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            DISTRICT OF COLUMBIA COURT OF APPEALS

                                No. 17-FM-1394

                            BRIAN GILL, APPELLANT,

                                       V.

                      RODNEY VAN NOSTRAND, APPELLEE.

                        Appeal from the Superior Court
                         of the District of Columbia
                                DRB-1774-14
                        (Hon. Robert Okun, Trial Judge)
(Argued February 14, 2019                                Decided April 25, 2019)
      Aaron Marr Page, with whom Christopher J. Gowen was on the brief, for
appellant.

      Jack Maginnis for appellee.


      Before THOMPSON, EASTERLY, and MCLEESE, Associate Judges.


      THOMPSON, Associate Judge:            Plaintiff/appellant Brian Gill and

defendant/appellee Rodney Van Nostrand were in a romantic relationship and

cohabited for several years beginning in 2004. After their romantic relationship

waned, and a few months after Mr. Van Nostrand had a ceremonial wedding in

Brazil to another man he had met while on a lengthy work assignment in that
                                         2

country, Mr. Gill filed a complaint for legal separation from Mr. Van Nostrand,

alleging that the two men are parties in a common law marriage that began in

2004. 1 Mr. Gill also sought alimony and a distribution of marital property. Mr.

Van Nostrand denied that he and Mr. Gill had entered into a common law

marriage. The matter was tried in the Superior Court over several days in June and

July 2017. In its post-trial decision that we are asked to review, the trial court

recognized that same-sex common law marriages are lawful in the District of

Columbia and referred to its prior ruling in the case “that a party in a same-sex

relationship must be given the opportunity to prove a common law marriage, even

at a time when same-sex marriage was not legal . . . .” The court concluded,

however, that Mr. Gill had failed to prove by clear and convincing evidence the

existence of a common law marriage between him and Mr. Van Nostrand. The

court therefore dismissed Mr. Gill’s complaint.




      In this appeal, Mr. Gill does not take issue with the trial court’s description

of what he was required to prove in order to prevail on his claims: “that he and

[Mr. Van Nostrand] made a commitment to each other, in the present tense, that


      1
         Mr. Gill told the court that if it found that a common law marriage existed
between the parties, he would amend his complaint to seek divorce rather than
legal separation.
                                          3

was comparable to the commitment that parties make to each other in ceremonial

marriages.”     Mr. Gill asserts, however, that the trial court erred by

unconstitutionally “[r]equiring the parties’ . . . agreement and relationship to meet

expectations of form, custom, and marital consciousness drawn from the very

institution of traditionally-conceived marriage from which they were excluded”

before the Supreme Court’s decision in Obergefell v. Hodges. 2 Mr. Gill also

argues that the trial court’s assessment of the parties’ relationship “was affected by

prejudicial assumptions and expectations.” He further asserts that the trial court

“provided no room for the different forms that a ‘marriage’ agreement occurring in

the shadow of the institution might take . . . .” He characterizes the trial court’s

reasoning as “an insult to the seriousness of same-sex relationships,” and contends

that the trial court gave inadequate consideration to the parties’ “commitment,

intimacy, shared responsibility, and . . . vision of [the] permanence” of their

relationship.




      Because we are satisfied that the record does not support Mr. Gill’s

characterization of the trial court’s ruling, and because the evidence did not compel

the trial court to conclude that the parties made an express mutual commitment to

      2
          135 S. Ct. 2584, 2604–2605 (2015) (holding that “same-sex couples may
exercise the fundamental right to marry”).
                                         4

each other that was comparable to the commitment parties make to each other in a

ceremonial marriage, we affirm.




                                         I.




      In Obergefell, the Supreme Court held that same-sex couples may not be

deprived of the fundamental right to marry and that state laws that “exclude same-

sex couples from civil marriage on the same terms and conditions as opposite-sex

couples” violate the Due Process and Equal Protection Clauses of the Constitution

and are therefore invalid. 135 S. Ct. at 2602–03, 2604–05. This court similarly has

recognized that a law that would deny the right to marry to “individuals who are

partners to a same-sex rather than opposite-sex union . . . . would take away from

those individuals a civil right” and would “authorize discrimination on the basis of

sexual orientation” in violation of the District of Columbia Human Rights Act.

Jackson v. District of Columbia Bd. of Elections & Ethics, 999 A.2d 89, 118–119

(D.C. 2010) (en banc); see also D.C. Code § 46-401(a) (2012 Repl.) (providing,

effective March 3, 2010, that “[a]ny person may enter into a marriage in the

District of Columbia with another person, regardless of gender”).
                                         5

      “[T]he District of Columbia has long recognized common law marriages.”

