Hogsett v. Neale

Decision Date11 January 2021
Docket NumberSupreme Court Case No. 19SC44
Parties In re the Marriage of Edi L. HOGSETT, Petitioner, v. Marcia E. NEALE, Respondent.
CourtColorado Supreme Court

Attorneys for Petitioner: Griffiths Law PC, Ann Gushurst, Littleton, Colorado, Radman Law Firm, LLC, Diane R. Radman, Denver, Colorado, Aitken Law, LLC, Sharlene J. Aitken, Denver, Colorado

Attorneys for Respondent: Plog & Stein, P.C., Jessica A. Saldin, Stephen J. Plog, Greenwood Village, Colorado

Attorneys for Amicus Curiae Family Law Section of the Colorado Bar Association: Polidori, Franklin, Monahan & Beattie, LLC, Robin Lutz Beattie, Lakewood, Colorado, Sherr Puttmann Akins Lamb PC, Courtney Radtke McConomy, Greenwood Village, Colorado, Epstein Patierno, LLP, Christina Patierno, Denver, Colorado

Attorneys for Amici Curiae the Colorado LGBT Bar Association; the Colorado Women's Bar Association; Lambda Legal Defense and Education Fund, Inc.; and the National Center for Lesbian Rights: Hogan Lovells US LLP, Mark D. Gibson, Denver, Colorado

En Banc

JUSTICE MÁRQUEZ delivered the Opinion of the Court.

¶1 In this case and two others announced today, In re Estate of Yudkin , 2021 CO 2, 478 P.3d 732, and In re Marriage of LaFleur & Pyfer , 2021 CO 3, 479 P.3d 869, we revisit the test for proving a common law marriage that we articulated over three decades ago in People v. Lucero , 747 P.2d 660 (Colo. 1987). In Lucero , we held that a couple could establish a common law marriage "by the mutual consent or agreement of the parties to be husband and wife, followed by a mutual and open assumption of a marital relationship." Id. at 663. We directed that evidence of such agreement and conduct could be found in a couple's cohabitation; reputation in the community as husband and wife; maintenance of joint banking and credit accounts; purchase and joint ownership of property; filing of joint tax returns; and use of the man's surname by the woman or by children born to the parties. Id. at 665.

¶2 Each of the three cases before us involves a disputed common law marriage claim. Together, they illustrate how much has changed since our decision in Lucero . Notably for purposes of this case and LaFleur , same-sex couples may now lawfully marry, see Obergefell v. Hodges , 576 U.S. 644, 135 S.Ct. 2584, 192 L.Ed.2d 609 (2015) (holding that states cannot deprive same-sex couples of the fundamental right to marry), though their right to do so was not recognized in Colorado until October 2014, see LaFleur , ¶ 30 (describing the timeline of same-sex marriage recognition in Colorado). Yet the gender-differentiated terms and heteronormative assumptions of the Lucero test render it ill-suited for same-sex couples. More broadly, many of the traditional indicia of marriage identified in Lucero are no longer exclusive to marital relationships. At the same time, genuine marital relationships no longer necessarily bear Lucero 's traditional markers. The lower court decisions in these cases reflect the challenges of applying Lucero to these changed circumstances.

¶3 In this case, we refine the test from Lucero and hold that 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 core query is whether the parties intended to enter a marital relationship—that is, to share a life together as spouses in a committed, intimate relationship of mutual support and obligation. 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. When examining the parties' conduct, the factors identified in Lucero can still be relevant to the inquiry, but they must be assessed in context; the inferences to be drawn from the parties' conduct may vary depending on the circumstances. Finally, the manifestation of the parties' agreement to marry need not take a particular form.

¶4 Having refined the Lucero test in this case, we clarify in Yudkin that whether a common law marriage exists depends on the totality of the circumstances, and no single factor is dispositive. Yudkin , ¶ 3. We remand that case to the probate court for reconsideration of the common law marriage claim under the updated framework we announce today. Id. at ¶ 24. In LaFleur , we hold that a court may recognize a common law same-sex marriage entered in Colorado before the state recognized same-sex couples' right to marry. LaFleur , ¶¶ 3–5. There, we apply the refined Lucero test and conclude that the parties did enter a common law marriage, but we set aside the property division and spousal maintenance award and remand for further proceedings. Id. at ¶ 6.

¶5 In this case, we apply the refined Lucero test and conclude that the record supports the district court's conclusion that no common law marriage existed. Accordingly, we affirm the judgment of the court of appeals.

