18CA1728 Estate of Turnbough 11-10-2021
COLORADO COURT OF APPEALS
Court of Appeals No. 18CA1728
Arapahoe County District Court No. 17PR30322
Honorable Harold C. Hurst, Judge
In re the Estate of Roosevelt Turnbough, deceased.
Gladys Jones Turnbough,
Appellant,
v.
Jahlanece Hayes, as Personal Representative of the Estate of Roosevelt
Turnbough,
Appellee.
ORDER AFFIRMED
Division VII
Opinion by JUDGE FOX
Berger and Lipinsky, JJ., concur
Prior Opinion Announced January 16, 2020, Vacated in 20SC189
NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced November 10, 2021
Palmer Goertzel & Associates, P.C., Tamra A. Palmer, Greenwood Village,
Colorado; Law Office of Jennifer S. Gormley, Jennifer S. Gormley, Greenwood
Village, Colorado, for Appellant
John A. Berman, Denver, Colorado, for Appellee
1
¶ 1 Roosevelt Turnbough (Decedent) died without a will, and
Jahlanece Hayes — his daughter — and Gladys Jones Turnbough
vied to serve as his personal representative (PR). Gladys claimed,
and Jahlanece disputed, that she and Decedent were common law
married. Applying the test announced in People v. Lucero, 747 P.2d
660 (Colo. 1987), our prior opinion in this case concluded that the
magistrate did not misapply the law in examining whether the
couple had a mutual agreement to be married and a reputation in
the community as a married couple before concluding that Gladys
failed to prove a common law marriage. In re Estate of Turnbough,
(Colo. App. No. 18CA1728, Jan. 16, 2020) (not published pursuant
to C.A.R. 35(e)).
¶ 2 After our decision was announced, however, the Colorado
Supreme Court decided a trio of cases that refine the Lucero test for
The court then granted certiorari in this case, vacated the division’s
opinion, and remanded for reconsideration in light of those cases.
2
In re Estate of Turnbough, (Colo. No. 20SC189, Mar. 8, 2021)
(unpublished order).
¶ 3 Having reconsidered in light of the updated framework
announced in the Hogsett trilogy, we affirm the July 27, 2018, final
order finding no common law marriage. Before addressing the
common law marriage issue, we first reject Gladys’ arguments that
(1) the magistrate’s August 1, 2017, order and the district court’s
August 25, 2017, order are void because they lacked jurisdiction;
and (2) the magistrate erred by failing to provide her with sufficient
notice and to conduct a hearing before removing her as PR.
I. Background
¶ 4 The Decedent died on February 25, 2017, with no will. He was
survived by two children and two grandchildren.
¶ 5 Gladys filed an informal PR application on March 28, 2017,
listing herself as Decedent’s wife. She did not list Decedent’s
children or grandchildren. Her request was granted the following
month, and she was issued letters of administration.
¶ 6 In a separate, formal intestate proceeding, Jahlanece filed a
petition for formal PR appointment on March 30, 2017. Jahlanece’s
3
petition listed Decedent’s children, his grandchildren, and Gladys
(as Decedent’s “live-in girlfriend”). On April 12, 2017, Jahlanece
objected to Gladys’ informal PR appointment and sought to
consolidate the two probate matters.
¶ 7 Following a non-appearance hearing
1
in Jahlanece’s formal
appointment matter, the magistrate issued an April 21, 2017, order
terminating Gladys’ informal PR appointment (and associated
letters) and dismissing her informal proceeding.
2
Jahlanece was
then formally appointed PR by letters of administration.
¶ 8 In May 2017, Gladys filed a petition to vacate or modify the
magistrate’s formal appointment of Jahlanece, or for review of the
magistrate’s April 21 order pursuant to C.R.M. 7(a). After reviewing
Gladys’ petition, on August 1, 2017, the magistrate issued an order
1
C.R.P.P. 24 allows a district court to hold a non-appearance
hearing in “any appropriate matter,” where attendance “is not
required or expected” and “[a]ny interested person wishing to
object” may do so by filing “a specific written objection with the
court at or before the hearing[.]” C.R.P.P. 24 was amended in 2018,
and the comments added at that time advise that a non-appearance
hearing “is useful for matters required by statute to have a hearing
when a party appearance is not required or mandated.” C.R.P.P. 24
cmt. (1).
