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 December 13, 2018
2018COA176
No. 17CA1484, Marriage of Hogsett — Family Law — Common Law Marriage — Same-Sex Couples
In this domestic relations appeal, a division of the court of
appeals concludes, as a matter of first impression, that the test for
determining whether a common law marriage exists, articulated in
People v. Lucero, 747 P.2d 660 (Colo. 1987), applies to a same-sex
relationship, but in a manner consistent with the realities and
norms of such relationships. The division further concludes that
Obergefell v. Hodges, 576 U.S. ___, 135 S. Ct. 2584 (2015), provides
same-sex couples the same right to establish common law
marriages that opposite-sex couples enjoy. The division affirms the
district court’s finding of no common law marriage. The special concurrence suggests that the General Assembly
consider abolishing common law marriage statutorily, consistent
with the majority of jurisdictions. COLORADO COURT OF APPEALS 2018COA176
Court of Appeals No. 17CA1484 Arapahoe County District Court No. 16DR30820 Honorable Bonnie McLean, Judge
In re the Marriage of
Edi L. Hogsett,
Appellant,
and
Marcia E. Neale,
Appellee.
JUDGMENT AFFIRMED
Division VI Opinion by JUDGE FREYRE Dunn, J., concurs Furman, J., specially concurs
Announced December 13, 2018
The Radman Law Firm, LLC, Diane R. Radman, Denver, Colorado; Harrington Brewster Clein, P.C., Rachel Catt, Denver, Colorado; Griffiths Law P.C., Ann C. Gushurst, Lone Tree, Colorado, for Appellant
Plog Stein P.C., Stephen J. Plog, W. Curtis Wiberg, Jessica A. Saldin, Greenwood Village, Colorado, for Appellee ¶1 Edi L. Hogsett and Marcia E. Neale, a same-sex couple, ended
their thirteen-year relationship. Hogsett believed the parties were
common law married and petitioned for dissolution. Neale
disagreed and moved to dismiss the petition. The district court
found that no common law marriage existed and granted Neale’s
motion to dismiss. Both parties agree that Obergefell v. Hodges,
576 U.S. ___, 135 S. Ct. 2584 (2015), which overturned laws
banning same-sex marriage, applies retroactively in deciding
whether a same-sex common law marriage exists between them.
¶2 This appeal raises a novel issue ― does the test for
determining whether a common law marriage exists, articulated in
People v. Lucero, 747 P.2d 660 (Colo. 1987), apply to a same-sex
relationship? We answer that question “yes” but conclude that the
Lucero test should be applied consistently with the realities and
norms of a same-sex relationship, particularly during the period
before same-sex marriages were legally recognized in Colorado. We
further conclude that Obergefell provides same-sex couples in
Colorado with the same right to establish common law marriages
that opposite-sex couples enjoy.
1 ¶3 Because the district court recognized the limitations of Lucero
when applied to same-sex relationships, and because competent
record evidence supports its finding that a common law marriage
did not exist between the parties, we affirm the judgment
dismissing the petition. We further reject the other contentions
Hogsett raises.
I. Background
¶4 Hogsett and Neale began dating in 2001 and ultimately
entered into a long-term, committed relationship. They exchanged
rings in an impromptu ceremony at a bar ― neither friends nor
family attended this ceremony. They eventually lived together,
referred to each other as “[p]artner,” maintained joint accounts,
initiated joint financial planning, and built a custom home together.
¶5 When the relationship ended in 2014, Hogsett and Neale
jointly petitioned to dissolve a common law marriage. They
executed a separation agreement dividing their property and
obligating Neale to pay maintenance to Hogsett. Neale testified that
she believed the petition was legally necessary to unravel their
finances. Both parties agreed that the marriage date listed in the
2 petition was “made up” and did not reflect the date of their
impromptu ceremony or the date they celebrated as an anniversary.
¶6 At the initial status conference, and after learning that the
court would need to first find that a marriage existed before it could
dissolve the marriage, both parties agreed to jointly dismiss the
petition. Thereafter, Neale stopped paying maintenance to Hogsett.
¶7 Hogsett then moved to reopen the dissolution case, but the
court denied her motion. Next, she petitioned to dissolve a civil
union between the parties, but ultimately withdrew that petition.
Hogsett then filed a second petition to dissolve a common law
marriage between her and Neale. Neale moved to dismiss the
petition, arguing that the Lucero test was not met. She further
argued that because the parties could not legally marry during their
relationship, they could not have agreed — as Lucero requires —
that they were married. Thus, the court could not retroactively find
a common law marriage between them.
