Estate of Hudson

• Court: Montana Supreme Court
• Decided: October 7, 2025
• Docket: DA 24-0645
• Status: Published

Opinion

10/07/2025

DA 24-0645 Case Number: DA 24-0645

IN THE SUPREME COURT OF THE STATE OF MONTANA

2025 MT 226

IN THE MATTER OF THE ESTATE OF CAROL A. HUDSON, a/k/a CAROL ANN KELLER,

Deceased. ____________________________

ALAN LEE JOHNSON

Plaintiff, Counter-Defendant, and Appellant,

v.

DOUGLAS J. NAIL,

Defendant, Counterclaimant, and Appellee.

APPEAL FROM: District Court of the Eighteenth Judicial District, In and For the County of Gallatin, Cause Nos. DP-19-10 and DV-412C Honorable John C. Brown, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

David B. Cotner, Kyle C. Ryan, Sherine D. Blackford, Cotner Ryan Blackford, PLLC, Missoula, Montana

For Appellee:

Ben Alke, Crist, Krogh, Alke & Nord, Billings, Montana

Submitted on Briefs: August 13, 2025

Decided: October 7, 2025

Filed:

__________________________________________ Clerk Justice Beth Baker delivered the Opinion of the Court.

¶1 Decedent Carol Hudson and Appellee Doug Nail were in a relationship for over ten

years prior to Carol’s death in 2018. Doug claims that he is entitled to his elective spousal

share of Carol’s estate as her common-law husband. Carol’s son, Appellant Alan Johnson

(AJ), appeals the Eighteenth Judicial District Court’s Findings of Fact, Conclusions of

Law, and Order concluding that Carol and Doug had a valid common-law marriage.

Applying the governing standards of review, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

¶2 Carol Hudson died unexpectedly in October 2018, leaving nearly the entirety of her

estate to her sons, AJ and Jeff Johnson, via her will and a revocable trust. The personal

representative of Carol’s estate commenced probate proceedings in the Eighteenth Judicial

District Court in January 2019. Carol’s partner of more than ten years, Doug Nail, claimed

that he was entitled to an elective share of the augmented estate because he and Carol were

common-law spouses. AJ filed a separate complaint for declaratory relief, asking the

District Court to declare that Doug was not Carol’s husband. Doug counterclaimed. The

District Court consolidated the cases and held a bench trial in June 2024.

¶3 Carol and Doug’s relationship began in 2006 or 2007 while they both lived in

California. At that time, Carol was single after both of her previous marriages ended in

divorce. Doug recently had separated from his second wife, although his divorce was not

finalized until May 2010. Each party had two children from a prior relationship: Carol’s

sons and Doug’s children, Ryan and Kaitlyn. The parties maintained separate residences

in the early stages of their relationship, but they began living together full-time after their

2 move to Bozeman, Montana, in 2008 or 2009. Doug and Carol enjoyed recreating and

socializing together and occasionally hosted their friends and family for dinners and

holidays.

¶4 The couple’s first house in Bozeman was 118 Falling Star Road. Carol had a passion

and talent for interior design, so a few years later she purchased the neighboring lot at 200

Falling Star Road to construct her dream home. Carol financed both homes, and she titled

both assets in her name only. Doug performed some of the construction for the new home

and assisted Carol with the project’s budget. Both Doug and Carol were parties to the

construction contract. A local magazine published an article featuring the residence in

which the author referred to Doug as “the husband.”

¶5 At trial, Doug testified that he and Carol decided not to pursue a traditional marriage

because both had been through difficult divorces. The couple learned that Montana

recognized common-law marriage through a friend who was in a common-law marriage.

Doug explained that although they did not want to have a formal marriage ceremony, they

agreed to be spouses. Doug testified that he gave Carol two Cartier love bracelets and a

ring in recognition of their commitment to one another. Doug chose not to wear a ring

because he liked to recreate and do construction work, and he considered rings to be

dangerous. Many of the couple’s friends from Bozeman testified that they viewed Doug

and Carol as a married couple.

¶6 The District Court found the testimony of Carol’s friend and attorney, Shelley

Patton, to be “particularly persuasive.” Patton practiced family law in California for many

years. The two formed a close friendship when Carol lived in California. Patton testified

3 that sometime after Carol’s move to Montana but before her California home sold in 2013,

Carol confided in Patton that she and Doug were common-law spouses. Patton advised

Carol to protect herself by formalizing the marriage. Carol replied that this was

unnecessary because she already was married to Doug under Montana law.

