Shtutman v. Dareuskaya (In re Yudkin)

478 P.3d 732

IN RE the ESTATE OF Viacheslav YUDKIN, deceased.

Svetlana Shtutman, Petitioner,

v.Tatsiana Dareuskaya, Respondent.

Supreme Court Case No. 19SC234

Supreme Court of Colorado.

January 11, 2021

Attorneys for Petitioner: Law Office of Leonard R. Higdon, Leonard R. Higdon, Greenwood Village, Colorado

Attorneys for Respondent: Bell & Pollock, P.C., Bradley P. Pollock, Samuel A. Randles, Denver, Colorado

Attorneys for Amicus Curiae Colorado Legal Services: Maureen E. Terjak, Maeve Goodbody, Erin Harris, Casey Sherman, Rebecca S.S. Witte, Denver, Colorado

En Banc

JUSTICE MÁRQUEZ delivered the Opinion of the Court.

¶1 When Viacheslav Yudkin died intestate, his ex-wife, Petitioner Svetlana Shtutman, was appointed personal representative of his estate. Respondent Tatsiana Dareuskaya sought Shtutman's removal, asserting that she (Dareuskaya) should have had priority for that appointment as Yudkin's common law wife. A probate court magistrate found that although Yudkin and Dareuskaya cohabitated and held themselves out to their community as married, other factors weighed against a finding of common law marriage, including that the couple did not file joint tax returns, own joint property or accounts, or share a last name. The court of appeals reversed the magistrate's order, concluding that the magistrate abused his discretion by misapplying the test for a common law marriage set out in People v. Lucero , 747 P.2d 660 (Colo. 1987). Estate of Yudkin , 2019 COA 25, ¶ 18, 482 P.3d 448. Shtutman petitioned this court for certiorari review, which we granted.¹

¶2 Today, this court decides a trio of cases addressing common law marriage in Colorado. See In re Marriage of Hogsett & Neale , 2021 CO 1, 478 P.3d 713 ; In re Marriage of LaFleur & Pyfer , 2021 CO 3, 479 P.3d 869. In the lead case, Hogsett , we refine Colorado's common law marriage test to better reflect the social and legal changes that have taken place since Lucero was decided, acknowledging that many of the traditional indicia of marriage identified in Lucero are no longer exclusive to marital relationships, while at the same time, genuine marital relationships no longer necessarily bear Lucero's traditional markers. Hogsett , ¶¶ 2, 41–60.

¶3 Under the updated test, "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 agreement." Id. at ¶ 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 committed, intimate relationship of mutual support and mutual obligation." Id. While the factors we identified in Lucero can still be relevant to the inquiry, they must be assessed in context; the inferences to be drawn from the parties' conduct may vary depending on the circumstances. Id . As we make clear in this case, a common law marriage finding depends on the totality of the circumstances, and no single factor is dispositive.

¶4 Here, it is unclear from the record whether the magistrate found that Yudkin and Dareuskaya mutually agreed to enter into a marital relationship. Further, the magistrate's treatment of certain evidence—such as the fact that the parties maintained separate finances and property, and that Dareuskaya never took Yudkin's name—may have been appropriate under Lucero , but does not necessarily account for the legal and social changes to marriage acknowledged in Hogsett . Finally, under both Lucero and Hogsett , the court of appeals division erred to the extent it suggested that evidence of Yudkin and Dareuskaya's cohabitation and reputation in the community as spouses mandated the conclusion that they were common law married regardless of any other evidence to the contrary. See Yudkin , ¶ 11.

¶5 For these reasons, we vacate the judgment of the court of appeals and remand with instructions to return the case to the probate court to reconsider whether the parties entered into a common law marriage under the refined test we announce today in Hogsett .

I. Facts and Procedural History

¶6 Viacheslav Yudkin and Tatsiana Dareuskaya lived together in Yudkin's home for eight years, along with Dareuskaya's children from a prior relationship. Yudkin died suddenly and intestate. Svetlana Shtutman, Yudkin's ex-wife, sought appointment as the personal representative of his estate. Dareuskaya objected to the appointment and sought Shtutman's removal, asserting that she (Dareuskaya) was Yudkin's common law wife and should have had priority in appointment as personal representative of his estate under section 15-12-203(1)(b)–(e), C.R.S. (2020).

