In re Marriage of Lundin

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.

SUMMARY
May 7, 2026

2026 COA 35

No. 24CA0264, In re Marriage of Lundin — Family Law —
Common Law Marriage — Marital Relationship — Totality of
the Circumstances

In this common law marriage case, a division of the court of

appeals affirms the trial court’s judgment determining that a

common law marriage didn’t exist between putative spouses

notwithstanding that the parties had executed an affidavit — for the

purpose of obtaining health insurance benefits — averring that they

were common law married.

Applying Hogsett v. Neale, 2021 CO 1, and two companion

cases issued the same day, the trial court found, based on the

totality of the evidence before it, that the parties didn’t have the

mutual intent to be legally married when they signed the affidavit.

On appeal, putative wife contends that the trial court erred by
failing to treat the parties’ written agreement as dispositive of the

question of whether a common law marriage exists.

Concluding that the trial court’s factual findings are supported

by the record and that the court properly applied controlling law,

the division affirms.

The special concurrence raises concerns that, as applied to the

facts of this case, Hogsett’s nondispositive treatment of the putative

spouses’ representations concerning whether they were common

law married creates the risk of courts tolerating fraudulent or

fraud-adjacent conduct.
COLORADO COURT OF APPEALS 2026 COA 35

Court of Appeals No. 24CA0264
Garfield County District Court No. 22DR30105
Honorable John F. Neiley, Judge

In re the Marriage of

Rochelle Leigh Hitchcock,

Appellant,

and

Kurt Alfred Lundin,

Appellee.

JUDGMENT AFFIRMED

Division VI
Opinion by JUDGE WELLING
Kuhn, J., concurs
Schutz, J., specially concurs

Announced May 7, 2026

Law Office of Joel M Pratt, Joel M Pratt, Colorado Springs, Colorado, for
Appellant

Defiance Law Firm, Peter A. Rachesky, Lara Horst, Glenwood Springs,
Colorado, for Appellee
¶1 Rochelle Leigh Hitchcock appeals from the trial court’s

judgment determining that a common law marriage doesn’t exist

between her and Kurt Alfred Lundin. The trial court reached this

conclusion notwithstanding that the parties had executed an

affidavit — for the purpose of obtaining health insurance benefits —

averring that they had been common law married for a little more

than five years.

¶2 On appeal, Hitchcock contends that the trial court erred by

failing to treat the parties’ written agreement as dispositive of

whether a common law marriage exists. The trial court, however,

found — based on the totality of the evidence before it — that the

parties didn’t have the mutual intent to be legally married when

they signed the affidavit. It reached this conclusion by applying

Hogsett v. Neale, 2021 CO 1, and two companion cases issued the

same day.

¶3 Because we conclude that the court’s factual findings are

supported by the record and that the court properly applied

controlling law, we affirm.

1
I. Background

¶4 The parties lived together in Lundin’s residence starting in

2016. In October 2022, the parties separated, and Hitchcock filed

this action seeking the dissolution of an alleged common law

marriage. Lundin moved to dismiss the dissolution petition on the

grounds that the parties weren’t married.1

¶5 Central to Hitchcock’s contention that the parties are married

at common law is an “Affidavit of Common Law Marriage,” which

the parties executed in 2021. In the affidavit, the parties

represented that they held themselves out to the community as

husband and wife, had a reputation in the community as husband

and wife, and had lived together continuously as husband and wife

since September 16, 2016. The affidavit also stated that Lundin

and Hitchcock understood that in Colorado, a common law

1 This case is entirely about the existence or nonexistence of a

common law marriage. Neither party has ever contended that they
entered into a licensed marriage under the Uniform Marriage Act,
see §§ 14-2-101 to -113, C.R.S. 2025, and none of the analysis in
this opinion has any bearing on how a court should determine the
validity of a licensed marriage, see Hogsett v. Neale, 2021 CO 1,
¶ 31 & n.5 (recognizing that the common law marriage doctrine
holds common law marriages “to standards that some licensed
marriages might not meet if similarly scrutinized”).