¶7 At trial, AJ presented evidence that painted a different picture of Doug and Carol’s

relationship. AJ, along with other witnesses, testified that Carol was firmly against getting

remarried and did not consider Doug to be her husband. AJ did not remember Carol

wearing a wedding ring, and Jeff testified that Carol purchased the two Cartier bracelets

herself to represent her sons. AJ submitted exhibits showing that Carol designated herself

as “single” for tax purposes and identified herself as unmarried on her personal financial

statements, loan applications, and medical records. Doug similarly identified himself as

unmarried except on a few of his medical forms. AJ believes that Doug did not claim to

be Carol’s husband until after her death.

¶8 From the record, it is unclear how much Doug contributed to the marriage

financially, if anything. Carol received title to a convalescent center in her first divorce

that provided $63,000 monthly for Carol to support herself. AJ called witnesses who

testified that Carol wanted to leave Doug because he took advantage of her financially.

Carol allegedly confided in a few trusted individuals that she wanted to end the relationship

but was afraid to do so. For example, Maggie Stein, a Bozeman attorney, testified that

around 2015 or 2016, Carol sought Stein’s advice about protecting her assets in the event

Doug attempted to claim that he and Carol were married.

4 ¶9 After four days of trial, the District Court entered its Findings of Fact, Conclusions

of Law, and Order. It determined that Doug and Carol were common-law spouses and that

Doug was entitled to file for an elective share of Carol’s estate. AJ appeals, arguing that

the District Court erred in finding both that Doug and Carol mutually consented to marriage

and that they confirmed their marriage by public repute.

STANDARDS OF REVIEW

¶10 On appeal from a nonjury trial, “[w]e view the evidence in the light most favorable

to the prevailing party.” In re Estate of Zugg, 2025 MT 78, ¶ 7, 421 Mont. 368, 567 P.3d

297 (internal citation and quotations omitted). Our review is limited to determining

whether “substantial credible evidence supports the findings actually made by the district

court.” Kulstad v. Maniaci, 2009 MT 326, ¶ 52, 352 Mont. 513, 220 P.3d 595. We will

not disturb a district court’s findings of fact unless they are clearly erroneous.

In re Marriage of Hansen, 2019 MT 284, ¶ 12, 398 Mont. 64, 453 P.3d 1210.

¶11 Findings of fact are clearly erroneous if they are “not supported by substantial

evidence, if the district court misapprehended the effect of the evidence, or if, after

reviewing the record, this Court is left with a definite and firm conviction that a mistake

has been made.” In re Estate of Zugg, ¶ 6 (internal citation and quotations omitted). We

do not consider whether the evidence supports alternative findings. Kulstad, ¶ 52. We

review a district court’s conclusions of law for correctness. In re Marriage of Hansen,

¶ 12.

5 DISCUSSION

¶12 Montana law favors finding a valid marriage. In re Marriage of Swanner-Renner,

2009 MT 186, ¶ 16, 351 Mont. 62, 209 P.3d 238. There is a rebuttable presumption that a

“man and a woman deporting themselves as husband and wife have entered into a lawful

contract of marriage.” Section 26-1-602(30), MCA; In re Estate of Zugg, ¶ 8. This

presumption is “one of the strongest known to the law.” In re Marriage of

Swanner-Renner, ¶ 16.

¶13 Montana recognizes common-law marriage by statute. Section 40-1-403, MCA.

Common-law marriage “is an equitable doctrine used to ensure people are treated fairly

once a relationship ends.” Snetsinger v. Mont. Univ. Sys., 2004 MT 390, ¶ 24, 325

Mont. 148, 104 P.3d 445. The party seeking to establish the existence of a common-law

marriage must prove the following: (1) the parties were competent to marry; (2) the parties

mutually consented to a marital relationship; and (3) the parties confirmed their marriage

by cohabitation and public repute. In re J.K.N.A., 2019 MT 286, ¶ 25, 398 Mont. 72, 454

P.3d 642.

¶14 The parties do not dispute that Doug and Carol were competent to marry once

Doug’s divorce was finalized in May 2010. See § 40-1-401(1)(a), MCA (prohibiting “a

marriage entered into prior to the dissolution of an earlier marriage of one of the parties”).

