The summaries of the Colorado Court of Appeals published opinions constitute no part of the opinion of the division but have been prepared by the division for the convenience of the reader. The summaries may not be cited or relied upon as they are not the official language of the division. Any discrepancy between the language in the summary and in the opinion should be resolved in favor of the language in the opinion.
SUMMARY May 7, 2026
2026 COA 35
No. 24CA0264, In re Marriage of Lundin — Family Law — Common Law Marriage — Marital Relationship — Totality of the Circumstances
In this common law marriage case, a division of the court of
appeals affirms the trial court’s judgment determining that a
common law marriage didn’t exist between putative spouses
notwithstanding that the parties had executed an affidavit — for the
purpose of obtaining health insurance benefits — averring that they
were common law married.
Applying Hogsett v. Neale, 2021 CO 1, and two companion
cases issued the same day, the trial court found, based on the
totality of the evidence before it, that the parties didn’t have the
mutual intent to be legally married when they signed the affidavit.
On appeal, putative wife contends that the trial court erred by failing to treat the parties’ written agreement as dispositive of the
question of whether a common law marriage exists.
Concluding that the trial court’s factual findings are supported
by the record and that the court properly applied controlling law,
the division affirms.
The special concurrence raises concerns that, as applied to the
facts of this case, Hogsett’s nondispositive treatment of the putative
spouses’ representations concerning whether they were common
law married creates the risk of courts tolerating fraudulent or
fraud-adjacent conduct. COLORADO COURT OF APPEALS 2026 COA 35
Court of Appeals No. 24CA0264 Garfield County District Court No. 22DR30105 Honorable John F. Neiley, Judge
In re the Marriage of
Rochelle Leigh Hitchcock,
Appellant,
and
Kurt Alfred Lundin,
Appellee.
JUDGMENT AFFIRMED
Division VI Opinion by JUDGE WELLING Kuhn, J., concurs Schutz, J., specially concurs
Announced May 7, 2026
Law Office of Joel M Pratt, Joel M Pratt, Colorado Springs, Colorado, for Appellant
Defiance Law Firm, Peter A. Rachesky, Lara Horst, Glenwood Springs, Colorado, for Appellee ¶1 Rochelle Leigh Hitchcock appeals from the trial court’s
judgment determining that a common law marriage doesn’t exist
between her and Kurt Alfred Lundin. The trial court reached this
conclusion notwithstanding that the parties had executed an
affidavit — for the purpose of obtaining health insurance benefits —
averring that they had been common law married for a little more
than five years.
¶2 On appeal, Hitchcock contends that the trial court erred by
failing to treat the parties’ written agreement as dispositive of
whether a common law marriage exists. The trial court, however,
found — based on the totality of the evidence before it — that the
parties didn’t have the mutual intent to be legally married when
they signed the affidavit. It reached this conclusion by applying
Hogsett v. Neale, 2021 CO 1, and two companion cases issued the
same day.
¶3 Because we conclude that the court’s factual findings are
supported by the record and that the court properly applied
controlling law, we affirm.
1 I. Background
¶4 The parties lived together in Lundin’s residence starting in
2016. In October 2022, the parties separated, and Hitchcock filed
this action seeking the dissolution of an alleged common law
marriage. Lundin moved to dismiss the dissolution petition on the
grounds that the parties weren’t married.1
¶5 Central to Hitchcock’s contention that the parties are married
at common law is an “Affidavit of Common Law Marriage,” which
the parties executed in 2021. In the affidavit, the parties
represented that they held themselves out to the community as
husband and wife, had a reputation in the community as husband
and wife, and had lived together continuously as husband and wife
since September 16, 2016. The affidavit also stated that Lundin
and Hitchcock understood that in Colorado, a common law
1 This case is entirely about the existence or nonexistence of a
common law marriage. Neither party has ever contended that they entered into a licensed marriage under the Uniform Marriage Act, see §§ 14-2-101 to -113, C.R.S. 2025, and none of the analysis in this opinion has any bearing on how a court should determine the validity of a licensed marriage, see Hogsett v. Neale, 2021 CO 1, ¶ 31 & n.5 (recognizing that the common law marriage doctrine holds common law marriages “to standards that some licensed marriages might not meet if similarly scrutinized”).
2 marriage “is valid for all purposes, the same as a ceremonial or civil
marriage, and can only be terminated by death or divorce.”
¶6 Based on the affidavit, Hitchcock moved for summary
judgment as to the existence of a common law marriage. The trial
court denied the motion, concluding that, despite the affidavit,
there were unresolved questions of material fact bearing on whether
the parties were married.
¶7 After holding an evidentiary hearing on the existence of the
parties’ alleged common law marriage, the trial court issued a
written order finding that the parties aren’t married. While the trial
court considered the affidavit, it found that the parties didn’t have
the mutual intent to be legally married when they signed the
affidavit. This finding was based on testimony suggesting that the
affidavit was executed to obtain health insurance for Hitchcock’s
diabetic son, who at the time was mere days away from losing
health insurance coverage. The court also reasoned that multiple
other factors — such as the nature of the parties’ cohabitation,
their lack of a community reputation as spouses, and their lack of
joint financial accounts — weighed against finding the existence of
3 a common law marriage. Accordingly, the court dismissed
Hitchcock’s dissolution petition.
II. Common Law Marriage
¶8 Hitchcock contends that the trial court erred by concluding
that she and Lundin aren’t common law married. We aren’t
persuaded.
A. Relevant Law
¶9 A party claiming the existence of a common law marriage
bears the burden to prove it by a preponderance of the evidence.
See People v. Lucero, 747 P.2d 660, 664 n.6 (Colo. 1987) (noting
that a higher burden of proof isn’t required, but “more than vague
claims unsupported by competent evidence” must be presented),
abrogated on other grounds by, Hogsett, 2021 CO 1; see also § 13-
25-127(1), C.R.S. 2025 (burden of proof in any civil action shall be
by a preponderance of the evidence). “[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.” Hogsett, ¶ 3.
“The core query is whether the parties intended to enter a marital
relationship — that is, to share a life together as spouses in a
4 committed, intimate relationship of mutual support and obligation.”
Id.
¶ 10 “In assessing whether a common law marriage has been
established, courts should accord weight to evidence reflecting a
couple’s express agreement to marry. In the absence of such
evidence, the parties’ agreement to enter a marital relationship may
be inferred from their conduct.” Id. In performing this analysis, the
court must consider all factors that might manifest the parties’
agreement, or lack of agreement, to be married. In re Estate of
Yudkin, 2021 CO 2, ¶ 18. Relevant factors include the parties’
cohabitation, reputation in the community as spouses,
maintenance of joint banking and credit accounts, purchase and
joint ownership of property, filing of joint tax returns, evidence of
shared financial responsibility, and evidence of joint estate
planning. Hogsett, ¶¶ 55-56. These factors must be assessed in
context, and the inferences to be drawn from the parties’ conduct
may vary depending on the circumstances. LaFleur v. Pyfer, 2021
CO 3, ¶ 53.
¶ 11 The existence of a common law marriage depends on the
totality of the circumstances, no single factor is dispositive. Yudkin,
5 ¶¶ 18-19; see also Hogsett, ¶ 59 (noting that the significance of a
given factor will depend on the individual, the relationship, and the
broader circumstances, including cultural differences). Thus, the
determination of whether a common law marriage exists turns on
issues of fact and credibility, which are firmly within the trial
court’s province to adjudge. LaFleur, ¶ 50; see Hogsett, ¶ 50
(Whether a common law marriage exists calls for “a flexible inquiry
into the totality of the circumstances that relies on the factfinder’s
credibility determinations and weight of the evidence.”); In re
Marriage of Lewis, 66 P.3d 204, 207 (Colo. App. 2003) (recognizing
that the weight, probative force, and sufficiency of the evidence, as
well as the inferences and conclusions to be drawn therefrom, are
within the trial court’s sole discretion). To that end, “we review the
court’s factual findings for clear error and its common law marriage
finding for an abuse of discretion.” LaFleur, ¶ 50.
B. Discussion
¶ 12 Hitchcock argues that the trial court erroneously concluded
that the parties aren’t married because the court improperly
discounted the affidavit, which she contends was determinative of
the parties’ marital status. Therefore, according to Hitchcock, the
6 trial court didn’t need to consider any other evidence bearing on the
existence or nonexistence of a common law marriage because the
affidavit established that the parties were married as a matter of
law.2
¶ 13 We reject Hitchcock’s contention because she too narrowly
construes the requirements of a common law marriage.
¶ 14 To begin, we understand Hitchcock’s confusion, as the
requirements for establishing a common law marriage are
2 Hitchcock also argues that Lundin shouldn’t be allowed to reap
the benefits of a common law marriage (the extension of his employer’s health insurance benefits to her son) without also bearing the consequences of a common law marriage (termination of the relationship only through divorce or death). This is essentially an estoppel argument — that is, Lundin should be estopped from maintaining a litigation position or presenting evidence that is contrary to the affidavit he executed and benefited from. See People in Interest of S.N-V., 300 P.3d 911, 913 (Colo. App. 2011) (“Estoppel doctrines generally bar a party from asserting a claim or right that contradicts what that party has said or done before . . . .”). Hitchcock, however, didn’t make an estoppel argument below, so the issue isn’t preserved for our review. See Hogsett, ¶ 69 n.11 (declining to consider an “estoppel by contract” argument because it wasn’t properly preserved in the trial court). As a result, we offer no opinion regarding whether invoking an estoppel doctrine before the trial court should or could have produced a different result.
7 undoubtedly complex.3 In Hogsett, the court repeatedly emphasized
that the parties’ intent to enter into a marital relationship is the
principal question. Hogsett, ¶¶ 3, 49-50 (characterizing the mutual
consent and intention to marry as “[t]he core query,” “[t]he key
question,” and “the centrality” of the analysis). But the test
articulated in Hogsett doesn’t end there. A common law marriage
exists only if there was “mutual consent or agreement of the couple
to enter the legal and social institution of marriage, followed by
conduct manifesting that mutual agreement.” Id. at ¶ 3 (emphasis
added). Further, Hogsett unequivocally stated that “a mutual
agreement to marry does not alone suffice; there must be some
evidence of subsequent conduct manifesting that agreement.” Id. at
¶ 50 (emphasis added).
3 Concurring only in the judgment in Hogsett, then-Chief Justice
Boatright noted that the majority’s approach “only further confuse[s] the already complex concept of common law marriage.” Hogsett, ¶ 78 (Boatright, C.J., concurring in the judgment only). On this point, Chief Justice Boatright disagreed with the majority’s articulated legal framework, opining that consideration of the factors for establishing a common law marriage should only be employed “when there exists credible disagreement as to the parties’ intent.” Id. at ¶ 80. But this view didn’t garner a majority of the court’s votes.
8 ¶ 15 Based on this reading of Hogsett, we must agree with the trial
court that the affidavit alone couldn’t establish the existence of a
common law marriage because even though it evinces the parties’
agreement that they are married, there still must have been
subsequent conduct consistent with that agreement to marry.
Thus, faithfully applying Hogsett, we must reject Hitchcock’s
suggestion that the affidavit itself — which was executed more than
five years after the marriage was represented to have begun —
definitively constituted, as a matter of law, both the agreement and
the conduct manifesting that mutual agreement.
¶ 16 While Hitchcock points out that Hogsett also provided that
“[i]n the absence of [an express agreement], the parties’ agreement
to enter a marital relationship may be inferred from their conduct,”
id. at ¶ 49 (emphasis added), we don’t agree with Hitchcock’s
interpretation of that statement as a holding that an express
agreement alone is sufficient to establish a common law marriage.
Instead, we understand that statement to mean that conduct can
demonstrate an implied agreement to be married when there is no
express agreement. But still, a mutual agreement to enter into a
marital relationship, whether express or implied, is only one
9 element; the common law marriage inquiry still requires
subsequent conduct manifesting that mutual agreement. See id. at
¶ 50.
