24CA0089 Estate of McClure 10-03-2024
COLORADO COURT OF APPEALS
Court of Appeals No. 24CA0089 Pueblo County District Court No. 23PR30096 Honorable Timothy O’Shea, Judge
In the Matter of the Estate of Jonna Kay McClure, deceased.
Joseph Anthony Lopez,
Appellant,
v.
Stephanie L. Moore,
Appellee.
ORDERS AFFIRMED
Division III Opinion by JUDGE GOMEZ Dunn and Navarro, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced October 3, 2024
William J. Ballas, Pueblo, Colorado, for Appellant
Charles D. Esquibel, Pueblo, Colorado, for Appellee ¶1 In this probate case, Joseph Anthony Lopez appeals the trial
court’s orders rejecting his claim that he was the common law
spouse of the decedent, Jonna Kay McClure, and appointing the
decedent’s sister, Stephanie L. Moore, as personal representative of
the estate. In addition to challenging the trial court’s rulings on the
claimed common law marriage and the appointment of a personal
representative, he also challenges the trial court’s admission of
evidence from the decedent’s former attorney during the
proceedings. We reject Lopez’s challenges and affirm the court’s
orders. However, we deny Moore’s request seeking appellate
attorney fees on the grounds that the appeal is frivolous.
I. Background
¶2 After McClure’s death in 2023, Moore petitioned the trial court
to find that McClure had died intestate and to determine her heirs.
Moore also nominated herself to serve as personal representative of
the estate. In response, Lopez asserted that he was McClure’s
common law spouse and asked that he be appointed as the
1 personal representative.1 The court scheduled a two-day hearing to
resolve the issues.
¶3 Before the hearing, Moore became aware of a “Cohabitation
Agreement” between McClure and Lopez that an attorney had
drafted for McClure before her death. That draft agreement —
which Lopez said he never received and apparently neither he nor
McClure ever executed — provided, in part:
Each of [u]s is an unmarried person. . . . We are not married to each other or to anyone else as of the date of this Agreement. If anyone has ever received any impression by our conduct that we were or are married, it was a misunderstanding. Our cohabitation is an unmarried cohabitation. No marriage between us has existed or is intended to exist under Colorado law or the laws of any other jurisdiction. No future conduct of ours shall be deemed to constitute holding our relationship as a marriage.
1 McClure and Lopez met in 2008, while McClure was married to
John McClure. The McClures divorced in May 2009, and John McClure later passed away. Shortly after the divorce, McClure and Lopez began a romantic relationship, and, in August 2009, Lopez moved in with McClure. They cohabitated from then until McClure’s death about thirteen and a half years later.
2 The draft agreement went on to provide for the parties’ respective
property rights and financial obligations at that time as well as
upon the termination of their cohabitation.
¶4 Moore sought the disclosure of evidence regarding the
attorney’s representation of McClure, and later Moore sought the
admission of that evidence, arguing that it was relevant to whether
McClure believed she was married to Lopez. Lopez objected to both
the discovery and the later admission of that evidence, arguing that
it was protected by the attorney-client privilege. The trial court
overruled both objections, allowed the discovery, and admitted the
evidence at the hearing under the testamentary exception to the
attorney-client privilege.
¶5 During the two-day hearing, the court heard evidence from
both sides, including testimony from Lopez, testimony from several
people who knew McClure and Lopez throughout their relationship,
records of McClure’s and Lopez’s property ownership and tax
filings, and evidence regarding the draft Cohabitation Agreement.
¶6 The court later entered an order finding that the evidence
didn’t clearly establish that McClure and Lopez mutually agreed to
be in a marital relationship and, thus, that they were not common
3 law married. The court therefore determined that Moore had
priority to be appointed as personal representative. Two days later,
the court entered an order appointing Moore as personal
representative and determining McClure’s heirs (who did not
include Lopez). This appeal followed.
