No. 83-385 

IN THE SUPREV2 COURT OF THE STATE OF MONTANA 

1984 

IN THE MATTER OF THE ESTATE 

OF MICHAEL W. MURNION, Deceased. 

APPEAL FROM: District Court of the Sixteenth Judicial District, 

In and for the County of Rosebud, 

The Honorable Alfred B. Coate, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Regnier, Lewis & Boland; Tom L. Lewis argued, 

For Respondent: 

<andal,l, Cavan & Smith; Robert C. Smith and John J. 

,:avan argued, Billings, Montana n - T.an I;, ~--Mis~--~ -Men tana 

Cxowley, Haughey, Hanson, Toole & Dietrich, 

Billings, llontana 

-- - - -- - -- - 

Submitted: March 13, 1984 

Decided: August 28, 1984 

Filed: .Ji; "1984 

Clerk 
Mr. Justice John C. Sheehy delivered the Opinion of the 

Court. 

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 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 ti-me 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 

scaffol-ding 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 da.ughter, 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 i.n 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, 

Katri-na is the sole heir, she would be the sole beneficiary 

of the estate, 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 

zstate, 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. 

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, 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 (I) inconsistent items of fact, 
(2) the presumption that cohabitation licit 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 expla.nations. 

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 

th.e facts, giving d.eference as we 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 durinq 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 

non jury trials. Farmers State Bank v. Mobile Homes, 

Unlimited (1979), 181 Mont. 342, 593 P.2d 734. 

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 stron.gest 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. 

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 ,-east one month. 

The State of Washington does not recognize common-law 

marriages. In Re Gallagher's Estate (Wash. 1950), 213 P.2d 

621; Willey v. Willey (Wash. 1900), 60 P. 145. 

Both parties cite us to the Washington case of 

Gallagher, supra. In that case, the parties entered into a 

ceremonial marriage in 1325, 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 

Gallaqher to mean that in Washington, although the state does 

not recognize common-law marriages originally 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: 

"While there is some difference of reasoning and 

ruling, the decided weight of authority is that 

where parties engage in a contract of marriage, 

which is void because one has a living lawful 

spouse, which is unknown to one or both, 

uninterrupted cohabitation and reputation after 

removal of the impediment, will produce a valid 
common-law marriage, although the fact of the 

impediment or of its removal may not have been 

known to either. The principal reasons upon which 

the rule rests are that the initial relationship 

was intended to be matrimonial, not illicit, and 

consent to the present marriage evidenced by the 

ceremony continues from day to day and becomes 

effective as a present taking in marriage on 

removal of the impediment." 213 P.2d at 623. 

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. 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, 1.02 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 ha.d 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 

Micha.el a.nd Pauline, and if so, what is the substantive law 

to be applied to the case at bar. 

Restatement Second of Conflicts, 5 283, provides: 

"The validity of a marriage will be determined by 

the local law of the state which, with respect to 

the particular issue, has the most significant 

relationship to the spouses and the marriage under 

the principles set forth in section 6." 

The principles set forth in Restatement Second of 

Confli.cts, § 6, are: 

"(a) The needs of the interstate and international 

systems, 

"(b) The relevant policies of the forum, 

"(c) The relevant policies of other interested 

states and the relative interests of those states 

in the determination of a particular issue, 

I' (dl The protection of justified expectations, 

"(e) The basic policies underlying the particular 

field of law, 

"(f) Certainty, predictability, and uniformity of 

result, 

" (g) Ease in the determination and application of 

the law to be applied. " 

Under comment (f) , to Restatement Second of Conflicts, 

283, it is said: 

"The state where the marriage was celebrated, or in 

the case of a common-law marriage, the state where 

the parties cohabited while holding themselves out 

as man and wife, is the state which would usually 

be primarily concerned with the question of 

formalities . . ." 

