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MICHELLE MARVIN,
Plaintiff and Appellant, v. LEE MARVIN, Defendant
and Respondent
L.A.
No. 30520
Supreme
Court of California
18
Cal. 3d 660; 557 P.2d 106; 134 Cal. Rptr. 815
December
27, 1976
PRIOR HISTORY:
Superior Court of Los Angeles County, No.
C-23303, William A. Munnell, Judge.
DISPOSITION: The
judgment is reversed and the cause remanded for
further proceedings consistent with the views
expressed herein. n27
n27 We wish to
commend the parties and amici for the exceptional
quality of the briefs and argument in this case.
COUNSEL: Marvin
M. Mitchelson, Donald N. Woldman, Robert M. Ross,
Fleishman, McDaniel, Brown & Weston and David
M. Brown for Plaintiff and Appellant. 18 Cal. 3d
660, *; 557 P.2d 106, **; 134 Cal. Rptr. 815, ***
Jettie Pierce Selvig, Ruth Miller and Suzie S.
Thorn as Amici Curiae on behalf of Plaintiff and
Appellant.
Goldman &
Kagon, Mark A. Goldman and William R. Bishin for
Defendant and Respondent.
Herma Hill Kay,
John Sutter, Doris Brin Walker and Treuhaft,
Walker, Nawi & Hendon as Amici Curiae on
behalf of Defendant and Respondent.
Isabella H.
Grant and Livingston, Grant, Stone & Shenk as
Amici Curiae.
JUDGES: Opinion
by Tobriner, J., with Wright, C. J., McComb,
Mosk, Sullivan and Richardson, JJ., concurring.
Separate concurring and dissenting opinion by
Clark, J.
OPINIONBY:
TOBRINER
OPINION: [*665]
[**109] [***818] During the past 15 years, there
has been a substantial increase in the number of
couples living together without marrying. n1 Such
nonmarital relationships lead to legal [**110]
[***819] controversy when one partner dies or the
couple separates. Courts of Appeal, faced with
the task of determining property rights in such
cases, have 18 Cal. 3d 660, *665; 557 P.2d 106,
**110; 134 Cal. Rptr. 815, ***819 arrived at
conflicting positions: two cases ( <=1> In
re Marriage of Cary (1973) 34 Cal.App.3d 345 [109
Cal.Rptr. 862]; <=2> Estate of Atherley
(1975) 44 Cal.App.3d 758 [119 Cal.Rptr. 41]) have
held that the Family Law Act (Civ. Code, @ 4000
et seq.) requires division of the property
according to community property principles, and
one decision ( <=3> Beckman v. Mayhew
(1975) 49 Cal.App.3d 529 [122 Cal.Rptr. 604]) has
rejected that holding. We take this opportunity
to resolve that controversy and to declare the
principles which should govern distribution of
property acquired in a nonmarital relationship.
- - - - - - - -
- - - - - - - - - -Footnotes- - - - - - - - - - -
- - - - - - -
n1 "The
1970 census figures indicate that today perhaps
eight times as many couples are living together
without being married as cohabited ten years
ago." (Comment, In re Cary: A Judicial
Recognition of Illicit Cohabitation (1974) 25
Hastings L.J. 1226.)
- - - - - - - -
- - - - - - - - -End Footnotes- - - - - - - - - -
- - - - - - -
We conclude: (1)
The provisions of the Family Law Act do not
govern the distribution of property acquired
during a nonmarital relationship; such a
relationship remains subject solely to judicial
decision. (2) The courts should enforce express
contracts between nonmarital partners except to
the extent 18 Cal. 3d 660, *665; 557 P.2d 106,
**110; 134 Cal. Rptr. 815, ***819 that the
contract is explicitly founded on the
consideration of meretricious sexual services.
(3) In the absence of an express contract, the
courts should inquire into the conduct of the
parties to determine whether that conduct
demonstrates an implied contract, agreement of
partnership or joint venture, or some other tacit
understanding between the parties. The courts may
also employ the doctrine of quantum meruit, or
equitable remedies such as constructive or
resulting trusts, when warranted by the facts of
the case.
