23CA1378 Estate of Jays 07-18-2024
COLORADO COURT OF APPEALS
Court of Appeals No. 23CA1378
Archuleta County District Court No. 22PR18
Honorable Justin Patrick Fay, Judge
In the Matter of the Estate of Michael Scott Jays, deceased.
Steffan Lee Jays,
Appellee,
v.
Elizabeth Bishop,
Appellant.
ORDERS AFFIRMED
Division VII
Opinion by JUDGE TAUBMAN*
Tow and Kuhn, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced July 18, 2024
No Appearance for Appellee
Evans Legal Group, P.C., John M. Evans, Parker, Colorado, for Appellant
*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2023.
1
¶ 1 Elizabeth Bishop appeals the order of the district court
magistrate declining to recuse himself from the case and the court’s
ruling that Bishop was not common law married to the decedent.
We affirm.
I. Background
¶ 2 Bishop and the decedent were in a relationship for twenty-one
years. They cohabitated in the decedent’s house in Pagosa Springs
during his lifetime, and Bishop continued to reside there after his
death.
¶ 3 The decedent died intestate on July 21, 2022. In August, the
decedent’s son and only child, Steffan Lee Jays, requested and
received informal appointment as personal representative of the
estate.
A. The Eviction Case
¶ 4 Several months after his informal appointment, Jays filed a
complaint in forcible entry and detainer (the FED case) against
Bishop to evict her from the home in which she and decedent had
lived. Bishop defended on the grounds that she was the decedent’s
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common law wife and was thus entitled to live there.
1
Judge Justin
Fay presided over the FED case in his capacity as a part-time
county court judge and presided over the probate case that is the
subject of this appeal in his capacity as a part-time district court
magistrate.
¶ 5 On November 28, 2022, Judge Fay held a hearing and
determined that Bishop was not common law married to the
decedent. Judge Fay found that, in addition to being listed as
“divorced” on his death certificate, the decedent held bank accounts
in only his own name, filed his 2006 tax returns as a single person
and indicated his marital status as “other,” owned the Pagosa
Springs house individually, and indicated his relationship status as
“other” on medical documents. “The only evidence of common law
marriage other than cohabitation,” Judge Fay explained, “is . . . a
minute order in a case involving separate issues that referenced
[the decedent] and . . . Bishop as husband and wife.” Because
1
We take judicial notice of the filings in the related case, Archuleta
County Case No. 22C116. See Medina v. People, 2023 CO 46, ¶ 5
n.1, 535 P.3d 82, 84 n.1 (“A court may take judicial notice of the
contents of court records in a related proceeding.” (quoting People v.
Sa’ra, 117 P.3d 51, 56 (Colo. App. 2004))).
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Bishop had failed to establish that she and the decedent were
common law married, Judge Fay entered a judgment of possession
in favor of Jays.
B. This Case
¶ 6 About a week later, Bishop filed a petition for adjudication of
intestacy and formal appointment of personal representative,
contesting Jays’ prior informal appointment as personal
representative and claiming to be the decedent’s common law
spouse. At the same time, she moved for a restraining order to stay
the eviction in the FED case pending adjudication of her petition.
The court granted the restraining order.
¶ 7 On April 3, 2023, Jays moved to dismiss based on issue
preclusion. He contended that whether Bishop and the decedent
were common law married had been decided in the FED case. In
response, Bishop argued that issue preclusion did not apply
because the county court in the FED case lacked jurisdiction to
decide the issue of common law marriage. She also argued that the
cases did not involve the same parties because she was not a party
to the probate proceeding. The record indicates that the court
denied the motion to dismiss in a later oral ruling.
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¶ 8 In early June, the court ordered disclosure of “limited”
records, “as relevant to the issue of the existence of a common law
marriage” between Bishop and the decedent, from a prior
dependency and neglect case filed against Bishop’s daughter.
Bishop and the decedent had sought to intervene in that case and
obtain custody of Bishop’s grandchildren. The court specifically
ordered disclosure of the motion to intervene and responses but
“order[ed] the parties not to disclose such records except as
necessary to litigate the [common law marriage] issue in this case.”
The disclosed records contained the Archuleta County Department
of Human Services’ response to intervention, which stated “[i]t is
unknown whether [the decedent] is married to Elizabeth Bishop,” as
well as a 2019 arrest affidavit in which the decedent reported a
domestic violence incident allegedly committed by “his wife
Elizabeth Bishop” (the domestic violence case).
¶ 9 In a separate disclosure order issued the same day as the first
one, the court gave the parties the option of “fil[ing] any authority in
support of the disclosure of suppressed records, specifically the Pre-
Sentence [Investigation] Report in [the domestic violence case],
within 7 days” or, “[i]n the alternative,” permitting Bishop, “within
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her discretion, . . . [to] execute a release of information.” Bishop
chose to execute the release of information, which revealed that her
marital status had been listed as “divorced” in the domestic violence
case.