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 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 libera.11~ 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 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 ma.rriage here 

because under our law, a common-law marriage must take place 

i-nunediately, 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 11926), 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, 1.982. At the time of their original consent, their 

marriage was invalid in the State of Washington. On their 

removal to 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 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, which states: 

"We are of the opinion that even if the alleged 

marriage would have been regarded as invalid in 

Virginia for want of license, had the parties 

remained there, and invalid in Maryland for want of 

a religious ceremony, had they remained in that 

state, it was to be deemed a valid marriage in New 

Jersey after James Travers and the women Sophia as 

husband and wife, took up their permanent residence 

there and lived together in that relation, 

continuously, in good faith, and openly up to the 

death of Travers, being regarded by themselves and 

the community as husband and wife. Their conduct 

toward each other in the eye of the public, while 

in New Jersey, taken in connection with their 

previous association, was equivalent - in - law - to - a 

declaration b~ -- each that they did, - and during their 

joint lives -- were to, occupy thGelation of husband 

-- and wife. Such a declaration was effFctive to 

establish the status of marriage in New Jersey as 

if it had been made in words of the present tense 

after they become domiciled in that state." 

(Emphasis added.) 27 S.Ct. 568-569. 

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 

married in Montana, but cohabited with Michael in the good 

faith belief tha.t she was married, she was entitled t.o 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. 

We Concur: 

Chief Justice 
APPENDIX 

FINDINGS OF FACT 

AND 

CONCLUSIONS OF LAW 

1. Michael. W. Murnion died on April 5, 1982, at the age 

of 31 years. At the time of death, the decedent was 

domiciled in Rosebud County, Montana. Michael W. Murnion 

died intestate. 

2. On June 2, 1-982, Pauline G. Imel applied for 

appointment as Personal Representative of the Estate of 

Michael W. Murnion, naming Katrina Patricia Murnion, his 

daughter, and herself as his sole heirs. An Order so 

appointing her the Personal Represen.tative of the Estate of 

Michael W. Murnion and Letters of Appointment were issued by 

the Clerk of the District Court on June 3, 1982. Notice and 

Information to Heirs, dated June 4, 1982, was mailed to 

Katrina Patricia Murnion in care of Sherrie Lynn Hart on June 

4, 1982. 

3. Pauline G. Imel filed a petition for adjudication of 

Intestacy and Determination of Heirs in the above-entitled 

cause on or about October 11, 1982. An Order fixing the time 

of hearing on said Petition for Monday, the 8th of Wovember, 

1982, was issued by the Clerk of the District Court on 

October 13, 1982. Notice of said hearing and proof of 

service by mail thereof upon Katrina Murnion, in care of her 

mother, Sherrie Lynn Hart, and her mother's then attorney, 

William Gissberg, as well as Bradley J. Luck and Pauline G. 

Imel, was made on October 20, 1982. The original time for 

hearing on the Petition for Determination of Heirs was 

continued on several occasions. The matter was initially 

reset for November 22, 1982 and Notice of the new time and 

date of hearing was again served upon Katrina Murnion, in 

care of Sherrie Lynn Hart, and her then attorney, William 

Gissberg, and Bradley J. Luck and Pauline Imel on October 29, 

1982. The matter was subsequently reset for January 17, 

1983, on November 22, 1982, and Notice of this resetting was 

again mailed to Katrina Murnion, in care of Sherrie Lynn Hart 

and her then attorney, William Gissberg, on December 17, 

1982. Upon Motion of counsel for Sherrie L. Hart, guardian 

of Katrina P. Murnion, the hearing set for January 17, 1983 

was continued and reset for February 22, 1983, and Notice of 

this resetting directed to Regnier and Lewis, P.C., as 

attorneys for Sherrie Lynn Hart and Katrina P. Murnion, as 

well as Brad Luck, George Dalthorp and Gregory Black, was 

mailed by Petitioner's counsel on January 11, 1983. 

4. Michael and Pauline met in Renton, Washington, in 

November, 1980. Prior to that time, Michael and Pauline had 

been married to other parties, and those marriages were 

dissolved by divorce. Michael and Pauline began to date one 

another toward the end of March or the first of April, 1981, 

and from that time forward had a close and continuing 

relationship. During this time the parties maintained 

separate residences. Pauline resided in Tukwila, Washington, 

and was employed as a financial clerk by the City of Renton, 
Washington at a salary just under ten dollars per hour. 

Michael resided in Redmond, Washington, sharing an apartment 

with a buddy, and was employed as a laborer in the roofing 

industry around the Seattle area. Sometime before the middle 

of June, 1981, Michael had proposed marriage to Pauline, but 

Pauline had declined his proposal for the reason that it was 

"too soon" in their relationship. She did not feel that 

Michael or she had known one another long enough, she had not 

met with Michael's family, she had reservations about their 

difference in age, he was 30 and she 40, and the fact that 

she was unable to bear him children. 