In the instant
case plaintiff and defendant lived together for
seven years without marrying; all property
acquired during this period was taken in
defendant's name. When plaintiff sued to enforce
a contract under which she was entitled to half
the property and to support payments, the trial
court granted judgment on the pleadings for
defendant, thus leaving him with all property
accumulated by the couple during their
relationship. Since the trial court denied
plaintiff a trial on the merits of her claim, its
decision conflicts with the principles stated
above, and must be reversed.
[*666] 1. The
factual setting of this appeal.
Since the trial
court rendered judgment for defendant on the
pleadings, we must accept the allegations of
plaintiff's complaint as true, determining
whether such allegations state, or can be amended
to state, a cause of action. 18 Cal. 3d 660,
*666; 557 P.2d 106, **110; 134 Cal. Rptr. 815,
***819 (See <=5> Sullivan v. County of Los
Angeles (1974) 12 Cal.3d 710, 714-715, fn. 3 [117
Cal.Rptr. 241, 527 P.2d 865]; 4 Witkin, Cal.
Procedure (2d ed. 1971) pp. 2817-2818.) We turn
therefore to the specific allegations of the
complaint.
Plaintiff avers
that in October of 1964 she and defendant
"entered into an oral agreement" that
while "the parties lived together they would
combine their efforts and earnings and would
share equally any and all property accumulated as
a result of their efforts whether individual or
combined." Furthermore, they agreed to
"hold themselves out to the general public
as husband and wife" and that
"plaintiff would further render her services
as a companion, homemaker, housekeeper and cook
to . . . defendant."
Shortly
thereafter plaintiff agreed to "give up her
lucrative career as an entertainer [and]
singer" in order to "devote her full
time to defendant . . . as a companion,
homemaker, housekeeper and cook;" in return
defendant agreed to "provide for all of
plaintiff's financial support and needs for the
rest of her life."
Plaintiff
alleges that she lived with defendant from
October of 1964 through May of 1970 and fulfilled
her obligations under the agreement. During this
period the parties as a result of their efforts
and earnings acquired in defendant's name
substantial real and personal property, including
motion 18 Cal. 3d 660, *666; 557 P.2d 106, **110;
134 Cal. Rptr. 815, ***819 picture rights worth
over $ 1 million. In May of 1970, however,
defendant compelled plaintiff to leave his
household. He continued to support plaintiff
until November of 1971, but thereafter refused to
provide further support.
On the basis of
these allegations plaintiff asserts two causes of
action. The first, for [**111] [***820]
declaratory relief, asks the court to determine
her contract and property rights; the second
seeks to impose a constructive trust upon one
half of the property acquired during the course
of the relationship.
Defendant
demurred unsuccessfully, and then answered the
complaint. (See fn. 2.) Following extensive
discovery and pretrial [*667] proceedings, the
case came to trial. n2 Defendant renewed his
attack on the complaint by a motion to dismiss.
Since the parties had stipulated that defendant's
marriage to Betty Marvin did not terminate until
the filing of a final decree of divorce in
January 1967, the trial court treated defendant's
motion as one for judgment on the pleadings
augmented by the stipulation.
- - - - - - - -
- - - - - - - - - -Footnotes- - - - - - - - - - -
- - - - - - -
n2 When the case
was called for trial, plaintiff asked leave to
file an amended complaint. The proposed complaint
added two causes of action for 18 Cal. 3d 660,
*667; 557 P.2d 106, **111; 134 Cal. Rptr. 815,
***820 breach of contract against Santa Ana
Records, a corporation not a party to the action,
asserting that Santa Ana was an alter ego of
defendant. The court denied leave to amend, and
plaintiff claims that the ruling was an abuse of
discretion. We disagree; plaintiff's argument was
properly rejected by the Court of Appeal in the
portion of its opinion quoted below.
No error was
committed in denial of plaintiff's motion, made
on the opening day set for trial, seeking leave
to file a proposed amended complaint which would
have added two counts and a new defendant to the
action. As stated by plaintiff's counsel at the
hearing, "[There] is no question about it
that we seek to amend the Complaint not on the
eve of trial but on the day of trial."