2
The magistrate found that Jahlanece’s motion to consolidate was
moot after the court dismissed Gladys’ probate action.
4
to set a hearing on the common law marriage issue. On August 25,
2017, the district court denied Gladys’ petition for review and
adopted the magistrate’s April 21 and August 1 orders.
¶ 9 After a March 2018 bench trial on the common law marriage
issue, on July 27, 2018, the magistrate issued an order finding that
Gladys and Decedent were not common law married.
II. Preservation and Standard of Review
¶ 10 Any challenge to the magistrate’s and the district court’s
jurisdiction is properly before us. See BDG Int’l, Inc. v. Bowers,
2013 COA 52, ¶ 9 (“A challenge to a court’s subject matter
jurisdiction is not waivable, and may be raised for the first time on
appeal.”).
¶ 11 Gladys preserved her non-jurisdictional claims for review
except her claim that she had insufficient notice of the non-
(“We do not consider arguments that were not raised in the district
court.”). Gladys’ petition for review of the magistrate’s April 21
order acknowledged that she received mailed notice of the non-
appearance hearing. See Lyons Sav. & Loan Ass’n v. Dire’s Lock &
5
Key Co., 885 P.2d 345, 348 (Colo. App. 1994) (“The doctrine of
judicial estoppel has been applied in Colorado to preclude a party,
as a matter of law, from adopting a legal position which conflicts
with an earlier position taken in the same or related litigation.”).
¶ 12 We review the magistrate’s and district court’s application of
law, including the probate code, de novo. In re Parental
(“Because this appeal turns on the interpretation of the Colorado
Rules for Magistrates and the Colorado Rules of Civil Procedure and
their application to orders entered by the magistrate and the district
1267 (Colo. App. 2008).
¶ 13 Statutory interpretation is also a question of law that we
task when construing a statute is to ascertain and give effect to the
as a whole, giving consistent and sensible effect to all its parts. Id.
In probate cases, we must construe the statutory provisions
“liberally to promote a speedy and efficient system for settling a
6
decedent’s estate, and making distribution to his or her successors,
while promoting uniformity in the administration of estates among
¶ 14 In reviewing the existence of a common law marriage, because
such determinations turn on “issues of fact and credibility,” we
review a magistrate’s factual findings for clear error and his
common law marriage determination for an abuse of discretion. In
re Estate of Yudkin, ¶ 16. A magistrate abuses his discretion when
his ruling is manifestly arbitrary, unreasonable, or unfair, or if it is
based on an erroneous view of the law. People v. Elmarr, 2015 CO
53, ¶ 20.
¶ 15 If the district court abused its discretion, we review for
harmless error. See C.R.C.P. 61 (“[N]o error or defect in any ruling
or order . . . is ground for granting a new trial or for setting aside a
verdict or for vacating, modifying or otherwise disturbing a
judgment or order, unless refusal to take such action appears to the
court inconsistent with substantial justice. The court at every stage
of the proceeding must disregard any error or defect in the
proceeding which does not affect the substantial rights of the
7
parties.”). Under C.R.C.P. 61 harmless error review, we disregard
errors or defects in the proceeding that do not affect the parties’
substantial rights. See In re Estate of Fritzler, 2017 COA 4, ¶ 7. “A
party’s substantial right is one that relates to the subject matter
and not to a matter of procedure or form.” Union Ins. Co. v.
Hottenstein, 83 P.3d 1196, 1199 (Colo. App. 2003). In other words,
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.” Stockdale
v. Ellsworth, 2017 CO 109, ¶ 32 (citation omitted).
III. Jurisdiction
¶ 16 Gladys first contends that the magistrate’s August 1 order is
void because, under C.R.M. (7)(a)(1), only the district court could
properly review the magistrate’s April 21 order. Because the district
court’s review was pending, she argues that the magistrate lacked
jurisdiction to review his April 21 order.