5. About the middle of June, 1981, Michael's roommate 

decided to move, necessitating a change in Michael's living 

arrangements. Due to a lack of jobs in the roofing business, 

Michael could not afford apartment rental and pay his other 

bills. As a result of conversations between themselves, it 

was decided by Pauline and Michael that he would move into 

her apartment in Tukwila, and the parties thus commenced 

living together. 

6. From the middle of June, 1981, until approximately 

the first part of September, 1981, Michael and Pauline 

continued to live together in Tukwila. In late June, 1981, 

Michael had brought Pauline to the family ranch at Shawmut, 

Montana to meet his family at its annual barbecue. The 

parties discussed the prospect of marriage during this time, 

but made no commitment to one another. They maintained 

separate bank accounts and did not purchase any property 

together. What income Michael was able to earn was used to 

pay bills he had accumulated prior to their relationship, and 

Pauline used her income to pay the apartment rental and 

everyday expenses. 

7. Events changed Michael and Pauline's situation the 

first of September, 1981, and those events changed their 

relationship. On Wednesday, September 2, 1981, Michael 

received a call from his brother, Mark, who lived in 

Colstrip, Montana, and worked as a boilermaker on Colstrip 

Units 3 and 4. Mark called Michael to advise that they were 

hiring workers for Colstrip Projects 3 and 4 and that if he 

was interested, Michael could come out to Colstrip to work as 

a boilermaker again, as he had during the construction of 

Units 1 and 2. This prospect offered Michael a good-paying 

full-time job, and he was excited by those prospects. 

Michael discussed these prospects with Pauline, and she 

encouraged him to pursue such employment. The following day, 

Thursday, September 3, 1981, Michael did some further 

checking into the employment situation at Colstrip by 

speaking again with his brother, Mark, and calling 

supervisory personnel for whom he had worked before. That 

evening, Pauline and Michael again discussed the job 

situation; Pauline encouraged Michael, and Michael hinted 

that he would not accept the employment unless she would go 

to Colstrip with him. He went on to describe for Pauline the 

aspects of living in Colstrip, Montana, as opposed to the 

Seattle area. 

8. On Friday evening, September 4, 1981, Michael and 

Pauline had a serious and consequential discussion concerning 

the job prospect and their relationship. Michael advised 
Pauline that he would not come to Montana unless she would 

come with him. There followed a discussion of life in the 

Colstrip area, the fact that Pauline would be giving up a 

good-paying job, which promised promotion, the fact that 

Pauline could no longer continue her college courses, the 

disparity in their ages, her inability to bear him children 

and the prospects for adoption, and in short, all the 

questions one discusses when considering marriage. Pauline 

wanted to come to Montana with Michael and agreed to do so. 

Michael then asked Pauline if she would come to Montana as 

his wife. Pauline told him that she would. He said he 

wanted to bring her out here and introduce her as his wife, 

and she so agreed. (Tr. p. 22). Insofar as Pauline and 

Michael were concerned, they had become man and wife by 

virtue of this agreement, and there was nothing further for 

them to do before they considered themselves man and wife. 

(Tr. p. 73 and p. 112). 

9. Upon arriving at this agreement, Michael and Pauline 

undertook steps to carry out their intention of moving to 

Montana and obtaining employment for Michael at Colstrip. 

Pauline gave notice to her employer the next workday. 

Michael arranged for repairs to his pickup and finished up a 

roofing project the following week. Thereafter, Michael came 

to Montana to obtain employment and a place of residence, 

bringing with him $1,000 which Pauline had withdrawn from her 

savings account in order to cover travel expenses and down 

payment on a residence. At Colstrip, Michael lived with his 

brother, Mark, while finding a residence, secured employment, 

made arrangements to purchase a mobile home, and subsequently 

returned to Tukwila to move Pauline and their belongings back 

to Montana. During Michael's absence, Pauline made 

arrangements for a U-Haul and packed their belongings. 

Michael returned to Colstrip with Pauline and their 

belongings on October 6, 1981. 