In <=6>
Hayutin v. Weintraub, 207 Cal.App.2d 497 [24
Cal.Rptr. 761], the court said at pages 508-509
in respect to such a motion that had it been
granted, it "would have required a long
continuance for the purpose of canvassing wholly
new factual issues, a redoing of the elaborate
discovery procedures previously had, all of which
would have imposed upon defendant and his
witnesses substantial inconvenience . . . and
upon defendant needless and substantial
additional expense. . . . The court did not err
in denying leave to file the proposed amended
complaint." (See also: <=7> Nelson v.
Specialty Records, Inc., 11 Cal.App.3d 126,
138-139 [89 Cal.Rptr. 540]; <=8> Moss
Estate Co. v. Adler, 41 Cal.2d 581, 585 [261 P.2d
732]; <=9> Vogel v. Thrifty Drug 18 Cal. 3d
660, *667; 557 P.2d 106, **111; 134 Cal. Rptr.
815, ***820 Co., 43 Cal.2d 184, 188 [272 P.2d
1].) "The ruling of the trial judge will not
be disturbed upon appeal absent a showing by
appellant of a clear abuse of discretion.
[Citations.]" ( <=10> Nelson v.
Specialty Records, Inc., supra, 11 Cal.App.3d at
p. 139.) No such showing here appears.
- - - - - - - -
- - - - - - - - -End Footnotes- - - - - - - - - -
- - - - - - -
After hearing
argument the court granted defendant's motion and
entered judgment for defendant. Plaintiff moved
to set aside the judgment and asked leave to
amend her complaint to allege that she and
defendant reaffirmed their agreement after
defendant's divorce was final. The trial court
denied plaintiff's motion, and she appealed from
the judgment.
2. Plaintiff's
complaint states a cause of action for breach of
an express contract.
In <=11>
Trutalli v. Meraviglia (1932) 215 Cal. 698 [12
P.2d 430] we established the principle that
nonmarital partners may lawfully contract
concerning the ownership of property acquired
during the relationship. We reaffirmed this
principle in <=12> Vallera v. Vallera
(1943) 21 Cal.2d 681, 685 [134 P.2d 761], stating
that "If a man and woman [who are not
married] live together as husband and wife under
an agreement to pool [*668] their 18 Cal. 3d 660,
*668; 557 P.2d 106, **111; 134 Cal. Rptr. 815,
***820 earnings and share equally in their joint
accumulations, equity will protect the interests
of each in such property."
In the case
before us plaintiff, basing her cause of action
in contract upon these precedents, maintains that
the trial court erred in denying her a trial on
the merits of her contention. Although that court
did not specify the ground for its conclusion
that plaintiff's contractual allegations stated
no cause of action, n3 defendant offers some four
theories to sustain the ruling; we proceed to
examine them.
- - - - - - - -
- - - - - - - - - -Footnotes- - - - - - - - - - -
- - - - - - -
n3 The colloquy
between court and counsel at argument on the
motion for judgment on the pleadings suggests
that the trial court held the 1964 agreement
violated public policy because it derogated the
community property rights of Betty Marvin,
defendant's lawful wife. Plaintiff, however,
offered to amend her complaint to allege that she
and defendant reaffirmed their contract after
defendant and Betty were divorced. The trial
court denied leave to amend, a ruling which
suggests that the court's judgment must rest upon
some other ground than the assertion that the
contract would injure Betty's property rights.
- - - - - - - -
- - - - - - - - -End Footnotes- - - - - - - - - -
- - - - - - 18 Cal. 3d 660, *668; 557 P.2d 106,
**111; 134 Cal. Rptr. 815, ***820 -
[**112] [***821]
Defendant first and principally relies on the
contention that the alleged contract is so
closely related to the supposed
"immoral" character of the relationship
between plaintiff and himself that the
enforcement of the contract would violate public
policy. n4 He points to cases asserting that a
contract between nonmarital partners is
unenforceable if it is "involved in" an
illicit relationship (see <=13> Shaw v.
Shaw (1964) 227 Cal.App.2d 159, 164 [38 Cal.Rptr.