¶ 17 And Hitchcock hasn’t cited any legal authority holding that a
court must treat an express agreement to marry as the end of a
common law marriage inquiry. To the contrary, at least one
division of this court has reached the opposite conclusion. See
Whitenhill v. Kaiser Permanente, 940 P.2d 1129, 1130-32 (Colo.
App. 1997). In Whitenhill, the trial court had granted summary
judgment after determining the existence of a common law marriage
as a matter of law. Id. at 1132.
¶ 18 The division reversed, concluding that there was a genuine
issue of material fact as to the existence of a common law marriage,
even though the putative husband and wife had, in the course of
obtaining medical treatment, signed an affidavit representing that
they had lived together continuously as husband and wife and had
held themselves out to the community as such. Id. at 1130-32. In
reaching its conclusion that the affidavit didn’t establish the
existence of a common law marriage as a matter of law, the division
noted that “[a] common law marriage is established by the mutual
10 consent or agreement of the parties to be husband and wife,
followed by a mutual and open assumption of a marital
relationship.” Id. at 1132 (emphasis added). The division thus
reasoned that, notwithstanding the affidavit, the party advocating
for the existence of the marriage had “offered neither evidence of
cohabitation nor of a general understanding in the community that
the parties were husband and wife.” Id.
¶ 19 And we aren’t persuaded that Hogsett undermines the viability
of Whitenhill. While Whitenhill predates the supreme court’s
modernization of the common law marriage factors in Hogsett,
Hogsett didn’t, contrary to Hitchcock’s contentions, fundamentally
change the test for determining whether a common law marriage
exists. See Hogsett, ¶¶ 48-50 (modernizing the common law
marriage factors identified in Lucero, 747 P.2d at 664). Indeed,
Hogsett, ¶ 50, explained that its “refinement retains the core parts
of the Lucero test: the centrality of the couple’s mutual consent or
agreement to marry, the requirement of some manifestation of that
consent, and a flexible inquiry into the totality of the
circumstances.” Accordingly, Hogsett didn’t abrogate Whitenhill.
11 ¶ 20 Here, the trial court gave weight to the affidavit, which the
court recognized “clearly states that the parties were married at
common law.” But in accordance with the requirement that there
must be subsequent conduct manifesting the parties’ mutual
agreement, the court also weighed the numerous other factors
bearing on the existence of a common law marriage and determined
that those factors weighed against the existence of a common law
marriage. See Hogsett, ¶¶ 55-56; Whitenhill, 940 P.2d at 1132. For
example, the court found that while the parties initially shared an
intimate relationship after moving in together in 2016, that
relationship soon became more akin to a relationship of roommates,
with the parties living in separate wings of the house. Similarly, the
court credited multiple witnesses who testified that they never
perceived the parties as married and that they believed the parties’
relationship was largely platonic. And the court found that the
parties didn’t own any joint property or bank accounts, maintained
only a single joint credit card at a home improvement store, never
engaged in any joint estate planning, and never filed joint tax
returns.
12 ¶ 21 Hitchcock doesn’t argue that those findings lack record
support, and we conclude that the trial court acted within its
discretion by weighing those findings against the affidavit. See
Hogsett, ¶ 3.
¶ 22 We also reject Hitchcock’s assertion that the trial court
couldn’t consider the intent of the parties and the circumstances
surrounding the execution of the affidavit. Since the court was
required to assess whether the parties in fact intended to enter a
marital relationship by “shar[ing] a life together as spouses in a
committed, intimate relationship of mutual support and obligation,”
id., the parties’ intent in executing the affidavit was relevant to the
court’s determination of the exitance of a marriage. See also id. at
¶ 31 (“[T]he inquiry is fact-intensive and invasive and forces judges
to assess the degree to which a couple’s conduct conforms to a
marital ideal.”).