Mesa v. United States, 875 A.2d 79, 83 (D.C. 2005) (internal quotation marks

omitted); see also Nat’l Union Fire Ins. Co. v. Britton, 187 F. Supp. 359, 363

(D.D.C. 1960) (stating that common-law marriages and ceremonial marriages “are

equally lawful, solemn, and binding”), aff’d, 289 F.2d 454 (D.C. Cir. 1961) (per

curiam). We now expressly recognize, as the trial court did and as Obergefell,

Jackson, and § 46-401(a) require, that a same-sex couple may enter into common-

law marriage in the District of Columbia and that this rule applies retroactively.

Thus, the trial court was correct in ruling that “a party in a same-sex relationship

must be given the opportunity to prove a common law marriage, even at a time

when same-sex marriage was not legal . . . .”




      As articulated in numerous pre-Obergefell decisions of this court, “[t]he

elements of common law marriage in this jurisdiction are cohabitation as husband

and wife, following an express mutual agreement, which must be in words of the

present tense.” Coleman v. United States, 948 A.2d 534, 544 (D.C. 2008) (internal

quotation marks); see also Coates v. Watts, 622 A.2d 25, 27 (D.C. 1993)

(“Although there is no set formula required for the [express mutual] agreement, the

exchange of words must inescapably and unambiguously imply that an agreement

was being entered into to become man and wife as of the time of the mutual
                                           6

consent.”) (internal quotation marks omitted).         Adhering to Obergefell and

Jackson, we now restate the elements of common law marriage as follows:

cohabitation following an express mutual agreement, which must be in words of

the present tense, to be permanent partners with the same degree of commitment as

the spouses in a ceremonial marriage. Echoing Coates, we declare that “[a]lthough

there is no set formula required for the [express mutual] agreement, the exchange

of words must inescapably and unambiguously imply that an agreement was being

entered into to become [permanent partners with the same degree of commitment

as the spouses in a ceremonial marriage] as of the time of the mutual consent.”3

Coates, 622 A.2d at 27 (internal quotation marks omitted). An agreement “to be

married at an unspecified future time . . . . is insufficient to establish the existence

of a common law marriage . . . .” Id.; see also Cerovic v. Stojkov, 134 A.3d 766,

776 (D.C. 2016) (“Being engaged, by itself, does not constitute a common law

marriage, but rather may signify an intention to marry.”).




      3
         We do not say “to be husband and husband” or “to be husbands” because
Mr. Gill asserts that he and Mr. Van Nostrand would not have used the term
“husband.” Mr. Gill also objects to any analysis that requires the parties to have
used the term “married,” because it was “a term . . . that didn’t exist in [their]
heads, as well as legally.”
                                         7

      “The best evidence of [the requisite present-tense express mutual] agreement

is the testimony of the parties.” United States Fid. & Guar. Co. v. Britton, 269 F.2d

249, 252 (D.C. Cir. 1959). In some circumstances, however, the existence of the

required mutual agreement “may be inferred from the character and duration of

cohabitation, or from other circumstantial evidence such as testimony by relatives

and acquaintances as to the general reputation regarding the parties’ relationship.”

Mesa, 875 A.2d at 83.




      Ordinarily, “a party alleging a common-law marriage need prove it only by a

preponderance of the evidence.” East v. East, 536 A.2d 1103, 1106 (D.C. 1988).

However, where there is a claim that a common-law marriage preceded a

ceremonial marriage between one of the parties to the putative common law

marriage and a third person, 4 the party asserting the common law marriage must

overcome the legal presumption that the more recent, ceremonial marriage is valid.

Id. at 1105. This presumption is “one of the strongest [presumptions] in the law,”


      4
           We recognize Mr. Van Nostrand’s ceremonial marriage in Brazil as a
matter of comity, i.e., “the recognition which one nation allows within its territory
to the legislative, executive, or judicial acts of another nation, having due regard
both to international duty and convenience, and to the rights of its own citizens, or
of other persons who are under the protection of its laws.” Cerovic, 134 A.3d at
782 (internal quotation marks omitted).
                                         8

id. (internal quotation marks omitted), and represents a “social policy in favor of

reaching a particular result in the close or doubtful cases.” Mayo v. Ford, 184

A.2d 38, 41 (D.C. 1962) (internal quotation marks omitted). The presumption of

the validity of a later-in-time ceremonial marriage can be rebutted only by “strong,

distinct, satisfactory, and conclusive evidence.”    Id. (internal quotation marks

omitted).   That is, “to overcome the presumption of the validity of [a] later

marriage[,] the proponent of the prior, common law marriage must prove its

existence by clear and convincing evidence.” Cerovic, 134 A.3d at 775 (internal

quotation marks omitted). “Clear and convincing evidence is evidence which will

produce in the mind of the trier of fact a firm belief or conviction as to the facts

sought to be established. . . .” In re Ta.L., 149 A.3d 1060, 1084 (D.C. 2016) (en

banc) (plurality opinion) (internal quotation marks omitted). In short, the party

seeking to prove the existence of a prior, non-dissolved common law marriage

where there has been a subsequent ceremonial marriage, bears a “heavy burden.”

