In Re the Estate of Flynn ( 1995 )

No. 95-312
IN THE SUPREME COURT OF THE STATE OF MONTANA
IN RE THE ESTATE OF
JOSEPH S. FLYNN, Deceased.
APPEAL FROM: District Court of the Eighth Judicial District,
1n and for the County of Cascade,
The Honorable Thomas M. McKittrick, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
John F. Lynch, Lynch & Chisholm, Great Falls,
Montana
For Respondent:
Barbara Bell, Bell & Marra, Great Falls, Montana
Submitted on Briefs: November 2, 1995
Decided: November 30, 1995
Filed:
Chief Justice J. A. Turnage delivered the Opinion of the Court.
Mary Flynn appeals an order of the Eighth Judicial District
Court, Cascade County, admitting to formal probate the July I, 1994
will of Joseph Flynn and declaring null and void the June 14, I994
declaration of marriage between the two of them. We affirm in part
and reverse in part.
The issues are:
1. Did the District Court err in invalidating the marriage of
Joseph and Mary Flynn?
2. Is reversible error present in the court's findings of
fact?
Joseph Flynn and Mary Flynn married in 1961. Mary brought
four daughters into the marriage, and four more children were born
to the couple. The marriage was dissolved in 1988. After their
divorce, Joseph and Mary remained close.
In 1992, Joseph underwent surgery for colon cancer which had
spread to his liver. By the spring of 1994, he was quite ill. On
May 31, 1994, he drafted a will leaving his estate to Mary and
appointing her as personal representative of the estate.
On June 14, 1994, while Joseph was temporarily in a nursing
home, he and Mary signed a declaration of marriage. When Joseph
left the nursing home, Mary returned to his home with him. She
stayed only four days before she moved out again.
Joseph's sister, Dorothy Speer, then traveled from Glasgow,
Montana, to care for him at his home. After a few more days, he
agreed to return to the hospital and from there was transferred to
2
a retirement home. on July 1, 1994, Joseph executed a will in
which he renounced his June 14, 1994 marriage to Mary and be-
queathed his estate to Dorothy
Joseph Flynn died on July 17, 1994. Mary initiated informal
probate proceedings under the May 31 will. Dorothy initiated
informal probate proceedings under the July 1 will. The two
matters were consolidated for hearing.
The court heard testimony from Mary and Dorothy, from three of
Joseph's children and one of his stepdaughters, from the hospital
chaplain and the nurse who witnessed the July 1 will, and from
Joseph's primary physician. After the hearing, the court concluded
that the July 1 will was the valid will of Joseph Flynn which
revoked both the May 31 will and the declaration of marriage
between Joseph Flynn and Mary Flynn. The court appointed Dorothy
as personal representative and revoked its earlier order appointing
Mary as personal representative. The court ordered that the July
1 will be admitted to formal probate and declared null and void the
declaration of marriage. Mary appeals.
ISSUE 1
Did the District Court err in invalidating the marriage of
Joseph and Mary Flynn?
Section 40-l-402, MCA, sets forth the grounds upon which a
district court may declare a marriage invalid. At subsection (2),
t1xe statute provides:
A declaration of invalidity under subsections (1) (a)
through (1) (c) may be sought by any of the following
persons and must be commenced within the times specified,
but in no event may a declaration of invaliditv be sousht
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after the death of either party to the marriaqeL.1
[Emphasis added. 1
Dorothy argues that Joseph "soughtl' to declare the marriage invalid
when he signed his July 1 will, while he and Mary were both still
living.
The Commissioners' Note in the annotations to § 40-I-402, MCA,
comments :
Subsection (b) L(Z)] states a general policy against
declarations of invalidity after the death of either
party to the marriage .
. .
[Tlhe use of the word "sought" rather than
llcommencedll implies that the death of a party to the
marriage at any time before the entry of final judgment
would terminate a proceeding attacking the marriage.
We agree. In this case, no legal action was commenced to declare
the marriage invalid until after Joseph's death. We conclude,
therefore, that the declaration of invalidity was "sought" only
after Joseph died, in violation of the above statute. We therefore
vacate that part of the judgment declaring invalid Joseph and Mary
Flynn's June 14, 1994 marriage.
ISSUE 2
Is reversible error present in the court's findings of fact?
Findings are a recordation of the essential and determining
facts upon which the district court rested its conclusions of law.
In re Marriage of Barron (1978), 177 Mont. 161, 164, 580 P.2d 936,
938. This Court's standard of review of findings of fact is
whether the findings are clearly erroneous. Rule 52(a), M.R.Civ.P.
A finding is clearly erroneous if it is not supported by substan-
4
tial evidence, if the court misapprehended the effect of the
evidence, or if a review of the record leaves this Court with the
definite and firm conviction that a mistake has been committed.
Interstate Production Credit v. DeSaye (1991), 250 Mont. 320, 323,
820 P.2d 1285, 1287.
The first finding challenged on appeal is Finding No. 5, which
reads in pertinent part:
Dana Darko, decedent's step-daughter testified that she
witnessed decedent's signature of [the May 311 will and
she believed the decedent to be competent at that time.
Dana Darko was the husband of one of Flynn's stepdaughters. He was
a witness to the May 31 will, but did not testify at the hearing.
However, Melodic Carleton, Flynn's daughter, did testify to the
substance contained in Finding No. 5.