¶7 At a hearing before a magistrate to determine whether a common law marriage existed between Yudkin and Dareuskaya, Dareuskaya testified that over six years before his death, Yudkin presented her with a wedding ring and told her they could be husband and wife if she agreed; that she did agree; and that after that day she wore the ring and the couple held themselves out as married.

¶8 In addition to Dareuskaya's testimony, the magistrate considered testimony from Shtutman and many of Dareuskaya's and Yudkin's family members, friends, acquaintances, neighbors, and coworkers. Except for Yudkin's father and Shtutman, everyone stated that they thought Yudkin and Dareuskaya were spouses, and some said they were surprised by this litigation. Some testified that the pair wore what the witnesses assumed were wedding rings. In contrast, Yudkin's father testified he was unaware of any ring exchange between the two. The magistrate found most of the community members' testimony credible and was "convinced [Yudkin] and [Dareuskaya] agreed to and did hold themselves out to be married to the community of their non-family coworkers, friends and neighbors but family knew they were not ceremonially married."

¶9 The magistrate nevertheless concluded that other evidence weighed against a finding that a common law marriage existed. For example, although the couple paid bills jointly, they maintained accounts in separate names. There was no evidence that the couple had joint ownership of any vehicles, real estate, or credit accounts. A car insurance policy covered both Yudkin and Dareuskaya but also covered Yudkin's father.

¶10 Notably, the magistrate found "extremely relevant" and "g[ave] tremendous weight" to the fact that Yudkin and Dareuskaya had filed their state and federal taxes separately in every year of their purported common law marriage, despite the fact that the IRS permits common law spouses to file jointly. Dareuskaya testified that they did not file joint returns because she believed she could not represent to the government that she was married. Based on this and other testimony, the court indicated several times that it thought Dareuskaya lacked credibility.

¶11 Ultimately, the magistrate concluded that Dareuskaya had not proven a common law marriage under the factors set forth in this court's decision in Lucero . There, we 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. Recognizing that "in many cases express agreements [to be married] will not exist," id. at 664, we set out a non-exhaustive list of factors that trial courts can consider to infer the parties' agreement to be married; namely, "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. Applying these factors here, the magistrate concluded that Yudkin and Dareuskaya were not common law married:

[A]lthough [Yudkin] and [Dareuskaya] loved each other, agreed to and did cohabitate[ ] for at least 8 years and held themselves out to their co-workers, friends and neighbors as married[,] they were not at the time of [Yudkin's] death [c]ommon [l]aw [m]arried 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; [Dareuskaya] did not use [Yudkin's] surname; the children of [Dareuskaya and Yudkin] did not use the other['s] surname nor were any child(ren) born between [Dareuskaya and Yudkin] 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 [Dareuskaya and Yudkin] were still living together.

(Emphasis added.)

¶12 Dareuskaya appealed, arguing, as relevant here, that the magistrate erred in concluding a common law marriage did not exist despite finding that the couple cohabitated and had a reputation in the community as married.

¶13 The court of appeals agreed and held that the magistrate misapplied Lucero . Yudkin , ¶¶ 8–18. The division interpreted Lucero 's statement that "[t]he two factors that most clearly show an intention to be married are cohabitation and a general understanding or reputation ... that the parties hold themselves out as husband and wife," id. at ¶ 10 (emphasis omitted) (quoting Lucero , 747 P.2d at 665 ), to mean that where "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," and the court may not consider the parties' other conduct, id. at ¶ 11. The division reasoned that any other actions taken (or not taken) by the parties are legally irrelevant if those two essential factors are established, and that to conclude otherwise might dictate the existence of common law divorce, which Colorado does not recognize. Id. at ¶ 16 n.4.

¶14 Applying this interpretation of Lucero to the facts of this case, the...