¶8 After an evidentiary hearing, the district court applied the
Lucero test and found, by a preponderance of the evidence, that the
parties were not common law married. The court said, “I do believe
that the Court can find same-sex common law marriage existed,”
3 based on pre-Obergefell conduct, but it ultimately concluded that
the parties’ conduct did not evidence a common law marriage.
¶9 Hogsett moved for relief from the court’s judgment under
C.R.C.P. 59. Her motion was deemed denied under C.R.C.P. 59(j),
and this appeal followed.
II. Hogsett’s Contentions
¶ 10 Hogsett raises four contentions on appeal: (1) the district court
erred in applying the Lucero test and finding no common law
marriage existed; (2) the court erroneously relied on parol evidence,
rather than the language of the separation agreement, in
determining whether the parties had mutually agreed to marriage;
(3) the court committed evidentiary error by considering both
information from the parties’ mediation and the parties’ statement
to the court facilitator that they were not married ― a fact not in
evidence; and (4) the court should have enforced the parties’
separation agreement.
¶ 11 We begin with the Lucero test for establishing a common law
marriage as applied to a same-sex relationship. Whether that test
applies to a same-sex relationship is a question of law that we
review de novo. In re Marriage of Vittetoe, 2016 COA 71, ¶ 17. We
4 next determine whether the district court properly applied the
Lucero factors to the same-sex relationship here ― a question we
review for an abuse of discretion. 747 P.2d at 665. We conclude
that the district court did not err in applying Lucero to find that no
common law marriage existed between Hogsett and Neale. Inherent
in this conclusion is that a court may find a same-sex common law
marriage existed under Lucero based on the parties’ pre-Obergefell
conduct. We then address and reject Hogsett’s remaining
contentions of error.
III. The District Court Properly Applied the Lucero Test
A. Legal Standards
¶ 12 Colorado recognizes common law marriage. In re Marriage of
Cargill, 843 P.2d 1335, 1339 (Colo. 1993). A common law marriage
is established by (1) the parties’ mutual consent or agreement to be
husband and wife, followed by (2) their mutual and open
assumption of a marital relationship. Lucero, 747 P.2d at 663;
People v. Perez-Rodriguez, 2017 COA 77, ¶ 14; see also In re
Marriage of J.M.H., 143 P.3d 1116, 1118 (Colo. App. 2006) (“[I]n a
common law marriage, two persons create a valid marital
relationship without the benefit of a legal marriage ceremony
5 performed according to statutory requirements.”). Both elements
must be established for a common law marriage to exist. Lucero,
747 P.2d at 663-64.
¶ 13 The party alleging that a common law marriage exists has the
burden to prove the required elements by a preponderance of the
evidence. See id. at 664 n.6 (noting that a higher burden of proof is
not required, but “more than vague claims unsupported by
competent evidence” must be presented); see also § 13-25-127(1),
C.R.S. 2018 (the burden of proof in any civil action shall be by a
preponderance of the evidence). Thus, we reject Neale’s argument
that a clear and convincing evidence standard applies.
¶ 14 The Colorado Supreme Court recognizes that the very nature
of common law marriage makes it unlikely that an express
agreement to be married will exist. Instead, the parties’
understanding that they are married may be inferred from their
conduct, including cohabitation and a general reputation in the
community that they hold themselves out as husband and wife.
Lucero, 747 P.2d at 664-65; see also Perez-Rodriguez, ¶¶ 14, 17.
The court has identified certain specific conduct that may suggest
an intent to be married, including (1) cohabitation; (2) maintaining
6 joint banking and credit accounts; (3) creating joint property
ownership; (4) the parties’ use of one surname; and (5) the filing of
joint income tax returns. Lucero, 747 P.2d at 665. However, this
list is not exhaustive, and any form of evidence that openly
manifests the parties’ intent to be married may provide the requisite
proof from which a mutual understanding can be inferred. Id.
¶ 15 “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.” Id.; see In re Custody of Nugent, 955 P.2d
584, 588 (Colo. App. 1997). Accordingly, we review the district
court’s factual findings for clear error and its common law marriage
determination based on those findings for an abuse of discretion.
See In re Estate of Wires, 765 P.2d 618, 618-19 (Colo. App. 1988)
(upholding conclusion that no common law marriage existed based
on sufficiency of factual findings); People v. Maes, 43 Colo. App.
365, 368, 609 P.2d 1105, 1108 (1979) (finding of no common law
marriage was supported by competent evidence in the record and
was therefore binding on appellate court). We must uphold a
district court’s factual findings unless no evidence exists to support
them. People in Interest of A.J.L., 243 P.3d 244, 252 (Colo. 2010).