2
marriage “is valid for all purposes, the same as a ceremonial or civil

marriage, and can only be terminated by death or divorce.”

¶6 Based on the affidavit, Hitchcock moved for summary

judgment as to the existence of a common law marriage. The trial

court denied the motion, concluding that, despite the affidavit,

there were unresolved questions of material fact bearing on whether

the parties were married.

¶7 After holding an evidentiary hearing on the existence of the

parties’ alleged common law marriage, the trial court issued a

written order finding that the parties aren’t married. While the trial

court considered the affidavit, it found that the parties didn’t have

the mutual intent to be legally married when they signed the

affidavit. This finding was based on testimony suggesting that the

affidavit was executed to obtain health insurance for Hitchcock’s

diabetic son, who at the time was mere days away from losing

health insurance coverage. The court also reasoned that multiple

other factors — such as the nature of the parties’ cohabitation,

their lack of a community reputation as spouses, and their lack of

joint financial accounts — weighed against finding the existence of

3
a common law marriage. Accordingly, the court dismissed

Hitchcock’s dissolution petition.

II. Common Law Marriage

¶8 Hitchcock contends that the trial court erred by concluding

that she and Lundin aren’t common law married. We aren’t

persuaded.

A. Relevant Law

¶9 A party claiming the existence of a common law marriage

bears the burden to prove it by a preponderance of the evidence.

See People v. Lucero, 747 P.2d 660, 664 n.6 (Colo. 1987) (noting

that a higher burden of proof isn’t required, but “more than vague

claims unsupported by competent evidence” must be presented),

abrogated on other grounds by, Hogsett, 2021 CO 1; see also § 13-

25-127(1), C.R.S. 2025 (burden of proof in any civil action shall be

by a preponderance of the evidence). “[A] common law marriage

may be established by the mutual consent or agreement of the

couple to enter the legal and social institution of marriage, followed

by conduct manifesting that mutual agreement.” Hogsett, ¶ 3.

“The core query is whether the parties intended to enter a marital

relationship — that is, to share a life together as spouses in a

4
committed, intimate relationship of mutual support and obligation.”

Id.

¶ 10 “In assessing whether a common law marriage has been

established, courts should accord weight to evidence reflecting a

couple’s express agreement to marry. In the absence of such

evidence, the parties’ agreement to enter a marital relationship may

be inferred from their conduct.” Id. In performing this analysis, the

court must consider all factors that might manifest the parties’

agreement, or lack of agreement, to be married. In re Estate of

Yudkin, 2021 CO 2, ¶ 18. Relevant factors include the parties’

cohabitation, reputation in the community as spouses,

maintenance of joint banking and credit accounts, purchase and

joint ownership of property, filing of joint tax returns, evidence of

shared financial responsibility, and evidence of joint estate

planning. Hogsett, ¶¶ 55-56. These factors must be assessed in

context, and the inferences to be drawn from the parties’ conduct

may vary depending on the circumstances. LaFleur v. Pyfer, 2021

CO 3, ¶ 53.

¶ 11 The existence of a common law marriage depends on the

totality of the circumstances, no single factor is dispositive. Yudkin,

5
¶¶ 18-19; see also Hogsett, ¶ 59 (noting that the significance of a

given factor will depend on the individual, the relationship, and the

broader circumstances, including cultural differences). Thus, the

determination of whether a common law marriage exists turns on

issues of fact and credibility, which are firmly within the trial

court’s province to adjudge. LaFleur, ¶ 50; see Hogsett, ¶ 50

(Whether a common law marriage exists calls for “a flexible inquiry

into the totality of the circumstances that relies on the factfinder’s

credibility determinations and weight of the evidence.”); In re

Marriage of Lewis, 66 P.3d 204, 207 (Colo. App. 2003) (recognizing

that the weight, probative force, and sufficiency of the evidence, as

well as the inferences and conclusions to be drawn therefrom, are

within the trial court’s sole discretion). To that end, “we review the

court’s factual findings for clear error and its common law marriage

finding for an abuse of discretion.” LaFleur, ¶ 50.

