No. 83-385

IN THE SUPREV2COURT OF THE STATE OF MONTANA 1984

IN THEMATTER OF THE ESTATE OF MICHAELW. MURNION,Deceased.

APPEAL FROM: District Court of the Sixteenth Judicial District, Inand for the County of Rosebud, The HonorableAlfred B. Coate, Judgepresiding.

COUNSEL OF RECORD: ForAppellant: 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~--~ -Mentana Cxowley,Haughey, Hanson,Toole & Dietrich, Billings, llontana

-- - --- --- - Submitted: March 13, 1984 Decided: August 28, 1984

Filed: .Ji; 

# "1984

ClerkMr. 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 ofMichaelW. 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 daughterby apriormarriage. 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-meof his death. The District Court determined that she was his surviving wife. We affirm the judgment of the DistrictCourt. Michael W. Murnion died as a result of a fall from a scaffol-dingapparatus upon whichhe wasworking 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 shebe found tobe his spouse. Ifnot, 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 civilaction 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.nthe civil actiondid not appear in the estateproceedings. 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-nais the sole heir, shewould 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 guardianofKatrina 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 ofWashington. 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 bysubstantial 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 conclusionswhich the District Court drew from such findingsmust 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 abetter position tomake decisionsof fact;and the duty of the Supreme Court in reviewing an action of an equitablenature 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 DistrictCourton questions of factunless 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 essentialportions of the evidenceuponwhich it relied,and gave reasons fordistinguishingthe 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 ofmarriage,but rather 

### an intention tomarry in the future. The guardian insists that the following items of fact refute an existing common-law marriage between Michael and Paulineat the time ofhis death: Sheutilized the name PaulineG. 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 explanationasvalid. 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 shewasmarried toMichael. In our reviewof 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 inits 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

nonjury trials. Farmers State Bank v. Mobile Homes, Unlimited (1979),181Mont. 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. ThisCourt in Welchv. All Persons (1926),78Mont. 370, 384, 254 P. 179, 182, stated that the presumption in favor of matrimony is one of the stron.gestknown to the law and that every intendment of the law is in favor of matrimony, whichpresumes morality and not immorality, marriage and not concubinage, legitimacy and not bastardy. Estate of Swanson

(1972),160Mont. 271, 502P.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, topleaseMichael'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 allegedmarriage between Michael and Pauline was invalid,and that Washington law should apply in this case. The guardian's choice of law argument comes in twomain 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 takeplace immediately,

come instantly intobeing, or it does not come intobeing at all. Under the facts foundby the DistrictCourt,Michael and Paulinewere residentsand domiciliariesof 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 inWashington for a lengthy period prior to the agreement; their entirerelationshiphad commenced and continued inWashington until the date of thepurported agreementand.even thereafter for a period of at ,-east onemonth. 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), 60P. 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 thewife thenhad a living husband from whom shehad notbeen divorced. The couplemoved to Michigan,and then to other states, and lived together as husband and wife until 1945,when he died. Thehusband leftproperty inWashington, 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 inWashington, although the statedoes 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 knowledgeofhis formerwife, then livingwith Gallagher. In upholding the validity of the common-law marriage consummated in the State ofMichigan, 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 validcommon-law marriage, although the fact of the impediment or of its removal may not have been known to either. The principal reasonsupon 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 removalof 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 ofMichael to Pauline would be sustained. In Gallagher, a ceremonial marriage ripened into a common-law marriage, in another state where suchmarriages

were valid. In this case, Pauline contends that her common-law marriage, invalid in Washington, ripened into a valid common-lawmarriage inMontana 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 thevalidity of the marriage. Crossv. 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 ofMontana domiciliaries who ha.dbeen married in Idaho, and who returned to Montana. There we determined therewas 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 andwhohad not theparent's consent. InDauenhauer, thisCourt 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'ssubstantiveLaw canbe applied to uphold themarriage between Micha.ela.ndPauline, and if so, what is the substantive law to be applied to the case atbar. 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 theprinciples set forth in section 6." The principles set forth in Restatement Second of Confli.cts,§ 6,are: "(a) Theneeds 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 aparticular 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 statewhere themarriage was celebrated,or in the case of a common-law marriage, the statewhere 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 thevalidity 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 determinedby 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 applicableMontana law ismore 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 theirvalidity,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. Certainmarriages areprohibited inMontana, such asbigamous and incestuous marriages. Section 40-1-401(1), MCA. In thoseprohibitedmarriages however,personswho cohabit after the removal of the impedimentare lawfully married as of the date of the removal of the impediment. Section 40-1-401(2)

## , MCA. Common-lawmarriages are specificallynot 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 legallymarried in the good faithbelief thathewas married.. In Estate of Schanbacher (1979),182Mont. 176, 595 P.2d 1171, we set aside a summary judgment on the ground that a bigamousmarriage may have ripened into a common-law marriage after the death of thedecedent'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 thereforehold that amarriagewhichmay be invalidwhere 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.rriagehere because under our law,a common-law marriage must take place i-nunediately,or not at all. Estate ofMcClelland (1975),168 Mont. 160, 541P.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, theremust 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. SeeWelch v. All Persons 11926), 78Mont. 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 thebeginning of the common-law marriagewasmet when the parties moved to Montana, a state where common-law marriages

arevalid, andwhere thereafter they cohabited,and by public repute were husband and wife. We are buttressed in this bythe United States Supreme Court case of Traversv. Reinhardt (1906),205U.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 inMaryland forwant of a religious ceremony, had they remained in that state, it was to be deemed a valid marriage inNew Jersey after James Travers and thewomen Sophia as husband andwife,took up theirpermanent 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 declarationb~ each that they did,and during their 

## -- - joint lives

### -- were to,occupy thGelationofhusband 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."

(Emphasisadded.) 27 S.Ct. 568-569. Under our applicable law, therefore, we hold the common-lawmarriage of Michael and Pauline ImelMurnion tobe 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.oall the rights of a putative spouse. Whatwe 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 Paulinewas notpossessed of a good faithbelief that she was legally married because her marriage was originally invalid under Washington law. On the other hand, the facts foundby theDistrictCourt seemed to indicate 

### thatshe did in fact entertain a good faith belief that her common-law marriage wasvalid. In any event, the issuemakes

no difference because we have determined that in this case shewas legally married toMichael Murnion at the time of his death. Affirmed.

We Concur:

Chief JusticeAPPENDIX FINDINGSOF FACT AND CONCLUSIONSOF LAW 1. Michael.W. Murnion died onApril 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.tativeof 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 LynnHart on June 4, 1982. 3. PaulineG. Imel filed apetition for adjudication of Intestacy and Determination of Heirs in the above-entitled cause on or aboutOctober 11, 1982. An Order fixing the time of hearing on said Petition forMonday, 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 serviceby 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 ImelonOctober 29, 1982. The matter was subsequently reset for January 17, 1983,on November 22, 1982,and Notice of this resettingwas againmailed toKatrina Murnion, in care of SherrieLynnHart 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 Paulinehad been married to other parties, and those marriages were dissolved by divorce. Michael and Pauline began to date one another toward the end ofMarch or the firstofApril, 1981, and from that time forward had a close and continuing relationship. During this time the parties maintained separateresidences. Paulineresided inTukwila,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 Seattlearea. Sometimebefore 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 shehad known one another long enough, shehad not met with Michael's family, she had reservations about their difference in age, he was 30 and she 40, and the fact that shewasunable tobear 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 accumulatedprior 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 theywere hiring workers for Colstrip Projects 3 and 4 and that if he was interested, Michael could come out toColstrip towork 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 encouragedhim topursue such employment. The followingday, 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. Hewent on todescribe forPaulinethe aspects of living in Colstrip, Montana, as opposed to the Seattlearea. 8. On Friday evening, September 4, 1981,Michael and Paulinehad a serious and consequential discussion concerning the job prospect and their relationship. Michael advisedPauline 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 consideringmarriage. 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 roofingproject the followingweek. Thereafter,Michael came to Montana to obtain employment and a place of residence, bringingwith him $1,000which Paulinehad withdrawn fromher 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 arrangementstopurchase a mobile home,and subsequently returned toTukwila tomove Paulineand their belongingsback 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 belongingsonOctober 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 toWashington to bring hiswife 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 hiswife. Arrangements for the repairs to themobile homewere made, andMichael and Pauline took up residence therein. 11. Arrangements for the purchase of the mobile home from Marla Goodmanwerema.dethroughWarren Beckerof Big Sky Realty atForsyth,Montana. Warren Becker testified,and the Court finds that in the course of negotiating the trailer home purchase,he wasmade aware thatM-ichaelwas purchasing the trailer together with Pauline, that Pauline had the $2,000 for thedownpayment on thehome,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 werenot, in fact, formallymarried,but understood that theywere soon to be formallymarried. 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 thatMichael 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 thatbecause they were not legallymarried, Pauline's legal name remained Pauline Imel,and she could notuse 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 themobile home, itwas 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 soexecuted 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 formallymarried, they otherwise appeared to hold themselvesout asman and wife in Colstrip. 12. Neighbor, Larry Morton, met Michael and Pauline soon after they had moved into the mobile home at Colstrip. LarryMorton testified,and the Court finds thathe firstmet 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 toMichael as her husband in such conversations. Itappeared toMr. Morton in all respects thatMichael 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 followingMichael'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 afterMichael's death. 14. In order to license Michael's pickup after their arrivalat Colstrip,itbecame 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'sExhibit No. 1) was filled out by a clerk at the insurance agency, and the information thereon taken fromMichael and Pauline's driverslicenses, which they had brought with them from Washington state, and a prior insurance policy held by Michael on the pickup. In the courseof fillingout thepolicy application, the clerk initially showed Michael and Pauline's marital status as single, or not married. Pa.ulinehad 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, whichwas accomplished on November 

### 7, 1981. 15. After arriving in Colstrip, Pauline made arrangements to transfer her savings account from a Seattle area bank, where shehad 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 checkingaccount,whichwas placed in thename of PaulineG. Imel,towhich shehad 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, otherwithdrawalswere made to finance down payment on joint purchases made by Pauline andMichael. The joint checking accountwas used for the deposit ofMichael'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 accountat the time of hisdeath. 16. Prior tomeeting 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.ndhad a hook on it which caught on her clothing. Before coming toMontana, PaulineaskedMichael 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 shewore it on her lefthand 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, showingherself tobe a single woman;however, shewas knownamong her co-workersas Pauline Murnion, Michael's wife, at least until certain workersapparently read her employment information and disclosed the informationthereon. 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 ofMrs. Watson's son,Dan. Mrs. Watson had discussed with Mark the fact that therewere quite a fewMurnion brothers living in and around Colstrip,and among those brotherswasMichael 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 sixweeks 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 shewasMichael'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 theywere 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 Paulinewere 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 timewas substantial. Martha Dreiling suggested thepurcha.se of an apartment building and, in fact, owned one herself which shewanted to sell. After checkingon the advisability of such a purchase, Michael and Pauline agreed to purchase a three-unit apartment from Martha Dreiling and her husband. The terms ofpurchase called for a down payment of $4,000andthis payment was made from Pauline's savings account. As with the trailer, the apartment was placed in the names of MichaelW. Murnion and PaulinG. 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-ressedtoMichael 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 ExhibitNo. 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 theirmarriagewas "tomake 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 reasonhewished tomake it legal was to satisfy their parents "becausethey (Pauline andMichael) figured theywere alreadymarried,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 theCourt finds,that although theparents did not necessarily accept or recognize the validity of Michael and Pauline's marriage, they knew from what Michael told them,thathe considered Pauline tobe hiswife. (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 followinghisdeath, 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 sheknewMichael 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 relationshipMichael had with Pauline. She therefore had Pauline listed as a fiancee as a matter of special honor for Pauline, a listing she statedwould 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, sheaided in funeral arrangmentsand suggested the military funeral which the family subsequently followed throughwith. 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 Paulinemade 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 themarital relationshipand 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 fatherofKatrina P. Murnion, age 4,bornApril 25, 1978. SherrieLynn Hart is the naturalmother ofKatrina P. Murnion. 30. By stipulation and order signed by Michael W. Murnion and issuedby the Superior Court of SnohomishCounty, Washington on October 6, 1981,Michael

