In re Hogsett, Court of Appeals No. 17CA1484

• Docket Nº: Court of Appeals No. 17CA1484
• Citation: 480 P.3d 696
• Case Date: December 13, 2018
• Court: Court of Appeals of Colorado

480 P.3d 696

IN RE the MARRIAGE OF Edi L. HOGSETT, Appellant,
and
Marcia E. NEALE, Appellee.

Court of Appeals No. 17CA1484

Colorado Court of Appeals, Division VI.

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

Opinion by JUDGE FREYRE

¶ 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. 644, 135 S.Ct. 2584, 192 L.Ed.2d 609 (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.

¶ 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 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

480 P.3d 699

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," 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, ––– P.3d ––––. We 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, 411 P.3d 259 ; 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 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 joint banking and credit accounts;

480 P.3d 700

(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).

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...