B. Discussion

¶ 12 Hitchcock argues that the trial court erroneously concluded

that the parties aren’t married because the court improperly

discounted the affidavit, which she contends was determinative of

the parties’ marital status. Therefore, according to Hitchcock, the

6
trial court didn’t need to consider any other evidence bearing on the

existence or nonexistence of a common law marriage because the

affidavit established that the parties were married as a matter of

law.2

¶ 13 We reject Hitchcock’s contention because she too narrowly

construes the requirements of a common law marriage.

¶ 14 To begin, we understand Hitchcock’s confusion, as the

requirements for establishing a common law marriage are

2 Hitchcock also argues that Lundin shouldn’t be allowed to reap

the benefits of a common law marriage (the extension of his
employer’s health insurance benefits to her son) without also
bearing the consequences of a common law marriage (termination of
the relationship only through divorce or death). This is essentially
an estoppel argument — that is, Lundin should be estopped from
maintaining a litigation position or presenting evidence that is
contrary to the affidavit he executed and benefited from. See People
in Interest of S.N-V., 300 P.3d 911, 913 (Colo. App. 2011) (“Estoppel
doctrines generally bar a party from asserting a claim or right that
contradicts what that party has said or done before . . . .”).
Hitchcock, however, didn’t make an estoppel argument below, so
the issue isn’t preserved for our review. See Hogsett, ¶ 69 n.11
(declining to consider an “estoppel by contract” argument because it
wasn’t properly preserved in the trial court). As a result, we offer no
opinion regarding whether invoking an estoppel doctrine before the
trial court should or could have produced a different result.

7
undoubtedly complex.3 In Hogsett, the court repeatedly emphasized

that the parties’ intent to enter into a marital relationship is the

principal question. Hogsett, ¶¶ 3, 49-50 (characterizing the mutual

consent and intention to marry as “[t]he core query,” “[t]he key

question,” and “the centrality” of the analysis). But the test

articulated in Hogsett doesn’t end there. A common law marriage

exists only if there was “mutual consent or agreement of the couple

to enter the legal and social institution of marriage, followed by

conduct manifesting that mutual agreement.” Id. at ¶ 3 (emphasis

added). Further, Hogsett unequivocally stated that “a mutual

agreement to marry does not alone suffice; there must be some

evidence of subsequent conduct manifesting that agreement.” Id. at

¶ 50 (emphasis added).

3 Concurring only in the judgment in Hogsett, then-Chief Justice

Boatright noted that the majority’s approach “only further
confuse[s] the already complex concept of common law marriage.”
Hogsett, ¶ 78 (Boatright, C.J., concurring in the judgment only).
On this point, Chief Justice Boatright disagreed with the majority’s
articulated legal framework, opining that consideration of the
factors for establishing a common law marriage should only be
employed “when there exists credible disagreement as to the parties’
intent.” Id. at ¶ 80. But this view didn’t garner a majority of the
court’s votes.

8
¶ 15 Based on this reading of Hogsett, we must agree with the trial

court that the affidavit alone couldn’t establish the existence of a

common law marriage because even though it evinces the parties’

agreement that they are married, there still must have been

subsequent conduct consistent with that agreement to marry.

Thus, faithfully applying Hogsett, we must reject Hitchcock’s

suggestion that the affidavit itself — which was executed more than

five years after the marriage was represented to have begun —

definitively constituted, as a matter of law, both the agreement and

the conduct manifesting that mutual agreement.

¶ 16 While Hitchcock points out that Hogsett also provided that

“[i]n the absence of [an express agreement], the parties’ agreement

to enter a marital relationship may be inferred from their conduct,”

id. at ¶ 49 (emphasis added), we don’t agree with Hitchcock’s

interpretation of that statement as a holding that an express

agreement alone is sufficient to establish a common law marriage.

Instead, we understand that statement to mean that conduct can

demonstrate an implied agreement to be married when there is no

express agreement. But still, a mutual agreement to enter into a

marital relationship, whether express or implied, is only one

9
element; the common law marriage inquiry still requires

subsequent conduct manifesting that mutual agreement. See id. at

¶ 50.