7 B. Analysis
¶ 16 In applying Lucero, the district court found that cohabitation
alone was not enough to establish a common law marriage, but
rather noted that “[m]arriage is a distinctly different relationship.”
It also noted that certain of the Lucero common law marriage
elements, “in many ways, do not reflect the reality of the situation
for same-sex couples.” In particular, during the period of the
parties’ relationship, people in same-sex relationships were not
allowed to list each other as “spouses” on financial or medical
documents, nor were they permitted to file tax returns as a married
couple. Furthermore, they often called each other “partners” rather
than “spouses” or “husband” and “wife,” and often did not share
surnames.
¶ 17 The court noted the parties’ conflicting views regarding the
purpose of the impromptu ceremony and the ring exchange, which
it found took place at a bar without family or friends present. It
further found that the parties did not celebrate anniversaries based
on this ceremony date.
¶ 18 When considering these factors, the court noted that some of
them were “not helpful” in the context of a same-sex relationship.
8 Instead, what it found “very important” was evidence from the
parties’ initial status conference on their joint dissolution petition,
including the family court facilitator’s minute order stating that
when the facilitator told the parties the court would have to make a
status of marriage finding in their case, both parties desired to
immediately dismiss the petition. The court found this to be more
persuasive evidence of the parties’ intent than the parties’ initial
decision to file the petition and enter into a separation agreement.
As well, the court found Neale’s testimony credible that she did not
believe the parties were married and that she had only signed the
petition and separation agreement because she believed she had to
sign them to legally divide their finances.
¶ 19 The parties’ testimony revealed further evidence of their intent.
Neale testified that she did not believe in marriage and that she had
expressed this belief to Hogsett numerous times during their
relationship. Hogsett corroborated Neale’s testimony when she
acknowledged that Neale had said she did not believe in marriage,
but instead believed in “a higher power” than marriage. And several
9 witnesses testified that Neale did not believe in the institution of
marriage.1
¶ 20 The court correctly said that under Lucero, if one party to a
purported common law marriage believes she is married, but the
other party does not, a marriage cannot be established. See 747
P.2d at 663 (requiring “mutual consent or agreement” to be
married). And although the court found credible Hogsett’s belief
that she was married to Neale, it also found credible Neale’s belief
that she was never married to Hogsett. This finding is supported by
the record. Therefore, we conclude that the court correctly applied
the standard from Lucero to the parties’ same-sex relationship, and
in doing so, appropriately recognized and accorded less weight to
those factors that were less relevant in that context.
¶ 21 We acknowledge Hogsett’s argument that many indicia of a
marriage were present, including the parties’ intertwined finances,
the existence of joint accounts, and their joint ownership of a home.
Nevertheless, many factors show there was no common law
marriage, including the parties’ joint dismissal of the dissolution
1One witness testified that she believed the parties were married. This witness also said Hogsett was previously married, a position Hogsett disputed.
10 petition, Neale’s professed beliefs concerning marriage, the absence
of references to marriage in the parties’ private correspondence with
each other, and the absence of conduct showing an attempt to be
married in a state where same-sex marriage was legal, which the
court chose to weigh more heavily, and which are supported by the
record. Accordingly, we do not disturb the judgment. See Wires,
765 P.2d at 618-19; Maes, 43 Colo. App. at 368, 609 P.2d at 1108.
C. Retroactive Application of Obergefell
¶ 22 Inherent in our conclusion is the recognition that Obergefell
applies retroactively in determining the existence of a common law
marriage. As Hogsett notes, the only reason that many of Lucero’s
indicia of marriage were unavailable to the parties is because of
unconstitutional laws forbidding same-sex marriage. Thus, the
court properly gave less weight to such indicia during the parties’
pre-Obergefell relationship.
¶ 23 The provisions of Colorado law limiting valid marriages to
those between a man and a woman, see Colo. Const. art. II, § 31;
§ 14-2-104(1)(b), C.R.S. 2018, have been ruled unconstitutional.
See Obergefell, 576 U.S. at ___, 135 S. Ct. at 2604-05; see also
Kitchen v. Herbert, 755 F.3d 1193, 1198-99 (10th Cir. 2014)
11 (striking down Utah’s law banning same-sex marriage under the
Fourteenth Amendment of the United States Constitution). The
Obergefell Court concluded that “the right to marry is a
fundamental right inherent in the liberty of the person, and under
the Due Process and Equal Protection Clauses of the Fourteenth
Amendment[,] couples of the same sex may not be deprived of that
right and that liberty.” 576 U.S. at ___, 135 S. Ct. at 2604; see also
Pavan v. Smith, 582 U.S. ___, ___, 137 S. Ct. 2075, 2076-78 (2017)
(per curiam).