¶ 17 We agree that a magistrate cannot entertain a motion for
reconsideration and cannot alter his factual findings other than to
correct clerical errors. See C.R.M. 5(a) (“Except for correction of
8
clerical errors pursuant to C.R.C.P. 60(a), a magistrate has no
authority to consider a petition for rehearing.”); In re M.B.-M., 252
P.3d at 510 (“A magistrate may not entertain a motion for
reconsideration under C.R.C.P. 59 or for relief from a judgment
under C.R.C.P. 60.”). However, the magistrate’s August 1 order —
titled “Order to Set Hearing on Common Law Issues” — did not
modify his earlier April 21 order, but rather merely notified the
parties that he would proceed to address whether Gladys was
Decedent’s common law wife. See Scott v. Scott, 136 P.3d 892, 896
(Colo. 2006) (“The probate court is in a better position than the
appellate court to evaluate the status of a proceeding and to
determine whether a claim is ripe for review[.]”). Indeed, the August
1 order was consistent with the April 21 order terminating Gladys’
informal PR appointment and dismissing her informal intestacy
case. The April 21 order stated that “all matters regarding the
estate of Roosevelt Turnbough shall be addressed in this case.”
¶ 18 Further, it is unclear whether Gladys properly sought review of
the magistrate’s April 21 order in district court. Compare C.R.M.
6(e)(1)(A) (no consent is necessary when a probate magistrate
9
performs duties pursuant to C.R.P.P. 4), with C.R.M. 6(e)(2)(A)
(consent is necessary in probate cases ruling upon “all matters filed
pursuant to C.R.S. Title 15”).
3
If the magistrate’s April 21 order did
not require consent, then Gladys properly sought review of the
order in district court. See C.R.M. 7(a)(1). But, if the April 21 order
required consent, then Gladys should have appealed the
magistrate’s April 21 order to our court. See C.R.M. 7(b).
¶ 19 However, we need not decide whether the magistrate’s April 21
order required consent, and thus whether review by the district
court was proper, because the magistrate’s April 21 order was not
final. See C.R.M. 7(a)(3) (“Only a final order or judgment of a
magistrate is reviewable under this Rule. A final order or judgment
is that which fully resolves an issue or claim.”); see also Scott, 136
P.3d at 896 (“[T]he same rules of finality apply in probate cases as
3
Because the magistrate’s April 21, 2017, order was issued
following Jahlanece’s petition for formal PR appointment, it was
governed by section 15-12-414, C.R.S. 2021 (formal proceedings
concerning appointment of personal representative). The
magistrate’s April 21 order also granted Jahlanece’s proposed order,
which listed Decedent’s heirs. See C.R.P.P. 4(a)(12) (recognizing
that a court may delegate the authority to its clerk “to determine
heirship”).
10
in other civil cases; thus, an order of the probate court is final if it
ends the particular action in which it is entered and leaves nothing
further for the court pronouncing it to do in order to completely
determine the rights of the parties as to that proceeding.”); In re
Marriage of Roosa, 89 P.3d 524, 529 (Colo. App. 2004) (concluding
that district court review under C.R.M. 7(a) is only proper “when the
magistrate issues a final order,” where finality requires that “a
magistrate’s order must fully resolve the issues”).
¶ 20 While the April 21 order dismissed Gladys’ informal intestacy
case and formally appointed Jahlanece as PR, it left unresolved
whether Gladys was Decedent’s common law wife. See In re
Custody of Nugent, 955 P.2d 584, 588 (Colo. App. 1997) (“Since the
existence of a marriage is in dispute, the court must resolve that
issue after a hearing.”). Whether Gladys or Decedent’s daughter
had priority of appointment was likewise unresolved. See § 15-12-
203, C.R.S. 2021. Accordingly, the magistrate’s April 21 order was
not final. See Scott, 136 P.3d at 897 (recognizing that, while an
“initial petition outlines a set of claims and begins a proceeding,”
11
subsequent pleadings that “relate to that set of claims are part of
the same proceeding”).
¶ 21 Because (1) the magistrate’s April 21 order was not final and
(2) the magistrate’s August 1 order merely held that he would hold a
hearing on the common law marriage issue, any claimed error was
harmless. See C.R.C.P. 61. The magistrate properly held a hearing
on the common law marriage issue, and Gladys was able to present
evidence that she was Decedent’s common law wife. Thus, we
cannot conclude that any error in the magistrate’s August 1 order
affected Gladys’ substantial rights. See In re Estate of Fritzler, ¶ 7;
Hottenstein, 83 P.3d at 1199.
