520 (citing Miller v. Sutherland (1957), 131 Mont. 175, 184-

85, 309 P.2d 322, 327-28). 

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¶39. In Alcorn, the record was clear that Fred and Kathee lived together for nine 

years. That, in turn, led us to focus in that case on whether Fred and Kathee 

established a common-law marriage by public repute. We noted that Kathee never 

changed her last name to Fred's last name; that she did not list Fred as a beneficiary 

on her life insurance, health insurance, or retirement forms; that she filed her tax 

returns as a single person during the term of her relationship with Fred; that Fred 

stated in his will, which left Kathee one-half of the net value of his ranch and all of 

his household furniture and goods, that he was single; that two of Fred's friends 

testified that Fred told them that he was not married to Kathee, and that Fred 

indicated to an attorney who drafted three wills for him, that he was single.

¶40. Nevertheless, we held in Alcorn that Fred and Kathee held themselves out to be 

husband and wife. Alcorn, 263 Mont. at 358, 868 P.2d at 632. In support of this 

holding, we set out that they spent all of their free time together, that Kathee wore 

the wedding ring that Fred gave her, that they regularly hosted people at the house, 

that Kathee spent time with Fred and cared for him during an extensive illness, that 

Kathee's family referred to Fred as "Uncle Fritz," that several witnesses testified 

that they considered Fred and Kathee to be married, and that Fred and Kathee held 

themselves out as a married couple to those witnesses. Alcorn, 263 Mont. at 358-59, 

868 P.2d at 632.

¶41. In the case at bar, the record shows that Anne and Maurice held themselves out 

as a married couple and, therefore, had a reputation as such. The sign in the front of 

their home and the pendulum of the grandfather clock are evidence that Maurice 

and Anne held themselves out as husband and wife to those who visited their home. 

The answering machine message is evidence that Maurice and Anne held themselves 

out as husband and wife to those who called their home. Maurice's brother Richard 

stated in a petition filed with the District Court that Anne was Maurice's "surviving 

spouse." One witness testified that Maurice called Anne "my wife." An attorney who 

represented Maurice thought that Maurice and Anne were married. This attorney 

also testified that he was surprised to find out in Maurice's obituary that Anne's last 

name was not Hunsaker. Another attorney who had represented Maurice testified 

that Maurice called Anne his "common-law wife" shortly before his death. Several 

documents admitted into evidence referred to Anne as "Anne Hunsaker" or 

indicated that she was Maurice's wife. The cumulative effect of this evidence is that 

Maurice and Anne held themselves out to the community as husband and wife and, 

consequently, had a reputation as a married couple.

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¶42. Shorland argues that the fact that Maurice and Anne allowed people to assume 

that they were married is insufficient to establish a common-law marriage. Although 

we agree that allowing people to assume a marital relationship is not, by itself, 

enough to create a common-law marriage, it is evidence that the parties held 

themselves out to the community as married. 

¶43. In addition, Shorland argues that the mutual consent and agreement necessary 

for a common-law marriage must take place at a set time. However, in Alcorn, this 

Court responded to a similar contention made by one of the parties by stating that 

this concept is not determinative. We noted that cohabitation and public repute "are 

continuing factors that extend through the life of the marriage." Alcorn, 263 Mont. at 

356, 868 P.2d at 630 (quoting Estate of Murnion (1984), 212 Mont. 107, 118, 686 P.2d 

893, 899). While mutual consent and agreement to enter into a marriage must take 

place at a set time, the party asserting that a common-law marriage exists does not 

need to prove the exact date that this occurred. The party asserting the existence of a 

common-law marriage must, however, prove that the three elements of common-law 

marriage all existed at one time. The record in the instant case reflects that although 

Anne could not prove an exact date when all three elements were satisfied, there was 

a period of time, prior to Maurice's death, when all three elements of common-law 

marriage existed.

¶44. In sum, although there was substantial evidence to support the District Court's 

findings of fact, our review of the record leads us to the conclusion that the court 

misapprehended the effect of the evidence.

¶45. Accordingly, we hold that the District Court erred in ruling that the evidence 

presented did not establish that Anne was the common-law wife of Maurice.

¶46. Reversed and remanded for further proceedings consistent with this opinion.

/S/ JAMES C. NELSON

We Concur:

/S/ J. A. TURNAGE

/S/ JIM REGNIER 

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/S/ WILLIAM E. HUNT, SR.

/S/ W. WILLIAM LEAPHART

Justice Karla M. Gray, dissenting.

¶47. I respectfully dissent from the Court's opinion. It is my view that the Court has 

merely substituted its judgment for that of the District Court in weighing conflicting 

evidence and determining the credibility of the witnesses. This is not our proper role.

¶48. It is clear from the Court's recitation of the factual background of this case that 

the evidence before the District Court conflicted on the primary questions of whether 

Anne and Maurice assumed a marital relationship by mutual consent and agreement 

and whether they had a public reputation of being husband and wife. With regard to 

the consent and agreement issue, the District Court found that the parties had not 

mutually consented and agreed to a marital relationship and, indeed, this Court 

agrees that substantial evidence supports that finding. At that point, our inquiry 

should end, because we do not substitute our judgment for that of the trial court even 

where there is evidence of record to support contrary findings. See Alcorn, 263 Mont. 

at 360, 868 P.2d at 633 (citation omitted).