520] (dictum); <=14> Garcia v. Venegas
(1951) 106 Cal.App.2d 364, 368 [235 P.2d 89]
(dictum), or made in "contemplation" of
such a relationship ( <=15> Hill v. Estate
of Westbrook (1950) 95 Cal.App.2d 599, 602 [213
P.2d 727]; see <=16> Hill v. Estate of
Westbrook (1952) 39 Cal.2d 458, 460 [247 P.2d
19]; <=17> Barlow v. Collins (1958) 166
Cal.App.2d 274, 277 [333 P.2d 64] (dictum);
<=18> Bridges v. Bridges (1954) 125
Cal.App.2d 359, 362 [270 P.2d 69] (dictum)). A
review of the numerous California decisions
concerning contracts between nonmarital [*669]
partners, however, reveals that the courts have
not employed such broad and uncertain standards
to strike down contracts. The decisions instead
disclose a narrower and more precise standard: a
contract between nonmarital partners is
unenforceable only to the extent that it
explicitly rests upon the immoral and illicit
consideration of meretricious sexual services.
18 Cal. 3d 660,
*669; 557 P.2d 106, **112; 134 Cal. Rptr. 815,
***821 - - - - - - - - - - - - - - - - -
-Footnotes- - - - - - - - - - - - - - - - - -
n4 Defendant
also contends that the contract was illegal
because it contemplated a violation of former
Penal Code section 269a, which prohibited living
"in a state of cohabitation and
adultery." (@ 269a was repealed by Stats.
1975, ch. 71, eff. Jan. 1, 1976.) Defendant's
standing to raise the issue is questionable
because he alone was married and thus guilty of
violating section 269a. Plaintiff, being
unmarried could neither be convicted of
adulterous cohabitation nor of aiding and
abetting defendant's violation. (See <=19>
In re Cooper (1912) 162 Cal. 81, 85-86 [121 P.
318].)
The numerous
cases discussing the contractual rights of
unmarried couples have drawn no distinction
between illegal relationships and lawful
nonmarital relationships. (Cf. <=20> Weak
v. Weak (1962) 202 Cal.App.2d 632, 639 [21
Cal.Rptr. 9] (bigamous marriage).) Moreover, even
if we were to draw such a distinction -- a
largely academic endeavor in view of the repeal
of section 269a -- defendant probably would not
benefit; his relationship with plaintiff
continued long after his divorce became final,
and plaintiff sought to amend her complaint to
assert that the parties reaffirmed their contract
after the divorce.
- - - - - - - -
- - - - - - - - -End Footnotes- - - - - - - - - -
- - - - - - 18 Cal. 3d 660, *669; 557 P.2d 106,
**112; 134 Cal. Rptr. 815, ***821 -
In the first
case to address this issue, <=21> Trutalli
v. Meraviglia, supra, 215 Cal. 698, the parties
had lived together without marriage for 11 years
and had raised two children. The man sued to
quiet title to land he had purchased in his own
name during this relationship; the woman defended
by asserting an agreement to pool earnings and
hold all property jointly. Rejecting the
assertion of the illegality of the agreement, the
court stated that "The fact that the parties
to this action at the time they agreed to invest
their earnings in property to be held jointly
between them were living together in an unlawful
relation, did not disqualify them from entering
into a lawful agreement with each other, so long
as such immoral relation was not made a
consideration of their agreement." (Italics
added.) <=22> (215 Cal. at pp. 701-702.)
In <=23>
Bridges v. Bridges, supra, 125 Cal.App.2d 359
[270 P.2d 69], both parties were in the process
of obtaining divorces from their erstwhile
respective spouses. The two parties agreed to
live together, to share equally in property
acquired, and to marry when their divorces became
final. The man worked as a salesman and used his
savings to purchase properties. The woman kept
house, cared for seven children, three from each
former marriage and one from the nonmarital
relationship, and helped construct improvements
on the 18 Cal. 3d 660, *669; 557 P.2d 106, **112;
134 Cal. Rptr. 815, ***821 properties. When they
separated, without marrying, the court awarded
the woman one-half the value of the property.