They also do not dispute that Doug and Carol cohabited once they moved to Montana. AJ

argues that the trial evidence cannot sustain the remaining requirements of mutual consent

and confirmation by public repute.

6 Mutual Consent

¶15 The court’s finding of mutual consent must be based on the parties’ deliberate

actions. In re J.K.N.A., ¶ 28. Mutual consent may be implied from the parties’ conduct

and need not be expressed in any particular form. In re Estate of Hunsaker, 1998 MT 279,

¶ 34, 291 Mont. 412, 968 P.2d 281. Mutual consent ensures that marriage does not catch

the parties by surprise. In re Estate of Hunsaker, ¶ 34 (citing State v. Newman, 66 Mont.

180, 188, 213 P. 805, 807 (1923)).

¶16 The District Court concluded that Doug and Carol mutually consented to a marital

relationship, finding that “Carol and Doug acted like a married couple, referred to each

other as husband and wife, and specifically stated they had a common law marriage.” The

court was “particularly persua[ded]” by Patton’s testimony. It found that the couple shared

finances, lived together for ten years, and designated each other as beneficiaries or

transferred assets to one another. Although Carol kept her last name and identified herself

as single on most documents, the court found that this evidence was of limited weight in

light of the trial testimony.

¶17 AJ argues that the court erred by failing to consider the following evidence: both

Carol and Doug signed or filled out numerous documents in which they identified

themselves as single over the course of their relationship; Carol told her friends and family

that she unequivocally did not want to remarry; and she sought advice about ending the

relationship. AJ also asserts that the court misapprehended the effect of the testimony and

other evidence on which it relied to reach its conclusions.

7 ¶18 We have found mutual consent based on the surviving spouse’s testimony that the

parties consented to marriage, which was supported by evidence that the couple wore or

displayed symbols of their marriage. In re Estate of Ober, 2003 MT 7, ¶¶ 12-16, 314

Mont. 20, 62 P.3d 1114 (reasoning that because the parties discussed a marriage ceremony,

exchanged rings, and used address labels displaying a common last name, they consented

to marriage); In re Estate of Hunsaker, ¶¶ 36-37 (holding that mutual consent was satisfied

because the couple displayed a grandfather clock engraved with both of their initials, the

surviving spouse wore a ring, and she testified that she “felt married”). Spouses are not

legally required to use the same last name, file joint income taxes, or designate one another

as beneficiaries on certain forms. In re Estate of Alcorn, 263 Mont. 353, 358, 868 P.2d

629, 632 (1994); see also In re Estate of Ober, ¶¶ 11, 16 (finding mutual consent despite

evidence that the parties designated themselves as “single” for tax purposes, maintained

separate bank accounts, and used different last names).

¶19 Doug, whose testimony the District Court credited, testified that he and Carol agreed

to marry once they moved to Montana, and he gifted Carol two bracelets and a ring as a

symbol of this commitment. Doug also produced documents that lent support to a finding

of mutual consent. For example, in 2014, Carol filled out a family air ambulance

membership application and listed Doug as her “common law husband.” Carol also named

Doug the primary beneficiary of her life insurance policy and an individual retirement

account. Even though Carol decided to file taxes as a single person, describe herself as

single on medical and financial documents, and keep her last name, the District Court did

not find these facts sufficient to defeat Doug’s claim.

8 ¶20 The parties presented starkly conflicting evidence at trial. A trial court has

considerable discretion to determine witness credibility and assign weight to their

testimony. In re Estate of Zugg, ¶ 7. We will not reverse because the factfinder chose to

believe one party over another. Murray v. Whitcraft, 2012 MT 298, ¶ 26, 367 Mont. 364,

291 P.3d 587. The District Court assigned more weight to Patton’s testimony than to that

of others, and we do not second-guess this determination on appeal. Although AJ presented

evidence to suggest that Carol did not consent to marriage, our role is to “probe the record

for evidence to support the fact-finder’s determination.” Murray, ¶ 26. We will not

substitute the trial court’s judgment with our own even if evidence could support a contrary

ruling. In re Estate of Alcorn, 263 Mont. at 360, 868 P.2d at 633.

¶21 Affording the appropriate deference due the finder of fact, we are not left with a

firm conviction that a mistake has been made, nor do we conclude that the court

misapprehended the effect of the evidence. Viewing the evidence in the light most

favorable to Doug, we conclude that the District Court did not clearly err when it found

that Doug and Carol mutually consented to marriage.