¶ 10 At or around the same time that information was released,
Bishop filed a motion seeking Judge Fay’s recusal. “Given the
nature of the issues at hand,” Bishop stated, “it is vital that every
decision made by the court is established upon an unbiased and
neutral foundation.” She argued that Judge Fay’s recusal was
“necessary” “[i]n order to maintain the confidence of all parties
involved,” “promote a fair and just hearing,” and “prevent any
perception of potential bias that might arise.”
¶ 11 After a hearing, Bishop moved for post-trial relief, alleging that
Judge Fay was biased against her and had incorrectly found no
common law marriage had existed between her and the decedent.
She contended that Judge Fay had presided over the domestic
violence case and, therefore, knew that Bishop had “mistakenly”
been listed as “divorced” in that case. She also alleged that Judge
Fay had advised Jays’ attorney to move for dismissal based on issue
preclusion at the February 7, 2023 setting conference.
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¶ 12 Jays responded that the admission of records from the
domestic violence case was “merely a question of judicial notice”
and that Judge Fay “did not advise” him to file a motion to dismiss
based on issue preclusion but, rather, “asked if one would be filed.”
Further, he noted that “Judge Fay denied the motion for issue
preclusion. Clearly a biased and prejudiced official would have
taken that opportunity to close out the case.” The court denied
Bishop’s post-trial motion, “find[ing] that the claims of an unfair
trial, newly discovered evidence, and required recusal are without
merit.”
¶ 13 The same day, the court also entered a written order denying
Bishop’s common law marriage claim. The court explained that it
had received testimony and other evidence and “found for the
reasons stated on the record that Elizabeth Bishop failed to
establish that she and [the decedent] intended to enter a marital
relationship, sharing a life together as spouses in a committed,
intimate relationship of mutual support and mutual obligation.”
¶ 14 On appeal, Bishop argues that Judge Fay erred by declining to
recuse himself and by concluding that she had failed to establish
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the existence of a common law marriage. We address each
contention in turn.
II. Recusal
¶ 15 Bishop contends that Judge Fay should have recused himself
because he (1) previously presided over the domestic violence case
involving Bishop and the decedent; (2) reviewed the post-sentencing
release information in the domestic violence case and, therefore,
knew it listed Bishop as divorced; and (3) advised Jays’ attorney to
raise issue preclusion, which he did. According to Bishop, these
actions reveal bias and constitute grounds for recusal. We
disagree.
¶ 16 In a civil case, we review a judge’s decision not to recuse for
abuse of discretion and review the sufficiency of a recusal motion de
novo. See Bocian v. Owners Ins. Co., 2020 COA 98, ¶ 12, 482 P.3d
502, 508; In re Marriage of Mann, 655 P.2d 814, 818 (Colo. 1982).
A judge abuses the judge’s discretion if the judge declines to recuse
in the face of a legally sufficient recusal motion. Bocian, ¶ 12, 482
P.3d at 509.
¶ 17 Recusal is appropriate when the motion and supporting
affidavits allege sufficient facts from which it may reasonably be
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inferred that the judge is or appears to be prejudiced or biased
against a party or attorney in the case. Id. at ¶ 13, 482 P.3d at 509;
see also C.R.C.P. 97. “Actual bias” exists if a judge has bias or
prejudice that will, in all probability, prevent the judge from dealing
fairly with a party. Bocian, ¶ 14, 482 P.3d at 509. Even if there is
no actual bias, a judge must grant a recusal motion if the judge’s
involvement with a case might create the appearance of
impropriety. Id.
¶ 18 Importantly, Bishop failed to include the relevant transcripts
in the record, even though it was her duty, as the appellant, to do
so or provide a statement of the evidence under C.A.R. 10(e). See
Till v. People, 196 Colo. 126, 127, 581 P.2d 299, 299 (1978) (“It is
the appellant’s duty to designate those portions of the record he
deems necessary for an appeal, and to see that the record is
transmitted.”); C.A.R. 10(d)(3) (“The appellant must include in the
record transcripts of all proceedings necessary for considering and
deciding the issues on appeal.”); Wolven v. Velez, 2024 COA 8, ¶ 53
n.6, 547 P.3d 423, 433 n.6 (the party asserting an error has an
obligation to present a record that discloses the asserted error).
The recusal motion was apparently heard at the hearing on June
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30, 2023, but that transcript is not included in the record. Nor is
the transcript of the setting conference where, according to Bishop,
Judge Fay “coached” Jays’ attorney to raise issue preclusion.