Rejecting the man's contention that the contract
was illegal, the court stated that: "Nowhere
is it expressly testified to by anyone that there
was anything in the agreement for the pooling of
assets and the sharing of accumulations that
contemplated meretricious relations as any part
of the consideration or as any object of the
agreement." <=24> (125 Cal.App.2d at
p. 363.)
[**113] [***822]
<=25> Croslin v. Scott (1957) 154
Cal.App.2d 767 [316 P.2d 755] reiterates the rule
established in Trutalli and Bridges. In Croslin
the parties separated following a three-year
nonmarital relationship. The woman then phoned
the man, asked him to return to her, and
suggested that he build them a house on a lot she
owned. She agreed in return to place the property
in joint ownership. The man built the house, and
the parties lived there for [*670] several more
years. When they separated, he sued to establish
his interest in the property. Reversing a
nonsuit, the Court of Appeal stated that
"The mere fact that parties agree to live
together in meretricious relationship does not
necessarily make an agreement for disposition of
property between them invalid. It is only when
the property agreement is made in connection with
the other agreement, or the illicit relationship
is made a consideration of the property
agreement, that the latter becomes illegal."
<=26> (154 Cal.App.2d at p. 771.) 18 Cal.
3d 660, *670; 557 P.2d 106, **113; 134 Cal. Rptr.
815, ***822 Numerous other cases have upheld
enforcement of agreements between nonmarital
partners in factual settings essentially
indistinguishable from the present case. (
<=27> In re Marriage of Foster (1974) 42
Cal.App.3d 577 [117 Cal.Rptr. 49]; <=28>
Weak v. Weak, supra, 202 Cal.App.2d 632, 639;
<=29> Ferguson v. Schuenemann (1959) 167
Cal.App.2d 413 [334 P.2d 668]; <=30> Barlow
v. Collins, supra, 166 Cal.App.2d 274, 277-278;
<=31> Ferraro v. Ferraro (1956) 146
Cal.App.2d 849 [304 P.2d 168]; <=32> Cline
v. Festersen (1954) 128 Cal.App.2d 380 [275 P.2d
149]; <=33> Profit v. Profit (1953) 117
Cal.App.2d 126 [255 P.2d 25]; <=34> Garcia
v. Venegas, supra, 106 Cal.App.2d 364;
<=35> Padilla v. Padilla (1940) 38
Cal.App.2d 319 [100 P.2d 1093]; <=36> Bacon
v. Bacon (1937) 21 Cal.App.2d 540 [69 P.2d 884].)
n5
- - - - - - - -
- - - - - - - - - -Footnotes- - - - - - - - - - -
- - - - - - -
n5 Defendant
urges that all of the cited cases, with the
possible exception of <=37> In re Marriage
of Foster, supra, 42 Cal.App.3d 577 and
<=38> Bridges v. Bridges, supra, 125
Cal.App.2d 359, can be distinguished on the
ground that the partner seeking to enforce the
contract contributed either property or services
additional to ordinary homemaking services. No
case, however, suggests that a pooling agreement
in which one partner contributes only homemaking
services is invalid, and dictum in <=39>
Hill v. Estate of Westbrook, supra, 95 Cal.App.2d
599, 603 [213 P.2d 727] states the opposite. 18
Cal. 3d 660, *670; 557 P.2d 106, **113; 134 Cal.
Rptr. 815, ***822 A promise to perform homemaking
services is, of course, a lawful and adequate
consideration for a contract (see <=40>
Taylor v. Taylor (1954) 66 Cal.App.2d 390, 398
[152 P.2d 480]) -- otherwise those engaged in
domestic employment could not sue for their wages
-- and defendant advances no reason why his
proposed distinction would justify denial of
enforcement to contracts supported by such
consideration. (See <=41> Tyranski v.
Piggins (1973) 44 Mich.App. 570 [205 N.W.2d 595,
597].)