Johnson v. Young, 372 A.2d 992, 994 (D.C. 1977).



      More generally (e.g., even when there is no subsequent ceremonial

marriage), we have said that “claims of common law marriage should be closely

scrutinized.” Cerovic, 134 A.3d at 776 (internal quotation marks omitted). This is

especially so if ceremonial marriage, which “provides unequivocal proof” that the
                                         9

parties are married, “is readily available.” Coates, 622 A.2d at 27; Bansda v.

Wheeler, 995 A.2d 189, 198 (2010) (“Since ceremonial marriage is readily

available and provides unequivocal proof that the parties are [spouses], claims of

common law marriage should be closely scrutinized . . . .”) (alteration and internal

quotation marks omitted). One sound reason for courts to be skeptical of claims of

common-law marriage is that “experience reveals that many who believe

themselves to be ‘common-law’ married have had one or more previous ‘common-

law’ relationships without the benefit of divorce.” McCoy v. District of Columbia,

256 A.2d 908, 910 (D.C. 1969).



      Nevertheless, because ceremonial marriage between same-sex couples was

not available in the District of Columbia prior to enactment of § 46-401(a) in 2010,

it arguably would be appropriate to apply the “close[] scrutin[y]” described above

only to a review of what transpired between the parties to a same-sex (putative)

common-law marriage after that enactment date. 5 And, somewhat conversely,

although Obergefell did not identify the applicable level of scrutiny when marriage


      5
          Cf. In re Estate of Carter, 159 A.3d 970, 978, 980 (Pa. Super. Ct. 2017)
(reasoning that “when assessing claims of common law marriage, context matters,
and general notions of hostility [to common-law marriage as a ‘fruitful source of
perjury and fraud’] need not always dictate the outcome” when a same-sex
relationship is involved).
                                          10

laws are applied to same-sex couples, it might be appropriate to apply a rigorous

review, “if not quite ‘strict scrutiny,’” 6 to any judicial analysis that impinges upon

or “substantially” 7 or “‘significantly interfere[s]’ with” 8 the ability of same-sex

partners to exercise the fundamental right to marry. 9 We shall assume arguendo

that serious constitutional issues would arise if the trial court’s analysis of

common-law marriage operated to the peculiar disadvantage of Mr. Gill and Mr.

Van Nostrand as a same-sex-couple, i.e., required them to meet expectations that

they as a same-sex couple could meet only with more difficulty than opposite-sex

couples would encounter. Such an approach is arguably warranted in order to

accord same-sex couples who have chosen to share their lives in a union

comparable to traditional marriage “the same respect and dignity accorded a union



      6
          Ezell v. City of Chicago, 651 F.3d 684, 708 (7th Cir. 2011); see also
Herrington v. United States, 6 A.3d 1237, 1242 n.17 (D.C. 2010) (stating that
impingement on a fundamental right “may mean that ‘strict scrutiny’ of any
substantial restriction is mandated”).
      7
          Smith v. Shalala, 5 F.3d 235, 239 (7th Cir. 1993).
      8
         Bostic v. Schaefer, 760 F.3d 352, 377 (4th Cir. 2014) (quoting Zablocki v.
Redhail, 434 U.S. 374, 386 (1978)).
      9
         Cf. Opinions of the Justices to the Senate, 802 N.E.2d 565, 577 n.3 (Mass.
2004) (separate opinion by Sosman, J.) (recognizing that “some provisions [of law]
may need substantial modification merely in order to make sense in their
application to same-sex couples”).
                                        11

traditionally designated as marriage.” Strauss v. Horton, 207 P.3d 48, 71 (Cal.

2009) (internal quotation marks omitted).




      We have said that whether there is a common law marriage is “largely a

factual determination,” Mesa, 875 A.2d at 83 (emphasis added), meaning that it is

a mixed question of fact and law. Compare East, 536 A.2d at 1106 (“The trial

court found that there was a present verbal agreement to be married on October 31,

1977. In the ‘Findings of Fact’ section of its order, the court recited the

contradictory evidence concerning that agreement, and in its ‘Conclusions of Law’

the court resolved this conflict in favor of Margaret East. Although this resolution

appears in the ‘Conclusions of Law’ section of the order, it is really a finding of

fact.”), with Gardner v. Gardner, 233 F.2d 23, 25 n.3 (D.C. Cir. 1956) (referring to

the finding that “no common law marriage exists” between the parties as “perhaps

more accurately [a] conclusion[] of law”), and Renshaw v. Heckler, 787 F.2d 50,

54 (2d Cir. 1986) (“[T]he question as to whether a person has been legally married

to another is a mixed question of law and fact for the purpose of review . . . .”).

The trial court’s resolution of conflicting factual evidence must be affirmed unless

“it is plainly wrong or without evidence to support it.” East, 536 A.2d at 1106.

But “[w]hether evidence meets the clear-and-convincing standard is a question of
                                         12

law that we review de novo.” Lewis v. Estate of Lewis, 193 A.3d 139, 144 (D.C.

2018); see also Hipps v. Cabrera, 170 A.3d 199, 205 n.7 (D.C. 2017). 10




                                       II.




      In its order that is before us for review, the trial court summarized each

party’s account of what happened “in or about” June 2004, when, as the complaint

alleges, Mr. Gill proposed to Mr. Van Nostrand. According to Mr. Gill, that is

when the parties made their express, mutual commitment that ripened or

transformed their relationship into a common-law marriage.            As the court

recounted, Mr. Gill testified that he decided to surprise Mr. Van Nostrand by

purchasing two rings and presenting them to Mr. Van Nostrand along with M&M

candies inscribed with “Will you marry me?” Mr. Gill then got down on one knee

and asked Mr. Van Nostrand if he would marry him. According to Mr. Gill, Mr.

      10
           Mr. Gill suggests in his reply brief that a preponderance-of-the-evidence
standard, rather than the clear-and-convincing standard, should apply in this case
because, inter alia, Mr. Van Nostrand “chose to go through with [the subsequent
ceremonial marriage] after having been put on notice of [Mr. Gill’s] claim of
[common law marriage] . . . .” By making this argument only in his reply brief,
Mr. Gill did not properly preserve it for review, and we therefore do not address it.
See Aeon Fin., LLC v. District of Columbia, 84 A.3d 522, 530 (D.C. 2014) (“It is
the longstanding policy of this court not to consider arguments raised for the first
time in a reply brief.”) (brackets and internal quotation marks omitted).
                                          13

Van Nostrand said “yes,” and Mr. Gill placed one of the rings on the ring finger of

Mr. Nostrand’s left hand. For his part, Mr. Van Nostrand denied Mr. Gill’s

account of a down-on-one-knee proposal. Mr. Van Nostrand explained that soon

after the parties started living together, he learned to his displeasure that Mr. Gill

was having sexual relations with another man. The couple then agreed “after much

discussion” to have a monogamous relationship and went ring shopping in May

2004 (but did not purchase rings). According to Mr. Van Nostrand, Mr. Gill later

bought rings and presented them along with the inscribed M&Ms, but told Mr. Van

Nostrand that the two should wear the rings to show that they were in a

monogamous relationship, and that, when they decided to get married at some

point in the future, they each would inscribe and exchange the rings. 11 There is no

dispute that the two men wore the rings from that point on, “with occasional

interruptions during difficult times in the relationship, until some point in 2013.”


      11
            Mr. Gill complains that the trial court “rush[ed] to embrace” Mr. Van
Nostrand’s story about a proposed future ring exchange as necessary to consecrate
the parties’ marriage because Mr. Nostrand’s account “corresponds somewhat
more closely with traditional forms, customs, and conceptions of marriage.” Mr.
Gill asserts that the court did so even though Mr. Van Nostrand’s story was not
corroborated and was “contradicted” by friend and witness Troy Liston. We do
not perceive from the record that the court “rush[ed]” to credit Mr. Van Nostrand’s
testimony, but we do note that Mr. Gill invites us to draw conclusions from the
traditional customs of marriage. He argues that treating what occurred in June
2004 as merely a marriage proposal “is inconsistent with the involvement of two
gold bands rather than one engagement ring . . . .”
                                        14




      The trial court said that it would assume arguendo that Mr. Van Nostrand

said “yes” to Mr. Gill’s proposal even though it could not find that this was proven

clearly and convincingly. The court then listed a number of findings, addressed

more fully in the court’s “Conclusions of Law,” that were pertinent to the court’s

main inquiry: whether, as Mr. Gill claimed, “the parties entered into an express

mutual agreement to be married as on the date when [Mr. Gill] gave [Mr. Van

Nostrand] a ring and proposed to him” or “subsequently enter[ed] into an express

mutual [present-tense] agreement to be married.”12 The court found that the parties

did not do so at either time.




      The trial court listed several reasons for its conclusions. Below, we describe

the court’s reasoning and pause after each reason to consider whether, as Mr. Gill

claims, the court’s reasoning “requir[ed] the parties’ . . . agreement and

relationship to meet expectations of form, custom, and marital consciousness

drawn from the very institution of traditionally-conceived marriage from which

they were excluded” and was “affected by prejudicial assumptions and

expectations.”
      12
          Mr. Gill acknowledged in the trial court that “[t]he ‘present tense’
requirement remains . . . .”
                                            15




       The first reason the court cited is that “neither party even remembered the

date” in 2004 when, according to Mr. Gill, they married. The court described Mr.

Gill’s testimony on this point as “exceptionally vague.” “At times, [Mr. Gill] said

he did not remember the date of the marriage, at other times he said the marriage

occurred in June 2004, and at other points, he said the marriage occurred in the

summer of 2004” or “in ‘2004, I believe.’” By contrast, the trial court noted, Mr.

Gill remembered the date of the couples’ first date and the date when the couple

first met and had sexual relations. The court reasoned that “the date on which

parties agree to be married surely would be at least as memorable [as], if not more

memorable . . . than[,] the date on which” the parties first had sexual relations “or

first had a ‘real date’ at a restaurant.”




       Mr. Gill criticizes the court’s “overreliance” on his failure to remember the

precise date. He further asserts that it was prejudicial for the court to require from

him a better memory of the date when — unlike opposite-sex couples who

“encountered [their marriage] date 10,000 times while booking reservations,

preparing invitations, and the like” — ceremonial marriage was foreclosed to him

and Mr. Van Nostrand in 2004. We are not persuaded that the court’s reliance on
                                         16

this factor was unfairly prejudicial or required the parties to meet expectations of

traditional marriage that they, as a same-sex couple, could meet only with

difficulty. The date Mr. Gill identifies as the date when the parties’ common law

marriage began was also, at the very least, the date of Mr. Gill’s proposal to Mr.

Van Nostrand. Mr. Gill has not suggested why it is more difficult for him as a gay

man to remember the date when he proposed marriage and received a “yes” in

return than it would be for a person who is part of an opposite-sex couple. In any

event, we do not view the trial court’s reliance on Mr. Gill’s inability to remember

the date of the alleged marriage as reflecting an unfair or unreasonable factor to

consider in determining whether there was a same-sex common-law marriage.

Knowledge of the date of the claimed agreement between the parties was a

legitimate, albeit not dispositive consideration, and we do not discern any bias

against same-sex couples reflected in the court’s consideration of that factor in this

case.




        The second reason the court highlighted was that neither party told their

friends or family about the alleged marriage (or perhaps more correctly, the alleged

“entry into a commitment comparable to marriage”) and the couple did not
                                           17

commemorate it with a ceremony or celebrate it by going on a honeymoon.13 Mr.

Gill asserts that it was unfair to require the parties’ to “meet expectations of . . .

custom” drawn from the institution of traditional marriage from which he and Mr.

Van Nostrand were excluded. The record supports Mr. Gill’s assertion that the

parties’ families had “harsh anti-gay views” at least in the early days of the parties’

relationship that explain why the couple might not have immediately told their

families about their (claimed) new status. We note, however, Mr. Gill asserted in

his complaint that he and Mr. Van Nostrand “shared th[e] information [about their

alleged marriage in 2004] with friends and family,” thus at least arguably inviting

the trial court to focus on this factor.




       In any event, the trial court “acknowledge[d] that same-sex couples, prior to

the legalization of same-sex marriage, might have been less likely to have a public

ceremony or honeymoon than [opposite-sex] couples who could legally celebrate

their wedding[.]”     The court’s focus, therefore, was not on how opposite-sex

couples have traditionally celebrated and commemorated marriage, but instead on

the evidence that was presented about how these parties and their friends in the


       13
           Mr. Gill testified that the couple honeymooned when they traveled to
Florence and Paris in November 2005. The trial court credited Mr. Van Nostrand’s
testimony that this trip “was not a honeymoon.”
                                         18

gay community marked or signified important events in their romantic lives. As

the trial court observed, both parties testified about Mr. Van Nostrand’s preference

for “celebrat[ing] events in a flamboyant manner.” The court noted that when Mr.

Van Nostrand proposed to Weller da Silva, the Brazilian man he subsequently

married ceremonially (in April 2014), Mr. Van Nostrand delivered the proposal

while the pair were in a hot-air balloon over the Serengeti, created an album

commemorating the proposal, told family members and friends, met Mr. da Silva’s

family, and, after the two were married, went on a honeymoon trip to Ecuador and

the Galapagos Islands. 14 Mr. Gill makes the valid point that the contrast between

Mr. Van Nostrand’s decision to tell his family about his marriage to Mr. da Silva in

2014, but not about the (putative) marriage to Mr. Gill, can be attributed to the

change (by 2014) in public perception attendant to the legalization of same-sex

marriage. But the trial court specifically credited Mr. Van Nostrand’s testimony

that “he would not have entered into a marriage with [Mr. Gill] without

commemorating such an event with . . . pomp and circumstance . . . .” In addition,

there was abundant record evidence of Mr. Van Nostrand’s financial ability to

travel, and of his and Mr. Gill’s shared history of foreign travel. Further, the court


      14
         By contrast, Mr. Van Nostrand testified, neither he nor Mr. Gill created
any memorabilia with respect to any landmarks or milestone in their relationship
because “[t]here weren’t any landmarks or milestones to memorialize.”
                                         19

heard testimony that some of the parties’ friends who were same-sex couples had

public commitment ceremonies or got married in Massachusetts (steps that were

available to the parties, too, even though ceremonial marriage in the District of

Columbia was not available to them before 2010). For that reason, the trial court

was not compelled to find, as Mr. Gill asserts in his brief to us, that the parties’

wearing “gold bands on their left ring fingers” informed friends and family about

the parties’ (alleged) new relationship “in the most culturally salient manner

possible.”