I. Facts and Procedural History
A. Initial Petition and Separation Agreement

¶6 Edi L. Hogsett and Marcia E. Neale were in a thirteen-year relationship from November 2001 to November 2014. The two women never formally married (and could not have done so in Colorado until October 2014).1 Nevertheless, in January 2015, they jointly filed a pro se petition for dissolution of marriage in Arapahoe County District Court. The parties mediated a separation agreement stating that they had entered a common law marriage on December 1, 2002, and that their marriage was irretrievably broken.

¶7 The separation agreement included a division of the parties' purported marital property, including their home, furniture and household goods, bank accounts, stock purchase plans, retirement plans, vehicles, pets, and other miscellaneous assets, and provided for the division of their debts and obligations. It also required Neale to pay Hogsett $1,000 in monthly "spousal maintenance" for about seven years.

¶8 At the initial status conference, the court explained that it would have to find that a marriage existed before it could address the petition for dissolution. The parties reported that they did not have a marriage or civil union license and stipulated to dismissal of the petition, explaining that, through mediation, they had "fully settled all issues they had wanted to address in a dissolution case," and that they "would be able to implement their [agreement] between themselves [without] court involvement." The case was dismissed.

¶9 Hogsett later sought certain retirement assets and maintenance she believed Neale owed her under their separation agreement. Neale communicated to Hogsett her position that no marriage existed between them. Hogsett then filed a second petition for dissolution of marriage that is the subject of this case. Neale moved to dismiss, asserting, as relevant here, that the parties were never married under common law.

B. District Court's Ruling

¶10 At a hearing on Neale's motion to dismiss, the district court heard testimony from Neale, Hogsett, and several of their friends, relatives, and associates. The court also considered documentary and photographic evidence of the parties' relationship. It ultimately concluded that Hogsett had not met her burden to prove a common law marriage under the test in Lucero , 747 P.2d at 663–65.

¶11 In its detailed oral ruling, the district court first acknowledged what we confirm today in LaFleur : that it could recognize a common law same-sex marriage entered in Colorado before the state recognized same-sex couples' fundamental right to marry. See LaFleur , ¶ 3.2 But the court also acknowledged the difficulty of applying Lucero to the parties' same-sex relationship:

[T]he elements set forth in Lucero for the [c]ourt to consider, in many ways, do not reflect the reality of the situation for same-sex couples prior to [ Obergefell ]. Gay marriage was illegal so no matter if a couple intended to be married, they couldn't take advantage of the many privileges that were afforded to heterosexual couples. They couldn't use the word spouse on taxes; on financial documentation; they couldn't mark the other partner as spouse or wife on medical forms.

The court remarked that additional guidance from higher courts in these circumstances would be "very helpful," but in the absence of such guidance, the court proceeded to apply Lucero .

¶12 In doing so, the court observed that certain Lucero factors were of limited or no use in the context of a same-sex relationship, while others were less relevant today than when Lucero was decided. The court acknowledged, for example, that the parties bought a custom home together, but it accorded that factor less weight given that cohabitation between unmarried partners is far more prevalent today. The court also observed that in a same-sex marriage, there would be no use of a husband's surname by a wife, but it reasoned that this factor was not particularly relevant in any event, given that many spouses today elect not to change their names. The court further noted that it did not believe the parties had any option to file joint tax returns before same-sex couples could legally marry.

¶13 The court then turned to conflicting evidence related to a marriage ceremony and exchange of rings. Hogsett testified that she and Neale exchanged custom wedding rings in a "very intimate close marriage ceremony" at a bar. In contrast, Neale testified that she believed they were merely exchanging commitment rings, and that there were no family members or friends present. The court concluded there was "evidence of [an] agreement of a committed relationship" but reasoned that the parties might have had different understandings of the significance of the ceremony and exchange of rings. The court noted that neither party referred to the other as wife or mentioned marriage in the letters...

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  • People v. Carter
    • United States
    • Court of Appeals of Colorado
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    ...176, ¶ 32 n.3, 480 P.3d 696 (an appellate court isn't bound by a party's concession regarding preservation), aff'd sub nom. Hogsett v. Neale , 2021 CO 1, 478 P.3d 713 ; People v. Carter , 2015 COA 36, ¶ 65 n.1, 414 P.3d 15 (J. Jones, J., specially concurring) (same); People v. Corral , 174 ......
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