of Yudkin

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
February 21, 2019

2019COA25

No. 17CA1996, Estate of Yudkin —Probate — Intestate
Succession; Family Law — Common Law Marriage

In this estate case, the division concludes that the district

court misapplied People v. Lucero, 747 P.2d 660 (Colo. 1987), when

in determining if the decedent and appellant were common law

married, it gave more weight to the fact that the parties filed

separate federal and state tax returns than to the facts that they

agreed to be married, cohabitated, and had a reputation in their

community as husband and wife. The division holds that under

Lucero, if there is an agreement to be married and the parties

cohabitate and have a reputation in the community as husband

and wife, the inquiry ends there; a common law marriage has been

established. Further, any actions taken (or not taken) by the
parties after those essential factors are established are legally

irrelevant.
COLORADO COURT OF APPEALS 2019COA25

Court of Appeals No. 17CA1996
Arapahoe County District Court No. 16PR30546
Honorable H. Clay Hurst, Magistrate

In re the Estate of Viacheslav Yudkin, deceased.

Tatsiana Dareuskaya,

Appellant,

v.

Svetlana Shtutman,

Appellee.

ORDER REVERSED AND CASE
REMANDED WITH DIRECTIONS

Division I
Opinion by JUDGE BERGER
Taubman and Tow, JJ., concur

Announced February 21, 2019

Bell & Pollock, P.C., Bradley P. Pollock, Denver, Colorado, for Appellant

Law Office of Leonard R. Higdon, Leonard R. Higdon, Greenwood Village,
Colorado, for Appellee
¶1 The decedent, Viacheslav Yudkin, died intestate. Appellant

Tatsiana Dareuskaya (putative wife) claimed that she was the

common law wife of the decedent and thus entitled to the

decedent’s property under the law of intestate succession. After an

evidentiary hearing, the magistrate, sitting in probate, found that,

even though the putative spouses agreed to be married; cohabitated

for eight years; and had a reputation in their community as a

married couple, no common law marriage existed because they did

not file joint tax returns and other indicia of a common law

marriage were absent. Because we conclude the magistrate

misapplied the controlling law set forth in People v. Lucero, 747

P.2d 660, 663 (Colo. 1987), we reverse his order, direct entry of a

decree of common law marriage, and remand for further

proceedings. 1

1 We have appellate jurisdiction because the parties consented to

the magistrate’s authority. “A magistrate’s order in a civil matter,
entered with the parties’ consent, is subject to the expedited
appellate procedure set forth in C.R.M. 7(b) and therefore may be
appealed directly to this court.” In re Marriage of Phelps, 74 P.3d
506, 508 (Colo. App. 2003).

1
I. Relevant Facts And Procedural History

¶2 Decedent died on March 25, 2016, without a will. At the time

of his death, he, putative wife, and her two children had been living

together for eight years. For the five years before his death, they

lived in a house in Aurora that was deeded to and titled in

decedent’s name. Although they maintained separate bank

accounts, both decedent and putative wife contributed financially to

the household — including mortgage payments on the house.

¶3 The couple did not jointly own any real property or vehicles,

but they purchased a single auto insurance policy that insured

both of them. Putative wife was also listed as an insured

spouse/domestic partner on decedent’s dental insurance plan.

They did not file joint federal or state tax returns; putative wife filed

as either “head of household” or “single,” depending on the year.

Neither putative wife nor her minor children took decedent’s

surname, but decedent introduced the children to others as his

own.

¶4 A few months after his death, decedent’s ex-wife, Svetlana

Shtutman (who is the mother of his only biological child), sought

informal appointment as the personal representative of his estate.

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No notice of this application was given to putative wife. After

Shtutman was appointed as personal representative, putative wife

objected, claiming that she was decedent’s common law wife and

therefore had priority as the personal representative of his estate.

The magistrate held a hearing on putative wife’s claims.

¶5 The magistrate heard testimony from fourteen witnesses,

twelve of whom testified that they understood that decedent and

putative wife were married. Most testified that they did not know

the two were not ceremonially married until they were asked to

testify at the hearing. The only witnesses who did not testify that

the couple were married were Shtutman and decedent’s father —

who testified that he did not pay attention to his son’s

relationships.

¶6 After the hearing, the magistrate made written findings of fact

and conclusions of law. He concluded that putative wife had not

met her burden to prove a common law marriage under the test set

forth in Lucero, 747 P.2d 660. The magistrate found the fact that

decedent and putative wife did not jointly file taxes to be the “most

convincing” evidence of the fact that they were not common law

married.

3
¶7 Putative wife appeals, arguing that the magistrate erred in (1)

concluding a common law marriage did not exist despite finding

that the couple cohabitated and had a reputation in the community

as married; (2) failing to find that putative wife had a pecuniary

interest in the Aurora property; 2 and (3) failing to find that decedent

wore a wedding ring. 3

II. The Magistrate Misapplied Lucero

¶8 Whether a common law marriage exists turns on issues of fact

and credibility. In re Custody of Nugent, 955 P.2d 584, 588 (Colo.