      It was reasonable for the trial court to infer that if Mr. Van Nostrand had

agreed to a present commitment comparable to marriage in 2004, he would have

commemorated it in a big way, notwithstanding that same-sex marriage was not

lawful in the District of Columbia at that time. We are satisfied that the trial

court’s reliance on whether the parties told their friends about the alleged marriage

or commemorated it in a special way did not amount to unfairly requiring these

parties to “meet expectations of . . . custom” drawn from the institution of

traditional marriage from which they were excluded.
                                         20

      The third reason the court listed is that the parties never inscribed their rings

(a step that might have signified that their relationship had progressed from an

engagement to a commitment comparable to marriage). The trial court credited

Mr. Van Nostrand’s testimony that he would not have considered himself married

to Mr. Gill until the couple had commemorated their relationship in that manner15

and that the parties intended to inscribe the rings if they were to get married. The

court also found that Mr. Gill refused when Mr. Van Nostrand later asked him if he

wanted to get married in Massachusetts, where same-sex marriage was legal;

refused when Mr. Van Nostrand suggested that they inscribe and exchange the

rings; and also declined to enter into a formal domestic partnership with Mr. Van

Nostrand.   The trial court therefore had ample basis to discredit Mr. Gill’s

testimony that he and Mr. Van Nostrand “attempt[ed] to be as married as we

could.”




      Mr. Gill argues that the court’s reliance on whether the parties inscribed

their rings, married in Massachusetts, or entered a domestic partnership, amounted

to making the determination of whether the parties had a common-law marriage

      15
         As noted above, Mr. Van Nostrand testified that the rings signified that
the two men were in a monogamous relationship and that “[t]here had never been
any conversation that we were even married, nothing.”
                                         21

“turn on the extent to which the couple chose to mimic the traditional forms of the

institution of marriage.” We agree that such an approach would be questionable,

but we do not agree that this is the approach the trial court took. 16 The court took

its lead not from opposite-sex marriage traditions, but from what Mr. Van

Nostrand described as the steps he would have taken to symbolize and validate that

the parties’ relationship had advanced to a mutual commitment comparable to

marriage. The court’s approach was not inappropriate, because “if one party to a

purported common law marriage believes she is married, but the other party does

not, a marriage cannot be established.” Hogsett v. Neale, No. 17CA1484, 2018

Colo. App. LEXIS 1820, at *20 (Colo. App. 2018); see also id. at *4, *21

(concluding that even though “many indicia of a marriage were present, including

the parties’ intertwined finances, the existence of joint accounts, . . . their joint

ownership of a home” and an exchange of rings, there was no common law

marriage where the court weighed “heavily” “the absence of conduct showing an

attempt to be married in a state where same-sex marriage was legal” and “found




      16
           Further, the record provides no support for Mr. Gill’s suggestion that the
parties were “hostile” to the institution of marriage that had excluded them, may
not have wanted to “venerate an institution that refused to accept them,” or “felt
uncomfortable at the notion of jumping too hastily at an institution that had
rejected them for so long.”
                                         22

credible Hogsett’s belief that she was married to Neale, [but] also found credible

Neale’s belief that she was never married to Hogsett”). 17




      The fourth factor the court emphasized was that the parties maintained

largely separate finances. The court noted that the house into which the parties

moved in 2005 was titled solely in Mr. Van Nostrand’s name. The court further

noted that for most of the years when the parties were together, they had no joint

bank account or joint credit card account, having opened a joint checking account

and a joint American Express card account only in October 2012, so that Mr. Gill

would have easier access to funds to pay for house expenses and veterinary care

for the parties’ dogs upon Mr. Van Nostrand’s move to Brazil. At about the same

time, the parties jointly leased a car for Mr. Gill to use to drive the dogs to the


      17
            This is not to say that one party can defeat a determination that a
common law marriage existed simply by testifying that he did not believe he was
common law married. When the question is whether there was a common law
marriage, the analysis turns on whether the parties made a mutual agreement to be
permanent partners with the same degree of commitment as the spouses in a
ceremonial marriage as of the time of the mutual consent, not whether either or
both believed the term “common law married” applied to them. Actions speak
louder than words in this regard, and a court may find such a mutual, present-tense
agreement even if one party in his testimony denies the existence of the agreement.
But if one party credibly testifies that he or she did not enter into such a mutual,
present-tense agreement — meaning in part that other evidence does not render the
party’s testimony implausible — then the court may not find that a common law
marriage existed.
                                         23

veterinarian “and for other purposes” after Mr. Gill did not qualify for the lease in

his own name. The court also noted that in 2005, after the parties discussed the

creation of wills, durable powers of attorney, and health care directives, Mr. Van

Nostrand had an attorney draft a will that named Mr. Gill as beneficiary and

personal representative, drafted a durable power of attorney that named Mr. Gill as

executor, and drafted a living will that gave Mr. Gill power of attorney for health

care decisions. The court found that “[a]lthough [Mr. Gill] was supposed to draft

documents giving [Mr. Nostrand] these same benefits and responsibilities, he

failed to do so.”



