                               No. 84-15
               IN THE SUPREME COURT OF THE STATE OF MONTANA
                                      1954



114 THE MATTER OF THE ESTATE
OF BILLY EUGENE SARTAIN,
Deceased.




APPEAL FROM:     District Court of the Fourth Judicial District,
                 In and for the County of Missoula,
                 The Honorable Jack L. Green, Judge presiding.


COUNSEL OF RECORD:

         For Appellant:
                 Garnaas, Hall, Riley     &   Pinsoneault; Lyman J. Hall,
                 Missoula, Montana

         For Respondent :

                 m,
                  -         Connell   &   Beers, Missoula, Illontana




                                Submitted on Briefs:         June 28, 1984
                                                  Decided:   August 3 0 , 1984



Filed:    ; N G d d ~984



                                Clerk
Mr. Justice Fred J. Weber delivered the Opinion of the Court.
       Sherri Hettich (Sherri) petitioned the District Court of
Missoula County for appointment as personal representative of
the estate of Billy E.            Sartain    (Billy).   Peggy Sartain
(Peggy), Billy's ex-wife, filed objections and petitioned for
appointment as personal representative in her capacity as
guardian of Brandy and Wesley Sartain, children of Billy and
Peggy.       The District Court ruled that no common law marriage
existed between Sherri and Billy and appointed Peggy as
personal representative of his estate.            Sherri appeals.   We
affirm the District Court.
       The issue on appeal is whether the District Court erred
in finding that no valid common law marriage existed between
Rilly and Sherri on the date of Billy's death?
       Billy died on August 12, 1.981 at the age of 34.        At the
time    of    death   he   was   domiciled   in Missoula   County   and
employed as a long-haul truck driver.
       Billy had resided with Sherri in Missoula from September
1, 1979 until his death.          Billy and Sherri were not parties
to a     solemnized marriage and had not executed a written
declaration of marriage.
       Billy was legally married to Peggy from October 4, 1968
to May       1, 1981, slightly over three months prior to his
death.    Billy and Peggy had two children, Brandy, age 12, and
Wesley, age 9.
       Sherri Hettich was legally married to Phillip Barba from
May 15, 1977 to December 19, 1979, when her divorce became
final.
       Billy and Sherri had one child, Heaven Lea Sartain, age
2.     Billy's three children, Brandy, Wesley and Heaven, have
been determined to be the three heirs of Billy and there is
no appeal from that determination by the District Court.
      Did the District Court err              finding that        valid
common law marriage existed between Billy and Sherri?                The
transcript is extensive, containing the testimony of Sherri
and Peggy and a number of other parties, including two of
Billy's children.       In addition there is relevant evidence in
the form of letters and notes. Finding of fact VI accurately
summarizes the evidence on this question:
      "At times during the period in which they lived
      together, Sherri Hettich and Decedent represented
      to others that they were married. At other times
      during the period in which they lived together,
      Sherri Hettich    and   Decedent represented    or
      indicated to others that they were not married and
      did not intend to become married to each other in
      the future."
A review of the testimony and exhibits shows that there is
substantial evid.ence which would support a conclusion that
there was a common law marriage.           There is also substantial
evidence supporting the conclusion that there was not a
common law marriage between Billy and Sherri.            The findings
of    fact    and   conclusions of   law    clearly    set   forth   the
evaluation by the experienced trial judge of the evidence
presented to him.
      The pertinent findings of fact include:                Sherri and
Billy each met independently with a representative of the
county welfare office to apply for food stamps.                Each was
advised that any false statements would subject the applicant
to criminal penalties.       Billy and Sherri each reported they
had   no     other household members.        Billy    reported he was
staying with a friend and paying no rent.              In response to
questioning, Sherri reported that Rilly stayed with her and
did not have to pay rent, and their food was kept separate.
Both Billy and Sherri denied there wa.s any marital or live-in
relationship and each received food stamps.
       Sherri continued to use the name Hettich in conjunction
with    her    employment, driver's           license, car titles, food
stamps,       bank    accounts,        tax   returns    and     other   business
dealings.       After her divorce Sherri petitioned for a name
change hack to her maiden name                  "Hettich" rather than to
Billy's name "Sartain."
       Of particular significance               finding of fact XII:
       "When Decedent and Hettich first began living
       together in September 1979, they knew that they
       were   each   still   legally married   to   other
       individuals, and could not be considered legally
       married to one another. Although Hettich felt that
       their love intensified over the months that
       followed, at no time did either consider that the
       sta.tus of their legal relationship changed during
       this period; they remained lovers but at no time
       became spouses."
       The standard of review of the District Court's findings
of fact is stated in Rule 52(a), M.R.Civ.P.:
       "Findings of fact shall not be set aside unless
       clearly erroneous, and due regard shall be given to
       the opportunity of the trial court to judge of the
       credibility of the witnesses."
We conclude there is substantial evidence to support the
District Court's findings of fact. The findings of fact are
not    clearly       erroneous    and will      not     be     set   aside.    In
addition, because         of     the    contradictions in the evidence
submitted by the parties, it is essential that we respect the
Rule 52 requirement that due regard be given by this Court to
the    opportunity       of      the     District      Court    to    judge   the
credibility      of     the   witnesses.         The    District      Court   has
extensive experience in this regard. We have only the cold
record for review.        We apply the standard of review set forth
in Cameron v. Cameron (1978), 179 Mont. 219, 228, 587 ~ . 2 d


       "We will not substitute our judgment for that of
       the trier of fact, but rather will only consider
       whether substantial credible evidence supports the
       findings and conclusions. Those findings will not
       be o~rerturnedby this Court unless there is a clear
     preponderance of evidence against them.    We will
     view the evidence in a light most favorable to the
     prevailing party, recognizing that substantial
     evidence may be weak or conflicting with other
     evidence, yet still support the findings."
See also Spraggins v. Elvidge (Mont. 1982), 647 P.2d 859,


     Counsel for Sherri asks that we substitute our judgment
for that of the District Court.        He emphasizes the evidence
presented in Sherri's behalf which suggests a common 1a.w
marriage relationship, including the testimony of Sherri's
mother who stated. that Sherri and Billy held. themselves out
as   common   law    husband   and   wife.      Certainly   there    is
substantial evidence indicating that type of relationship.
However, as pointed out in Cameron, we will not substitute
our judgment for that of the District Court.            There is no
clear preponderance of evidence against the findings of the
District Court.      Having viewed the evidence in. a light most
favorable to the prevailing party, we conclude that there is
substantial credible evidence supporting the findings.
     In its conclusions of law, the District Court concluded
that Sherri must prove that the parties were capable of
consenting to marriage, that there was a mutual and public
assumption    of    the   marriage   relationship,    and   that    the
marriage must take place immediately and cannot be created
piecemeal.    This is in accord with the law of common law
marriage set forth in Montana caselaw.           In the recent case
of Estate of Murnion (Mont. August 28, 1984), No. 83-385,
     P.2d           - St.Rep.          ,   we pointed out that under
the holdings of this Court a common law marriage must take
place immediately or not at all and there must be a consent
to a valid marriage, cohabitation and public repute.           There
is no significant dispute between the parties as to the
applicable law.       In Murnion, we upheld the District Court's
finding of a common law marriage where we      found a mutual
agreement to marry.   In contrast, there was no evidence of
any such agreement between Billy and Sherri.     The District
Court properly applied Montana common law marriage standards.
     We affirm the judgment of the District Court.




We concur:
