     The summaries of the Colorado Court of Appeals published opinions
  constitute no part of the opinion of the division but have been prepared by
  the division for the convenience of the reader. The summaries may not be
    cited or relied upon as they are not the official language of the division.
  Any discrepancy between the language in the summary and in the opinion
           should be resolved in favor of the language in the opinion.


                                                                   SUMMARY
                                                                July 23, 2020

                               2020COA115

No. 19CA1375 Parental Responsibilities Concerning D.P.G. —

Family Law — Marriage and Rights of Married Persons —

Putative Spouse

     A division of the court of appeals considers whether a party

may attain putative spouse status under section 14-2-111, C.R.S.

2019, after a magistrate determined that no common law marriage

existed. The division concludes that the putative spouse statute

does not apply because the absence of a common law marriage is

not an impediment to the existence of a legal marriage. Thus, the

division affirms the district court’s order adopting the magistrate’s

order denying the motion to amend a pleading to add the putative

spouse claim.
     The division also concludes that the magistrate and the

district court abused their discretion in awarding attorney fees and

costs pursuant to sections 13-17-101 and 13-17-102, C.R.S. 2019,

because the appellant, although unsuccessful, presented an

arguably meritorious legal theory on an issue of first impression in

Colorado.
COLORADO COURT OF APPEALS                                     2020COA115


Court of Appeals No. 19CA1375
Mesa County District Court No. 18DR30130
Honorable Valerie J. Robison, Judge


In re the Parental Responsibilities Concerning D.P.G., a Child,

and Concerning Patrick Goldsworthy,

Appellee,

and

Tammy Tatarcuk,

Appellant.


                       JUDGMENT AFFIRMED IN PART
                         AND REVERSED IN PART

                                 Division VI
                           Opinion by JUDGE YUN
                       Richman and Dunn, JJ., concur

                           Announced July 23, 2020


Catherine C. Burkey P.C., Catherine C. Burkey, Grand Junction, Colorado, for
Appellee

Feather Legal Services P.C., Gerald B. Feather, Grand Junction, Colorado, for
Appellant
¶1    Tammy Tatarcuk believed that she and Patrick Goldsworthy

 were common law married. A magistrate, however, determined that

 no common law marriage existed. In response, Ms. Tatarcuk

 attempted to attain putative spouse status under section 14-2-111,

 C.R.S. 2019, which allows a party, under certain circumstances, to

 obtain spousal rights even though no legal marriage existed. The

 magistrate denied her request, and the district court adopted the

 magistrate’s order.

¶2    This appeal raises a novel issue: May a party attain putative

 spouse status after a court determines that no common law

 marriage existed? We say no. The putative spouse statute affords

 spousal rights when a marriage is invalid due to some impediment

 to the existence of a legal marriage, and the absence of a common

 law marriage is not such an impediment. We therefore affirm the

 district court’s judgment with respect to the magistrate’s denial of

 Ms. Tatarcuk’s motion to amend her petition.

¶3    Ms. Tatarcuk also appeals the magistrate’s and district court’s

 rulings awarding attorney fees and costs to Mr. Goldsworthy.

 Because Ms. Tatarcuk’s claim presented an arguably meritorious

 legal theory on an issue of first impression in Colorado, the


                                   1
 magistrate and the district court abused their discretion in

 awarding attorney fees and costs under sections 13-17-101 and

 13-17-102, C.R.S. 2019. We reverse those portions of the

 judgment.

                           I.   Background

¶4    Ms. Tatarcuk and Mr. Goldsworthy lived together for over ten

 years and had a son, D.P.G.

¶5    After the relationship soured, Mr. Goldsworthy petitioned for

 an allocation of parental responsibilities. A month later,

 Ms. Tatarcuk initiated a dissolution of marriage proceeding, alleging

 that the two were common law married. Mr. Goldsworthy denied

 the existence of a marriage. The two cases were consolidated.

¶6    The magistrate held a hearing to determine whether a common

 law marriage existed. The magistrate acknowledged that some

 evidence showed that the parties cohabited and held themselves out

 as husband and wife, but he concluded that this evidence was

 insufficient to establish the existence of a common law marriage.

¶7    Ms. Tatarcuk did not challenge this determination. Instead,

 she moved to amend her petition, requesting maintenance and a

 division of the property and debt as a putative spouse under section


                                   2
 14-2-111. In her amended petition, Ms. Tatarcuk alleged that she

 had resided with Mr. Goldsworthy “for over 10 years under

 circumstances that at least caused [her] to believe in good faith that

 they were married.”

¶8    The magistrate denied Ms. Tatarcuk’s request. He explained

 that the right to claim putative spouse status under section

 14-2-111 must be read in conjunction with section 14-2-110,

 C.R.S. 2019, which prohibits certain marriages, including (1) a

 marriage or civil union entered into before the dissolution of an

 earlier marriage or civil union; (2) a marriage between an ancestor

 and a descendant or between a brother and a sister; and (3) a

 marriage between an uncle and a niece or between an aunt and a

 nephew. The magistrate concluded that because Ms. Tatarcuk did

 not allege any facts showing she was an innocent spouse who had

 entered into a prohibited marriage, she had “no legal basis” to

 assert a claim as a putative spouse. The magistrate also granted

 Mr. Goldsworthy’s request for attorney fees and costs under section

 “13-17-101” and later entered an award of $567.50.

¶9    Ms. Tatarcuk petitioned the district court to review the

 magistrate’s orders. The district court determined that, while


                                   3
  putative spouse status is not limited to the prohibited marriages

  listed in section 14-2-110, that statute must be read in conjunction

  with the putative spouse statute. It then concluded that the

  putative spouse statute “was not designed to provide a party that

  has received an adverse ruling on the existence of a common law

  marriage, to have a second bite of the proverbial apple.” And it

  adopted the magistrate’s determination denying the motion to

  amend.

¶ 10   The district court also considered Ms. Tatarcuk’s claim that

  “no basis” existed for the magistrate’s award of attorney fees and

  costs. The court noted that Ms. Tatarcuk filed her petition for

  review before the magistrate entered a final order determining the

  amount of the attorney fees and costs and that she did not seek

  review of the final order. The court recognized, however, that

  Ms. Tatarcuk did not object to the amount requested by

  Mr. Goldsworthy, and it concluded that, given the record support

  for the magistrate’s order, the decision to award attorney fees and

  costs was appropriate.

¶ 11   Last, the court granted Mr. Goldsworthy’s request for attorney

  fees and costs incurred in connection with Ms. Tatarcuk’s petition


                                    4
  for review of the magistrate’s order. It found that the petition

  lacked substantial justification because Ms. Tatarcuk’s putative

  spouse claim had “no legal or factual basis in this case, particularly

  after the unchallenged finding that the parties did not have a valid

  common law marriage.” The court ordered Ms. Tatarcuk to pay

  Mr. Goldsworthy an additional $385.50 in attorney fees and costs.

¶ 12   Ms. Tatarcuk now appeals.

                     II.   Adequacy of Opening Brief

¶ 13   As an initial matter, Mr. Goldsworthy argues that we should

  strike Ms. Tatarcuk’s opening brief because it does not comply with

  the appellate rules. Specifically, he asserts that her brief does not

  state, under a separate heading before each issue, (1) the applicable

  standard of review with citation to supporting legal authority and

  (2) whether the issue was preserved and the precise location where

  the issue was raised and ruled on in the record. See C.A.R.

  28(a)(7)(A).

¶ 14   While Ms. Tatarcuk did not fully comply with this requirement,

  the deficiencies in her brief do not hamper our ability to conduct a

  meaningful appellate review. See Martin v. Essrig, 277 P.3d 857,

  861 (Colo. App. 2011) (stating that an appellate court will consider


                                     5
  the level of noncompliance with the appellate rules in deciding

  whether to impose sanctions); Bruce v. City of Colorado Springs,

  252 P.3d 30, 32 (Colo. App. 2010) (considering the merits despite a

  party’s noncompliant brief). In the interest of judicial economy, we

  decline to strike Ms. Tatarcuk’s brief. See People v. Durapau,

  280 P.3d 42, 50 (Colo. App. 2011).

                         III.   Standard of Review

¶ 15   Our review of a district court’s order adopting a magistrate’s

  decision is effectively a second layer of appellate review. In re

  Marriage of Dean, 2017 COA 51, ¶ 8. We review de novo the district

  court’s and magistrate’s conclusions of law but accept the factual

  findings unless they are clearly erroneous. In re Parental

  Responsibilities Concerning B.J., 242 P.3d 1128, 1132 (Colo. 2010).

¶ 16   Our review of a court’s denial of a motion to amend, in turn, is

  generally limited to determining whether the court abused its

  discretion. Gandy v. Williams, 2019 COA 118, ¶ 14. But when the

  court denies the motion because the requested amendment is futile,

  the issue is a question of law that we review de novo. Id.