II. Common Law Marriage
¶7 Lopez contends that the trial court erred in finding that he and
McClure were not common law married. We disagree.
¶8 “A determination of whether a common law marriage exists
turns on issues of fact and credibility, which are properly within the
trial court’s discretion.” In re Estate of Yudkin, 2021 CO 2, ¶ 16
(quoting People v. Lucero, 747 P.2d 660, 665 (Colo. 1987)).
“Accordingly, we review the [court’s] factual findings for clear error
and [its] common law marriage finding for an abuse of discretion.”
Id. A factual finding is clearly erroneous if it has no support in the
record. Blakeland Drive Invs., LLP IV v. Taghavi, 2023 COA 30M,
¶ 28. And a court abuses its discretion if its decision is manifestly
arbitrary, unreasonable, or unfair or is based on an erroneous
understanding or application of the law. In re Marriage of
Badawiyeh, 2023 COA 4, ¶ 9.
4 ¶9 In Hogsett v. Neale, the supreme court established an updated
test for determining whether a common law marriage exists:
[A] common law marriage may be established by the mutual consent or agreement of the couple to enter the legal and social institution of marriage, followed by conduct manifesting that mutual agreement. The key question is whether the parties mutually intended to enter a marital relationship — that is, to share a life together as spouses in a committed, intimate relationship of mutual support and mutual obligation.
2021 CO 1, ¶ 49. Where there is no evidence of an express
agreement to marry, the court may infer the existence of a marital
relationship from the parties’ conduct. Id. This involves “a flexible
inquiry into the totality of the circumstances that relies on the
factfinder’s credibility determinations and weighing of the evidence.”
Id. at ¶ 50. In particular, a court should consider such factors as
(1) “cohabitation”; (2) “reputation in the community as spouses”;
(3) “maintenance of joint banking and credit accounts”;
(4) “purchase and joint ownership of property”; (5) “filing of joint tax
returns”; (6) “use of one spouse’s surname by the other or by
children raised by the parties”; (7) “shared financial responsibility,
such as leases in both partners’ names, joint bills, or other payment
5 records”; (8) “joint estate planning, including wills, powers of
attorney, [and] beneficiary and emergency contact designations”;
(9) “symbols of commitment, such as ceremonies, anniversaries,
cards, [and] gifts”; (10) “the couple’s references to or labels for one
another”; and (11) “the parties’ sincerely held beliefs regarding the
institution of marriage.” Id. at ¶¶ 55-56.
¶ 10 The trial court applied this test to determine whether McClure
and Lopez were common law married. The court first found “no
evidence in the record reflecting that [McClure] and Lopez ever had
an express agreement to marry.” It then “turn[ed] to the couple’s
conduct to determine whether” a common law marriage existed.
¶ 11 In evaluating the couple’s conduct, the court assessed each
factor articulated by the supreme court in Hogsett and concluded
that several factors — cohabitation, maintenance of joint banking
and credit accounts, purchase and joint ownership of property,
shared financial responsibility, and beneficiary and emergency
contact designations — weighed in favor of a common law marriage
finding. On the other hand, the court concluded that several other
factors — reputation in the community as spouses, filing of joint tax
returns, use of one spouse’s surname, symbols of commitment, and
6 the couple’s references to or labels for one another — weighed
against a common law marriage finding, and that some of those
factors weighed “heavily” against such a finding. The court also
concluded that there was no evidence concerning the final factor —
the parties’ beliefs about the institution of marriage. After
assessing all of the factors, the court determined that the totality of
the circumstances did not indicate a manifestation of a mutual
agreement to be married.
¶ 12 On appeal, Lopez points to evidence that he claims supports
the existence of a common law marriage, particularly evidence that
he and McClure lived together for several years, had joint bank
accounts, jointly owned property, named each other as emergency
medical contacts, named each other as beneficiaries on insurance
policies, wore wedding rings, exchanged commitment symbols like
gifts and cards, and introduced each other as spouses. The court
discussed that evidence in its assessment of the Hogsett factors.