¶ 17 And Hitchcock hasn’t cited any legal authority holding that a

court must treat an express agreement to marry as the end of a

common law marriage inquiry. To the contrary, at least one

division of this court has reached the opposite conclusion. See

Whitenhill v. Kaiser Permanente, 940 P.2d 1129, 1130-32 (Colo.

App. 1997). In Whitenhill, the trial court had granted summary

judgment after determining the existence of a common law marriage

as a matter of law. Id. at 1132.

¶ 18 The division reversed, concluding that there was a genuine

issue of material fact as to the existence of a common law marriage,

even though the putative husband and wife had, in the course of

obtaining medical treatment, signed an affidavit representing that

they had lived together continuously as husband and wife and had

held themselves out to the community as such. Id. at 1130-32. In

reaching its conclusion that the affidavit didn’t establish the

existence of a common law marriage as a matter of law, the division

noted that “[a] common law marriage is established by the mutual

10
consent or agreement of the parties to be husband and wife,

followed by a mutual and open assumption of a marital

relationship.” Id. at 1132 (emphasis added). The division thus

reasoned that, notwithstanding the affidavit, the party advocating

for the existence of the marriage had “offered neither evidence of

cohabitation nor of a general understanding in the community that

the parties were husband and wife.” Id.

¶ 19 And we aren’t persuaded that Hogsett undermines the viability

of Whitenhill. While Whitenhill predates the supreme court’s

modernization of the common law marriage factors in Hogsett,

Hogsett didn’t, contrary to Hitchcock’s contentions, fundamentally

change the test for determining whether a common law marriage

exists. See Hogsett, ¶¶ 48-50 (modernizing the common law

marriage factors identified in Lucero, 747 P.2d at 664). Indeed,

Hogsett, ¶ 50, explained that its “refinement retains the core parts

of the Lucero test: the centrality of the couple’s mutual consent or

agreement to marry, the requirement of some manifestation of that

consent, and a flexible inquiry into the totality of the

circumstances.” Accordingly, Hogsett didn’t abrogate Whitenhill.

11
¶ 20 Here, the trial court gave weight to the affidavit, which the

court recognized “clearly states that the parties were married at

common law.” But in accordance with the requirement that there

must be subsequent conduct manifesting the parties’ mutual

agreement, the court also weighed the numerous other factors

bearing on the existence of a common law marriage and determined

that those factors weighed against the existence of a common law

marriage. See Hogsett, ¶¶ 55-56; Whitenhill, 940 P.2d at 1132. For

example, the court found that while the parties initially shared an

intimate relationship after moving in together in 2016, that

relationship soon became more akin to a relationship of roommates,

with the parties living in separate wings of the house. Similarly, the

court credited multiple witnesses who testified that they never

perceived the parties as married and that they believed the parties’

relationship was largely platonic. And the court found that the

parties didn’t own any joint property or bank accounts, maintained

only a single joint credit card at a home improvement store, never

engaged in any joint estate planning, and never filed joint tax

returns.

12
¶ 21 Hitchcock doesn’t argue that those findings lack record

support, and we conclude that the trial court acted within its

discretion by weighing those findings against the affidavit. See

Hogsett, ¶ 3.

¶ 22 We also reject Hitchcock’s assertion that the trial court

couldn’t consider the intent of the parties and the circumstances

surrounding the execution of the affidavit. Since the court was

required to assess whether the parties in fact intended to enter a

marital relationship by “shar[ing] a life together as spouses in a

committed, intimate relationship of mutual support and obligation,”

id., the parties’ intent in executing the affidavit was relevant to the

court’s determination of the exitance of a marriage. See also id. at

¶ 31 (“[T]he inquiry is fact-intensive and invasive and forces judges

to assess the degree to which a couple’s conduct conforms to a

marital ideal.”).

