Spitz v. T.O. Haas Tire Co.

CONCLUSION
In these consolidated appeals, we conclude that the Strodes’
motions for rehearing before the full TERC were timely filed
by facsimile on March 28, 2011, thus tolling the time for fil-
ing petitions for review with the Court of Appeals until the
TERC ruled on the motions, which ruling occurred on March
30. The Strodes timely filed their petitions for judicial review
with the Court of Appeals on May 2, and the Court of Appeals
erred when it dismissed these appeals for lack of jurisdiction
as untimely filed. The TERC erred when it determined that the
motions for rehearing were filed out of time, and instead of
denying the motions as untimely, the TERC should have con-
sidered the motions for rehearing on their merits. On further
review, we reverse the Court of Appeals’ dismissal of these
appeals and remand these appeals to the Court of Appeals with
directions to reverse the TERC’s denial of the motions for
rehearing as untimely and to remand the causes to the TERC
with directions to the TERC to consider the merits of the
motions for rehearing.
R eveRsed and Remanded with diRections.
SpITz v. T.O. hAAS TIRE CO. 	811
Cite as 283 Neb. 811
chRisty spitz , as suRviving spouse of RogeR mccannon
and as next fRiend of danielle e. spitz-mccannon,
appellant, v. t.o. haas tiRe co., and its insuReR,
cincinnati casualty co., appellees.
815 N.W.2d 524
Filed May 4, 2012. 	No. S-11-620.
1. Workers’ Compensation: Appeal and Error. In determining whether to affirm,
modify, reverse, or set aside a judgment of the Workers’ Compensation Court
review panel, a higher appellate court reviews the trial judge’s findings of fact,
which will not be disturbed unless clearly wrong.
2. ____: ____. An appellate court independently reviews questions of law decided
by a lower court.
3. Marriage: Proof. In Nebraska, a couple cannot create a common-law marriage
by agreement or cohabitation and reputation.
Appeal from the Workers’ Compensation Court. Affirmed.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:43 AM CST

William J. Erickson and Lori A. zeilinger for appellant.
John W. Iliff, of Gross & Welch, p.C., L.L.O., for appellees.
heavican, 	c.J., 	connolly, 	stephan, 	mccoRmack , 	and
milleR-leRman, JJ.
connolly, J.
SUMMARY
We are asked to decide whether, under Colorado law, the
appellant, Christy Spitz, was the common-law wife of Roger
McCannon. McCannon died in an accident while working
for the appellee T.O. haas Tire Company (T.O. haas). Spitz
sought workers’ compensation death benefits. The trial judge
applied Colorado law and found that Spitz was not McCannon’s
common-law spouse. The review panel affirmed. Finding no
error of fact or law, we also affirm.
BACKGROUND
The parties stipulated that on July 15, 2006, McCannon died
in an accident arising out of and in the course of his employ-
ment with T.O. haas. On July 28, Spitz sent a demand letter
to T.O. haas’ insurer for indemnity payments to herself and
Danielle E. Spitz-McCannon (Danielle). Danielle is the daugh-
ter of Spitz and McCannon. T.O. haas’ insurer made indemnity
payments to Danielle.
In November 2006, the county court for perkins County
entered an order of intestacy, determining that McCannon’s
heirs were Danielle and “Christy Spitz(surviving spouse).” The
assets of McCannon’s estate included only the $40,000 in pro-
ceeds from his life insurance policy, which was payable to his
estate, and his vehicle, which was worth $5,000. The inventory
did not list any joint property.
evidence of spitz’ R elationship
with mccannon
McCannon moved into Spitz’ home in 1990 or 1991 while
they were attending a junior college in Colorado. Spitz stated
that because they had each been through a bad divorce, they
did not feel that “it was relevant to have a piece of paper saying
812 	283 NEBRASKA REpORTS