      We recognize that in this day and age, couples make varying arrangements

regarding their finances, such that the maintenance of “largely separate finances” is

a far less salient consideration than it might have been in years past. But the trial

court’s focus was on the contrast between the financial arrangements Mr. Van

Nostrand and Mr. Gill had on the one hand, and, on the other hand, the financial

arrangements Mr. Van Nostrand had with Mr. da Silva after their ceremonial

marriage. The court observed that Mr. Van Nostrand and Mr. da Silva established

joint accounts early in their marriage and heard evidence that Mr. Van Nostrand

and Mr. da Silva file joint tax returns and have wills, health care directives, and

powers of attorney naming each other as beneficiaries or agents.
                                          24




      Mr. Gill argues that the court overlooked evidence that explains the parties’

separate finances and why their documents were not completely reciprocal. For

example, Mr. Gill explained that the parties made an attempt to keep their finances

separate in case any of Mr. Gill’s therapy clients were to sue him for malpractice

(as one client did). Mr. Gill further explained that Mr. Van Nostrand was “closeted

about” his health condition, and that he (Mr. Gill) was not sure that Mr. Van

Nostrand would be as comfortable making health care decisions for Mr. Gill as Mr.

Gill would be in making health care decisions for Mr. Van Nostrand. Mr. Gill also

explained that he had no assets in his name and so did not need a will. 18 In

addition, Mr. Gill emphasizes the evidence that he cared for Mr. Van Nostrand

during the latter’s serious illness; that Mr. Van Nostrand quickly engaged a lawyer

when Mr. Gill had legal difficulty; that the parties discussed transferring an interest

in the house to Mr. Gill; that the couple wore rings, intermingled their lives, and

planned for each other’s future; and that tax complications (i.e., the inability to file

joint federal tax returns even when same-sex marriage became lawful in the
      18
           Mr. Gill also asserts that the court overlooked his $20,000 contribution
(from an inheritance after his mother’s death) to the costs of remodeling the house
where the parties lived. But Mr. Gill acknowledged at trial that the amount was
only $17,000, and Mr. Van Nostrand testified that he owed this money to Mr. Gill
and paid it back to Mr. Gill by paying the latter’s legal expenses when he ran into
legal difficulties.
                                          25

District of Columbia) prevented them from getting married. But the trial court was

not required to credit Mr. Gill’s explanations or to give them the weight Mr. Gill

urged. The court could just as readily conclude, from the fact that there was not a

“totality of reciprocal relations,” Cerovic, 134 A.3d at 780 (internal quotation

marks omitted), that, even after the right to same-sex marriage became recognized

in the District of Columbia, “the parties, for whatever reason, were not ready to be

legally married” and to take on the particular complications marriage entails.

Bansda, 995 A.2d at 199. We will not reweigh the evidence or disturb the court’s

credibility determinations. Nor do we discern that the court “overlook[ed] and

discount[ed] significance evidence of commitment, shared responsibility, and

envisioned permanence in the parties’ agreement (and ensuing relationship).” As

we have recognized in a different context, parties may have an intimate

relationship, with “bonds of a genuinely familial, devoted, or homemaking nature,”

without necessarily having a common law marriage. McKnight v. Scott, 665 A.2d

973, 975 & n.3 (D.C. 1995) (internal quotation marks omitted).




      Fifth, though acknowledging that this fact was not determinative of whether

Mr. Gill believed he was in a common-law marriage with Mr. Gill, the trial court

cited the evidence that Mr. Gill did not immediately object to Mr. Van Nostrand’s

wedding plans to Mr. da Silva; “did not . . . indicate that [the parties] needed to get
                                          26

divorced first in order for [Mr. Van Nostrand and Mr. da Silva] to be able to

marry”; and did so only after realizing that this would affect Mr. Gill’s beneficiary

status with respect to Mr. Van Nostrand’s employee benefits and after consulting

with an attorney and learning that he might have a claim against Mr. Van Nostrand

under the theory that the parties were in a common law marriage. Mr. Gill asserts

that he reacted as he did because he was not aware that the parties’ relationship

gave him legally enforceable rights vis-à-vis Mr. Van Nostrand.               That is

understandable, but the trial court’s statement that this fifth factor was not

determinative satisfies us that the court did not require the parties and Mr. Gill in

particular to “meet expectations of . . . marital consciousness drawn from”

traditionally defined marriage. In addition, we think the trial court exercised

reasonable skepticism in light of Mr. Gill’s financial incentive to claim that the

