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In re Estate of Little

Court of Appeals of Colorado, Fifth Division

November 29, 2018

In re the Estate of Caroline Little, deceased.
v.
Humane Society of Colorado, American Cancer Society, and American Society for the Prevention of Cruelty to Animals Respondents-Appellees. Jeffrey Lynn Curry, Petitioner-Appellant,

          Custer County District Court No. 15PR30006 Honorable Ramsey Lama, Judge.

          Evans Case, LLP, Aaron L. Evans, Timothy D. Bounds, Denver, Colorado, for Petitioner-Appellant

          Jenna L. Mazzucca Esq., PC, Jenna L. Mazzucca, Salida, Colorado, for Respondents-Appellees

          OPINION

          WELLING JUDGE.

         ¶ 1 This case involves a dispute over who is entitled to inherit the estate of Caroline Little. On appeal, Little's former husband, Jeffrey Lynn Curry, first contends that the trial court erred in finding that he and Little were not common law remarried as of the time of her death. If they were, the parties agree that he would be entitled to inherit her estate under the terms of her will. Curry also contends that, even if they were not remarried, the trial court erroneously found that he lacked standing to seek reformation of her will. Curry sought to reform Little's will to reflect her intention to devise her estate to him regardless of their marital status. The contingent beneficiaries of Little's will, the Humane Society of Colorado, the American Cancer Society, and the American Society for the Prevention of Cruelty to Animals (collectively, the Interested Parties), urge us to affirm the trial court's rulings.

         ¶ 2 Although we are not persuaded that the trial court erred in finding that Curry and Little were not common law remarried, we disagree with the trial court's conclusion that Curry lacked standing to seek reformation. We, therefore, affirm in part, reverse in part, and remand for further proceedings on Curry's reformation claim.

         I. Background

         ¶ 3 Curry and Little met in 1972 and were common law married in 1980. Together they operated a building construction and restoration business.

         ¶ 4 In 2006, they executed mutual wills devising their estates to each other. Little's will stated, "I am married to Jeffrey Lynn Curry. Any reference in my will to my spouse is to such person." The will devised her estate "to my spouse, if my spouse survives me." The will also provided that, "[i]f my spouse does not survive me," her estate is devised in equal shares to the Interested Parties.

         ¶ 5 They lived together in a house in Westcliffe, Colorado, until 2010. In 2010, Curry and Little divorced, and a divorce decree was entered on March 29, 2010. After the divorce, Curry moved away, but eventually returned to Westcliffe. Upon returning, he lived in a church building adjacent to the house where he and Little had lived together. Little lived in the house, which she received in the divorce. They continued to operate their business together.

         ¶ 6 In April 2015, Little's residence was destroyed by a fire. Following the fire, Little moved into Curry's residence. There, she slept in a separate bedroom in the basement. Her insurance company paid for her to rent the bedroom and furniture from Curry. Insurance investigators spoke to Little after the fire, and in their report, they listed Curry as her "ex-husband."

         ¶ 7 Little died on June 19, 2015.

         ¶ 8 In January 2016, Curry filed a petition with the trial court asserting that he was entitled to inherit Little's estate because he was her common law spouse at the time of her death. He also alleged that Little intended for him to inherit her estate and requested reformation of her will to conform with her alleged intent. The Interested Parties opposed Curry's petition.

         ¶ 9 In January 2017, the trial court held a two-day hearing on the petition. At the hearing, the Interested Parties introduced evidence that, between 2010 and 2015, Curry and Little completed forms for tax and insurance purposes representing that they were divorced. The Interested Parties introduced evidence that Curry and Little filed individual tax returns in 2012 and 2013, that Little described her relationship with Curry as that of "Bus[iness] Partner[s]" in a loan application, that Little identified herself as divorced in an application for Medicaid benefits, that Curry identified himself as "separated" in an application for Medicaid benefits, and that Little identified Curry as her "[e]x-husband" in a homeowner's insurance application. The Interested Parties also introduced a voice recording that Little left for her insurance company identifying Curry as her "ex-husband."

         ¶ 10 Curry introduced testimony from several witnesses, including two employees of their business and one of Little's friends. The employees testified that Curry and Little spent considerable time together after the divorce and referred to each other as "husband" and "wife" when scheduling appointments and when picking up prescriptions at the pharmacy. Little's friend testified that Curry and Little resumed life as a couple after the divorce.

         ¶ 11 On the second day of the hearing, the trial court found that "reformation and/or theory of mistake under common law did not apply to the case" and dismissed Curry's reformation claim on the ground that he lacked standing to assert such a claim. On March 28, 2017, the trial court issued a written order making findings of fact and concluding that Curry and Little were not remarried at common law when she died.

         II. Analysis

         ¶ 12 When a marriage - common law or otherwise - is dissolved, any revocable disposition of property made by the divorced individual to the former spouse is revoked by operation of law, see § 15-11-804(2), C.R.S. 2018, unless revocation is contrary to "the express terms of a governing instrument, a court order, or a contract relating to the division of the marital estate made between the divorced individuals," id.; In re Estate of DeWitt, 54 P.3d 849, 852 (Colo. 2002).

         ¶ 13 On appeal, Curry does not dispute that, based on the terms of Little's will, his divorce from Little removed him as a beneficiary of her will pursuant to section 15-11-804(2). But the same statute provides that any spousal transfer provisions in a will that are revoked upon divorce are "revived by the divorced individual's remarriage to the former spouse." § 15-11-804(5). Curry contends that the provisions in Little's will devising her estate to him were revived by their common law remarriage.

         ¶ 14 In the alternative, Curry contends that when Little executed her will she intended for him to inherit her estate regardless of their marital status. On that basis, he sought to reform Little's will pursuant to section 15-11-806, C.R.S. 2018, to reflect that intention. On appeal, he contends that the trial court erroneously found that he lacked standing to pursue the reformation claim. Curry does not contend that he is entitled to inherit Little's estate on any basis other than that (1) he and Little were remarried at common law, or (2) Little's intent at the time she executed the will was for him to inherit, regardless of their marital status.

         ¶ 15 For the reasons below, we affirm the trial court's finding of no common law remarriage. But we reverse the trial court's ruling that Curry lacked standing to seek reformation and remand for further proceedings on the reformation claim.

         A. The Trial Court Did Not Err in Finding that Curry and Little Were Not Remarried at Common Law

         ¶ 16 Curry contends that the trial court's determination that he and Little were not remarried at common law is erroneous in two respects. First, he contends that reversal is required because the trial court failed to apply the more lenient standard of proof applicable to common law remarriage, as set forth in In re Estate of Peterson, 148 Colo. 52, 365 P.2d 254 (1961). Second, he contends that the trial court's finding was erroneous because the elements of ...


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