¶ 24 In states like Colorado that recognize common law marriage,
retroactive application of Obergefell means that same-sex couples
must be accorded the same right as opposite-sex couples to prove a
common law marriage even when the alleged conduct establishing
the marriage pre-dates Obergefell. See 576 U.S. at ___, 135 S. Ct.
at 2605 (“The dynamic of our constitutional system is that
individuals need not await legislative action before asserting a
fundamental right.”); see also Ranolls v. Dewling, 223 F. Supp. 3d
613, 619-22 (E.D. Tex. 2016); In re Estate of Carter, 159 A.3d 970,
977-78 (Pa. Super. Ct. 2017); Lee-ford Tritt, Moving Forward by
Looking Back: The Retroactive Application of Obergefell, 2016 Wis. L.
12 Rev. 873, 921 (2016) (arguing that Obergefell should be applied
retroactively to conduct occurring prior to the date of the decision
because “substantive law should not shift according to claims of
reliance on an old rule that deprived people of a fundamental
right”); Steven A. Young, Note, Retroactive Recognition of Same-Sex
Marriage for the Purposes of the Confidential Marital Communications
Privilege, 58 Wm. & Mary L. Rev. 319, 337 (2016) (“There is one
area of marriage law that has . . . embraced the retroactivity of
Obergefell without hesitation: common law marriage.”).2
¶ 25 We agree with these authorities and the parties that Obergefell
applies retroactively to a Colorado same-sex relationship and, thus,
that a party like Hogsett may allege that a common law marriage
existed pre-Obergefell. We conclude that because there was
competent evidence that Neale did not consent to a marriage and
that the ceremony was merely an impromptu commitment
ceremony, the record as a whole supports the court’s finding that
no common law marriage existed. Cf. In re Estate of Leyton, 22
2 The retroactivity of Obergefell v. Hodges, 576 U.S. ___, 135 S. Ct. 2584 (2015), to same-sex common law marriage in Colorado was recently discussed in Lisa M. Dailey & Joel M. Pratt, Pre-2014 Same-Sex Common-Law Marriages, 47 Colo. Law. 42 (Dec. 2018).
13 N.Y.S.3d 422, 423 (N.Y. App. Div. 2016) (holding, in non-common
law marriage state, that Obergefell did not require retroactively
treating commitment ceremony as a valid marriage ceremony,
which would have been inconsistent with the parties’ mutual
understanding that they were not legally married).
IV. Remaining Contentions
A. Parol Evidence Rule
¶ 26 Although Hogsett argued in the district court that Neale’s
signatures on the joint petition and separation agreement evidenced
her acknowledgment that a marriage existed, Hogsett did not argue
that this evidence was legally dispositive of Lucero’s mutual
agreement element, or that no other evidence could be considered
under the parol evidence rule. Nor did Hogsett object when Neale
presented evidence contrary to the separation agreement statement
that the parties were married. Instead, she submitted her own
extrinsic evidence to support the statement.
¶ 27 Accordingly, we may not address Hogsett’s parol evidence
argument because she raises it for the first time on appeal. See In
re Marriage of Ensminger, 209 P.3d 1163, 1167 (Colo. App. 2008);
see also Valentine v. Mountain States Mut. Cas. Co., 252 P.3d 1182,
14 1188 n.4 (Colo. App. 2011) (“We review only the specific arguments
a party pursued before the district court.”). Nor, for the same
reason, may we address her related “estoppel by contract”
argument.
B. Evidentiary Issues
¶ 28 We next consider and reject Hogsett’s evidentiary contentions.
She first argues that the court erroneously considered information
from the parties’ mediation session in violation of section 13-22-
307(2), (3), C.R.S. 2018. However, the record shows that the court
ultimately rejected the proffered exhibit of email messages between
the parties and the mediator. Indeed, the court confirmed that it
had not taken the exhibit into account in making its decision.
Hogsett’s argument that “the damage was done” is unpersuasive in
the context of a trial to the court. See People in Interest of M.M.,
215 P.3d 1237, 1249 (Colo. App. 2009) (“In the context of a bench
trial, the prejudicial effect of improperly admitted evidence is
generally presumed to be innocuous” because such evidence was
disregarded by the court in reaching its conclusions.).
