dissenting.
The trial court found that the evidence presented did not prove the existence of a marital relationship between the parties. Looking at the same evidence, the majority concludes that such relationship was demonstrated as a matter of law. In my view, the evidence presents a factual issue, the resolution of which is solely within the province of the trial court. See Linley v. Hanson, 173 Colo. 239, 477 P.2d 453 (1970).
The existence of a common-law marriage in this case is based solely on the testimony of one witness: the putative wife, Rosemary Trujillo. In my view, the majority ignores the fundamental principle that a. fact finder need not accept even uncontra-dicted testimony as true. Pioneer Construction Co. v. Richardson, 176 Colo. 254, 490 P.2d 71 (1971). Thus, even if the witness’ testimony had addressed all elements *1043of a common-law marriage, the trial court could have properly rejected it.
Rosemary Trujillo testified that she and the defendant were living together, that they had a child, and that the parties had held themselves out as married. However, such testimony is insufficient basis upon which to rule that, as a matter of law, a common-law marriage was demonstrated. Noticeably lacking is testimony as to proof of general repute, without which there can be no valid common-law marriage. See Graham v. Graham, 130 Colo. 225, 274 P.2d 605 (1954).
Also, the trial court’s factual determination that no marriage existed is consistent with the witness’ testimony that both she and the child were known by her surname. And, the witness revealed a lack of understanding of the elements necessary to create a common-law marriage by her testimony that what she meant by the fact that she and defendant “were common-law” was that they were living together. In this respect, the trial court did not share her misunderstanding of the law, and neither should we. Cohabitation alone is insufficient to establish a valid common-law marriage. In re Estate of Danikas, 76 Colo. 191, 230 P. 608 (1924).
Proof of general repute sufficient to establish a common-law marriage means the understanding among neighbors and acquaintances with whom the parties associate in their daily life, it is made up of social conduct and recognition giving character to an admitted and unconcealed condition. Graham v. Graham, supra. It is necessary that there be evidence of both cohabitation and reputation before a marriage can be presumed. Graham v. Graham, supra; Estate of Klipfel v. Klipfel, 41 Colo. 40, 92 P. 26 (1907).
No witnesses testified as to their understanding of the parties’ relationship, or to the parties’ reputation of being married, and no other evidence showing a reputation of marriage was offered. Therefore, with no proof of reputation, a common-law marriage could not be presumed.
The trial court found, on supporting evidence, that there was no common-law marriage; therefore, the court concluded the relationship between the witness and the defendant was insufficient to invoke the marital privilege. This question of existence of the privilege is for the trial court’s determination. CRE 104. That court’s finding, being supported by the evidence, should be affirmed.
For these reasons I respectfully dissent from the majority opinion. I would affirm the conviction.