parties had a common-law marriage.19 Courts have long “regarded common-law


      19
           The court expressly recognized the parties’ financial motives for various
steps they took during their relationship. With regard to the residence that Mr. Van
Nostrand purchased, the parties entered into a lease agreement that listed Mr. Van
Nostrand as the owner and Mr. Gill as the tenant. The court found that the parties
agreed to describe the relationship as landlord-tenant in order to improve Mr. Van
Nostrand’s debt-to-income ratio for the purposes of obtaining a more favorable
mortgage. The court also referred to Exhibit 18, an employee benefits affidavit in
which Mr. Van Nostrand said that the couple “currently have and intend to have
indefinitely, an exclusive mutual commitment to share responsibility for each
other’s welfare and financial obligations that is similar to that of a married couple.”
The court explained that it gave little weight to the “labels the parties used on
various forms, such as domestic partner or landlord/tenant,” because it was “clear
                                                                         (continued…)
                                         27

marriage as a fruitful source of fraud and perjury,” In re Estate of Danza, 591

N.Y.S.2d 197, 198 (App. Div. 1992) (internal quotation marks omitted), and have

explained that “[t]he perceived motivation for such perjury and fraud lies in the set

of potential benefits of an after-the-fact recognition of a marriage not otherwise

established by tangible proof such as a marriage certificate or formal wedding

ceremony.” Carter, 159 A.3d at 978.20 Here, as the trial court found, Mr. Gill

filed his complaint alleging a common-law marriage a little more than a week after

Mr. Van Nostrand removed Mr. Gill from his Mr. Van Nostrand’s employment-

based health insurance coverage.21 [App. 54]


(…continued)
that the parties used the labels that they thought would be most financially
advantageous at the time they completed the forms.”
      20
           See also, e.g., Anderson v. Anderson, 131 N.E.2d 301, 305 (Ind. 1956)
(stating that common-law marriages “are a fruitful source of perjury and fraud”)
(internal quotation marks omitted); In re Blecher’s Estate, 112 A.2d 129, 131 (Pa.
1955) (same).

       Caution if not skepticism was also warranted in light of Mr. Gill’s testimony
that just as he “felt [that he and Mr. Van Nostrand] were married,” he also “felt
married” to Greg Prucey, a man with whom he was in a four-year relationship in
Ohio prior to meeting Mr. Van Nostrand. No evidence was presented that either
man sued to dissolve that “marriage” (though this may have been unnecessary
based on when that marriage came into existence; Ohio abolished common law
marriage for any such purported marriage that came into existence after October
10, 1991. See Ohio Rev. Code Ann. §3105.12(B) (2019)).
      21
         To be sure, Mr. Van Nostrand had a financial incentive to claim that he
and Mr. Gill did not have a common law marriage, but this is where the close
                                                                       (continued…)
                                          28




      Finally, the trial court contrasted the facts of this case to those of Carter, 159

A.3d 970, in which the court found that there was a same-sex common law

marriage. The Carter court found that Mr. Hunter proposed to Mr. Carter and gave

him a diamond ring on Christmas Day 1996; that on February 18, 1997, Mr. Carter

gave Mr. Hunter a ring engraved with that date; that the two men celebrated that

date as their wedding anniversary for 16 years; and that they had joint banking and

investment accounts and a joint mortgage, made mutual wills and health care

powers of attorney, and referred to each other as spouses. Id. at 972–73. Although

expressly “not suggesting that parties attempting to establish a same-sex common

law marriage need prove all the factors proved by the plaintiff in Carter[,]” the

trial court in the instant matter reasoned that Mr. Gill’s “failure to prove any of

these factors substantially undercuts his effort to prove the existence of a common

law marriage.” The court found that the parties here had at best “an agreement to

get married at some point in the future.” We cannot say that the trial court’s




(…continued)
scrutiny of claims of common law marriage and the presumption of the validity of
a more recent ceremonial marriage discussed above work to favor Mr. Van
Nostrand’s position.
                                         29

reliance on Carter as persuasive authority and its resultant analysis were legally or

factually erroneous. 22




      For all the foregoing reasons, we are satisfied that the evidence did not

compel the trial court to conclude that the parties had an express mutual agreement

to be permanent partners with the same degree of commitment as the spouses in a

ceremonial marriage. The evidence permitted the court to conclude, as it did, that

the parties never expressly agreed to be married, in the present tense. Id.




      Wherefore, the judgment of the Superior Court is



                                              Affirmed.




      22
            We note that the Carter court stated that “the exchange of rings is
particularly strong evidence of . . . an intent” to marry. 159 A.3d at 981. Here by
contrast, there was no clear evidence of an “exchange” of rings; Mr. Gill purchased
two rings and put one on Mr. Van Nostrand’s ring finger, but testified that he did
not remember who put the other ring on his finger.