¶ 23 Here, the trial court found, with record support, that the

parties’ intent in executing the affidavit, which was contained on a

benefits form referencing the need to submit the document “to the

plan administrator within [thirty] days,” was to obtain health

insurance for Hitchcock’s soon-to-be uninsured child. Hitchcock

13
suggests the affidavit automatically resulted in a common law

marriage because the parties intended to obtain — and appear to

have actually obtained — a benefit of marriage in the form of health

insurance for her son. We disagree because the inquiry into a

common law marriage is broader than that: it requires a finding

that the parties intended to enter a marital relationship, which

entails sharing a life together as spouses in a committed and

intimate relationship.4 Id. at ¶ 3.

¶ 24 Therefore, we can’t say that the trial court abused its

discretion by considering, and then discounting, the affidavit based

on its finding that the parties intended to obtain health insurance

rather than enter into the multifaceted “legal and social institution

of marriage.” Id.

¶ 25 Lastly, we reject Hitchcock’s assertion that the trial court

erred because it considered the wrong timeframe when assessing

4 For the same reasons, we reject Hitchcock’s suggestion that

considering conduct other than the affidavit “sanctions fraud, or at
least fraud-adjacent behavior.” Even if fraud were involved in
signing the document, that conduct would be only one
consideration for the court. See Hogsett, ¶ 59. It wouldn’t make
the affidavit the sole source of the court’s determination or relieve
the court from applying the rest of the Hogsett test.

14
the various factors indicative of a common law marriage. It’s true

that “conduct inconsistent with marriage that occurs as a

relationship is breaking down does not negate a finding of common

law marriage where there is evidence of the parties’ earlier mutual

agreement to be married.” Id. at ¶ 57.

¶ 26 Here, however, the trial court assessed the parties’ conduct

following their commencement of cohabitation in 2016 and

following their execution of the affidavit in 2021, with the court

concluding that the conduct during both of those critical

timeframes didn’t support the existence of a common law marriage.

With respect to the 2016 timeframe, the court found, with record

support, that the parties’ romantic relationship briefly resumed

when Hitchcock moved in with Lundin sometime in 2016, but by

2017, the relationship had become platonic and remained that way

for the duration of their cohabitation. Notably, the court observed

that the parties’ already platonic relationship didn’t change in any

meaningful way following the execution of the affidavit in 2021.

And contrary to Hitchcock’s contentions, we don’t perceive any

undue focus by the trial court on the parties’ conduct at the time of

their separation. Therefore, we are satisfied that the trial court

15
properly focused on the parties’ conduct following their alleged

agreement to marry, regardless of whether that agreement occurred

in 2021, when they executed the affidavit, or in 2016, when they

began cohabiting and the affidavit states the marriage began.

III. Appellate Attorney Fees

¶ 27 Asserting that Hitchcock’s appeal is without substantial

justification and is otherwise frivolous, Lundin requests an award of

his attorney fees incurred on appeal. See § 13-17-102, C.R.S.

2025. We, however, don’t view Hitchcock’s appeal as in any way

frivolous. We therefore deny Lundin’s request.

IV. Disposition

¶ 28 The judgment is affirmed.

JUDGE KUHN concurs.

JUDGE SCHUTZ specially concurs.

16
JUDGE SCHUTZ, specially concurring.

¶ 29 Because it diligently adheres to the supreme court’s opinion in

Hogsett v. Neale, 2021 CO 1, ¶ 3, I concur with the result reached

by the majority. I write separately, however, to amplify some

uncertainty and discord that flows from the application of Hogsett’s

holdings to the facts of this case.

¶ 30 The central uncertainty arises from Lundin’s and Hitchcock’s

written representations that they were common law married in

order to receive a financial benefit reserved for those who are

married. The majority opinion does not treat the parties’ written

agreement that they were common law married as binding because

of its reliance on the supreme court’s holding in Hogsett that “a

mutual agreement to marry does not alone suffice; there must be

some evidence of subsequent conduct manifesting that agreement.”