“Absent an adequate record, we presume the trial court’s findings
and conclusions are correct.” People v. Clendenin, 232 P.3d 210,
299; accord Hock v. N.Y. Life Ins. Co., 876 P.2d 1242, 1252 (Colo.
1994). Therefore, we presume that Judge Fay correctly declined to
recuse himself.
¶ 19 Additionally, Bishop’s recusal motion was legally insufficient
because it failed to include a supporting affidavit or allege any facts
in support of recusal. See C.R.C.P. 97 (recusal motion “shall be
supported by affidavit”); Bocian, ¶ 15, 482 P.3d at 509 (recusal
motion is insufficient if it “merely allege[s] opinions or conclusions,
unsubstantiated by facts supporting a reasonable inference of
actual or apparent bias or prejudice”). Although her post-trial
motion alleged facts in support of recusal, it too failed to include a
supporting affidavit and thus failed to cure the Rule 97 defect.
10
¶ 20 Therefore, given the absence of relevant transcripts and the
legal insufficiency of Bishop’s recusal motion, we affirm Judge Fay’s
decision not to recuse himself from this case.
III. Common Law Marriage
¶ 21 Additionally, Bishop contends that the trial court erred by
concluding that she and the decedent were not common law
married. According to Bishop, the court did not apply the correct
standard in accordance with Hogsett v. Neale, 2021 CO 1, 478 P.3d
713, In re Estate of Yudkin, 2021 CO 2, 478 P.3d 732, and LaFleur
v. Pyfer, 2021 CO 3, 479 P.3d 869.
¶ 22 We review a court’s common law marriage determination for
an abuse of discretion and its factual findings underlying that
determination for clear error. See LaFleur, ¶ 50, 479 P.3d at 883;
Estate of Yudkin, ¶ 16, 478 P.3d at 736.
¶ 23 As with the transcripts relevant to the recusal issue, Bishop
failed to include the transcript of the court’s common law marriage
hearing and ruling or provide a statement of the evidence, even
though she had a duty to do so. See Till, 196 Colo. at 127, 581
P.2d at299; C.A.R. 10(d)(3). Accordingly, we presume that the
court correctly concluded that Bishop and the decedent were not
11
¶ 24 However, the record includes a short written order
summarizing the court’s oral ruling, which reveals that the court
applied the correct legal standards in accordance with Hogsett,
Estate of Yudkin, and LaFleur.
¶ 25 Those cases instruct courts to “give weight to evidence
reflecting a couple’s express agreement to marry” and, “[i]n the
absence of such evidence,” infer the parties’ agreement from their
conduct. Hogsett, ¶ 49, 478 P.3d at 724; see Estate of Yudkin,
(same). Following that instruction and citing Hogsett, the court
here “found that the evidence failed to establish the couple’s
express agreement to marry, or an implied agreement to marry as
inferred from their conduct.”
¶ 26 Those cases further counsel that the existence of a common
law marriage “depends on the totality of the circumstances, and no
single factor is dispositive.” Hogsett, ¶ 4, 478 P.3d at 715; see
Estate of Yudkin, ¶ 19, 478 P.3d at 736 (same); see also LaFleur,
¶ 59, 479 P.3d at 885 (finding a common law marriage based on
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“the record as a whole and . . . the totality of the circumstances”).
Adhering to that standard and citing Estate of Yudkin, the trial
court explained that it “did not rely on any one factor, but
considered a totality of the circumstances in finding that a common
law marriage did not exist.”
¶ 27 Finally, under those three cases, the “key question” in
determining the existence of a common law marriage “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.” Hogsett,
¶ 49, 478 P.3d at 724; see Estate of Yudkin, ¶ 19, 478 P.3d at 736;
see also LaFleur, ¶ 39, 479 P.3d at 881 (“[T]he focus is on whether
the parties intended to enter into a relationship that is marital in
nature.”). Addressing this “key question,” Hogsett, ¶ 49, 478 P.3d at
724, the court “found for the reasons stated on the record that . . .
Bishop failed to establish that she and [the decedent] intended to
enter a marital relationship, sharing a life together as spouses in a
committed, intimate relationship of mutual support and mutual
obligation.” Thus, based on the record, we reject Bishop’s
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contention that the court did not apply the proper legal standards
under Hogsett, Estate of Yudkin, and LaFleur.
¶ 28 Because the record shows that the court applied the correct
legal standards and, absent the relevant transcripts, we presume
the court’s ruling on the merits was correct, we affirm the court’s
finding of no common law marriage between Bishop and the
decedent.
IV. Disposition
¶ 29 The orders are affirmed.
JUDGE TOW and JUDGE KUHN concur.