10. During Michael's visit to Colstrip to obtain his 

job and housing, Michael arranged to purchase a mobile home 

from one Marla Goodman. Marla Goodman testified, and the 

Court finds that during the course of conversations regarding 

purchase of the mobile home, Michael told Marla Goodman that 

he had to return to Washington to bring his wife back out to 

Montana and that he and his wife would be jointly purchasing 

the trailer home. Upon Michael and Pauline's arrival in 

Colstrip, they found the mobile home in need of some 

immediate repairs, and Michael telephoned Marla Goodman for 

the purpose of requesting those repairs. Marla testified, 

and the Court finds that upon her arrival at the trailer, 

Michael introduced Pauline to her as his wife. Arrangements 

for the repairs to the mobile home were made, and Michael and 

Pauline took up residence therein. 

11. Arrangements for the purchase of the mobile home 

from Marla Goodman were ma.de through Warren Becker of Big Sky 

Realty at Forsyth, Montana. Warren Becker testified, and the 

Court finds that in the course of negotiating the trailer 

home purchase, he was made aware that M-ichael was purchasing 

the trailer together with Pauline, that Pauline had the 

$2,000 for the down payment on the home, and that Michael had 

to return to Washington to bring her back out to Montana. 

Mr. Becker also testified that during the course of 

negotiation, he became aware that Michael and Pauline were 
not, in fact, formally married, but understood that they were 

soon to be formally married. In the course of preparing the 

contract for title to the mobile home and other papers, Mr. 

Becker inquired as to what name Michael and Pauline wished 

the trailer to be placed in. He testified, and the Court 

finds that Michael and Pauline stated a desire to have title 

placed in the name of Michael Murnion and Pauline Murnion, 

but that Mr. Becker advised Michael and Pauline that because 

they were not legally married, Pauline's legal name remained 

Pauline Imel, and she could not use the name Pauline Murnion 

until they had been formally married. It was Pauline's 

understanding from this information that in order to protect 

her property rights in the mobile home, it was necessary for 

her to use the name Imel, rather than Murnion. For this 

reason, the contract for title and other documents were drawn 

up in the name Michael W. Murnion and Pauline G. Imel, and 

Pauline so executed the documents. Mr. Becker testified that 

from his observation, Michael and Pauline appeared to be an 

affectionate and loving couple and that aside from the fact 

that he knew they were not formally married, they otherwise 

appeared to hold themselves out as man and wife in Colstrip. 

12. Neighbor, Larry Morton, met Michael and Pauline 

soon after they had moved into the mobile home at Colstrip. 

Larry Morton testified, and the Court finds that he first met 

Michael and that during the course of their conversation, he 

referred to Pauline as his wife. From that point forward, 

Michael continued to refer to Pauline as his wife in 

conversations with Larry, and Pauline referred to Michael as 

her husband in such conversations. It appeared to Mr. Morton 

in all respects that Michael and Pauline held themselves out 

to the community as husband and wife, and he was unaware of 

the fact that they were not formally married until after 

Nichael's death. After Michael's death, Mr. Morton heard 

rumors in the Colstrip community to the effect that Michael 

and Pauline were not formally married. He was, in fact, 

advised of this fact by an investigator who approached him 

following Michael's dea.th. 

13. Neighbor, Keith Hanson, a Protestant minister in 

the Colstrip community, first met Pauline when he asked to 

borrow a ladder which he had seen Michael use to build an 

attachment to the mobile home. In requesting use of the 

ladder, Reverend Hanson asked Pauline if "he could use her 

husband's ladder." Reverend Hanson later returned the ladder 

to Michael, thanking him for its use, and referring to 

Pauline during the course of the conversation as Michael's 

wife. Neither Michael nor Pauline made comment upon use of 

the terms "husband" or "wife," and in Reverend Hanson's 

observation, it appeared that Michael and Pauline were 

husband and wife. He, too, was unaware of the lack of a 

formal marriage until after Michael's death. 

14. In order to license Michael's pickup after their 

arrival at Colstrip, it became necessary to obtain automobile 

liability insurance. Michael asked Pauline to make 

arrangements for that insurance, which she obtained through 

the Tillett Insurance Agency at its Colstrip office. The 

application for this insurance (Petitioner's Exhibit No. 1) 

was filled out by a clerk at the insurance agency, and the 

information thereon taken from Michael and Pauline's drivers 
licenses, which they had brought with them from Washington 

state, and a prior insurance policy held by Michael on the 

pickup. In the course of filling out the policy application, 

the clerk initially showed Michael and Pauline's marital 

status as single, or not married. Pa.uline had the clerk 

change this status to "yes married," and signed the 

application, dated October 15, 1981, and Pauline G. Murnion. 