¶ 29 Additionally, the court’s finding that the December 1, 2002,
marriage date reflected in the petition was “made up” was based on
15 the parties’ testimony that they celebrated anniversaries on
November 8 — not on the mediation information. Neale testified
that the parties celebrated anniversaries on November 8 because
that was the date they became intimate and that nothing had
occurred on December 1, 2002. Hogsett agreed that she and Neale
celebrated anniversaries on November 8, and she could not recall
whether December 1, 2002, was the actual date of their ceremony.
And Hogsett said she had used a different date — July 24, 2003 —
as the beginning of the relationship in her petition to dissolve a civil
union. Accordingly, we will not disturb the district court’s
judgment on this basis. See id. at 1249-50 (noting that a judgment
after a bench trial “will not be disturbed unless it is clear that the
court could not have reached the result but for the incompetent
evidence”).
¶ 30 Hogsett next argues that the court erroneously relied on a fact
not in evidence ― statements made to the family court facilitator ―
in finding that there was no marriage. We are not persuaded.
Rather, as the court noted, the parties’ testimony conflicted on their
reasons for dismissing the joint dissolution petition. And the court
could reasonably infer from the record — specifically, the
16 facilitator’s minute order showing both parties’ desire to dismiss the
petition without consulting counsel as the facilitator had
recommended — that they both believed no marriage existed. See
In re Marriage of Lewis, 66 P.3d 204, 207 (Colo. App. 2003)
(explaining that inferences and conclusions to be drawn from the
evidence are matters within the district court’s sole discretion).
C. Enforcement of the Separation Agreement
¶ 31 Finally, because Hogsett abandoned her request that the
district court enforce the parties’ separation agreement,
independent of its common law marriage determination, we do not
address that issue. See JW Constr. Co. v. Elliott, 253 P.3d 1265,
1271 (Colo. App. 2011) (identification of issue in answer and trial
management order, without more, fails to preserve it for appellate
review); Brody v. Hellman, 167 P.3d 192, 199 (Colo. App. 2007)
(issue not pursued through disposition in the district court is
abandoned for the purposes of appeal).
¶ 32 Although Hogsett argued, in her response to Neale’s motion to
dismiss the dissolution petition, that the court must enforce the
parties’ separation agreement, she did not then pursue that
argument through to disposition at the hearing in either her written
17 closing argument or her postjudgment motion. Instead, at the end
of the court’s oral ruling, Hogsett’s attorney stated that she believed
the ruling “puts us back into civil court having to enforce the . . .
agreement.” Notably, she did not ask the court to enforce the
separation agreement, despite the court’s finding of no common law
marriage.3 Accordingly, we do not address this issue. See JW
Constr. Co., 253 P.3d at 1271-72; Brody, 167 P.3d at 199; see also
Berra v. Springer & Steinberg, P.C., 251 P.3d 567, 570 (Colo. App.
2010) (to preserve an issue for appeal, it must be brought to the
district court’s attention so that the court has an opportunity to
rule on it).
V. Conclusion
¶ 33 The judgment is affirmed.
JUDGE DUNN concurs.
JUDGE FURMAN specially concurs.
3 Both parties concede preservation. However, we are not bound by the parties’ concessions, and we may rely on our own legal interpretations, even if they are inconsistent with counsel’s representations and arguments. See People v. Zubiate, 2013 COA 69, ¶ 22, aff’d, 2017 CO 17, ¶ 22.
18 JUDGE FURMAN, specially concurring.
¶ 34 I agree with the majority that the record supports the trial
court’s finding that Neale did not believe that she was married to
Hogsett. Because “mutual consent or agreement” is necessary for a
common law marriage, People v. Lucero, 747 P.2d 660, 663 (Colo.
1987), I also agree that the record supports the trial court’s
ultimate finding that a common law marriage did not exist between
Hogsett and Neale.
¶ 35 But, I write separately to encourage our legislature to abolish
common law marriage, in conformity with the majority of
jurisdictions. As this case illustrates, common law marriage places
a significant and unnecessary burden on the parties and our courts
to untangle relationships to determine property (or probate)
matters. I believe this is needlessly expensive and unfair to the
parties. For all intents and purposes, Hogsett believed she and
Neale were married, but Neale believed otherwise. And the two had
to endure a lengthy hearing and appeal to determine they were not.
¶ 36 Because Colorado’s citizens have physical and legal access to
ceremonial marriage, and children born to unmarried parents are
afforded the same rights and privileges as those born to married
19 parents, common law marriage is no longer practically or legally
necessary. See McMullins v. McMullins, 202 So. 3d 332, 337-38
(Ala. Civ. App. 2016) (Thomas, J., dissenting).