No. 93-308 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

IN THE MATTER OF THE ESTATE OF 

FRED ALCORN, 

deceased. 

APPEAL FROM: District Court of the Eighth Judicial District, 

In and for the County of Cascade, 

The Honorable Thomas M. McKittrick, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Donald J. Hamilton and Steven T. Potts; Jardine, 

Stephenson, Blewett & Weaver, Great Falls, Montana 

For Respondent: 

Donald L. Ostrern; Graybill, Ostrem & Crotty, Great 

Falls, Montana 

. - submitted on Briefs: December 

CLERK OF SUPREME COURS 

STATE OF MONTANA 
Justice John Conway Harrison delivered the Opinion of the Court. 

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 "Fritz1' 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 5 72-2-223, MCA; a homestead 

allowance of $20,000, pursuant to 5 72-2-412, MCA; an exempt 

property allowance not to exceed $3,500, pursuant to 5 72-2-413, 

MCA; and a family allowance, pursuant to 1 72-2-814, 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 (3O), 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 commonlaw 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 (l926), 78 

Mont. 370, 254 P. 179). 

The following exchange occurred at the August 17, 1992, 

hearing: 

Q. [By Donald Ostrem, KatheeJs 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 4O-l-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 Xathee 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 "Youngn to uAlcorn;v 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 throughout her entire relationship with Fred. 

Moreover, Fred stated in his will that he was a single man. 

Kathee testified that she chose to keep the last name "Youngn 

for professional reasons. Kathee testified that her mother was 

listed as beneficiary on her insurance, health and retirement 

forms. Kathee also testified that she filed her tax returns as a 

single person because she thought she could not file as "married" 
unless the marriage was a matter of record and because her 

accountants "told [her] to file it that way." 

This Court is unaware of any legal requirement that a wife 

assume the last name of her husband or that she list her husband as 

beneficiary on her insurance, retirement or health forms. The 

District Court accepted Katheefs explanations--including her 

rationale for filing her tax returns individually rather than as a 

married person--as valid. The District Court was in the best 

position to observe Kathee and her demeanor. See Marriage of Ernst 

(1990), 243 Mont. 114, 122, 793 P.2d 777, 782. We determine that 

the District Court's finding a to this issue is not clearly 

erroneous. 

Robert next contends that each witness testified either that 

Fred and Kathee were not married or that they merely assumed or 

considered the couple as married. According to Robert, the fact 

that people assumed or considered the couple as married does not 

demonstrate that Kathee ever held herself out to be Fredfs wife. 

See Estate of Slavens (l973), 162 Mont, 123, 26 509 P.2d 293, 

295. 

The record, however, is replete with evidence and testimony 

that Kathee and Fred held themselves out to be husband and wife. 

Kathee and Fred shared joint checking accounts at First Liberty 

Credit Union. Kathee wore a wedding ring designed and made 

especially for her, compliments of Fred. The record indicates that 

Kathee and Fred spent all of their time--excepting work--together 

for nine years. Because the couple had a large home, they 
regularly hosted members from both Fred and Kathee's families for 

holidays. Christmas at the Vaughn ranch became a tradition. The 

couple hosted barbecues and pool parties in the summer for family 

and friends. Kathee's family members referred to Fred as "Uncle 

Fritz. " 

Fred spent about eight years of his time with Kathee in poor 

health. Throughout Fred's illnesses, Kathee was by his side. The 

record indicates that Kathee cared for Fred through chemotherapy 

and through visits to Seattle for treatment. 

Robert's daughter and Fred's granddaughter, Kara Alcorn, 

testified that she and her brother, Robert, who live in Washington, 

would visit Fred and Kathee in Vaughn. Kara testified that she 

considered Kathee and Fred to be married, that she received 

Christmas cards from the couple, and that she received information 

concerning changes in Fred's medical condition from Kathee. 

Robert Layton, Karats brother and Fred's grandson, testified 

that the relationship between Kathee and Fred was always portrayed 

to him as that of husband and wife. IIe further testified that he 

visited them every summer, that they "always were together" and 

that he considered them to be married. On occasion, Robert would 

go to the horse racetrack with Fred, who would introduce Robert as 

his "grandsonu and Kathee as his "wife." 

Judge John McCarvel, a district court judge in Cascade County, 

was a long-time friend of Fred's. Judge McCarvel used to see Fred 

run his horses at racetracks in Spokane, Billings and Great Falls. 

The Judge testified that he considered Fred and Kathee to be 
married, that Fred always introduced Kathee as his wife, and that 

he I1thought they were married all the time." On one occasion, as 

he left the Great Falls Airport, Kathee was waiting in the truck to 

pick up Fred. The Judge testified that 'I[Kathee] hollered to me, 

'Is my husband on that plane?'" 

Janice Mountan, Kathee's sister, testified that IfFritz 

introduced us as his in-laws. . . . Everyone knew Fritz as being 

Kathee's husband and Kathee as Fritz's wife." We need not belabor 

the record. It is abundantly clear that Kathee and Fred cohabited 

and held themselves out to the community as being husband and wife. 

Robert challenges the District Court's findings of fact as 

erroneous and contradicted by the record. Robert contends that the 

court omitted from its findings references to testimony which 

indicated that Fred and Kathee were not married. Specifically, 

Robert points to the testimony of Donna and Chuck Plant--friends of 

Fred--who stated that Fred had told them after 1985 that he was not 

married to Kathee. Robert also notes the absence of Robert Ernmonsl 

testimony from the findings. Emmons, an attorney, testified that 

Fred represented that he was a single man in each of the three 

wills Emmons drafted for Fred. 

It cannot be said that the District Court failed to consider 

all the testimony merely because it chose not to reference all the 

testimony it heard in its findings of fact and conclusions of law. 

The court heard testimony from fifteen witnesses. It found 

capability of consent to a common-law marriage between Fred and 

Kathee, mutual assent and agreement to a common-law marriage, 
cohabitation, and repute in the community as husband and wife. 

The court was in the best position to judge the credibility of 

the witnesses. We will not substitute our judgment for that of the 

District Court even where there is evidence in the record to 

support contrary findings. See Trad Industries, Ltd. v. Brogan 

(1991), 246 Mont. 439, 447, 805 P.2d 54, 59 (citation omitted). 

After a careful review of the record, we determine that the 

District Court's findings of fact were not clearly erroneous. We 

hold that the District Court correctly interpreted the law when it 

concluded 1) that the relationship between Kathee Young and Fred 

Alcorn constituted a valid common-law marriage; and 2) that Kathee 

is entitled to claim the elections set forth in her Notice of 

Election Against the Will filed with the District Court on October 

1, 1991. 

Affirmed. 

We concur: ,- / 
February 11, 1994 

CERTIFICATE OF SERVICE 

I hereby certify that the following order was sent by United States mail, prepaid, to the following 

named: 

Donald J. Hamifton, Esq; Steven T. Potts, Esq. 

Jardine, Stephenson, Blewett & Weaver, P.C. 

P.O. Box 2269 

Great Falls, MT 59403 

Donald L. Ostrem, Esq. 

Graybill, Ostrem & Crotty 

#18-6th St. No., Ste. 200 

Great Falls, MT 59401 

ED SMITH 

CLERK OF THE SUPREME COURT 

STATE-OF MONTANA