that [they] were married.” After her divorce, Spitz began using
her maiden name. Neither Spitz nor McCannon ever used the
other’s surname.
Danielle was born in 1991. Spitz also had two older daugh-
ters. In 1993, Spitz and McCannon lived apart for 7 to 8
months. Spitz also stated that they were separated for a period
in the last half of 1996. But an affidavit in the record suggests
that she meant that they were separated in the last half of 1995.
In 1998, McCannon gave Spitz a ring; the court found that this
was a wedding ring. In 1999, they moved to Nebraska.
Spitz and McCannon never used the same name in any con-
tracts or other writings. Spitz filed her income tax returns as
the head of a household, and from 1995 to 2005, Spitz listed
McCannon as a dependent on her returns. She and McCannon
never filed a joint return. An accountant testified that persons
claiming “head of household” status must maintain their home
for a dependent child for more than half the year and that
they then receive a more favorable tax treatment than persons
claiming a single status. But he said that a person cannot
claim “head of household” status if the person’s spouse was
a member of his or her household for the last 6 months of
the year.
Spitz also represented that she was a single person on deeds
of trust in Nebraska. She said that McCannon had bad credit
and that a real estate agent had advised them not to include
McCannon’s name. Spitz and McCannon never jointly pur-
chased real estate. They both owned vehicles while living in
Colorado that they separately titled in their own names.
Spitz never talked to McCannon about providing any type
of health insurance or life insurance benefits for her, nor did
they discuss how she would manage financially after his death.
Neither Spitz nor McCannon had wills. Spitz believed that
she was validly married in Colorado. She said that she did
not hold herself out as married after they moved to Nebraska
because she thought Nebraska did not recognize common-
law marriages.
One of Spitz’ older daughters testified that she lived with
Spitz and McCannon from the time she was 11 (in 1990)
until she was 15. She believed that Spitz and McCannon were
SpITz v. T.O. hAAS TIRE CO. 	813
Cite as 283 Neb. 811

common-law spouses because they had lived together for more
than 6 months. She stated that they acted like a married couple
and that her children had called McCannon “grandfather.” But
she could not recall that Spitz or McCannon ever addressed
themselves as husband and wife.
Danielle testified that Spitz and McCannon appeared to love
each other, acted together in rearing her, and regularly attended
school functions together. But she stated that she had no infor-
mation that would lead her to believe that Spitz and McCannon
were “in fact” married. A friend who had known Spitz and
McCannon from 1991 to 1999 also testified that they acted
like a married couple and made decisions together, including
parenting decisions and where to live.
tRial Judge’s oRdeR
The trial judge ruled that Danielle was entitled to benefits
and assessed attorney fees and a penalty for late payments
made to Danielle. But the judge dismissed Spitz’ claim that she
was McCannon’s surviving spouse. he concluded that he was
not bound by the county court’s intestacy order finding that
Spitz was McCannon’s surviving spouse. he found that Spitz
failed to meet her burden to prove that the marriage existed
by “‘clear, consistent, and convincing’” evidence. Citing a
Colorado case, People v. Lucero,1 the judge stated that under
Colorado law, this phrase means that “it is [Spitz’] burden to
present more than vague claims unsupported by competent evi-
dence.” The judge stated that living together and acting like a
married couple around friends was not enough and cited objec-
tive facts showing that Spitz and McCannon had held them-
selves out as single persons, not married persons.
R eview panel’s oRdeR
The review panel concluded that the trial judge had correctly
interpreted Colorado case law regarding Spitz’ burden of proof.
It rejected Spitz’ argument that Colorado law requires a trial
court to follow a burden-shifting scheme. It concluded that
“[e]ven if a shift in the burden of proof existed, the trier of fact
1 People v. Lucero, 747 p.2d 660 (Colo. 1987).
814 	283 NEBRASKA REpORTS

