Estate of McClure

24CA0089 Estate of McClure 10-03-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA0089
Pueblo County District Court No. 23PR30096
Honorable Timothy O’Shea, Judge

In the Matter of the Estate of Jonna Kay McClure, deceased.

Joseph Anthony Lopez,

Appellant,

v.

Stephanie L. Moore,

Appellee.

ORDERS AFFIRMED

Division III
Opinion by JUDGE GOMEZ
Dunn and Navarro, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced October 3, 2024

William J. Ballas, Pueblo, Colorado, for Appellant

Charles D. Esquibel, Pueblo, Colorado, for Appellee
¶1 In this probate case, Joseph Anthony Lopez appeals the trial

court’s orders rejecting his claim that he was the common law

spouse of the decedent, Jonna Kay McClure, and appointing the

decedent’s sister, Stephanie L. Moore, as personal representative of

the estate. In addition to challenging the trial court’s rulings on the

claimed common law marriage and the appointment of a personal

representative, he also challenges the trial court’s admission of

evidence from the decedent’s former attorney during the

proceedings. We reject Lopez’s challenges and affirm the court’s

orders. However, we deny Moore’s request seeking appellate

attorney fees on the grounds that the appeal is frivolous.

I. Background

¶2 After McClure’s death in 2023, Moore petitioned the trial court

to find that McClure had died intestate and to determine her heirs.

Moore also nominated herself to serve as personal representative of

the estate. In response, Lopez asserted that he was McClure’s

common law spouse and asked that he be appointed as the

1
personal representative.1 The court scheduled a two-day hearing to

resolve the issues.

¶3 Before the hearing, Moore became aware of a “Cohabitation

Agreement” between McClure and Lopez that an attorney had

drafted for McClure before her death. That draft agreement —

which Lopez said he never received and apparently neither he nor

McClure ever executed — provided, in part:

Each of [u]s is an unmarried person. . . . We
are not married to each other or to anyone else
as of the date of this Agreement. If anyone has
ever received any impression by our conduct
that we were or are married, it was a
misunderstanding. Our cohabitation is an
unmarried cohabitation. No marriage between
us has existed or is intended to exist under
Colorado law or the laws of any other
jurisdiction. No future conduct of ours shall
be deemed to constitute holding our
relationship as a marriage.

1 McClure and Lopez met in 2008, while McClure was married to

John McClure. The McClures divorced in May 2009, and John
McClure later passed away. Shortly after the divorce, McClure and
Lopez began a romantic relationship, and, in August 2009, Lopez
moved in with McClure. They cohabitated from then until
McClure’s death about thirteen and a half years later.

2
The draft agreement went on to provide for the parties’ respective

property rights and financial obligations at that time as well as

upon the termination of their cohabitation.

¶4 Moore sought the disclosure of evidence regarding the

attorney’s representation of McClure, and later Moore sought the

admission of that evidence, arguing that it was relevant to whether

McClure believed she was married to Lopez. Lopez objected to both

the discovery and the later admission of that evidence, arguing that

it was protected by the attorney-client privilege. The trial court

overruled both objections, allowed the discovery, and admitted the

evidence at the hearing under the testamentary exception to the

attorney-client privilege.

¶5 During the two-day hearing, the court heard evidence from

both sides, including testimony from Lopez, testimony from several

people who knew McClure and Lopez throughout their relationship,

records of McClure’s and Lopez’s property ownership and tax

filings, and evidence regarding the draft Cohabitation Agreement.

¶6 The court later entered an order finding that the evidence

didn’t clearly establish that McClure and Lopez mutually agreed to

be in a marital relationship and, thus, that they were not common

3
law married. The court therefore determined that Moore had

priority to be appointed as personal representative. Two days later,

the court entered an order appointing Moore as personal

representative and determining McClure’s heirs (who did not

include Lopez). This appeal followed.

II. Common Law Marriage

¶7 Lopez contends that the trial court erred in finding that he and

McClure were not common law married. We disagree.

¶8 “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.” In re Estate of Yudkin, 2021 CO 2, ¶ 16

(quoting People v. Lucero, 747 P.2d 660, 665 (Colo. 1987)).

“Accordingly, we review the [court’s] factual findings for clear error

and [its] common law marriage finding for an abuse of discretion.”

Id. A factual finding is clearly erroneous if it has no support in the

record. Blakeland Drive Invs., LLP IV v. Taghavi, 2023 COA 30M,

¶ 28. And a court abuses its discretion if its decision is manifestly

arbitrary, unreasonable, or unfair or is based on an erroneous

understanding or application of the law. In re Marriage of

Badawiyeh, 2023 COA 4, ¶ 9.

4
¶9 In Hogsett v. Neale, the supreme court established an updated

test for determining whether a common law marriage exists:

[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. The key question is
whether the parties mutually 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.