This was done prior to Mr. Becker's advice concerning the 

"legal name" Pauline must use on the closing for the mobile 

home, which was accomplished on November 7, 1981. 

15. After arriving in Colstrip, Pauline made 

arrangements to transfer her savings account from a Seattle 

area bank, where she had approximately $10,000 on deposit in 

her sole name. That money was transferred to the Security 

Rank at Colstrip in her name in placed in a savings account 

under the name of Pauline G. Imel. At the time this account 

was transferred, Pauline set up a checking account, which was 

placed in the name of Pauline G. Imel, to which she had added 

the name of Michael W. Murnion. It was from Pauline's 

savings account that the $2,000 down payment on the mobile 

home was made, and from this account, other withdrawals were 

made to finance down payment on joint purchases made by 

Pauline and Michael. The joint checking account was used for 

the deposit of Michael's and later, Pauline's, salary and the 

payment of their monthly bills and expenses. Michael later 

establised a savings account in his sole name, in which he 

deposited approximately $20 per week to finance a surprise 

trip for him and Pauline to Ireland. There was $600 in 

Michael's savings account at the time of his death. 

16. Prior to meeting Pauline, Michael had purchased and 

owned a wedding and engagement ring set. Before moving to 

Montana, Michael and Pauline attempted to make arrangements 

with a Seattle jeweler to exchange this set for a three-ring 

set, so that he would have a wedding ring, and Pauline would 

have a wedding ring and engagement ring. Those arrangements 

could not be made, and the set Michael owned did not fit 

Pauline in that the wedding band fit loosely around the 

engagement ring a.nd had a hook on it which caught on her 

clothing. Before coming to Montana, Pauline asked Michael if 

he would mind if she placed a diamond ring which she 

previously owned and wore on her right hand, on her left 

hand. Michael agreed, and she wore it on her left hand after 

that time. It remained Michael and Pauline's intention to 

exchange the wedding ring set Michael owned, but this was 

never accomplished. In December, 1981, Michael's ring set 

came up in conversation, and he asked Pauline if she would 

have the ring set, to which she agreed. Michael then gave 

her both the engagement ring and the wedding band. Pauline 

initially wore both of these rings on. her left hand, but 

later removed the wedding band due to its ill fit and the 

hook. 

17. On or about December 7, 1981, Pauline sought and 

obtained employment with Bechtel Power as an accounts 

receivable clerk. She used the name Imel on her application 

and other employment records, showing herself to be a single 

woman; however, she was known among her co-workers as Pauline 

Murnion, Michael 's wife, at least until certain workers 
apparently read her employment information and disclosed the 

information thereon. 

18. May Ellen Watson, one of Pauline's co-workers at 

Bechtel, first learned of Michael and Pauline through Mark 

Murnion, Michael's brother, who was a friend of Mrs. Watson's 

son, Dan. Mrs. Watson had discussed with Mark the fact that 

there were quite a few Murnion brothers living in and around 

Colstrip, and among those brothers was Michael and Pauline to 

whom Mark referred as his "sister-in-law." After that, 

Pauline came to work at Bechtel, where Mrs. Watson already 

worked. When Pauline commenced employment at Bechtel, she 

was introduced to Mrs. Watson, and Mrs. Watson, knowing of 

Pauline through Michael's brother, Mark, believed her to be 

Pauline Murnion, Michael ' s wife. Mrs. Watson first met 

Michael Murnion when he came to eat lunch with Pauline, and 

one of the other girls in the office introduced Michael as 

Pauline's husband. From her observations, it appeared to 

Mrs. Watson that Michael and Pauline were husband and wife. 

Approximately two months to six weeks before Michael's death, 

Mrs. Watson was advised by another girl in the office that 

Nichael and Pauline were not formally married. Mrs. Watson 

subsequently discussed this fact with Pauline; Pauline told 

her that it was true, that they intended to formalize their 

marriage, but that she felt that she was Michael's common-law 

wife (Tr. p. 151 and 1. 21) and Pauline continued to refer to 

herself as Michael's wife, not his fiancee. (Tr. p. 151 1. 

16-19) . Mrs. Watson stated they they, Michael and Pauline, 

thought they were already married (Tr. p. 154 1. 2-4). 

19. Sometime before March, 1982, Michael and Pauline 

requested Martha Dreiling to prepare their 3981 tax returns. 