obviously credited, in large measure, the evidence generated by
the defendants.”
ASSIGNMENTS OF ERROR
Spitz assigns that the trial judge erred in (1) finding that
she was not McCannon’s surviving spouse, (2) requiring her to
prove the alleged marriage by clear and convincing evidence,
(3) finding that she had failed to present a prima facie claim of
marriage, (4) failing to find that a presumption or inference of
a valid marriage existed, and (5) failing to rule that T.O. haas
had the burden to disprove the existence of a marriage.
STANDARD OF REVIEW
[1,2] In determining whether to affirm, modify, reverse,
or set aside a judgment of the Workers’ Compensation Court
review panel, a higher appellate court reviews the trial judge’s
findings of fact, which will not be disturbed unless clearly
wrong.2 We independently review questions of law decided by
a lower court.3
ANALYSIS
[3] In Nebraska, a couple cannot create a common-law
marriage by agreement or cohabitation and reputation.4 So to
claim workers’ compensation benefits as a surviving spouse in
Nebraska, Spitz must show that she and McCannon had a valid
common-law marriage under Colorado law before 1999, when
they moved to Nebraska.5
We sum up Spitz’ assignments of error as follows: The trial
judge and review panel incorrectly interpreted and applied
Colorado law to these facts. She argues that the trial judge
misinterpreted the Colorado Supreme Court’s 1987 decision in
Lucero6 as requiring the proponent of a common-law marriage
2 See Lovelace v. City of Lincoln, ante p. 12, 809 N.W.2d 505 (2012).
3 See id.
4 See, Neb. Rev. Stat. § 42-104 (Reissue 2008); Randall v. Randall, 216
Neb. 541, 345 N.W.2d 319 (1984).
5 See, Neb. Rev. Stat. § 42-117 (Reissue 2008); Randall, supra note 4.
6 Lucero, supra note 1.
SpITz v. T.O. hAAS TIRE CO. 	815
Cite as 283 Neb. 811

to establish the marital relationship by clear and convincing
evidence. In addition, she argues that under Colorado law, a
presumption exists in favor of a finding of marriage. We dis-
agree with both contentions.
Lucero was a criminal case in which the defendant objected
to testimony from his alleged common-law wife under the
state’s marital testimonial privilege. The trial court found that
no marriage existed and admitted her testimony. The puta-
tive wife testified that she had lived with the defendant for 5
years and that they had a child together. She also testified that
(1) she considered herself married to the defendant, (2) the
defendant agreed that they were married, and (3) she and the
defendant had held themselves out to friends as being married.
The Colorado Court of Appeals reversed, finding that the court
should not have admitted the testimony. Based on the putative
wife’s testimony, the court found the existence of a common-
law marriage as a matter of law.
The Colorado Supreme Court reversed that conclusion.
It remanded for the trial court to provide further findings
and explanation under the standards that it set forth in the
opinion:
In the present case, the trial court was offered evidence
that, if believed, would have established the existence of
a common law marriage. . . . We disagree with the court
of appeals that the evidence established a common law
marriage as a matter of law. A determination of whether
a common law marriage exists turns on issues of fact and
credibility, which are properly within the trial court’s
discretion. . . . however, in ruling that no such marriage
existed, the trial court gave no indication of its reasoning,
and it did not make any finding that the testimony of [the
putative wife] was lacking in credibility. Since it is not
clear by what criteria the trial court evaluated the exis-
tence of the common law marriage, we now return this
case . . . for further findings in light of the standards we
have clarified today.7
7 Id. at 665.
816 	283 NEBRASKA REpORTS

The court explained that “[a] common law marriage is estab-
lished by mutual consent or agreement of the parties to be hus-
band and wife, followed by a mutual and open assumption of
a marital relationship.”8 The court further stated that although
some of its cases could be read otherwise,
we have almost uniformly required that such consent
or agreement be manifested by conduct that gives evi-
dence of the mutual understanding of the parties. . . .
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 agree-
ment but is essential to the establishment of a common
law marriage.9
The court provided the following examples of the type of
evidence that could establish a mutual understanding of the
parties that they had a marital relationship:
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 con-
sidered 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. . . . however, there is no single
form that such evidence must take. Rather, any form of
evidence that openly manifests the intention of the parties
that their relationship is that of husband and wife will
provide the requisite proof from which the existence of
their mutual understanding can be inferred.10
In addition, the Colorado Supreme Court specifically rejected
a presumption in favor of a common-law marriage:
8 Id. at 663.
9 Id. at 663-64.
10 Id. at 665 (emphasis supplied).
SpITz v. T.O. hAAS TIRE CO. 	817
Cite as 283 Neb. 811