¶ 22 For similar reasons, we also reject Gladys’ contention that the
district court’s August 25, 2017, order — adopting the magistrate’s
April 21 order — is void because the court lacked jurisdiction.
Gladys argues on appeal that the district court’s order is void
because the court stated that the magistrate’s April 21 order “is not
a final order.” We agree that the magistrate’s April 21 order was not
final. Thus, the district court’s August 25 order was also non-final.
See C.R.M. 7(a)(3).
12
¶ 23 Further, the district court’s August 25 order also did not rule
on the common law marriage issue. Rather, it merely acknowledged
that the court could not review the issue because the magistrate
had “made no findings resolving any claims,” noting that the
“central unresolved question at this time is whether a common law
marriage existed between [Gladys] and Decedent.” Accordingly, any
asserted error by the district court was harmless. See C.R.C.P. 61;
IV. The Magistrate’s April 21 Order
¶ 24 Gladys next contends that, before the district court terminated
her informal PR appointment and formally appointed Jahlanece as
PR, it was first required to set a hearing and give her at least
fourteen days’ notice. See § 15-12-611(1), C.R.S. 2021 (“Removal
proceedings shall be governed by the provisions of section 15-10-
503.”). She relies on section 15-10-503(1), C.R.S. 2021, which
states that if a court “restrains, restricts, or suspends the powers of
a fiduciary, the court shall set a hearing and direct that notice be
given pursuant to section 15-10-505[, C.R.S. 2021].” Gladys also
contends that the magistrate was aware that Jahlanece’s
13
appointment was opposed; thus, she claims that the magistrate
erred by appointing Jahlanece as PR following a non-appearance
hearing. Instead, Gladys asserts that because it was a contested
matter, the magistrate should have provided her with notice of a
hearing pursuant to section 15-10-401(1), C.R.S. 2021 (“If notice of
a hearing on any petition is required, and except for specific notice
requirements as otherwise provided, the petitioner shall cause
notice of the time and place of hearing on any petition to be given to
any interested person[.]”). We disagree.
¶ 25 If Gladys claims that she had insufficient notice of the non-
appearance hearing, the record refutes that claim. Further,
because she disputes notice of the non-appearance hearing for the
first time of appeal, we will not address it. See McGihon, ¶ 10.
¶ 26 Gladys also takes issue with the non-appearance hearing
because she was not present, but she failed to object to Jahlanece’s
formal petition for PR appointment. See C.R.P.P. 24(c)(2) (“Any
interested person wishing to object to the requested action set forth
in the court filing attached to the notice must file a specific written
objection with the court at or before the hearing[.]”). Nor was the
14
fact that she was pro se at the time of the non-appearance hearing
sufficient reason to excuse her from C.R.P.P. 24’s requirements.
See Adams v. Sagee, 2017 COA 133, ¶ 10 (“[A]lthough courts
should liberally construe pro se parties’ pleadings, pro se parties
must comply with procedural rules to the same extent as parties
(Colo. App. 2008) (“The fact plaintiff is proceeding pro se and
therefore may not fully comprehend her legal obligations does not
relieve her of the responsibility of complying with them, or of the
consequences if she fails to do so.”).
¶ 27 Lastly, we reject Gladys’ argument that the magistrate should
have held a separate hearing in her informal proceeding in addition
to the non-appearance hearing held in Jahlanece’s formal
appointment matter. Gladys failed to object to Jahlanece’s petition,
and without an objection, we are aware of no Colorado law
supporting Gladys’ proposition that the court erred by holding a
non-appearance hearing rather than following the procedures for a
contested probate matter. See C.R.P.P. 24(c)(3) (“If no objection is
filed, the court may take action on the matter without further notice
15
or hearing.”); see also In re Estate of Decker, 194 Colo. 143, 145,
570 P.2d 832, 834 (1977) (“Where there is no hint of objection to
the probate of a will, the probate court is not obliged to invite
objections at such a hearing.”).