Martha Dreiling was a long-time family friend of the 

Murnions, who had previously prepared tax returns for a tax 

service in Billings, Montana. In requesting that Mrs. 

Dreiling prepare the tax returns, Michael asked that they be 

prepared as married, filing jointly. In discussion, Mrs. 

Dreiling pointed out to Michael that there was tax savings 

involved in filing as a single person, and Michael therefore 

asked her to calculate it both as married, filing jointly, 

and as individual single persons, which Mrs. Dreiling did. 

Due to the tax savings, Michael and Pauline filed separate 

tax returns. In the course of their discussions, Mrs. 

Dreiling advised Michael that it would be legal for him to 

file either way. She felt that he and Pauline had 

established a common-law marriage by cohabitation and 

introducing one another as husband and wife, although she 

knew as a close family friend that Michael and Pauline were 

not formally married. It was Mrs. Dreiling's belief that 

they had established a common-law marriage by cohabitation. 

20. In discussion of the tax returns, Martha Dreiling 

and Michael and Pauline discussed the need for Michael and 

Pauline to find an investment which would give them certain 

tax writeoffs. Michael and Pauline's joint income at the 

time was substantial. Martha Dreiling suggested the purcha.se 

of an apartment building and, in fact, owned one herself 

which she wanted to sell. After checking on the advisability 

of such a purchase, Michael and Pauline agreed to purchase a 

three-unit apartment from Martha Dreiling and her husband. 

The terms of purchase called for a down payment of $4,000 and 
this payment was made from Pauline's savings account. As 

with the trailer, the apartment was placed in the names of 

Michael W. Murnion and Paulin G. Imel. 

21. Pauline received mail in Colstrip as Pauline 

Murnion, Mrs. Michael Murnion, and Michael and Pauline 

Murn.ion, both before and after Michael's death. She also 

received mail in the name of Pauline Imel and other mail 

simply add-ressed to Michael and Pauline. 

22. In the winter of 1982, Michael and Pauline took 

dance lessons at Colstrip. Several couples participated in 

that dancing class, and Michael and Pauline were known in 

the class as Michael and Pauline Murnion (Petitioner's 

Exhibit No. 4). 

23. From the testimony, it appears that Michael and 

Pauline planned and intended to be formally married by 

license and solemnization, but this intention was never 

carried out prior to Michael's death. The Court finds from 

the testimony that although Michael and Pauline had this 

intention, they did not consider it essential to their 

marriage, as between themselves. Their purpose in obtaining 

a formalization of their marriage was "to make it legal" and 

acceptable to society, in particular, Michael Murnion's 

parents, Marion and James Murnion. Pauline's testimony on 

this point was verified by the testimony of Michael's 

brother, Mark, who stated that Michael ''wanted to make it 

legal, you know, he told me considered her as his wife." 

Mark further testified that the only reason he wished to make 

it legal was to satisfy their parents "because they (Pauline 

and Michael) figured they were already married, you know, the 

way he (Michael) told me." (Tr. p. 142 1. 1-8). And, ''they 

had their real commitment with their heart, and I can tell 

that, I knew my brother very well." (Tr. p. 142 1. 18). 

24. Michael's parents, Marion and James Murnion, 

testified, and the Court finds, that although the parents did 

not necessarily accept or recognize the validity of Michael 

and Pauline's marriage, they knew from what Michael told 

them, that he considered Pauline to be his wife. (Tr. p. 169 

1. 20 and p. 183 1. 5-10). Although Michael wanted to 

formalize his wedding either civilly or in the Catholic 

Church, following an annulment of his and Pauline's prior 

marriages, in order to please his father (Tr. p. 176 1. 6) , Michael's father believed that Michael "considered himself 

married and had obligations at that point," before any such 

ceremony. (Tr. p. 183 1. 5-10). 

25. Michael's death certificate and the obituary 

printed in several papers following his death, indicated that 

he was a single man and that Pauline was his fiancee. 

Information in these obituaries was obtained from Michael 

Murnion's parents. Mr. and Mrs. Murnion testified, and the 

Court finds that the reason for this was that Mr. and Mrs. 