¶ 23 Here, the trial court found, with record support, that the
parties’ intent in executing the affidavit, which was contained on a
benefits form referencing the need to submit the document “to the
plan administrator within [thirty] days,” was to obtain health
insurance for Hitchcock’s soon-to-be uninsured child. Hitchcock
13 suggests the affidavit automatically resulted in a common law
marriage because the parties intended to obtain — and appear to
have actually obtained — a benefit of marriage in the form of health
insurance for her son. We disagree because the inquiry into a
common law marriage is broader than that: it requires a finding
that the parties intended to enter a marital relationship, which
entails sharing a life together as spouses in a committed and
intimate relationship.4 Id. at ¶ 3.
¶ 24 Therefore, we can’t say that the trial court abused its
discretion by considering, and then discounting, the affidavit based
on its finding that the parties intended to obtain health insurance
rather than enter into the multifaceted “legal and social institution
of marriage.” Id.
¶ 25 Lastly, we reject Hitchcock’s assertion that the trial court
erred because it considered the wrong timeframe when assessing
4 For the same reasons, we reject Hitchcock’s suggestion that
considering conduct other than the affidavit “sanctions fraud, or at least fraud-adjacent behavior.” Even if fraud were involved in signing the document, that conduct would be only one consideration for the court. See Hogsett, ¶ 59. It wouldn’t make the affidavit the sole source of the court’s determination or relieve the court from applying the rest of the Hogsett test.
14 the various factors indicative of a common law marriage. It’s true
that “conduct inconsistent with marriage that occurs as a
relationship is breaking down does not negate a finding of common
law marriage where there is evidence of the parties’ earlier mutual
agreement to be married.” Id. at ¶ 57.
¶ 26 Here, however, the trial court assessed the parties’ conduct
following their commencement of cohabitation in 2016 and
following their execution of the affidavit in 2021, with the court
concluding that the conduct during both of those critical
timeframes didn’t support the existence of a common law marriage.
With respect to the 2016 timeframe, the court found, with record
support, that the parties’ romantic relationship briefly resumed
when Hitchcock moved in with Lundin sometime in 2016, but by
2017, the relationship had become platonic and remained that way
for the duration of their cohabitation. Notably, the court observed
that the parties’ already platonic relationship didn’t change in any
meaningful way following the execution of the affidavit in 2021.
And contrary to Hitchcock’s contentions, we don’t perceive any
undue focus by the trial court on the parties’ conduct at the time of
their separation. Therefore, we are satisfied that the trial court
15 properly focused on the parties’ conduct following their alleged
agreement to marry, regardless of whether that agreement occurred
in 2021, when they executed the affidavit, or in 2016, when they
began cohabiting and the affidavit states the marriage began.
III. Appellate Attorney Fees
¶ 27 Asserting that Hitchcock’s appeal is without substantial
justification and is otherwise frivolous, Lundin requests an award of
his attorney fees incurred on appeal. See § 13-17-102, C.R.S.
2025. We, however, don’t view Hitchcock’s appeal as in any way
frivolous. We therefore deny Lundin’s request.
IV. Disposition
¶ 28 The judgment is affirmed.
JUDGE KUHN concurs.
JUDGE SCHUTZ specially concurs.
16 JUDGE SCHUTZ, specially concurring.
¶ 29 Because it diligently adheres to the supreme court’s opinion in
Hogsett v. Neale, 2021 CO 1, ¶ 3, I concur with the result reached
by the majority. I write separately, however, to amplify some
uncertainty and discord that flows from the application of Hogsett’s
holdings to the facts of this case.
¶ 30 The central uncertainty arises from Lundin’s and Hitchcock’s
written representations that they were common law married in
order to receive a financial benefit reserved for those who are
married. The majority opinion does not treat the parties’ written
agreement that they were common law married as binding because
of its reliance on the supreme court’s holding in Hogsett that “a
mutual agreement to marry does not alone suffice; there must be
some evidence of subsequent conduct manifesting that agreement.”