Public Repute

¶22 When analyzing public repute, we ask whether the couple held themselves out to

the public as spouses. In re Estate of Hunsaker, ¶ 38. In this context, the “public” is the

people in the couple’s community “whose knowledge would establish reputation,” instead

of strangers or individuals with whom the couple has minimal contact. In re J.K.N.A., ¶ 34

(quoting Miller v. Sutherland, 131 Mont. 175, 184-85, 309 P.2d 322, 327-28 (1957)). To

establish public repute, the couple’s conduct must be “complete and sincere,” not partial.

9 In re J.K.N.A., ¶ 34. We will not recognize a common-law marriage if the parties have

kept their marriage a secret. In re Estate of Hunsaker, ¶ 38.

¶23 The District Court concluded that Doug and Carol confirmed their marriage by

public repute because “the community believed they were husband and wife” and they

“signed contracts together, built a house together, hosted friends and family together,

vacationed together, and generally spent all their time together.” AJ argues that the District

Court erred when it ignored the “overwhelming weight of evidence establishing that Carol

held herself out as unmarried to everyone involved in her life on a personal, financial, and

professional level.” AJ also argues that the witness testimony presented at trial was partial

and inconsistent, which cannot establish public repute.

¶24 As discussed, a spouse’s decision to keep their maiden name, file taxes as a single

person, and not list their spouse as beneficiary on certain forms will not, by itself, defeat a

finding of common-law marriage. See In re Estate of Ober, ¶ 16; In re Estate of Alcorn,

263 Mont. at 358, 868 P.2d at 632. AJ’s argument that the District Court failed to consider

this evidence is unpersuasive. Moreover, we do not view financial institutions, medical

providers, or government entities as the “public.” The proper inquiry is whether Doug and

Carol’s friends, family, and other people in their community viewed them as married.

¶25 At trial, Carol’s ski instructor and friend of ten years testified that she viewed Doug

and Carol as a married couple, as did the entire locker room at Bridger Bowl. Several of

their mutual friends from Bozeman testified that they thought Doug and Carol were married

and were surprised to learn otherwise. The author who wrote the magazine article

showcasing the parties’ residence referred to Doug as “the husband.”

10 “Although . . . allowing people to assume a marital relationship is not, by itself, enough to

create a common-law marriage, it is evidence that the parties held themselves out to the

community as married.” In re Estate of Hunsaker, ¶ 42.

¶26 In Alcorn, we found the following evidence adequate to support a finding that the

couple held themselves out as married: the couple shared finances, spent all of their time

together, hosted friends and family at their shared home, and the wife’s family referred to

the husband as “Uncle.” In re Estate of Alcorn, 263 Mont. at 358-59, 868 P.2d at 632.

Doug presented similar evidence here. Doug and Carol enjoyed years of outdoor activities

together, built a house together, and hosted friends and family at their home. Doug’s

daughter Kaitlyn testified that she referred to Carol as her “stepmom” and included Carol

in her wedding recessional. Doug also presented a voicemail Jeff Johnson left him,

referring to Jeff’s daughters as Doug’s “granddaughters” and to Doug as “Grandpa D.”

¶27 Viewing the evidence in a light most favorable to Doug, we conclude that there is

substantial evidence to support the District Court’s conclusion that Doug and Carol

confirmed their marriage by public repute. The District Court’s finding on this issue was

not clearly erroneous.

CONCLUSION

¶28 Finally, our review of the record also must be informed by the law favoring marriage

and the disputable presumption contained in § 26-1-602(30), MCA. See In re Marriage of

Swanner-Renner, ¶ 16. “Because an assessment of testimony is best made upon

observation of the witness’s demeanor and consideration of other intangibles that are only

evident during live testimony, the fact-finder is uniquely in the best position to judge the

11 credibility of witnesses.” State v. Barrus, 2025 MT 183, ¶ 33, 423 Mont. 391, 573 P.3d

1188 (internal citation omitted). Considering the governing standards of law and the trial

record as a whole, we conclude that the District Court did not clearly err when it found that

Doug and Carol mutually consented to marriage and confirmed their marital relationship

by public repute.

¶29 We affirm the District Court’s ruling that Doug and Carol were common-law

spouses at the time of Carol’s death.

/S/ BETH BAKER

We Concur:

/S/ CORY J. SWANSON /S/ LAURIE McKINNON /S/ JAMES JEREMIAH SHEA /S/ INGRID GUSTAFSON