¶ 28 The magistrate properly held a non-appearance hearing, of
which Gladys had notice, as directed by statute. Section 15-12-
414, C.R.S. 2021, requires the court to “determine who is entitled to
appointment under section 15-12-203, make a proper appointment,
and, if appropriate, terminate any prior appointment found to have
been improper as provided in cases of removal under section 15-12-
611.” And section 15-12-611(1) gives a court “the power to remove
a personal representative for cause at any time,” consistent with the
provisions of section 15-10-503.
¶ 29 Gladys relies on section 15-10-503(1), governing emergency
fiduciary oversight, in arguing that the magistrate failed to give her
proper notice. However, section 15-10-503(1) is inapplicable here
because Jahlanece’s petition for PR appointment did not allege that
Gladys had breached her fiduciary duties to the estate. See Black v.
Black, 2018 COA 7, ¶ 23 (“Pursuant to section 15-10-503, C.R.S.
16
2017, the probate court has authority, either by petition or on its
own motion, to address alleged misconduct of a fiduciary.”).
Rather, Jahlanece sought PR appointment as an heir; thus, section
15-10-503(3), concerning the procedures for “removal of a
fiduciary,” was the applicable provision. This is made clear by
section 15-12-611(1), which directs us to section 15-10-503 for
“removal proceedings.” See Oldham, ¶¶ 9-10.
¶ 30 Nothing in the record suggests that the magistrate failed to
follow section 15-10-503(3)’s procedures, which provide that a court
“may remove a fiduciary for cause at any time,” where cause for
removal exists when it “would be in the best interests of the estate,”
or it “is shown that the fiduciary . . . intentionally misrepresented
material facts in the proceedings leading to the fiduciary’s
appointment.” Given that Gladys (1) did not list Decedent’s
children or grandchildren — despite acknowledging that she was
aware of them — within her informal PR petition and (2) did not
object to Jahlanece’s formal appointment petition, we cannot
conclude that the magistrate’s April 21 order terminating Gladys’
17
informal appointment and formally appointing Decedent’s daughter
violated section 15-12-414 or its related provisions.
¶ 31 Finally, even if the non-appearance hearing and the
magistrate’s April 21 order were in error, because the magistrate
held a hearing on the common law marriage issue — allowing
Gladys to present evidence — we cannot say “with fair assurance”
that the outcome would have been different. See Laura A. Newman,
LLC v. Roberts, 2016 CO 9, ¶ 24. Thus, any asserted error was
harmless.
V. Common Law Marriage
¶ 32 “[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.” Hogsett, ¶ 3. In the absence of evidence of an
express agreement, evidence of the parties’ mutual agreement or
consent to enter a marital relationship may be inferred from their
conduct. Id. Whether a common law marriage exists depends on
the totality of the circumstances, and no one factor is dispositive.
Yudkin, ¶ 3.
18
¶ 33 Relying heavily on a notarized affidavit of common law
marriage that Decedent and Gladys executed, Gladys contends that
the magistrate abused his discretion by finding that no common law
marriage existed. She asserts that the magistrate misapplied the
law by concluding that Gladys and Decedent could only be married
by applying for a marriage license, and she argues that the
magistrate relied on irrelevant facts, such as (1) Gladys and
Decedent did not have sexual relations; (2) they never had a
wedding ceremony; and (3) they failed to present the common law
marriage affidavit to others and waited to record it until eighteen
months after it was signed. We do not read the magistrate’s order
this way. While the magistrate considered whether there was a
marriage license, that factor was in no way dispositive and certainly
lacks relevance post-Hogsett. But as we detail below, there are
ample findings of fact in the record to support the conclusion that a
common law marriage was not proved. Thyssenkrupp Safway, Inc.
v. Hyland Hills Parks & Recreation Dist., 271 P.3d 587, 589 (Colo.
App. 2011) (appellate court may affirm a trial court’s ruling on any
grounds that are supported by the record); see also Board of Cnty.
19
Comm’rs v. Collard, 827 P.2d 546 (Colo. 1992) (deciding that a
collateral attack on a water decree was barred by the statute of
limitations where the limitations issue was raised below but was
not decided by the trial court).
