                                                                                   August 17 2010


                                   DA 09-0669

          IN THE SUPREME COURT OF THE STATE OF MONTANA
                                  2010 MT 183N



IN RE:

THE ESTATE OF ROBERT CHARLES BOTHAMLEY


APPEAL FROM:     District Court of the Ninteenth Judicial District,
                 In and For the County of Lincoln, Cause No. DP 07-046
                 Honorable Michael C. Prezeau, Presiding Judge


COUNSEL OF RECORD:

          For Appellant:

                 Scott G. Hilderman, Kai Groenke; Johnson, Berg, McEvoy & Bostock,
                 PLLP; Kalispell, Montana (Cynthia Zimmerman)

          For Cross Appellant:

                 Dean D. Chisholm; Chisholm & Chisholm; Columbia Falls, Montana
                 (Pamela Bisson)

          For Appellee:

                 Darin K. Westover; Law Office of George B. Best;
                 Kalispell, Montana (Carolyn Norstebon)



                                             Submitted on Briefs: July 21, 2010

                                                        Decided: August 17, 2010


Filed:

                 __________________________________________
                                   Clerk
Justice W. William Leaphart delivered the Opinion of the Court.

¶1     Pursuant to Section I, Paragraph 3(d)(v), Montana Supreme Court 1996 Internal

Operating Rules, as amended in 2006, the following memorandum decision shall not be

cited as precedent. It shall be filed as a public document with the Clerk of the Supreme

Court and its case title, Supreme Court cause number and disposition shall be included in

this Court’s quarterly list of noncitable cases published in the Pacific Reporter and

Montana Reports.

¶2     Appellant Cynthia Zimmerman (Zimmerman) and Cross Appellant Pamela Bisson

(Bisson) appeals the decision of the Nineteenth Judicial District Court. Zimmerman

argues that the court erred in concluding that Appellee Carolyn Norstebon (Norstebon)

and Decedent Robert Charles Bothamley (Bothamley) were married at the time of

Bothamley’s death. Zimmerman also argues on appeal that the District Court abused its

discretion by admitting an address book into evidence shortly before the trial began.

¶3     We review a district court’s findings of facts to determine whether they are clearly

erroneous. In re the Estate of Alcorn, 263 Mont. 353, 355, 868 P.2d 629, 630 (1994). A

finding of fact is clearly erroneous if it is not supported by substantial evidence, if the

district court misapprehended the effects of the evidence or if our review of the record

convinces us the district court made a mistake. In re the Marriage of Swanner-Renner,

2009 MT 186, ¶ 13, 351 Mont. 62, 209 P.3d 238.              We review a district court’s

conclusions to determine whether the district court’s interpretation of law is correct.

Alcorn, 263 Mont. at 355, 868 P.2d at 630. Lastly, we review evidentiary rulings for an


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abuse of discretion. Stevenson v. Felco Industries, Inc., 2009 MT 299, ¶ 16, 352 Mont.

303, 216 P.3d 763.

¶4     The District Court held that Norstebon had proved by a preponderance of the

evidence the elements necessary to establish that she and Bothamley were in a common

law marriage at the time of Bothamley’s death. We have reviewed the District Court’s

Conclusions of Law and hold that it correctly interpreted the law of common law

marriage under § 40-1-403, MCA, and our own pertinent precedent. The District Court

heard testimony from 28 witnesses and received 83 exhibits regarding the nature of

Norstebon and Bothamley’s relationship under the factors necessary to prove the

existence of a common law marriage. See In re Ober, 2003 MT 7, ¶ 9, 314 Mont. 20, 62

P.3d 1114. We find no indication that the District Court’s Findings of Fact were not

supported by substantial evidence, that the District Court misapprehended the evidence’s

effects or that the District Court made a mistake.

¶5     Lastly, we consider whether the District Court abused its discretion in admitting

the address book. We review the admission of this evidence to determine whether the

trial court acted arbitrarily without employment of conscientious judgment or exceeded

the bounds of reason resulting in substantial injustice. Circle S Seeds of Montana, Inc. v.

T & M Transporting, Inc., 2006 MT 25, ¶ 14, 331 Mont. 76, 130 P.3d 150. The District

Court heard testimony regarding how Norstebon only recently found the address book in

an unexpected location in the home. The District Court considered the parties’ arguments

regarding the late disclosure of this evidence. In reviewing the District Court’s decision

to admit the evidence, we find nothing indicating that the court acted arbitrarily without


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conscientious judgment or exceeded the bounds of reason resulting in substantial

injustice.

¶6     We have determined to decide this case pursuant to Section I, Paragraph 3(d)(v) of

our 1996 Internal Operating Rules, as amended in 2006, which provides for

memorandum opinions.

¶7     Affirmed.




                                                /S/ W. WILLIAM LEAPHART


We concur:

/S/ MIKE McGRATH
/S/ PATRICIA COTTER
/S/ JAMES C. NELSON
/S/ MICHAEL E WHEAT




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