### W. Murnion stipulated that he was the father of Katrina P. Murnion, and the Wa.shingtonCourt declared that he was the legal fa.therand 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.nymarital 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 furthertestified that after September 4, 1981, nothing whatsoever remained to be done for her marriage to be complete and that the marriage was not contingent uponhermoving toMontana. 32. Contrary toher testimony at trialwhereby 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 andwas signedunder oathby 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 ExhibitB,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 indetermining whether or not such an agreementwas actually reached. Although Pauline G. Imel originally testified that she never represented her marital status as single after September 4,1981and that shedid 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. Shebelieved 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 CreditUnion,but did not listMichaelM.urnionasher husband on that account. She had medical insura.nceprovided 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. Murnionwas an employee of Combustion Engineering, Inc., where he worked as a boilermaker. On his Field Construction Service Employment Record, which was signedby 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 singleperson on the employee records at CombustionEngineering. (Tr. 103). 37. The evidence shows that at the time of his death, MichaelW. Murnion and PaulineG. Imel intended tobemarried in the near future and were in the process of making the necessary arrangementsto be married in the StateofMontana. Michael W. Murnion was actively seeking annulments from the Catholic Church for their prior marriages, after they left Washington and came toMontana. (Tr. 94, 96). 38. Prior to moving to Montana, both Pauline G. Imel andMichaelW. Murnion knewthat 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 theirproperty, their apartment home, their automobile, and their bank accounts were located inWashington. Theywere employed in the State ofWashington. 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 thatMichaelMurnion

### was originally fromMontana and the fact that they intended tomove to Montana whereMichael 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 ExhibitC.)Mr. Chief Justice Frank I. Haswell,dissenting:

I question the trial court's legal conclusion that the evidence supportsa 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 themunawares. One cannot becomemarried 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 consentmay 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 thatmatrimony in full form sha.11 be the result. ~arriage cannotbe 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 nomarriage.

"'In order to constitute a marriage 

### per verba de praesenti, the parties must agree tobecomehusband andwife presently. The consent which is the foundation and essence of the contract must be mutual and given at the same time,and it must notbe attendedby 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.

(LordBrougham in Queen

### v. Millis, 10C1. & I?. 534, 708, 730; Clark v. Field, 13 Vt. 460.)' (BeneficialAssn. v. Carpenter, 17 R.I. 720, 24Atl. 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 casesmore often involve an estate or insurer and

a spouse or alleged spouse claiming common law marriage. This is true in thepresent case.

"[Tlhebest evidence of the exchange of marriage consent between the parties would come from those who were personall-ypresent when they mutually agreed to take each other ashusband andwife,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 ismore 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 asproof 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), 111Miss. 285, 71 S. 391. In Estate of Swanson (19721,160 Mont. 271, 502 P.2d 33, thecouple, after an allegedly illicit beginning, privately celebrated their marriage and continued to live together for eightyears. The relationship, here, was admittedly illicit at its inception, and the parties knew itwas 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 asman 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-oymentrecords. 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 ~~illingnessto 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, thatwhichwas 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 theircombined income as a married couple. We have already voiced

ourdisapprovalofmarriage 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 Paulinepurchased their mobile home and apartment house as tenants in common rather than as joint tenants with rights of survivorship. Fewmarried couples of moderate means choose to hold property as tenants in common. We have always offered a true common 1-awmarriage the

same protections given formal marriage. By necessity, the

sameduties are imposed. A couplemay notwalk in and outof 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 aman andwoman givemutual 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 recognitionof 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, 205U.S. at 441.Michael and Pauline lived together for ten months. Their reputation as man and wife is inconsistent, at best. Their steps toward formalmarriage or formal solemniza.tionof 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

# . Iwould reverse.

Mr. Justice JohnConway Harrison:

I concur in the foregoing dissent ofMr. Chief Justice Haswell.