W.C. No. 4-391-071Industrial Claim Appeals Office.
March 12, 2001
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Gandy (ALJ) which determined she was not the common law spouse of decedent Larry Baggett (Baggett) and, therefore, not entitled to dependents’ benefits because of Baggett’s death. The claimant argues the ALJ’s findings of fact are not supported by the evidence, and the ALJ “ignored” evidence in support of the claim. We affirm.
Baggett died in an industrial accident on August 28, 1998. The ALJ found the claimant and Baggett began cohabiting in July, 1998. However, the ALJ found the residence was not jointly leased, claimant and Baggett did not jointly own property, did not have joint banking or credit accounts, and did not jointly incur liability for utilities. The claimant did not assume Baggett’s surname, and Baggett did not adopt the claimant’s children by a prior marriage. Further, based on the testimony of Baggett’s niece and brother, the ALJ found Baggett did not hold himself out as being married to the claimant.
Baggett purchased wedding rings approximately 18 days before his death. However, the ALJ found Baggett did not wear the wedding ring in public.
Under these circumstances, the ALJ concluded the claimant failed to carry her burden of proof to establish she was Baggett’s common law wife for purposes of dependency under § 8-41-501(1)(a), C.R.S. 2000. In so doing, the ALJ explicitly discredited the claimant’s testimony, the testimony of the claimant’s sister, and the testimony of one of the claimant’s neighbors that the claimant and Baggett held themselves out to be married in the community. The ALJ further concluded the purchase of the wedding rings did not demonstrate common law marriage because Baggett never wore the ring in public and because a promise to marry in the future is not consistent with a current marriage relationship.
On review, the claimant contends the ALJ’s findings of fact are not supported by the evidence, and the evidence compelled the ALJ to conclude the claimant was Baggett’s common law wife. The claimant also argues the ALJ failed to give sufficient weight to the testimony of her witnesses, and gave inordinate weight to the testimony of Baggett’s relatives. We are not persuaded.
Proof of a common law marriage requires a party to establish mutual consent or agreement of the parties to be husband and wife, followed by a mutual and open assumption of the marital relationship. Such consent must be demonstrated by conduct that gives evidence of the mutual understanding of the parties. Specific behaviors which may be considered include maintenance of joint banking or credit accounts; joint ownership of property; use of the man’s surname by the woman; and the filing of joint tax returns. The behaviors which most clearly show the parties’ intent are cohabitation and general understanding or reputation among persons in the community that the parties hold themselves out as husband and wife. People v. Lucero, 747 P.2d 660 (Colo. 1987). Disclosures to relatives regarding marital status may also be relevant since it may reasonably be inferred that marriage would be disclosed to certain family members. See Whitenhill v. Kaiser Permanente, 940 P.2d 1129 (Colo.App. 1997).
The claimant had the burden of proof to establish by a preponderance of the evidence that she was Baggett’s common law wife, hence, that she was his dependent for purposes of §8-41-501(1)(a). Section 8-43-201, C.R.S. 2000. Ultimately, the determination of whether a common law marriage was proven turns on issues of fact and credibility. People v. Lucero, supra. Thus, we must uphold the ALJ’s determination if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2000.
The substantial evidence test requires us to defer to the ALJ’s resolution of conflicts in the evidence, his credibility determinations, and the plausible inferences he drew from the record. Metro Moving and Storage Co. v. Gussert, 914 P.2d 411
(Colo.App. 1995). In this regard, we note the ALJ is not required to credit testimony even if it is uncontroverted, nor is he required to make explicit findings explaining his credibility determinations. See Cary v. Chevron U.S.A., Inc., 867 P.2d 117
(Colo.App. 1993); Wells v. Del Norte School District C-7, 753 P.2d 770 (Colo.App. 1987). Finally, the ALJ is under no obligation to discuss all of the testimony and evidence in the record. Rather, it is sufficient for the ALJ to enter findings concerning those facts which he considers to be dispositive of the issues involved. Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo.App. 2000).
The claimant’s argument notwithstanding, the ALJ made explicit findings concerning the absence of joint property ownership, the absence of joint credit or banking accounts, tax status, the claimant’s failure to use Baggett’s surname; and the ALJ determined these factors weighed against the claim of a common law marriage. Moreover, the ALJ explicitly discredited the claimant’s testimony, and that of some of her witnesses, tending to show a community “reputation” that the claimant and Baggett held themselves out to be married. Indeed, the ALJ credited the testimony of Baggett’s relatives, one of whom lived in the Denver area, refuting the assertion that Baggett held himself out as married to the claimant. Under these circumstances, we are not at liberty to interfere with the ALJ’s credibility determinations and factual findings which support his conclusion that there was no common law marriage.
It is true the ALJ did not comment on the testimony of all of the claimant’s witnesses. However, he was not required to do so, and the order makes clear the evidence which the ALJ found credible and persuasive. Therefore, the order is sufficient to support appellate review.
Insofar as the claimant argues the uncontradicted evidence establishes that Baggett wore his wedding ring in public, we disagree. In fact, the claimant contradicted herself on this point. (Tr. pp. 23, 34). Moreover, the respondents presented evidence the claimant’s niece did not observe Baggett wearing a wedding ring. (Tr. p. 65). Further, the purchase of the wedding rings did not compel the ALJ to conclude Baggett intended to form an immediate marital relationship with the claimant. Although the evidence was conflicting, the ALJ reasonably inferred the rings were purchased as a token of an engagement to be married in the future. See Crandell v. Resley, 840 P.2d 272 (Colo.App. 1990).
The remainder of the claimant’s arguments concern inferences which she claims the ALJ should have drawn from her testimony, and that of her witnesses. However, the ALJ’s inferences are plausible based on the record before us. Therefore, we may not set them aside. In light of this conclusion, we need not reach the respondents’ alternative theory in support of the order.
IT IS THEREFORE ORDERED that the ALJ’s order dated September 20, 1999, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
________________________________ David Cain
________________________________ Kathy E. Dean
NOTICE
This Order is final unless an action to modify or vacate this Order is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, CO 80203, by filing a petition for review with the Court, within twenty (20) days after the date this Order is mailed, pursuant to § 8-43-301(10) and § 8-43-307, C.R.S. 2000. The appealing party must serve a copy of the petition upon all other parties, including the Industrial Claim Appeals Office, which may be served by mail at 1515 Arapahoe, Tower 3, Suite 350, Denver, CO 80202.
Copies of this decision were mailed March 12, 2001 to the following parties:
Robin Emenyonu, Terrell M. Gaines, Esq., 3333 S. Bannock St., #888, Englewood, CO 80110-2447
Don Ward, Inc., 241 W. 56th Ave., Denver, CO 80216
Michael J. Steiner, Esq., Colorado Compensation Insurance Authority d/b/a Pinnacol Assurance — Interagency Mail (For Respondents)
Terrell M. Gaines, Esq., 3333 S. Bannock St., #888, Englewood, CO 80110-2447 (For Claimant)
Douglas Thomas, Esq., 600 17th St., #1600N, Denver, CO 80202
By: A. Pendroy