2021 CO 1, ¶ 49. Where there is no evidence of an express

agreement to marry, the court may infer the existence of a marital

relationship from the parties’ conduct. Id. This involves “a flexible

inquiry into the totality of the circumstances that relies on the

factfinder’s credibility determinations and weighing of the evidence.”

Id. at ¶ 50. In particular, a court should consider such factors as

(1) “cohabitation”; (2) “reputation in the community as spouses”;

(3) “maintenance of joint banking and credit accounts”;

(4) “purchase and joint ownership of property”; (5) “filing of joint tax

returns”; (6) “use of one spouse’s surname by the other or by

children raised by the parties”; (7) “shared financial responsibility,

such as leases in both partners’ names, joint bills, or other payment

5
records”; (8) “joint estate planning, including wills, powers of

attorney, [and] beneficiary and emergency contact designations”;

(9) “symbols of commitment, such as ceremonies, anniversaries,

cards, [and] gifts”; (10) “the couple’s references to or labels for one

another”; and (11) “the parties’ sincerely held beliefs regarding the

institution of marriage.” Id. at ¶¶ 55-56.

¶ 10 The trial court applied this test to determine whether McClure

and Lopez were common law married. The court first found “no

evidence in the record reflecting that [McClure] and Lopez ever had

an express agreement to marry.” It then “turn[ed] to the couple’s

conduct to determine whether” a common law marriage existed.

¶ 11 In evaluating the couple’s conduct, the court assessed each

factor articulated by the supreme court in Hogsett and concluded

that several factors — cohabitation, maintenance of joint banking

and credit accounts, purchase and joint ownership of property,

shared financial responsibility, and beneficiary and emergency

contact designations — weighed in favor of a common law marriage

finding. On the other hand, the court concluded that several other

factors — reputation in the community as spouses, filing of joint tax

returns, use of one spouse’s surname, symbols of commitment, and

6
the couple’s references to or labels for one another — weighed

against a common law marriage finding, and that some of those

factors weighed “heavily” against such a finding. The court also

concluded that there was no evidence concerning the final factor —

the parties’ beliefs about the institution of marriage. After

assessing all of the factors, the court determined that the totality of

the circumstances did not indicate a manifestation of a mutual

agreement to be married.

¶ 12 On appeal, Lopez points to evidence that he claims supports

the existence of a common law marriage, particularly evidence that

he and McClure lived together for several years, had joint bank

accounts, jointly owned property, named each other as emergency

medical contacts, named each other as beneficiaries on insurance

policies, wore wedding rings, exchanged commitment symbols like

gifts and cards, and introduced each other as spouses. The court

discussed that evidence in its assessment of the Hogsett factors.

But the court came to different conclusions about whether it

demonstrated the existence of a common law marriage.

¶ 13 The trial court acknowledged that McClure and Lopez lived

together for about thirteen and a half years, that they had joint

7
banking and credit accounts and jointly owned property, and that

McClure named Lopez as the beneficiary on two life insurance

policies. These facts, the court concluded, weighed in favor of a

common law marriage. However, the court did not agree that

McClure and Lopez had a reputation in the community as spouses,

that they shared symbols of commitment, or that they referred to

each other as spouses.

¶ 14 As to the couple’s reputation in the community, the court

found that there were credible witnesses on either side that

“testif[ied] to the couple being reputed . . . as married or not

married.” Indeed, Lopez presented witnesses who said they

regarded the couple as married, while Moore presented other

witnesses who testified to the contrary. The court concluded that,

“in the totality of the circumstances,” the evidence regarding the

couple’s reputation was inconclusive and for that reason weighed

against a finding of a common law marriage.

¶ 15 As to shared symbols of commitment, the court remarked that

there was no evidence of a marriage ceremony, a celebration of

marriage, or any anniversary celebrations. The court discounted

Lopez’s evidence of gifts, noting that the jewelry box and preprinted

8
card referring to “My Husband” contained no identifying

information and that, while Lopez apparently gave McClure a locket

and a card referring to her as his wife, there was no evidence of any

gifts in which she’d referred to him as her husband. The court also

acknowledged Lopez’s evidence of a set of matching rings but

pointed to the absence of any “evidence . . . of a proposal,

announcement, act, occasion, or event that would indicate that

[they] were wedding or marriage rings as opposed to simply

matching rings for a couple.” And the court observed that photos of

McClure and Lopez showed a “happy” couple but not necessarily a

“married” one. Overall, the court found this factor to weigh heavily

against a common law marriage finding; it explained, quoting

Hogsett, ¶ 3, that it “place[d] great weight on the fact that there

[was] no reliable evidence of symbols of commitment demonstrating

a ‘mutual consent or agreement of the couple to enter the legal and

social institution of marriage’” despite their more than thirteen

years together.