Id. at ¶ 50 (citing People v. Lucero, 747 P.2d 660, 663 (Colo. 1987),
abrogated by, Hogsett, 2021 CO 1). From there, the majority
considers — like the trial court did— the additional Hogsett factors
that focus on whether the putative spouses subsequently engaged
in conduct manifesting their mutual intent to be married. All of
that is consistent with Hogsett’s holding. See id. at ¶ 3. But the
17 application of these principles to Lundin’s and Hitchcock’s written
representations raises significant concerns.
¶ 31 The parties’ specific representation appears below:
The Parties’ Sworn “Affidavit of Common Law Marriage
¶ 32 As illustrated, this was not a casual passing statement made
between intimate partners. Rather, it was a sworn “Affidavit of
18 Common Law Marriage” that the parties represented was “true and
completed to the best of [thei]r knowledge.” They swore to these
representations before a notary public. And in the affidavit, Lundin
and Hitchcock expressly represented, “We understand that a
common law marriage, in the State of Colorado, is valid for all
purposes, the same as a ceremonial or civil marriage, and can only
be terminated by death or divorce.” By all accounts, Lundin and
Hitchcock made this solemn representation to obtain a substantial
financial benefit — insurance coverage for Hitchcock’s son — that
they were not entitled to unless they were married.
¶ 33 Thus, the result we reach by applying Hogsett to the facts of
this case tolerates a situation in which both parties achieved a
financial benefit by making a sworn representation that at least
Lundin knew to be false, because — according to his testimony —
he did not intend to be married. The majority excuses what it
characterizes as potentially fraudulent conduct on the grounds that
“[e]ven if fraud were involved in signing the document, that conduct
would be only one consideration for the court.” Supra ¶ 23 n.4. To
support that conclusion, the majority again relies on Hogsett’s
statement that the parties’ stated intention in the affidavit is not
19 controlling, but rather is just one factor among many that the court
must consider when determining whether the parties intended to be
married. See supra ¶ 23 n.4. And indeed, Hogsett, ¶ 50, says,
“[A] mutual agreement to marry does not alone suffice; there must
be some evidence of subsequent conduct manifesting that
agreement.” (Emphasis added.)
¶ 34 But is the result in this case one that Hogsett actually
contemplated? Or a result that the law should tolerate? I’m not so
sure. The alleged common law marriage at issue in Hogsett did not
involve a written commitment to marry, much less an agreement as
detailed and specific as the affidavit here. Indeed, the trial court in
Hogsett found credible evidence that one of the putative spouses did
not believe she was married and the other putative spouse
acknowledged this belief. See id. at ¶ 81 (Boatright, C.J.,
concurring in the judgment only). As then-Chief Justice Boatright
noted, Hogsett presented a dispute where the putative spouses
agreed that they had no verbal or written agreement to be married.
Id. Nevertheless, the majority in Hogsett concluded that the
undisputed absence of an agreement to marry was not dispositive,
and it proceeded to expand the Lucero factors to ensure that the
20 additional judicial inquiries were made in a manner that
appreciated the complexities of modern committed relationships.
See id. at ¶ 83.
¶ 35 But the relationship between Lundin and Hitchcock requires
the court to answer a materially different question: is an evaluation
of the additional factors for assessing the existence of a common
law marriage necessary or appropriate when the parties swear in
writing that they are in a common law marriage? Perhaps the
answer to that question is, as we have concluded, “Yes.” But I am
uncertain that Hogsett contemplated the type of sworn
representation presented by this case.
¶ 36 In holding that the parties’ agreement about whether they
were common law married is not determinative, the court in
Hogsett, ¶ 50, cited Lucero. Lucero was a criminal case in which the
defendant attempted to assert the existence of a common law
marriage as a basis to invoke the marital privilege and prevent his
longtime partner — and the mother of his child — from testifying
against him. Lucero, 747 P.2d at 662.
¶ 37 Thus, the question of whether a common law marriage existed
was presented only in the context of an offer of proof made by
21 Lucero’s criminal defense counsel through testimony from Lucero’s
partner. As part of that offer of proof, Lucero’s partner testified that
“she considered herself married to Lucero, and that the two of them
held themselves out to friends as being married.” She also
affirmatively answered the question, “[D]o you know if [Lucero]
agreed with your analysis that the two of you were married?” Id.
