2018 COA 176
Colo. Ct. App.2018Background
- Edi Hogsett and Marcia Neale, a same-sex couple, had a long-term relationship (13 years), exchanged rings in an impromptu bar ceremony, cohabited, used the term “partner,” maintained joint accounts, and built a home together.
- When the relationship ended, the parties executed a separation agreement and jointly filed (and later dismissed) a petition to dissolve a claimed common-law marriage; the listed marriage date in the petition was fabricated.
- Hogsett later sought to reopen dissolution and filed a new petition alleging a pre-Obergefell common-law marriage; Neale moved to dismiss, arguing Lucero’s mutual-consent test was not satisfied and that same-sex couples could not have formed common-law marriages before legal recognition.
- The district court applied the Lucero test, concluded Obergefell applies retroactively to allow same-sex couples to prove common-law marriage, but found by a preponderance of the evidence that no mutual agreement existed and dismissed the petition.
- Hogsett appealed, raising (1) misapplication of Lucero to same-sex relationships, (2) parol-evidence/parol rule error, (3) improper consideration of mediator/facilitator statements, and (4) failure to enforce the separation agreement.
Issues
| Issue | Plaintiff's Argument (Hogsett) | Defendant's Argument (Neale) | Held |
|---|---|---|---|
| Does Lucero’s common-law marriage test apply to same-sex relationships? | Lucero should not apply or must be modified so pre-Obergefell conduct cannot form a common-law marriage. | Lucero applies; courts may consider context and constraints on same-sex couples pre-Obergefell. | Yes; Lucero applies but must be used consistent with same-sex relationship realities and pre-Obergefell limitations. |
| Can Obergefell be applied retroactively to recognize pre-Obergefell same-sex common-law marriages? | Obergefell should allow retroactive recognition so pre-Obergefell conduct can establish common-law marriage. | Agreed that Obergefell applies; evidence still must prove mutual consent. | Obergefell applies retroactively; same evidentiary Lucero standard governs. |
| Did the district court err in finding mutual consent absent, or in weighing indicia (e.g., joint accounts, ceremony)? | Hogsett: indicia (joint finances, home, ring ceremony) show mutual intent; dismissal improper. | Neale: she did not believe they were married; dismissal proper. | Court’s credibility findings supported; Neale’s lack of mutual consent proved; no common-law marriage. |
| Did the court commit evidentiary/parol-evidence errors or fail to enforce the separation agreement? | Hogsett: court improperly considered mediation/facilitator statements and should enforce the separation agreement. | Neale: mediator evidence was not relied on; separation-agreement enforcement was not pursued below. | No reversible evidentiary error; mediator exhibit excluded and facilitator minute was a permissible inference; separation-agreement enforcement was abandoned. |
Key Cases Cited
- People v. Lucero, 747 P.2d 660 (Colo. 1987) (articulates Colorado test for common-law marriage: mutual consent and open, mutual assumption of marital relationship)
- In re Marriage of Cargill, 843 P.2d 1335 (Colo. 1993) (recognition that Colorado permits common-law marriage)
- Obergefell v. Hodges, 576 U.S. 444 (2015) (same-sex couples have fundamental right to marry under the Fourteenth Amendment)
- Kitchen v. Herbert, 755 F.3d 1193 (10th Cir. 2014) (struck down state prohibition on same-sex marriage within the Tenth Circuit)
- In re Estate of Wires, 765 P.2d 618 (Colo. App. 1988) (appellate deference to trial court findings on common-law marriage)