In re the Marriage of Edi L. Hogsett, Appellant, and Marcia E. Neale, Appellee.
Arapahoe County District Court No. 16DR30820 Honorable Bonnie
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
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
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 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," based on
pre-Obergefell conduct, but it ultimately concluded
that the parties' conduct did not evidence a common law
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 ...