                                      6
                          IV.   Putative Spouse

¶ 17   Ms. Tatarcuk contends that the facts and circumstances of

  this case fit squarely within the provisions of section 14-2-111 and,

  thus, that the district court and magistrate erred in denying her

  motion to add her putative spouse claim. We disagree.

¶ 18   A putative spouse is a “person who has cohabited with another

  to whom he or she is not legally married in the good faith belief that

  he or she was married to that person.” § 14-2-111. A person’s

  putative spouse status terminates when the person obtains

  “knowledge of the fact that he or she is not legally married.” Id. A

  putative spouse has the same rights as a legal spouse, including

  the right to maintenance, “whether or not the marriage is prohibited

  under section 14-2-110, declared invalid, or otherwise terminated

  by court action.” Id.

¶ 19   At first glance, the language of section 14-2-111 appears to

  support Ms. Tatarcuk’s claim. She alleged that she cohabited with

  Mr. Goldsworthy and held a good faith belief that they were

  common law married until the magistrate found that no such

  marriage existed. But, as the district court noted, we cannot read

  section 14-2-111 in isolation. See In re Marriage of Joel, 2012 COA


                                    7
  128, ¶ 19 (recognizing that the marriage statutes must be read

  together and harmonized when possible).

¶ 20   Section 14-2-111 recognizes that putative spouse status may

  be invoked when a marriage is prohibited under section 14-2-110.

  See, e.g., Combs v. Tibbitts, 148 P.3d 430, 433 (Colo. App. 2006).

  These situations include marriages or civil unions entered into

  before the dissolution of a prior marriage or civil union and

  marriages between certain family members. See

  § 14-2-110(1)(a)-(c).

¶ 21   Section 14-2-111 also recognizes that a putative spouse claim

  may exist when a court invalidates a marriage. A court shall

  invalidate a marriage when a party (1) lacked capacity to consent to

  the marriage; (2) lacked the physical capacity to consummate the

  marriage; (3) was under age and did not have consent or judicial

  approval; (4) entered the marriage based on fraud; (5) entered the

  marriage under duress; or (6) entered the marriage as a jest or a

  dare. § 14-10-111(1)(a)-(f), C.R.S. 2019. A court shall also declare

  a marriage invalid when it is prohibited by law for the reasons

  provided in section 14-2-110. See § 14-10-111(1)(g).




                                    8
¶ 22   While putative spouse status is not limited to the instances of

  a prohibited marriage or an invalid marriage, we look to these

  statutes to guide us in determining the scope of section 14-2-111.

  See Joel, ¶ 19. In doing so, and considering that “[s]ection

  14-2-111 was enacted to protect innocent participants in

  meretricious relationships and the children of those relationships,”

  People v. McGuire, 751 P.2d 1011, 1012 (Colo. App. 1987), we

  cannot agree with Ms. Tatarcuk that section 14-2-111 allows a

  person to attain putative spouse status when she fails to establish

  the existence of a common law marriage. Rather, the putative

  spouse statute seeks to afford spousal rights to an individual who

  held a good faith belief that he or she was validly married to

  another but, in fact, was not married due to some impediment that

  prevented the existence of a legal marriage. See Williams v.

  Fireman’s Fund Ins. Co., 670 P.2d 453, 455 (Colo. App. 1983); see

  also Williams v. Williams, 97 P.3d 1124, 1128 (Nev. 2004)

  (explaining that a majority of states recognize the putative spouse

  doctrine either through case law or statute and that it requires one

  or both parties to have had a good faith belief that no impediment

  to the marriage existed and that the marriage was valid and proper);


                                    9
  52 Am. Jur. 2d Marriage § 92, Westlaw (database updated May

  2020) (“[A] ‘putative marriage’ is a matrimonial union which is

  contracted in good faith by at least one of the parties, but which is

  in fact invalid because of some legal infirmity or some impediment

  on the part of one or both parties.”) (footnotes omitted).

¶ 23   Ms. Tatarcuk alleged no impediment to the existence of a valid

  marriage with Mr. Goldsworthy. Rather, the parties did not engage

  in a marriage of any type. Both statutory and common law

  marriages require the mutual consent or agreement of both parties

  to the creation of a marital relationship. See § 14-2-104(1)(a),

  C.R.S. 2019 (providing that a valid marriage exists if, among other

  requirements, it is solemnized); § 14-2-109, C.R.S. 2019 (describing

  solemnization and registration of marriages); see also People v.