We will not reject as clearly erroneous a finding in which the
error is correctable. In re Marriage of Turbes (19881, 234 Mont.
152, 159, 762 P.2d 237, 241. As discussed above, the court's error
in Finding No. 5 was in setting forth the name of the witness, not
in the substance of the finding. Substantial evidence supports the
substance of the finding. The error could have been corrected
through a motion to amend the judgment, but no such motion was
made. Further, we conclude that the court did not misapprehend the
effect of the evidence and a review of the record does not leave us
with the definite and firm conviction that a substantive mistake
has been made. We conclude that the error in Finding No. 5 is not
reversible error.
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Mary next disputes Finding No. 7, in which the court found
"Mendolynn Walls testified that in her opinion, the decedent was
competent on June 14." As Mary points out, Mendolynn Walls did not
testify. However, her sister Starnell Darko testified that she was
present at the June 14 marriage and that in her opinion Joseph was
"aware of the situation that was going on" and willing to be
remarried. Again, the error in setting forth the name of the
witness is correctable and does not affect the judgment. We
conclude it is not reversible error.
Mary challenges as without support in the record the court's
statement in Finding No. 8 that "[tlhe rest of the family was
surprised by the Declaration of Marriage and did not know of it in
advance." The record includes the testimony of at least two family
members that they were surprised at the remarriage--Farren Flynn
and Melonnie Suek. Finding No. 8 is not clearly erroneous.
Mary next challenges part of Finding No. 10: "When [Dorothy]
arrived, decedent's home was filthy, smelled strongly of urine and
decedent had not bathed in days." Mary contends that Dorothy did
not so testify.
Dorothy testified that when she arrived at Joseph's home on
June 26, his bedroom was "the awfulest thing I've ever seen." She
testified that there was a garbage can and urinal near Joseph's
bed. She believed he was using the urinal and then dumping the
contents into the garbage can. She testified that Joseph was
incontinent, that he was filthy, and that his hair was matted and
dirty. She testified that it took her three to four hours to give
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Joseph a shower because he was so weak. Finding No. 10 captures
the essence of her testimony.
The court's Finding No. 13 was:
JoAnn Thornberg testified that she has been an oncology
nurse at Columbus Hospital for about 10 years. She had
met Mr. Flynn on previous hospitalizations. She felt
that at the time she witnessed the will of July 1 that
decedent knew what he was doing and was competent. She
testified that she was with Mr. Flynn as much as possible
as his family did not visit very often. She testified
that often terminal cancer patients can be competent at
times throughout the day and incompetent at other times.
Mary points out that although JoAnn Thornberg testified that Joseph
knew what he was doing and was competent when he signed the July 1
will, she also testified that the opinion of Joseph's treating
physician, Dr. Warr, should be given more weight than her own
opinion. Dr. Warr testified, "I felt that they had made a big
mistake in saying that he was competent at that point."
As the trier of fact, the District Court, not JoAnn Thornberg,
bore responsibility for deciding the amount of weight to be given
to the testimony of each witness. Keebler v. Harding (19911, 247
Mont. 518, 523, 807 P.Zd 1354, 1357. In addition to JoAnn
Thornberg, Father Birkmaier also testified that he witnessed the
signing of the July 1 will and believed Joseph was competent at
that time. We conclude Mary has demonstrated no error in Finding
No. 13.
Finally, Mary contests the court's Finding No. 14:
Father Birkmaier testified that he works at the Columbus
Hospital and that he had talked to decedent before and
after he witnessed the will. He believed that Mr. Flynn
was competent at the time he witnessed the signing of the
will on July 1. The decedent stated at the time that
leaving his property to his sister was the moral thing to
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do because Dorothy Speer had cared for their sister, who
had been severely injured in a car accident, for many
years without compensation.
Mary points out that all of the facts in Finding No. 14 were not
contained within Father Birkmaier's testimony. Specifically,
Father Birkmaier testified that Joseph told him that leaving his
estate to Dorothy would be "the moral and right thing to do"
because Dorothy had "tak[enl care of somebody else." Dorothy
testified that the person she had cared for was a sister of hers
and JosephIs who had been seriously injured in a car accident in
1936. In crafting Finding No. 14, the court tied together Father
Birkmaier's testimony and testimony by Dorothy. In view of the
purpose of findings to record the essential and determining facts
upon which the court bases its decision, we conclude that the court
did not err in so doing.
In summary, although we have held that the District Court
erred in invalidating Mary and Joseph's declaration of marriage,
Mary has shown no reversible error in any of the challenged find-
ings. We reverse the portion of the District Court's order
declaring null and void the June 14, 1994 declaration of marriage
between Joseph Flynn and Mary Flynn. We affirm the portion of the
court's order admitting the July 1, 1994 will of Joseph Flynn to
formal probate and appointing Dorothy Speer as personal representa-
tive of the estate. This cause is remanded for further proceedings
consistent with this Opinion.
Chief Justice
We concur:
November 30, 1995
CERTIFICATE OF SERVICE
I hereby certify that the following certified order was sent by United States mail, prepaid, to the
following named:
John F. Lynch
Lynch & Chisholm
P.O. Box 2265
Great Falls, MT 59403
Barbara Bell
Bell & Marra
303 Liberty Center
9 Third Street No.
Great Falls, MT 59401
ED SMITH
CLERK OF THE SUPREME COURT
STATE OF MONTANA