The cases in this jurisdiction have used language sug-
gesting that an agreement “may be proven by, and pre-
sumed from, evidence of cohabitation as husband and
wife, and general repute,” . . . interchangeably with lan-
guage stating that “mutual consent may be inferred from
cohabitation and repute” . . . . In applying these standards
to particular facts, we have generally not treated evidence
of cohabitation and repute as creating a presumption of a
common law marriage. . . . Instead, sufficient evidence of
cohabitation and reputation may give rise to a permissible
inference of common law marriage.11
Spitz acknowledges this last statement from Lucero, but she
nonetheless relies on cases preceding Lucero or cases from
states other than Colorado to argue that a presumption applies
or that upon a prima facie showing of marriage, the burden of
proof shifts to the opponent.
This argument is without merit. The Lucero court intended
to resolve any inconsistencies in its earlier cases. So we decline
to consider any contrary decision preceding Lucero as author-
ity for a presumption of a common-law marriage. In addition,
the court clarified that a trial court is free to reject a claimant’s
testimony as not credible even if it is uncontested. So a pre-
sumption of a common-law marriage does not exist under
Colorado law.
Similarly, we reject Spitz’ argument that the trial judge
improperly enhanced her burden of proof. In a footnote, the
Lucero court stated that it did not intend its “‘clear, consistent
and convincing’” standard of proof “to establish a higher bur-
den of proof for those attempting to prove a common law mar-
riage, but instead merely stresses that the parties must present
more than vague claims unsupported by competent evidence.”12
The trial judge specifically cited this language. We read the
order as discussing the type of evidence that the claimant must
present, rather than the claimant’s burden of proof. having
eliminated these preliminary issues, we turn to Spitz’ claim that
11 Id. at 664 n.5 (emphasis in original).
12 Id. at 664 n.6.
818 	283 NEBRASKA REpORTS

the court erred in finding the evidence insufficient to show the
parties’ intent.
The evidence established that Spitz and McCannon cohabi-
tated for many years before his death. So Spitz’ appeal is
really about whether the other evidence showed their intent to
have a marital relationship. It is true that Spitz and McCannon
had a committed relationship and made decisions together for
Danielle. Affidavits and testimony showed that at least some
of their family members and friends believed that they had a
common-law marriage under Colorado law because they had
lived together for an extended period. But one of Spitz’ older
daughters could not recall that Spitz or McCannon had ever
addressed themselves as husband and wife. And no one, includ-
ing Danielle, testified or stated in an affidavit that Spitz or
McCannon had ever said that they were married.
The trial judge correctly determined that evidence show-
ing that a friend or family member had assumed that Spitz
and McCannon had a common-law marriage or believed that
they behaved like a married couple was insufficient to cre-
ate a common-law marriage under Lucero. The Lucero court
was concerned with evidence that manifests the parties’ intent
to have a marital relationship. If their intent could be shown
by other persons’ assumptions based solely on their cohabita-
tion or committed relationship, then a court could find that a
cohabitating couple was legally married even if the couple did
not intend to create a marital relationship. Similarly, evidence
that McCannon gave Spitz a wedding ring in 1998 cannot alone
show he intended to create a marriage. This evidence could
equally show that Spitz and McCannon were devoted to each
other but did not want the complications or obligations of a
marital relationship.
In contrast, the trial court found that the following facts
showed Spitz and McCannon did not intend to create a mari-
tal relationship:
• Spitz never held herself out to be Christy “McCannon.”
• In 2006, McCannon represented that he was single on his
W-4 form and his life insurance forms with his employer.
• Spitz and McCannon never filed joint tax returns.
• The parties titled their vehicles in their individual names.
SpITz v. T.O. hAAS TIRE CO. 	819
Cite as 283 Neb. 811

• Spitz presented no documents that showed she and McCannon
had signed them as husband and wife.
• In July 2003, Spitz and McCannon filed a “Subordinate
Deed of Trust,” in which they represented that they were
single persons.
• In October 2003, Spitz executed a “Deed of Reconveyance”
as a single person.
• From 2003 to 2005, Spitz represented in deed documents that
she was single, and the documents described the property as
Spitz’ sole property.
• Spitz’ tax returns for 1995 through 2005 show that she did not
represent herself as married: “In fact, by stating she was the
head of the household, the filing of [Spitz’] tax returns actu-
ally shows that [she] held herself out to be unmarried.”
• McCannon’s 	obituary 	identified 	Spitz 	as 	a 	“longtime
companion.”
We conclude that the court was not clearly wrong in find-
ing that the vast majority of objective evidence showed that
Spitz and McCannon did not intend to create a common-
law marriage and did not conduct their affairs as though
a common-law marriage existed. Under Colorado law, we
review the trial judge’s conclusion for abuse of discretion. We
find none here.
affiRmed.
wRight, J., not participating.
820 	283 NEBRASKA REpORTS