  Lucero, 747 P.2d 660, 663 (Colo. 1987) (“A common law marriage is

  established by the mutual consent or agreement of the parties to be

  [married] . . . .”). A marriage cannot be created through the

  unilateral belief of one party, even if that party held a good faith

  belief that he or she was married. See Lucero, 747 P.2d at 663; see

  also In re Marriage of Hogsett, 2018 COA 176, ¶ 20 (“[I]f one party to

  a purported common law marriage believes she is married, but the


                                     10
  other party does not, a marriage cannot be established.”) (cert.

  granted in part Sept. 30, 2019).

¶ 24   Ms. Tatarcuk and Mr. Goldsworthy did not have a ceremonial

  marriage, and the magistrate determined that no common law

  marriage existed. Ms. Tatarcuk did not challenge the common law

  marriage determination or dispute the lack of a ceremonial

  marriage. See C.R.M. 7(a)(12) (stating that if timely district court

  review is not requested, a magistrate’s determination becomes the

  district court’s order and further appeal of the order is barred). The

  magistrate therefore did not “terminate[]” a marriage, “declare[ a

  marriage] invalid,” or determine that a marriage was “prohibited

  under section 14-2-110.” § 14-2-111. And there was no other

  impediment to the existence of a marriage. It just never existed.

  Thus, we conclude that the lack of a marital relationship, in any

  form, prevents Ms. Tatarcuk from obtaining spousal rights as a

  putative spouse under section 14-2-111.

¶ 25   And we are not persuaded that In re Estate of Yudkin, 2019

  COA 25 (cert. granted in part Sept. 30, 2019), on which

  Ms. Tatarcuk relies, suggests that a party may attain putative

  spouse status following a court’s determination that no common


                                     11
  law marriage existed. Although the division in that case referred to

  the parties as “putative spouses,” id. at ¶ 1, Yudkin did not

  consider, let alone mention, section 14-2-111 or the rights of a

  putative spouse. It instead reviewed and ultimately reversed a

  magistrate’s decision that no common law marriage existed.

  Yudkin, ¶¶ 13-18. Yudkin thus has no relevance to the issue

  presented here.

¶ 26   We therefore perceive no error in the district court’s adoption

  of the magistrate’s order denying Ms. Tatarcuk’s motion to amend

  her petition.

                    V.   Attorney Fees and Costs Orders

¶ 27   Ms. Tatarcuk next contends that the district court erred in

  upholding the magistrate’s award of attorney fees and costs and in

  imposing its own award of attorney fees and costs against her. We

  agree.

                             A.   Jurisdiction

¶ 28   To start, Mr. Goldsworthy argues that Ms. Tatarcuk’s appeal of

  the magistrate’s attorney fees and costs order is untimely and thus

  should be dismissed.




                                    12
¶ 29   The district court may review only a final magistrate order.

  C.R.M. 7(a)(3); see In re Marriage of Beatty, 2012 COA 71, ¶ 8. An

  order is final when it “fully resolves an issue or claim.” C.R.M.

  7(a)(3); see also Whiting-Turner Contracting Co. v. Guarantee Co. of

  N. Am. USA, 2019 COA 44, ¶ 24 (recognizing that an attorney fees

  award is separately appealable from a judgment on the merits).

¶ 30   We may not review a magistrate’s order unless a timely

  petition for review has been filed and decided by the district court.

  C.R.M. 7(a)(11); see People v. S.X.G., 2012 CO 5, ¶ 2. Seeking

  review prematurely, however, does not prevent a court’s review

  when a final order on the issue is subsequently entered and cures

  the jurisdictional defect. See Musick v. Woznicki, 136 P.3d 244,

  246-47 (Colo. 2006); 1405 Hotel, LLC v. Colo. Econ. Dev. Comm’n,

  2015 COA 127, ¶¶ 33-34.

¶ 31   Ms. Tatarcuk filed her petition for district court review of the

  magistrate’s denial of her motion to amend and decision to award

  attorney fees and costs before the magistrate entered a final order

  on attorney fees and costs, and she did not later petition for review

  of that final order. But the magistrate entered his final order on

  attorney fees and costs before the district court ruled on


                                    13
  Ms. Tatarcuk’s petition for review, which cured the jurisdictional

  defect. See Musick, 136 P.3d at 246-47. The district court then

  reviewed the final order and adopted it. See C.R.M. 7(a)(10). We

  thus do not agree with Mr. Goldsworthy that Ms. Tatarcuk’s appeal

  of the attorney fees and costs order is untimely.