¶49. Nor does Alcorn support the Court's determination that Anne and Maurice had 

assumed a marital relationship by mutual consent and agreement. In Alcorn, the 

party seeking to establish the common-law marriage testified affirmatively that she 

and the decedent agreed that they were married and that they were husband and 

wife. Alcorn, 263 Mont. at 353, 868 P.2d at 631. On that basis, together with other 

supporting evidence, the district court found--and we upheld the finding--that the 

parties mutually consented and agreed to a common-law marriage.

¶50. No such clear statement of mutual consent and agreement to a marital 

relationship appears in the record now before us. Anne's testimony that she "felt" 

married to Maurice, and that she "believed" he "felt" married to her, reflects how 

she and Maurice felt; it does not rise to mutual consent and agreement to a marital 

relationship. I daresay that many people who live together in an emotionally and 

physically monogamous relationship "feel" married. That is a far cry, however, from 

parties actually mutually consenting and agreeing to enter into a marital 

relationship. Thus, contrary to the Court's statement, there is no evidence of record 

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in this case similar to that in Alcorn which "shows that Maurice and Anne agreed to 

a marital relationship." 

¶51. With regard to the question of public repute as husband and wife, the Court is 

correct that there is evidence to support a finding that Anne and Maurice held 

themselves out as husband and wife. There also is evidence that they did not hold 

themselves out as husband and wife, however, and that evidence supports the District 

Court's finding. The Court merely picks and chooses from the evidence of record 

that which supports its own determination--which is contrary to that made by the 

District Court--that Maurice and Anne held themselves out to the community as 

husband and wife and had a reputation as a married couple. In doing so, the Court 

ignores our oft-stated and fundamental rule that "[w]e will not substitute our 

judgment for that of the District Court even where there is evidence in the record to 

support contrary findings." See Alcorn, 263 Mont. at 360, 868 P.2d at 633 (citation 

omitted).

¶52. What the Court's opinion does here is to force feed the similarities between this 

case and Alcorn into identical results in the two cases. The problem is that the two 

cases were decided by the respective trial courts on conflicting evidence; it was the 

trial court's job in both cases to weigh the evidence before it, determine the 

credibility of the witnesses and make findings. In Alcorn, the district court found that 

the parties had mutually agreed and consented to a common-law marriage based on 

substantially stronger evidence than is of record in this case. We upheld that finding 

and the court's ultimate determination that a valid common-law marriage existed. 

Here, the District Court found--after weighing conflicting evidence and determining 

the credibility of the witnesses--that Anne and Maurice had not mutually consented 

and agreed to a common-law marriage and ultimately determined that a valid 

common-law marriage had not been proven. It is my view that, on this record, we 

must conclude that the District Court's finding is not clearly erroneous and hold that 

the court did not err in determining that Anne did not establish a common-law 

marriage. 

¶53. Finally, I note the Court's conclusion that, notwithstanding the substantial 

evidence supporting the District Court's findings of fact, "th[at] court 

misapprehended the effect of the evidence." The Court does not explain what it 

means by this conclusion or how the District Court's weighing of conflicting evidence 

constitutes a "misapprehension of the evidence" which allows this Court to substitute 

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its judgment for that of the trial court on matters of fact. What is clear is that the 

Court is sympathetic to Anne's plight; I am as well. It also is relatively clear that the 

members of this Court would have weighed the evidence differently in making 

findings had they been the trial court presiding over this case; I might have done so, 

too. It is not our role, however, to decide cases on the basis of which party pulls at 

our heartstrings. Nor is it our role to override a trial judge's considered weighing of 

conflicting evidence in order to produce a result more to our liking from a human 

standpoint. If this is the road the Court intends to follow in applying the 

"misapprehends the effect of the evidence" prong of our clearly erroneous test for 

findings of fact, I cannot agree. Such an approach will produce result-oriented 

decisions which destabilize the state of the law, denigrate the role of Montana's 

dedicated trial judges, and cheat litigants who prevailed at the trial court level. I 

dissent.

¶54. I would affirm the District Court's findings and conclusions relating to the 

nonexistence of a common-law marriage. 

¶55. With regard to the issue raised on cross-appeal and not separately addressed by 

the Court because of its erroneous reversal of the District Court on the common-law 

marriage issue, I would reverse and remand to the District Court for further 

proceedings. As discussed above, it is my view that the District Court's finding that 

Anne was not Maurice's common- law spouse is not clearly erroneous and is entitled 

to be affirmed. As a result, the cross-appeal question of whether Maurice died 

intestate, as contended by Anne, or died leaving a valid will, as asserted by Shorland, 

becomes critical.

¶56. The District Court found that no will had been located and ultimately ordered 

that the estate was an intestate estate. The record reflects, however, that a purported 

will signed by Maurice and dated March 30, 1970, was attached to Shorland's reply 

to Anne's petition for adjudication of intestacy. Thus, the District Court's finding is 

not supported by substantial evidence.

¶57. Moreover, while it is true that the parties and the trial court agreed that the 

validity of the purported will would not be determined until after the determination 

of Anne's spousal status, it is entirely unclear why the District Court--having 

correctly determined that Anne was not a surviving spouse--went on to make a 

finding and order of intestacy which did not take into account the purported will 

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which was of record and of which the court clearly was aware.

¶58. For these reasons, I would reverse and remand for further proceedings on the 

cross-appeal issue involving whether or not Maurice died intestate. 

/S/ KARLA M. GRAY

Justice Terry N. Trieweiler joins in the foregoing dissent of Justice Karla M. Gray.

/S/ TERRY N. TRIEWEILER

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