- - - - - - - -
- - - - - - - - -End Footnotes- - - - - - - - - -
- - - - - - -
Although the
past decisions hover over the issue in the
somewhat wispy form of the figures of a Chagall
painting, we can abstract from those decisions a
clear and simple rule. The fact that a man and
woman live together without marriage, and engage
in a sexual relationship, does not in itself
invalidate agreements between them relating to
their earnings, property, or expenses. Neither is
such an agreement invalid merely because the
parties may have contemplated the creation or
continuation of a nonmarital relationship when
they entered into it. Agreements between
nonmarital partners fail only to the extent that
they [*671] rest upon a consideration of
meretricious sexual services. Thus the rule
asserted by defendant, that a contract fails if
it is "involved in" or made "in
contemplation" of a nonmarital relationship,
cannot be reconciled with the decisions. 18 Cal.
3d 660, *671; 557 P.2d 106, **113; 134 Cal. Rptr.
815, ***822 The three cases cited by defendant
which have declined to enforce contracts between
nonmarital partners involved consideration that
was expressly founded upon an illicit sexual
services. In <=42> Hill v. Estate of
Westbrook, supra, 95 Cal.App.2d 599, the woman
promised to keep house for the man, to live with
him as man and wife, and to bear his children;
the man promised to provide for her in his will,
but died without doing so. Reversing a judgment
for the woman based on the reasonable value of
her services, the Court of Appeal stated that
"the action is predicated upon a claim which
seeks, among other things, the reasonable value
of living with decedent in meretricious
relationship and bearing him [**114] [***823] two
children. . . . The law does not award
compensation for living with a man as a concubine
and bearing him children. . . . As the judgment
is at least in part, for the value of the claimed
services for which recovery cannot be had, it
must be reversed." <=43> (95
Cal.App.2d at p. 603.) Upon retrial, the trial
court found that it could not sever the contract
and place an independent value upon the
legitimate services performed by claimant. We
therefore affirmed a judgment for the estate. (
<=44> Hill v. Estate of Westbrook (1952) 39
Cal.2d 458 [247 P.2d 19].)
In the only
other cited decision refusing to enforce a
contract, <=45> Updeck v. Samuel (1954) 123
Cal.App.2d 264 [266 P.2d 822], the contract
"was based on the consideration that the
parties live together as husband and wife."
<=46> (123 Cal.App.2d at p. 267.) Viewing
the contract as calling for 18 Cal. 3d 660, *671;
557 P.2d 106, **114; 134 Cal. Rptr. 815, ***823
adultery, the court held it illegal. n6
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- - - - - - - - - -Footnotes- - - - - - - - - - -
- - - - - - -
n6 Although not
cited by defendant, the only California precedent
which supports his position is <=47> Heaps
v. Toy (1942) 54 Cal.App.2d 178 [128 P.2d 813].
In that case the woman promised to leave her job,
to refrain from marriage, to be a companion to
the man, and to make a permanent home for him; he
agreed to support the woman and her child for
life. The Court of Appeal held the agreement
invalid as a contract in restraint of marriage
(Civ. Code, @ 1676) and, alternatively, as
"contrary to good morals" (Civ. Code, @
1607). The opinion does not state that sexual
relations formed any part of the consideration
for the contract, nor explain how -- unless the
contract called for sexual relations -- the
woman's employment as a companion and housekeeper
could be contrary to good morals.
The alternative
holding in <=48> Heaps v. Toy, supra,
finding the contract in that case contrary to
good morals, is inconsistent with the numerous
California decisions upholding contracts between
nonmarital partners when such contracts are not
founded upon an illicit consideration, and is
therefore disapproved.
18 Cal. 3d 660,
*671; 557 P.2d 106, **114; 134 Cal. Rptr. 815,
***823 - - - - - - - - - - - - - - - - -End
Footnotes- - - - - - - - - - - - - - - - -
[*672] The
decisions in the Hill and Updeck cases thus
demonstrate that a contract between nonmarital
partners, even if expressly made in contemplation
of a common living arrangement, is invalid only
if sexual acts form an inseparable part of the
consideration for the agreement. In sum, a court
will not enforce a contract for the pooling of
property and earnings if it is explicitly and
inseparably based upon services as a paramour.
