In re Marriage of Hogsett

          Arapahoe County District Court No. 16DR30820 Honorable Bonnie McLean, Judge

          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

          OPINION

          FREYRE, JUDGE

         ¶ 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.

         ¶ 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 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 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 ...