But the court came to different conclusions about whether it
demonstrated the existence of a common law marriage.
¶ 13 The trial court acknowledged that McClure and Lopez lived
together for about thirteen and a half years, that they had joint
7 banking and credit accounts and jointly owned property, and that
McClure named Lopez as the beneficiary on two life insurance
policies. These facts, the court concluded, weighed in favor of a
common law marriage. However, the court did not agree that
McClure and Lopez had a reputation in the community as spouses,
that they shared symbols of commitment, or that they referred to
each other as spouses.
¶ 14 As to the couple’s reputation in the community, the court
found that there were credible witnesses on either side that
“testif[ied] to the couple being reputed . . . as married or not
married.” Indeed, Lopez presented witnesses who said they
regarded the couple as married, while Moore presented other
witnesses who testified to the contrary. The court concluded that,
“in the totality of the circumstances,” the evidence regarding the
couple’s reputation was inconclusive and for that reason weighed
against a finding of a common law marriage.
¶ 15 As to shared symbols of commitment, the court remarked that
there was no evidence of a marriage ceremony, a celebration of
marriage, or any anniversary celebrations. The court discounted
Lopez’s evidence of gifts, noting that the jewelry box and preprinted
8 card referring to “My Husband” contained no identifying
information and that, while Lopez apparently gave McClure a locket
and a card referring to her as his wife, there was no evidence of any
gifts in which she’d referred to him as her husband. The court also
acknowledged Lopez’s evidence of a set of matching rings but
pointed to the absence of any “evidence . . . of a proposal,
announcement, act, occasion, or event that would indicate that
[they] were wedding or marriage rings as opposed to simply
matching rings for a couple.” And the court observed that photos of
McClure and Lopez showed a “happy” couple but not necessarily a
“married” one. Overall, the court found this factor to weigh heavily
against a common law marriage finding; it explained, quoting
Hogsett, ¶ 3, that it “place[d] great weight on the fact that there
[was] no reliable evidence of symbols of commitment demonstrating
a ‘mutual consent or agreement of the couple to enter the legal and
social institution of marriage’” despite their more than thirteen
years together.
¶ 16 And as to references to one another as spouses, the court
found the evidence “conflicting and unclear.” The court noted that
much of the evidence Lopez presented on this issue, aside from his
9 own testimony, was “inadmissible pursuant to the Dead Man’s
Statute and as hearsay.” (Lopez doesn’t challenge those evidentiary
rulings on appeal.) And the court found the admissible evidence
was conflicting: a few witnesses said they heard McClure, on some
occasions, refer to Lopez as her “husband,” and McClure apparently
referred to Lopez as a “spouse” or “husband” on some life insurance
applications, but another witness said she heard McClure refer to
Lopez as her “old man,” not her “husband,” and the court found it
meaningful that McClure had “repeatedly represented to the federal
government” in her tax returns “that she was not married, going so
far as to state that her spouse was ‘deceased.’”2 Because the
evidence on this factor was mixed, the court determined that it
weighed against a finding of a common law marriage.
¶ 17 Because the trial court applied the correct legal standard and
because its findings are reasonable and well supported by the
evidence, we discern no clear error or abuse of discretion in its
2 The trial court separately addressed the factor concerning joint tax
filings. It found that the fact that McClure and Lopez both filed their taxes as head of household, which requires the filer to be unmarried, on its own “weigh[ed] heavily against” a finding of a common law marriage.
10 determination that McClure and Lopez were not common law
married. See Blakeland Drive Invs., ¶ 28; Marriage of Badawiyeh,
¶ 9. Indeed, where, as here, the evidence is conflicting, we “may not
substitute [our] conclusions for those of the trial court merely
because there may be credible evidence supporting a different
result.” Blakeland Drive Invs., ¶ 28 (quoting Lawry v. Palm, 192
P.3d 550, 558 (Colo. App. 2008)).