Murnion did not recognize Michael and Pauline's marriage as 

legal. Mrs. Murnion testified that although she knew Michael 

considered Pauline his wife, she knew that they were not 

legally married and did not believe that Pauline could he 

listed as his wife in an obituary or death cerificate. Yet, 

Mrs. Murnion wanted to recognize the special relationship 
Michael had with Pauline. She therefore had Pauline listed 

as a fiancee as a matter of special honor for Pauline, a 

listing she stated would not normally be made in an obituary 

for a fiancee. 

26. At the time of Michael Murnion's accident, Pauline 

rushed to the emergency facilities at Colstrip to be at his 

side. She informed medical personnel at the scene that she 

was Michael's wife and stood by him while she could. Upon 

his death, she aided in funeral arrangments and suggested the 

military funeral which the family subsequently followed 

through with. 

27. There is no question, from the evidence, but that 

Michael and Pauline were a very close, loving, affectionate 

and caring couple. From all outward appearances, they had a 

deep and abiding commitment to one another. 

28. Although Michael and Pauline made their agreement 

to be man and wife while residing in Tukwila, Washington, 

they did so with the intent of moving to Montana, and they 

followed through with that intention by moving to Montana 

soon thereafter. All the elements of their common-law 

marriage were fulfilled in Montsna by virtue of their 

continuing agreement, cohabitation, and mutual assumption of 

the marital relationship and public repute. Montana remained 

their residence from that time forward, and Montana clearly 

has a more substantial relationship to the parties and their 

marriage than any other state, including Washington. 

29. Michael W. Murnion is the natural father of Katrina 

P. Murnion, age 4, born April 25, 1978. Sherrie Lynn Hart is 

the natural mother of Katrina P. Murnion. 

30. By stipulation and order signed by Michael W. 

Murnion and issued by the Superior Court of Snohomish County, 

Washington on October 6, 1981, Michael W. Murnion stipulated 

that he was the father of Katrina P. Murnion, and the 

Wa.shington Court declared that he was the legal fa.ther and 

had a duty to support his daughter. 

31. Pauline G. Imel testified that she and Michael W. 

Murnion had a private oral agreement that they were married 

on September 4, 1981. She denied a.ny marital relationship 

prior to that date, although she and Michael W. Murnion had 

been living together in her apartment in Tukwila, Washington 

since June of 1981 and continued to live together in that 

apartment for a month after the alleged Sepember 4, 1981 

marriage until they left for Montana on October 4, 1381. 

(Tr. 74, 90, 92). She further testified that after September 

4, 1981, nothing whatsoever remained to be done for her 

marriage to be complete and that the marriage was not 

contingent upon her moving to Montana. 

32. Contrary to her testimony at trial whereby she set 

the date of her alleged marriage as September 4, 1981, 

Pauline G. Imel filed a Claim for Compensation for the 

Division of Workers Compensation of the State of Montana 

alleging a date of marriage with Michael W. Murnion as 

October 1, 1981. That Claim for Compensation was prepared 

with the assistance of her attorney and was signed under oath 
by Pauline G. Imel in the presence of a Notary Public on 

October 19, 1982. On October 1, 1981 Pauline G. Imel and 

Michael W. Murnion had not yet moved from Washington to 

Montana. (Tr. 91, Defendant's Exhibit B, Tr. 92). 

33. The only available direct evidence of the alleged 

agreement to be married on September 4, 1981 is the testimony 

of Pauline G. Imel, because Michael W. Murnion is now dead, 

and there were no other witnesses to the alleged agreement. 

The credibility of Pauline G. Imel is therefore extremely 

important in determining whether or not such an agreement was 

actually reached. Although Pauline G. Imel originally 

testified that she never represented her marital status as 

single after September 4, 1981 and that she did not represent 

to her employer, Bechtel Power Corporation, that she was 

single at the time of her employment application (Tr. 75), 

the records of her employer and her own testimony on cross 

examination does not support her original testimony. The 

Court finds that Pauline G. Imel's credibility is not to be 

discredited by testimony, as she was confused by the free 

legal advice given to her by Warren Becker, when they were 

purchasing the mobile home through his agency. She believed 

that she was married to the deceased, but could not legally 

use his name until an official marriage ceremony had been 

performed. 

34. Michael W. Murnion and Pauline G. Imel filed 

separate federal income tax returns as a single man and a 

single woman for tax year 1981. She had already listed 

herself as a single woman for income tax purposes on her IRS 

form W-4, signed by her and filed with her employer on 

December 7, 1981. (Tr. 101-102). 