Id. at ¶ 50 (citing People v. Lucero, 747 P.2d 660, 663 (Colo. 1987),

abrogated by, Hogsett, 2021 CO 1). From there, the majority

considers — like the trial court did— the additional Hogsett factors

that focus on whether the putative spouses subsequently engaged

in conduct manifesting their mutual intent to be married. All of

that is consistent with Hogsett’s holding. See id. at ¶ 3. But the

17
application of these principles to Lundin’s and Hitchcock’s written

representations raises significant concerns.

¶ 31 The parties’ specific representation appears below:

The Parties’ Sworn “Affidavit of Common Law Marriage

¶ 32 As illustrated, this was not a casual passing statement made

between intimate partners. Rather, it was a sworn “Affidavit of

18
Common Law Marriage” that the parties represented was “true and

completed to the best of [thei]r knowledge.” They swore to these

representations before a notary public. And in the affidavit, Lundin

and Hitchcock expressly represented, “We understand that a

common law marriage, in the State of Colorado, is valid for all

purposes, the same as a ceremonial or civil marriage, and can only

be terminated by death or divorce.” By all accounts, Lundin and

Hitchcock made this solemn representation to obtain a substantial

financial benefit — insurance coverage for Hitchcock’s son — that

they were not entitled to unless they were married.

¶ 33 Thus, the result we reach by applying Hogsett to the facts of

this case tolerates a situation in which both parties achieved a

financial benefit by making a sworn representation that at least

Lundin knew to be false, because — according to his testimony —

he did not intend to be married. The majority excuses what it

characterizes as potentially fraudulent conduct on the grounds that

“[e]ven if fraud were involved in signing the document, that conduct

would be only one consideration for the court.” Supra ¶ 23 n.4. To

support that conclusion, the majority again relies on Hogsett’s

statement that the parties’ stated intention in the affidavit is not

19
controlling, but rather is just one factor among many that the court

must consider when determining whether the parties intended to be

married. See supra ¶ 23 n.4. And indeed, Hogsett, ¶ 50, says,

“[A] mutual agreement to marry does not alone suffice; there must

be some evidence of subsequent conduct manifesting that

agreement.” (Emphasis added.)

¶ 34 But is the result in this case one that Hogsett actually

contemplated? Or a result that the law should tolerate? I’m not so

sure. The alleged common law marriage at issue in Hogsett did not

involve a written commitment to marry, much less an agreement as

detailed and specific as the affidavit here. Indeed, the trial court in

Hogsett found credible evidence that one of the putative spouses did

not believe she was married and the other putative spouse

acknowledged this belief. See id. at ¶ 81 (Boatright, C.J.,

concurring in the judgment only). As then-Chief Justice Boatright

noted, Hogsett presented a dispute where the putative spouses

agreed that they had no verbal or written agreement to be married.

Id. Nevertheless, the majority in Hogsett concluded that the

undisputed absence of an agreement to marry was not dispositive,

and it proceeded to expand the Lucero factors to ensure that the

20
additional judicial inquiries were made in a manner that

appreciated the complexities of modern committed relationships.

See id. at ¶ 83.

¶ 35 But the relationship between Lundin and Hitchcock requires

the court to answer a materially different question: is an evaluation

of the additional factors for assessing the existence of a common

law marriage necessary or appropriate when the parties swear in

writing that they are in a common law marriage? Perhaps the

answer to that question is, as we have concluded, “Yes.” But I am

uncertain that Hogsett contemplated the type of sworn

representation presented by this case.

¶ 36 In holding that the parties’ agreement about whether they

were common law married is not determinative, the court in

Hogsett, ¶ 50, cited Lucero. Lucero was a criminal case in which the

defendant attempted to assert the existence of a common law

marriage as a basis to invoke the marital privilege and prevent his

longtime partner — and the mother of his child — from testifying

against him. Lucero, 747 P.2d at 662.

¶ 37 Thus, the question of whether a common law marriage existed

was presented only in the context of an offer of proof made by

21
Lucero’s criminal defense counsel through testimony from Lucero’s

partner. As part of that offer of proof, Lucero’s partner testified that

“she considered herself married to Lucero, and that the two of them

held themselves out to friends as being married.” She also

affirmatively answered the question, “[D]o you know if [Lucero]

agreed with your analysis that the two of you were married?” Id.