¶ 34 Having considered the Hogsett trilogy, we apply the law to the
facts the magistrate found to conclude that the magistrate
appropriately considered the couple’s behavior to determine
whether they had (1) a mutual agreement to be married and (2) a
reputation in the community as husband and wife. See Hogsett,
¶ 49 (recognizing that a common law marriage may be established
by “mutual consent or agreement of the couple to enter the legal
and social institution of marriage, followed by conduct manifesting
that mutual agreement”). While it was undisputed that Gladys and
Decedent cohabitated, the essential mutual consent or agreement to
be married, followed by “conduct manifesting that mutual
agreement,” was hotly disputed. Id. The magistrate properly looked
to a variety of factors to determine whether such a mutual
agreement was shown. See id. (recognizing that “the manifestation
of the parties’ agreement to marry need not take a particular form”).
20
¶ 35 Specifically, the magistrate found that the weight of the
common law marriage affidavit was “severely diminished” because
there was no marriage license application, no wedding ceremony,
and no joint banking or credit accounts, and the couple’s 2015 tax
return was the first they filed jointly as married. Further, while the
affidavit listed December 25, 1997, as the effective date of the
common law marriage, the magistrate noted that Decedent was
unable to be married until the March 27, 2010, death of his former
wife. See Combs v. Tibbitts, 148 P.3d 430, 434 (Colo. App. 2006)
(“[N]o valid common law marriage arises where one party has [an]
undissolved existing marriage[.]” (citing People v. Maes, 43 Colo.
App. 365, 368, 609 P.2d 1105, 1108 (1979))).
¶ 36 Nor did the magistrate conclude that the couple’s lack of
sexual relations meant they did not cohabitate, as Gladys suggests
on appeal. See In re Estate of Little, 2018 COA 169, ¶ 19
(“Cohabitation in this context means ‘holding forth to the world by
the manner of daily life, by conduct, demeanor, and habits, that the
man and woman have agreed to take each other in marriage and to
stand in the mutual relation of husband and wife.’”) (citation
21
omitted). Rather, the magistrate merely noted that the couple never
had sexual relations, which was only one factor of many that he
considered. See Hogsett, ¶ 55 (recognizing that “cohabitation,
reputation in the community as spouses, maintenance of joint
banking and credit accounts, purchase and joint ownership of
property, filing of joint tax returns, and the use of one spouse’s
surname by the other or by children raised by the parties may still
be considered as evidence manifesting the couple’s intent to be
married”).
¶ 37 The magistrate also found persuasive Decedent’s “consistent[]
and public[]” denial of “any marriage,” evidenced by the fact that he
identified himself as a widower and Gladys as “an other” or “a
roommate” in his medical and business records. Id. at ¶ 56 (noting
that a court should consider “evidence of shared financial
responsibility, . . . emergency contact designations[,] . . . symbols of
commitment, . . . and the couple’s references to or labels for one
another”).
¶ 38 Finally, while Gladys presented testimony from her friends and
relatives that she and Decedent held themselves out as a married
22
couple, the magistrate found that Jahlanece’s witnesses “were more
credible” than Gladys’ witnesses, and we may not second-guess that
credibility determination. See In re Estate of Little, ¶ 17 (“We defer
to the court’s credibility determinations,” and “[w]hen the evidence
is conflicting, a reviewing court may not substitute its conclusions
for those of the trial court merely because there may be credible
evidence supporting a different result.”) (citations omitted); see also
In re Marriage of Farr, 228 P.3d 267, 270 (Colo. App. 2010) (holding
that it is the trial court’s province to determine the credibility of
witness testimony). We cannot conclude that the magistrate clearly
erred by finding Jahlanece’s witnesses more credible than Gladys’
witnesses, nor can we conclude that the magistrate abused his
discretion by ruling that no common law marriage existed based on
the record before us. See In re Estate of Yudkin, ¶ 16 (recognizing
that the determination of whether a common law marriage exists
“turns on issues of fact and credibility, which are properly within
the trial court’s discretion” (quoting Lucero, 747 P.2d at 665)).
23
VI. Conclusion
¶ 39 The magistrate’s July 27, 2018, order finding no common law
marriage is affirmed.
JUDGE BERGER and JUDGE LIPINSKY concur.