App. 1997). “Accordingly, we review the [magistrate’s] factual

findings for clear error and [his] common law marriage

determination based on those findings for an abuse of discretion.”

In re Marriage of Hogsett, 2018 COA 176, ¶ 15. “A [magistrate]

abuses [his] discretion where [his] ruling is ‘manifestly arbitrary,

2 Nothing in the record indicates that putative wife ever pleaded

that an equitable lien (or other interest) be impressed on any of the
decedent’s property. Therefore, we do not further address this
“claim” although we consider the circumstances surrounding the
house as part of the common law marriage inquiry.
3 To the extent putative wife presents this as a claim independent of

her common law marriage claim, we reject it for the same reason we
reject any claim to impress an interest on the marital residence.
See supra note 2. However, we consider it as relevant to the
common law marriage inquiry.

4
unreasonable, or unfair,’ or where it is based on an erroneous view

of the law.” People v. Elmarr, 2015 CO 53, ¶ 20 (citations omitted).

¶9 In Lucero, the supreme court held that “[a] common law

marriage is established by the mutual consent or agreement of the

parties to be husband and wife, followed by a mutual and open

assumption of a marital relationship.” 747 P.2d at 663. Because

an agreement to marry is not always explicit, the existence of an

agreement may be inferred from the parties’ conduct. Id. at 664.

But an agreement alone is not sufficient — it must be accompanied

by “conduct in a form of mutual public acknowledgment of the

marital relationship.” Id. at 663.

¶ 10 Most importantly for our purposes, the supreme court stated:

The two factors that most clearly show an
intention to be married are cohabitation and a
general understanding or reputation among
persons in the community in which the couple
lives that the parties hold themselves out as
husband and wife. Specific behavior that may
be considered includes maintenance of joint
banking and credit accounts; purchase and
joint ownership of property; the use of the
man’s surname by the woman; the use of the
man’s surname by children born to the parties;
and the filing of joint tax returns.

Id. at 665 (emphasis added) (citations omitted).

5
¶ 11 We understand Lucero to mean that if there is an agreement to

be married and the two essential factors — cohabitation and a

reputation in the community as husband and wife — are met, the

inquiry ends there; a common law marriage has been established.

When the two essential factors are not “clearly” established, a court

may consider “specific behavior” of the parties, such as the filing of

tax returns. But, if the essential factors are met, the inquiry ends.

¶ 12 Our interpretation is supported by the plain language of

Lucero. The supreme court described cohabitation and reputation

in the community as “[t]he two factors that most clearly show an

intention to be married.” Id. Joint bank accounts, joint property

ownership, and joint tax returns, however, are “specific behavior”

that the court may consider in reaching its ultimate conclusion. Id.

¶ 13 The magistrate specifically found that decedent and putative

wife agreed to be husband and wife. He also found that the two

essential factors — cohabitation and a reputation in the community

as husband and wife — were established. The evidence on those

points was overwhelming.

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¶ 14 Despite these dispositive findings made by the magistrate

under Lucero, the magistrate nevertheless held that there was no

common law marriage, explaining:

[T]he court is convinced that although Mr.
Yudkin and Tatsiana A. Dareuskaya loved
each other, agreed to and did cohabitated [sic]
for 8 years and held themselves out to their
co-workers, friends and neighbors as married
they were not at the time of Mr. Yudkin’s death
Common Law Married based specifically on the
facts that they did not maintain joint banking
or credit account(s); they did not purchase and
jointly own any vehicles or real property;
Tatsiana A. Dareuskaya did not use Mr.
Yudkin’s surname; the children of the Parties
did not use the other party’s surname nor were
any child(ren) born between the Parties to take
the surname; and most convincing is they
failed to file any joint Federal or State Tax
Returns during the 8 years they were living
together including for 2015 which was the last
full tax year the Parties were still living
together.

¶ 15 Once the magistrate determined, as he did, that decedent and

putative wife agreed to be married, cohabitated, and had a

reputation in their community as husband and wife, the inquiry

should have ended, and the magistrate was compelled to enter a

decree of common law marriage.

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¶ 16 As well, any actions taken (or not taken) by the parties not

bearing on the essential factors are, if the essential factors are

established, legally irrelevant. 4

¶ 17 Under the facts presented, the magistrate’s determination that

no common law marriage had been proven was an abuse of

discretion.

¶ 18 Because the magistrate found that all of the elements of

common law marriage required by Lucero existed, the magistrate

had no discretion other than to enter a decree of common law

marriage. We remand for the magistrate to do so.

III. Conclusion

¶ 19 The magistrate’s order rejecting putative wife’s claim of a

common law marriage is reversed. On remand the magistrate is

directed to enter a decree of common law marriage, and the case is

remanded for further proceedings in probate.

JUDGE TAUBMAN and JUDGE TOW concur

4 A contrary conclusion might dictate the existence of common law

divorce. However, Colorado does not recognize common law
divorce; the only method for dissolving a marriage, whether
ceremonial or common law, is through an action under the Uniform
Dissolution of Marriage Act, sections 14-10-101 to -133, C.R.S.
2018.

8