The Court of Appeal opinion in Hill, however,
indicates that even if sexual services are part
of the contractual consideration, any severable
portion of the contract supported by independent
consideration will still be enforced.
The principle
that a contract between nonmarital partners will
be enforced unless expressly and inseparably
based upon an illicit consideration of sexual
services not only represents the distillation of
the decisional law, but also offers a far more
precise and workable standard than that advocated
by defendant. Our recent decision in <=49>
In re Marriage of Dawley (1976) 17 Cal.3d 342
[131 Cal.Rptr. 3, 551 P.2d 323] offers a close
analogy. Rejecting the contention that an
antenuptial agreement is invalid if the parties
contemplated a marriage of short duration, we
pointed out in Dawley that a standard based upon
the subjective contemplation of the parties is
uncertain and unworkable; such a test, we stated,
"might invalidate virtually all 18 Cal. 3d
660, *672; 557 P.2d 106, **114; 134 Cal. Rptr.
815, ***823 antenuptial agreements on the ground
that the parties contemplated dissolution . . .
but it provides no principled basis for
determining which antenuptial agreements offend
public policy and which do not." <=50>
(17 Cal.3d 342, 352.)
Similarly, in
the present case a standard which inquires
whether an agreement is "involved" in
or "contemplates" a nonmarital
relationship is vague and unworkable. Virtually
all agreements between nonmarital partners can be
said to be "involved" in some sense in
the fact of their mutual sexual relationship, or
to "contemplate" the existence of that
relationship. Thus defendant's proposed
standards, if taken literally, might invalidate
all agreements between nonmarital partners, a
result no one favors. Moreover, those standards
offer no basis to distinguish between valid and
invalid agreements. By looking not to such
uncertain tests, but only to the consideration
underlying [**115] [***824] the agreement, we
provide the parties and the courts with a
practical guide to determine when an agreement
between nonmarital partners should be enforced.
Defendant
secondly relies upon the ground suggested by the
trial court: that the 1964 contract violated
public policy because it impaired [*673] the
community property rights of Betty Marvin,
defendant's lawful wife. Defendant points out
that his earnings while living apart from his
wife before rendition of the interlocutory decree
were community property under 1964 statutory law
18 Cal. 3d 660, *673; 557 P.2d 106, **115; 134
Cal. Rptr. 815, ***824 (former Civ. Code, @@ 169,
169.2) n7 and that defendant's agreement with
plaintiff purported to transfer to her a half
interest in that community property. But whether
or not defendant's contract with plaintiff
exceeded his authority as manager of the
community property (see former Civ. Code, @ 172),
defendant's argument fails for the reason that an
improper transfer of community property is not
void ab initio, but merely voidable at the
instance of the aggrieved spouse. See <=51>
Ballinger v. Ballinger (1937) 9 Cal.2d 330, 334
[70 P.2d 629; <=52> Trimble v. Trimble
(1933) 219 Cal. 340, 344 [26 P.2d 477].)
- - - - - - - -
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- - - - - - -
n7 Sections 169
and 169.2 were replaced in 1970 by Civil Code
section 5118. In 1972 section 5118 was amended to
provide that the earnings and accumulations of
both spouses "while living separate and
apart from the other spouse, are the separate
property of the spouse."
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- - - - - - -
In the present
case Betty Marvin, the aggrieved spouse, had the
opportunity to assert her community property
rights in the divorce action. (See <=53>
Babbitt v. Babbitt (1955) 44 Cal.2d 289, 293 [282
P.2d 1].) The interlocutory 18 Cal. 3d 660, *673;
557 P.2d 106, **115; 134 Cal. Rptr. 815, ***824
and final decrees in that action fix and limit
her interest. Enforcement of the contract between
plaintiff and defendant against property awarded
to defendant by the divorce decree will not
impair any right of Betty's, and thus is not on
that account violative of public policy. n8
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- - - - - - -
n8 Defendant
also contends that the contract is invalid as an
agreement to promote or encourage divorce. (See 1
Witkin, Summary of Cal. Law (8th ed.) pp. 390-392
and cases there cited.) The contract between
plaintiff and defendant did not, however, by its
terms require defendant to divorce Betty, nor
reward him for so doing. Moreover, the principle
on which defendant relies does not apply when the
marriage in question is beyond redemption (
<=54> Glickman v. Collins (1975) 13 Cal.3d
852, 858-859 [120 Cal.Rptr. 76, 533 P.2d 204]);
whether or not defendant's marriage to Betty was
beyond redemption when defendant contracted with
plaintiff is obviously a question of fact which
cannot be resolved by judgment on the pleadings.