III. Attorney-Client Privilege
¶ 18 Lopez also contends that the trial court erred by allowing the
discovery and the admission of evidence concerning the draft
Cohabitation Agreement, as such evidence was protected by the
attorney-client privilege. We conclude that any error was harmless.
¶ 19 We review rulings on the discoverability and admissibility of
evidence for an abuse of discretion. Affinity Colo., LLC v. Kissinger
& Fellman, P.C., 2019 COA 147, ¶ 23; Hodge v. Matrix Grp., Inc.,
2022 COA 4, ¶ 12. This same standard also applies to decisions
regarding the attorney-client privilege. Affinity Colo., ¶ 23.
¶ 20 However, an error is not grounds for reversal if it is harmless.
In re Estate of Gonzalez, 2024 COA 63, ¶ 40. We will reverse a
judgment only if an error affected the parties’ substantial rights.
11 Id.; see also C.R.C.P. 61. “An error affects a substantial right only if
‘it can be said with fair assurance that the error substantially
influenced the outcome of the case or impaired the basic fairness of
the trial itself.’” Gonzalez, ¶ 40 (quoting Bly v. Story, 241 P.3d 529,
535 (Colo. 2010)).
¶ 21 The attorney-client privilege and Colorado Rule of Professional
Conduct 1.6 both ensure client-lawyer confidentiality. In re Estate
of Rabin, 2020 CO 77, ¶ 29. The protections of both provisions
survive the death of the client. Id.; see also Colo. RPC 1.9(c)(2) (“A
lawyer who has formerly represented a client in a matter . . . shall
not thereafter . . . reveal information relating to the representation
except as these Rules would permit or require . . . .”).
¶ 22 However, there are several exceptions to the application of
these provisions. Wesp v. Everson, 33 P.3d 191, 200 (Colo. 2001).
One of those is the testamentary exception, which “permits an
attorney who writes a will to testify, after the testator’s death, about
attorney-client communications related to the execution and
validity of the will.” Id. at 201. Courts have applied this exception
to allow attorneys to reveal otherwise privileged information that is
necessary for administering the testator’s estate, see Rabin, ¶ 42, or
12 that affects the validity of the testator’s will, see Denver Nat’l Bank
v. McLagan, 298 P.2d 386, 388 (Colo. 1956). In doing so, the courts
have reasoned that such disclosures serve “the exception’s purpose
of furthering the testator’s intent.” Wesp, 33 P.3d at 201.
¶ 23 The trial court applied this exception, concluding that the
draft Cohabitation Agreement functioned as a “quasi-testamentary
instrument” insofar as it purported to delineate the disposition of
McClure’s and Lopez’s joint and separate property. The court also
reasoned that applying the exception “would likely further
[McClure’s] testamentary intent.”
¶ 24 But to date, the published decisions addressing the
testamentary exception have applied it only in the context of
testamentary instruments, like wills. See, e.g., In re Estate of
Ashworth, 2024 CO 39, ¶¶ 14-15; Wesp, 33 P.3d at 200-01; Denver
Nat’l Bank, 298 P.2d at 388; In re Shapter’s Estate, 85 P. 688, 691
(Colo. 1905), superseded by statute, Ch. 251, sec. 1, 1907 Colo.
Sess. Laws 629. Thus, it’s not clear that the exception would apply
to instruments like the draft Cohabitation Agreement that don’t
establish the transfer of property rights upon death and thus aren’t
testamentary in nature — or at most are, as the trial court
13 described it, “quasi-testamentary” in nature. See generally § 15-10-
201(59), C.R.S. 2024 (defining a “will” to include certain
“testamentary instrument[s]”); Taylor v. Wilder, 165 P. 766, 767-68
(Colo. 1917) (explaining the difference between contracts that
transfer property rights during a party’s lifetime and testamentary
instruments that transfer such rights upon the party’s death).
