Hogsett v. Neale (In re Marriage of Hogsett)

Opinion by JUDGE FREYRE

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 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.

¶ 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.

¶ 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 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.

¶ 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 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.

¶ 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 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).

¶ 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. 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.

¶ 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) 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).

¶ 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, 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.

¶ 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 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).

¶ 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 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. 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).

¶ 33 The judgment is affirmed. JUDGE DUNN concurs. JUDGE FURMAN specially concurs. 22 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 23 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).