(second alteration in original).

¶ 38 Based on this limited testimony, the trial court in Lucero found

“that there was insufficient proof of a marital relationship.” Id. It

was in that procedural and factual context that the supreme court

said the following:

We affirm today that such conduct in a form of
mutual public acknowledgment of the marital
relationship is not only important evidence of
the existence of mutual agreement but is
essential to the establishment of a common
law marriage. The reason for this requirement
is to guard against fraudulent claims of
common law marriage. As Professor Clark
suggests in his treatise on domestic relations,
“[a]dding the requirement of open marital
cohabitation gives assurance that some
objective evidence of the relationship will have
to be introduced in every case to establish that
the parties did consider themselves husband
and wife.”

22
Id. at 663-64 (quoting Homer H. Clark, Jr., Law of Domestic

Relations 48 (1968)). So Lucero supports the notion that one alleged

spouse’s conclusory testimony that the parties intended to be

married is not sufficient to prove a common law marriage. But it

explained that such a requirement is necessary to prevent

fraudulent assertions of a marital relationship.

¶ 39 In contrast to the conclusory evidence offered in Lucero, or the

absence of an agreement presented in Hogsett, Lundin’s and

Hitchcock’s affidavit was made in writing and delivered to third

parties to obtain a financial benefit. Permitting the benefit to flow

from such an affidavit — without enforcing its representation that a

common law marriage exists — could reward arguably fraudulent

conduct. That seems beyond, and perhaps inconsistent with,

Lucero’s purpose of preventing fraudulent conduct, id. at 664, and

the supreme court’s long-established abhorrence of enforcing

fraudulent agreements, see, e.g., Armstrong v. Gresham, 213 P. 114,

115-16 (Colo. 1923) (“An agreement to perpetrate a fraud on a third

person is illegal and void.”).

¶ 40 On the other hand, if the written unequivocal affidavit alone is

sufficient to establish a common law marriage, that could also

23
result in a fraudulent or unjust result for one of the putative

spouses. This case is illustrative of that point. If, as the trial court

concluded, Lundin never intended to be married, treating the sworn

statement as conclusive proof of a marriage would lead to a result

in which he would be bound by all the burdens of marriage when

that is not what he intended.

¶ 41 I suggest that clarification of how to apply Hogsett’s framework

in circumstances such as these is warranted because — as

previously explained — neither outcome is wholly palatable.

¶ 42 I acknowledge that the fraud issue was never presented to or

decided by the trial court. Therefore, I concur with the majority’s

decision not to reach the merits of the potential fraud.1 See id. But

I also note that the parties’ failure to raise the potential fraud issue

is predictable because if they had done so, they risked the trial

court making a finding that one or both of them had committed

1 The division’s decision to refrain from reaching the merits of the

fraud question also amplifies the need to emphasize that nothing in
the majority opinion or this special concurrence should be read to
conclude that either Lundin or Hitchcock actually engaged in
fraudulent conduct. Rather, my special concurrence addresses the
possibility that the majority’s holding and Hogsett’s holding could
be interpreted to tolerate such a result.

24
fraud. Thus, the invocation of party presentation principles,2

coupled with the parties’ inherent disincentive to raise the issue, is

likely to result in fraudulent — or at least fraud-adjacent —

agreements not being squarely challenged. If that is so, future

couples contemplating executing such agreements have little legal

disincentive to engage in such conduct.

¶ 43 Addressing the fraud-related issues would not only strengthen

the foundations of common law and statutory marriages, it would

also discourage fraudulent conduct. But I nonetheless share the

majority’s conclusion that the trial court did not err by finding that

Hitchcock failed to prove the existence of a common law marriage

under the Hogsett framework. Accordingly, I respectfully concur.

2 Party presentation principles are premised on the assumption that

the parties know what is best for them and are obligated to advance
the arguments that support their position, leaving courts in the role
of neutral arbiters of the issues raised. See Galvan v. People, 2020
CO 82 ¶ 45.

25