of Hogsett

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).

20