                             B.    Discussion

¶ 32   We review a court’s determination of whether to award

  attorney fees for an abuse of discretion. In re Marriage of Tognoni,

  313 P.3d 655, 660-61 (Colo. App. 2011). A court abuses its

  discretion when its decision is manifestly arbitrary, unreasonable,

  or unfair, or when it misapplies the law. Whiting-Turner Contracting

  Co., ¶ 56. “But we review de novo the legal analysis employed by

  a . . . court in reaching its decision on attorney fees.” Colo. Citizens

  for Ethics in Gov’t v. Comm. for Am. Dream, 187 P.3d 1207, 1220

  (Colo. App. 2008).

¶ 33   A court may award attorney fees against a party who has

  brought a claim that lacked substantial justification — meaning, as

  relevant here, that it was substantially frivolous. See

  §§ 13-17-101, -102(4). A claim is frivolous when the proponent can

  present no rational argument based on the evidence or the law to


                                     14
  support the claim. W. United Realty, Inc. v. Isaacs, 679 P.2d 1063,

  1069 (Colo. 1984).

¶ 34   “Meritorious actions that prove unsuccessful and good faith

  attempts to extend, modify, or reverse existing law are not

  frivolous.” City of Aurora v. Colo. State Eng’r, 105 P.3d 595, 620

  (Colo. 2005). A court may not award attorney fees when a party

  “makes a good faith presentation of an arguably meritorious legal

  theory upon which no determinative authority in Colorado exists.”

  McCormick v. Bradley, 870 P.2d 599, 608 (Colo. App. 1993); accord

  Cruz v. Benine, 984 P.2d 1173, 1181 (Colo. 1999).

¶ 35   No prior Colorado case directly addresses the issue presented

  by Ms. Tatarcuk — whether a party may seek putative spouse

  status following a court’s determination that a common law

  marriage did not exist. In the absence of case law preventing such

  a claim, Ms. Tatarcuk argued that, under the plain language of

  section 14-2-111, she was entitled to amend her petition to seek

  relief as a putative spouse because she had cohabited with

  Mr. Goldsworthy and held a good faith belief that she was married

  to him. Given the circumstances and that no case specifically held




                                    15
  that relief was not appropriate under section 14-2-111, such an

  argument was not without merit.

¶ 36   Indeed, the merit of Ms. Tatarcuk’s argument is evidenced by

  the fact that the magistrate and the district court disagreed on the

  reason for rejecting it. The magistrate relied on the lack of any

  factual allegation that Ms. Tatarcuk was an innocent spouse who

  had entered into a prohibited marriage under section 14-2-110.

  The district court, however, noted that the putative spouse statute

  was not limited to the specific instances listed in section 14-2-110

  and, instead, concluded that a person could not attain putative

  spouse status after a determination that a common law marriage

  did not exist. And, as explained above, we resolve Ms. Tatarcuk’s

  putative spouse claim on a slightly different rationale than either

  the district court or magistrate.

¶ 37   Ms. Tatarcuk thus presented a rational argument in support

  of her claim based on an arguably meritorious legal theory for

  which no determinative authority in Colorado existed. Although the

  magistrate, the district court, and we have rejected her argument,

  that does not mean it was frivolous. Accordingly, the record does

  not support the magistrate’s and the district court’s determinations


                                      16
  that Ms. Tatarcuk’s attempt to amend her petition to add a putative

  spouse claim was frivolous, and we reverse their awards of attorney

  fees and costs.1

                 VI.   Appellate Attorney Fees and Costs

¶ 38   Last, Mr. Goldsworthy requests an award of attorney fees and

  costs incurred on appeal under C.A.R. 39.1 and section 13-17-101

  because, he argues, the appeal lacked substantial justification.

  Given our reversals of the magistrate’s and the district court’s

  awards of attorney fees and costs, we deny his request. In re

  Marriage of Wright, 2020 COA 11, ¶ 41; see also Mission Denver

  Co. v. Pierson, 674 P.2d 363, 365 (Colo. 1984) (“Because a lawyer

  may present a supportable argument which is extremely unlikely to

  prevail on appeal, it cannot be said that an unsuccessful appeal is

  necessarily frivolous.”).




  1In addition, while the magistrate and the district court allowed
  Mr. Goldsworthy to recover costs under sections 13-17-101 and
  13-17-102, C.R.S. 2019, those statutes provide only for an award of
  attorney fees, not costs.

                                    17
                           VII. Conclusion

¶ 39   We affirm the portion of the district court’s judgment denying

  Ms. Tatarcuk’s motion to amend and reverse the portions of the

  judgment awarding Mr. Goldsworthy attorney fees and costs.

       JUDGE RICHMAN and JUDGE DUNN concur.




                                   18