35. Pauline G. Imel had an account at the Bechtel 

Credit Union, but did not list Michael M.urnion as her husband 

on that account. She had medical insura.nce provided by 

Bechtel and did not list Michael Murnion as her husband on 

that insurance. (Tr. 105) . 

36. At the time of his death Michael W. Murnion was an 

employee of Combustion Engineering, Inc., where he worked as 

a boilermaker. On his Field Construction Service Employment 

Record, which was signed by him on October 12, 1981, Michael 

W. Murnion designated his marital status as "Single." 

(Defendant's Exhibit C). Pauline G. Imel conceded during 

cross-examination that it is true that Michael Murnion 

designated himself as a single person on the employee records 

at Combustion Engineering. (Tr. 103). 

37. The evidence shows that at the time of his death, 

Michael W. Murnion and Pauline G. Imel intended to be married 

in the near future and were in the process of making the 

necessary arrangements to be married in the State of Montana. 

Michael W. Murnion was actively seeking annulments from the 

Catholic Church for their prior marriages, after they left 

Washington and came to Montana. (Tr. 94, 96). 

38. Prior to moving to Montana, both Pauline G. Imel 

and Michael W. Murnion knew that Washington did not recognize 

common-law marriage. At the time of the alleged agreement 

Pauline Imel and Michael Murnion were residents and 

domiciliaries of the State of Washington. All of their 
property, their apartment home, their automobile, and their 

bank accounts were located in Washington. They were employed 

in the State of Washington. They had no significant contact 

with the State of Montana at the time of the alleged 

agreement. The only contacts with the State of Montana at 

the time of the alleged marriage of September 4, 1981 were 

the fact that Michael Murnion was originally from Montana and 

the fact that they intended to move to Montana where Michael 

Murnion had an expectancy of employment. (He was not 

employed at the time of the alleged agreement, nor had he yet 

traveled to Colstrip, Montana to actually apply for 

employment there. His employment records show that he was 

not actually employed until October 12, 1981. (Defendant's 

Exhibit C.) 
Mr. Chief Justice Frank I. Haswell, 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 

'I. . . the consent, whether in express 

words, or implied from cond.uct, must 

always be given with such an intent on 

the part of each of the parties that 

marriage cannot he said to steal upon 

them unawares. One cannot become married 

unwittingly or accidentally. The consent 

required by our statute, as well as the 

statutes of every state, and by the 

common law, must be seriously given with 

the deliberate intention that marriage 

result presently therefrom. The words 

manifesting the consent may be spoken in 

the face of the church, or immediately 

preceding an act of sexual intercourse, 

as claimed in this case. But they must 

always be spoken by those who know and 

intend that matrimony in full form sha.11 

be the result. ~arriage cannot be created piecemeal. It comes instantly into 

being, or it does not come at all. If 

anything remains to be done before the 

relationship is completed in contemplation of the parties themselves, there is 

no marriage. 

"'In order to constitute a marriage per 

verba de praesenti, the parties must 

agree tobecome husband and wife presently. The consent which is the foundation 

and essence of the contract must be 

mutual and given at the same time, and it 

must not be attended by an agreement that 

some intervening thing shall be done 

before the marriage takes effect, or that 

it be publicly so1.emnized. That is to 

say, it must contemplate a present 

assumption of the marriage status, in 

distinction from a mere future union. 

(Lord Brougham in Queen v. Millis, 10 C1. 

& I?. 534, 708, 730; Clark v. Field, 13 

Vt. 460.)' (Beneficial Assn. v. Carpenter, 17 R.I. 720, 24 Atl. 578.)" State 

v. Newrr,a.n (1922), 66 Mont. 180, 313 P. 

805. 
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. 

" [Tlhe best evidence of the exchange of marriage consent between the parties would come from those who were 

personall-y 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, 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 hear 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 Welsh, 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 S. 391. 

In Estate of Swanson (19721, 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 marriage at that time. Pauline testified that 

lat.er, 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 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 empl-oyment 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 ~~illingness to conduct a part of her 

1-ife--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 Pel.tomaa (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 1-aw marriage the 

same protections given formal marriage. By necessity, the 

same duties are imposed. A couple may not walk in and out 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. 
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 solemniza.tion 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. 

Mr. Justice John Conway Harrison: 

I concur in the foregoing dissent of Mr. Chief Justice 

Haswell.