¶ 16 And as to references to one another as spouses, the court

found the evidence “conflicting and unclear.” The court noted that

much of the evidence Lopez presented on this issue, aside from his

9
own testimony, was “inadmissible pursuant to the Dead Man’s

Statute and as hearsay.” (Lopez doesn’t challenge those evidentiary

rulings on appeal.) And the court found the admissible evidence

was conflicting: a few witnesses said they heard McClure, on some

occasions, refer to Lopez as her “husband,” and McClure apparently

referred to Lopez as a “spouse” or “husband” on some life insurance

applications, but another witness said she heard McClure refer to

Lopez as her “old man,” not her “husband,” and the court found it

meaningful that McClure had “repeatedly represented to the federal

government” in her tax returns “that she was not married, going so

far as to state that her spouse was ‘deceased.’”2 Because the

evidence on this factor was mixed, the court determined that it

weighed against a finding of a common law marriage.

¶ 17 Because the trial court applied the correct legal standard and

because its findings are reasonable and well supported by the

evidence, we discern no clear error or abuse of discretion in its

2 The trial court separately addressed the factor concerning joint tax

filings. It found that the fact that McClure and Lopez both filed
their taxes as head of household, which requires the filer to be
unmarried, on its own “weigh[ed] heavily against” a finding of a
common law marriage.

10
determination that McClure and Lopez were not common law

married. See Blakeland Drive Invs., ¶ 28; Marriage of Badawiyeh,

¶ 9. Indeed, where, as here, the evidence is conflicting, we “may not

substitute [our] conclusions for those of the trial court merely

because there may be credible evidence supporting a different

result.” Blakeland Drive Invs., ¶ 28 (quoting Lawry v. Palm, 192

P.3d 550, 558 (Colo. App. 2008)).

III. Attorney-Client Privilege

¶ 18 Lopez also contends that the trial court erred by allowing the

discovery and the admission of evidence concerning the draft

Cohabitation Agreement, as such evidence was protected by the

attorney-client privilege. We conclude that any error was harmless.

¶ 19 We review rulings on the discoverability and admissibility of

evidence for an abuse of discretion. Affinity Colo., LLC v. Kissinger

& Fellman, P.C., 2019 COA 147, ¶ 23; Hodge v. Matrix Grp., Inc.,

2022 COA 4, ¶ 12. This same standard also applies to decisions

regarding the attorney-client privilege. Affinity Colo., ¶ 23.

¶ 20 However, an error is not grounds for reversal if it is harmless.

In re Estate of Gonzalez, 2024 COA 63, ¶ 40. We will reverse a

judgment only if an error affected the parties’ substantial rights.

11
Id.; see also C.R.C.P. 61. “An error affects a substantial right only if

‘it can be said with fair assurance that the error substantially

influenced the outcome of the case or impaired the basic fairness of

the trial itself.’” Gonzalez, ¶ 40 (quoting Bly v. Story, 241 P.3d 529,

535 (Colo. 2010)).

¶ 21 The attorney-client privilege and Colorado Rule of Professional

Conduct 1.6 both ensure client-lawyer confidentiality. In re Estate

of Rabin, 2020 CO 77, ¶ 29. The protections of both provisions

survive the death of the client. Id.; see also Colo. RPC 1.9(c)(2) (“A

lawyer who has formerly represented a client in a matter . . . shall

not thereafter . . . reveal information relating to the representation

except as these Rules would permit or require . . . .”).

¶ 22 However, there are several exceptions to the application of

these provisions. Wesp v. Everson, 33 P.3d 191, 200 (Colo. 2001).

One of those is the testamentary exception, which “permits an

attorney who writes a will to testify, after the testator’s death, about

attorney-client communications related to the execution and

validity of the will.” Id. at 201. Courts have applied this exception

to allow attorneys to reveal otherwise privileged information that is

necessary for administering the testator’s estate, see Rabin, ¶ 42, or

12
that affects the validity of the testator’s will, see Denver Nat’l Bank

v. McLagan, 298 P.2d 386, 388 (Colo. 1956). In doing so, the courts

have reasoned that such disclosures serve “the exception’s purpose

of furthering the testator’s intent.” Wesp, 33 P.3d at 201.

¶ 23 The trial court applied this exception, concluding that the

draft Cohabitation Agreement functioned as a “quasi-testamentary

instrument” insofar as it purported to delineate the disposition of

McClure’s and Lopez’s joint and separate property. The court also

reasoned that applying the exception “would likely further

[McClure’s] testamentary intent.”

¶ 24 But to date, the published decisions addressing the

testamentary exception have applied it only in the context of

testamentary instruments, like wills. See, e.g., In re Estate of

Ashworth, 2024 CO 39, ¶¶ 14-15; Wesp, 33 P.3d at 200-01; Denver

Nat’l Bank, 298 P.2d at 388; In re Shapter’s Estate, 85 P. 688, 691

(Colo. 1905), superseded by statute, Ch. 251, sec. 1, 1907 Colo.