¶ 25 But regardless of whether the court erred by allowing the
discovery and admission of evidence relating to the agreement, we
conclude that any such error was harmless because the court made
clear that it would’ve reached the same conclusion on the common
law marriage issue even without the evidence.
¶ 26 In its assessment of the common law marriage factors, the
court cited the challenged evidence only once. And in that one
instance, the court stated that “[e]ven if [it] did not consider
[McClure’s attorney’s] testimony and [the draft Cohabitation
Agreement], the record evidence of [McClure’s and Lopez’s]
references/labels for one another fails to support a finding that the
couple called each other husband and wife.”
¶ 27 It is clear, therefore, that any error in the court’s rulings on
the discoverability and admissibility of the challenged evidence
14 didn’t substantially influence the outcome of the case or impair the
basic fairness of the proceeding. See Gonzalez, ¶ 40; see also
People v. Thompson, 950 P.2d 608, 613 (Colo. App. 1997)
(concluding that any error in admitting privileged evidence was
harmless under the circumstances of the case).
IV. Appointment of the Personal Representative
¶ 28 Finally, Lopez contends that the trial court erred in appointing
Moore as personal representative of McClure’s estate because she
didn’t have priority for the appointment. We decline to consider
this issue, as Lopez didn’t preserve it for appeal.
¶ 29 In civil cases, we generally don’t address issues that weren’t
preserved for appeal. Madalena v. Zurich Am. Ins. Co., 2023 COA
32, ¶ 50. We don’t require “talismanic language” to preserve an
issue for appeal. Id. (quoting In re Estate of Owens, 2017 COA 53,
¶ 21). Instead, “[i]f a party ‘presented to the trial court the sum and
substance of the argument it . . . makes on appeal, we consider that
argument properly preserved.’” Id. (quoting Berra v. Springer &
Steinberg, P.C., 251 P.3d 567, 570 (Colo. App. 2010)).
¶ 30 Lopez argues that the trial court erred in selecting Moore, who
serves as guardian for McClure’s adult child, as the personal
15 representative. He suggests that the court instead should’ve
appointed the child’s conservator.
¶ 31 However, Lopez didn’t raise this argument at the trial level.
While Lopez, in his response to Moore’s petition, asked to be
appointed as the personal representative, he didn’t argue that
Moore should not be appointed because she didn’t have priority or
because someone else (other than him) should be appointed. Nor
did he make any such arguments after the court rejected his
common law marriage claim and indicated that, in his absence,
Moore had priority for appointment as the personal representative.
Thus, the issue is not preserved.
V. Attorney Fees
¶ 32 Lastly, we reject Moore’s contention that Lopez’s appeal is
frivolous and that she is therefore entitled to attorney fees under
C.A.R. 38(b) and section 13-17-102, C.R.S. 2024.
¶ 33 “An appeal may be either frivolous as filed or frivolous as
argued.” Calvert v. Mayberry, 2019 CO 23, ¶ 45. An appeal is
frivolous as filed if the judgment below was plainly correct and the
legal authority is clearly contrary to the appellant’s position, such
that “there are no legitimately appealable issues.” Id. And an
16 appeal is frivolous as argued if, even if there may be legitimately
appealable issues, the appellant doesn’t present “a coherent
assertion of error, supported by legal authority,” to support them.
Id. (quoting Castillo v. Koppes-Conway, 148 P.3d 289, 292 (Colo.
App. 2006)).
¶ 34 We conclude that, although Lopez’s arguments are ultimately
unsuccessful, his appeal is not frivolous. First, the appeal is not
frivolous as filed, as the issues were legitimately appealable,
particularly as to the trial court’s common law marriage and
attorney-client privilege determinations. And second, the appeal is
not frivolous as argued, as Lopez presented coherent arguments
supported by legal authority and citations to the record.
¶ 35 Accordingly, an award of attorney fees is not warranted.
VI. Disposition
¶ 36 The orders are affirmed.
JUDGE DUNN and JUDGE NAVARRO concur.