(second alteration in original).
¶ 38 Based on this limited testimony, the trial court in Lucero found
“that there was insufficient proof of a marital relationship.” Id. It
was in that procedural and factual context that the supreme court
said the following:
We affirm today that such conduct in a form of mutual public acknowledgment of the marital relationship is not only important evidence of the existence of mutual agreement but is essential to the establishment of a common law marriage. The reason for this requirement is to guard against fraudulent claims of common law marriage. As Professor Clark suggests in his treatise on domestic relations, “[a]dding the requirement of open marital cohabitation gives assurance that some objective evidence of the relationship will have to be introduced in every case to establish that the parties did consider themselves husband and wife.”
22 Id. at 663-64 (quoting Homer H. Clark, Jr., Law of Domestic
Relations 48 (1968)). So Lucero supports the notion that one alleged
spouse’s conclusory testimony that the parties intended to be
married is not sufficient to prove a common law marriage. But it
explained that such a requirement is necessary to prevent
fraudulent assertions of a marital relationship.
¶ 39 In contrast to the conclusory evidence offered in Lucero, or the
absence of an agreement presented in Hogsett, Lundin’s and
Hitchcock’s affidavit was made in writing and delivered to third
parties to obtain a financial benefit. Permitting the benefit to flow
from such an affidavit — without enforcing its representation that a
common law marriage exists — could reward arguably fraudulent
conduct. That seems beyond, and perhaps inconsistent with,
Lucero’s purpose of preventing fraudulent conduct, id. at 664, and
the supreme court’s long-established abhorrence of enforcing
fraudulent agreements, see, e.g., Armstrong v. Gresham, 213 P. 114,
115-16 (Colo. 1923) (“An agreement to perpetrate a fraud on a third
person is illegal and void.”).
¶ 40 On the other hand, if the written unequivocal affidavit alone is
sufficient to establish a common law marriage, that could also
23 result in a fraudulent or unjust result for one of the putative
spouses. This case is illustrative of that point. If, as the trial court
concluded, Lundin never intended to be married, treating the sworn
statement as conclusive proof of a marriage would lead to a result
in which he would be bound by all the burdens of marriage when
that is not what he intended.
¶ 41 I suggest that clarification of how to apply Hogsett’s framework
in circumstances such as these is warranted because — as
previously explained — neither outcome is wholly palatable.
¶ 42 I acknowledge that the fraud issue was never presented to or
decided by the trial court. Therefore, I concur with the majority’s
decision not to reach the merits of the potential fraud.1 See id. But
I also note that the parties’ failure to raise the potential fraud issue
is predictable because if they had done so, they risked the trial
court making a finding that one or both of them had committed
1 The division’s decision to refrain from reaching the merits of the
fraud question also amplifies the need to emphasize that nothing in the majority opinion or this special concurrence should be read to conclude that either Lundin or Hitchcock actually engaged in fraudulent conduct. Rather, my special concurrence addresses the possibility that the majority’s holding and Hogsett’s holding could be interpreted to tolerate such a result.
24 fraud. Thus, the invocation of party presentation principles,2
coupled with the parties’ inherent disincentive to raise the issue, is
likely to result in fraudulent — or at least fraud-adjacent —
agreements not being squarely challenged. If that is so, future
couples contemplating executing such agreements have little legal
disincentive to engage in such conduct.
¶ 43 Addressing the fraud-related issues would not only strengthen
the foundations of common law and statutory marriages, it would
also discourage fraudulent conduct. But I nonetheless share the
majority’s conclusion that the trial court did not err by finding that
Hitchcock failed to prove the existence of a common law marriage
under the Hogsett framework. Accordingly, I respectfully concur.
2 Party presentation principles are premised on the assumption that
the parties know what is best for them and are obligated to advance the arguments that support their position, leaving courts in the role of neutral arbiters of the issues raised. See Galvan v. People, 2020 CO 82 ¶ 45.