Sess. Laws 629. Thus, it’s not clear that the exception would apply

to instruments like the draft Cohabitation Agreement that don’t

establish the transfer of property rights upon death and thus aren’t

testamentary in nature — or at most are, as the trial court

13
described it, “quasi-testamentary” in nature. See generally § 15-10-

201(59), C.R.S. 2024 (defining a “will” to include certain

“testamentary instrument[s]”); Taylor v. Wilder, 165 P. 766, 767-68

(Colo. 1917) (explaining the difference between contracts that

transfer property rights during a party’s lifetime and testamentary

instruments that transfer such rights upon the party’s death).

¶ 25 But regardless of whether the court erred by allowing the

discovery and admission of evidence relating to the agreement, we

conclude that any such error was harmless because the court made

clear that it would’ve reached the same conclusion on the common

law marriage issue even without the evidence.

¶ 26 In its assessment of the common law marriage factors, the

court cited the challenged evidence only once. And in that one

instance, the court stated that “[e]ven if [it] did not consider

[McClure’s attorney’s] testimony and [the draft Cohabitation

Agreement], the record evidence of [McClure’s and Lopez’s]

references/labels for one another fails to support a finding that the

couple called each other husband and wife.”

¶ 27 It is clear, therefore, that any error in the court’s rulings on

the discoverability and admissibility of the challenged evidence

14
didn’t substantially influence the outcome of the case or impair the

basic fairness of the proceeding. See Gonzalez, ¶ 40; see also

People v. Thompson, 950 P.2d 608, 613 (Colo. App. 1997)

(concluding that any error in admitting privileged evidence was

harmless under the circumstances of the case).

IV. Appointment of the Personal Representative

¶ 28 Finally, Lopez contends that the trial court erred in appointing

Moore as personal representative of McClure’s estate because she

didn’t have priority for the appointment. We decline to consider

this issue, as Lopez didn’t preserve it for appeal.

¶ 29 In civil cases, we generally don’t address issues that weren’t

preserved for appeal. Madalena v. Zurich Am. Ins. Co., 2023 COA

32, ¶ 50. We don’t require “talismanic language” to preserve an

issue for appeal. Id. (quoting In re Estate of Owens, 2017 COA 53,

¶ 21). Instead, “[i]f a party ‘presented to the trial court the sum and

substance of the argument it . . . makes on appeal, we consider that

argument properly preserved.’” Id. (quoting Berra v. Springer &

Steinberg, P.C., 251 P.3d 567, 570 (Colo. App. 2010)).

¶ 30 Lopez argues that the trial court erred in selecting Moore, who

serves as guardian for McClure’s adult child, as the personal

15
representative. He suggests that the court instead should’ve

appointed the child’s conservator.

¶ 31 However, Lopez didn’t raise this argument at the trial level.

While Lopez, in his response to Moore’s petition, asked to be

appointed as the personal representative, he didn’t argue that

Moore should not be appointed because she didn’t have priority or

because someone else (other than him) should be appointed. Nor

did he make any such arguments after the court rejected his

common law marriage claim and indicated that, in his absence,

Moore had priority for appointment as the personal representative.

Thus, the issue is not preserved.

V. Attorney Fees

¶ 32 Lastly, we reject Moore’s contention that Lopez’s appeal is

frivolous and that she is therefore entitled to attorney fees under

C.A.R. 38(b) and section 13-17-102, C.R.S. 2024.

¶ 33 “An appeal may be either frivolous as filed or frivolous as

argued.” Calvert v. Mayberry, 2019 CO 23, ¶ 45. An appeal is

frivolous as filed if the judgment below was plainly correct and the

legal authority is clearly contrary to the appellant’s position, such

that “there are no legitimately appealable issues.” Id. And an

16
appeal is frivolous as argued if, even if there may be legitimately

appealable issues, the appellant doesn’t present “a coherent

assertion of error, supported by legal authority,” to support them.

Id. (quoting Castillo v. Koppes-Conway, 148 P.3d 289, 292 (Colo.

App. 2006)).

¶ 34 We conclude that, although Lopez’s arguments are ultimately

unsuccessful, his appeal is not frivolous. First, the appeal is not

frivolous as filed, as the issues were legitimately appealable,

particularly as to the trial court’s common law marriage and

attorney-client privilege determinations. And second, the appeal is

not frivolous as argued, as Lopez presented coherent arguments

supported by legal authority and citations to the record.

¶ 35 Accordingly, an award of attorney fees is not warranted.

VI. Disposition

¶ 36 The orders are affirmed.

JUDGE DUNN and JUDGE NAVARRO concur.

17