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Defendant's
third contention is noteworthy for the lack of
authority advanced in its support. He contends
that enforcement of the oral agreement between 18
Cal. 3d 660, *673; 557 P.2d 106, **115; 134 Cal.
Rptr. 815, ***824 plaintiff and himself is barred
by Civil Code section 5134, which provides that
"All contracts for marriage settlements must
be in writing. . . ." A marriage settlement,
however, is an agreement in contemplation of
marriage in which each party agrees to release or
modify the property rights which would otherwise
arise from the marriage. (See <=55> Corker
v. Corker (1891) 87 Cal. 643, 648 [25 P. 922].)
The [*674] contract at issue here does not
conceivably fall within that definition, and thus
is beyond the compass of section 5134. n9
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- - - - - - -
n9 Our review of
the many cases enforcing agreements between
nonmarital partners reveals that the majority of
such agreements were oral. In two cases (
<=56> Ferguson v. Schuenemann, supra, 167
Cal.App.2d 413; <=57> Cline v. Festersen,
supra, 128 Cal.App.2d 380), the court expressly
rejected defenses grounded upon the statute of
frauds.
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- - - - - - -
Defendant
finally argues that enforcement of the contract
is barred by Civil Code section 43.5, subdivision
(d), which provides that "No cause of action
arises for . . . breach of promise of
marriage." This rather strained contention
proceeds from the premise that a promise of
marriage impliedly includes a 18 Cal. 3d 660,
*674; 557 P.2d 106, **115; 134 Cal. Rptr. 815,
***824 promise to support and to pool property
acquired after marriage (see <=58> Boyd v.
Boyd (1964) 228 Cal.App.2d 374 [39 Cal.Rptr.
400]) to the conclusion that pooling and support
agreements not part of or accompanied by promise
of marriage are barred by the section. We
conclude that section 43.5 is not reasonably
[**116] [***825] susceptible to the
interpretation advanced by defendant, a
conclusion demonstrated by the fact that since
section 43.5 was enacted in 1939, numerous cases
have enforced pooling agreements between
nonmarital partners, and in none did court or
counsel refer to section 43.5.
In summary, we
base our opinion on the principle that adults who
voluntarily live together and engage in sexual
relations are nonetheless as competent as any
other persons to contract respecting their
earnings and property rights. Of course, they
cannot lawfully contract to pay for the
performance of sexual services, for such a
contract is, in essence, an agreement for
prostitution and unlawful for that reason. But
they may agree to pool their earnings and to hold
all property acquired during the relationship in
accord with the law governing community property;
conversely they may agree that each partner's
earnings and the property acquired from those
earnings remains the separate property of the
earning partner. n10 So long as the agreement
does not rest upon illicit meretricious
consideration, the parties may order their
economic affairs as they choose, and no policy
precludes the courts from enforcing such
agreements.
18 Cal. 3d 660,
*674; 557 P.2d 106, **116; 134 Cal. Rptr. 815,
***825 - - - - - - - - - - - - - - - - -
-Footnotes- - - - - - - - - - - - - - - - - -
n10 A great
variety of other arrangements are possible. The
parties might keep their earnings and property
separate, but agree to compensate one party for
services which benefit the other. They may choose
to pool only part of their earnings and property,
to form a partnership or joint venture, or to
hold property acquired as joint tenants or
tenants in common, or agree to any other such
arrangement. (See generally Weitzman, Legal
Regulation of Marriage: Tradition and Change
(1974) 62 Cal.L.Rev. 1169.)
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- - - - - - -
In the present
instance, plaintiff alleges that the parties
agreed to pool their earnings, that they
contracted to share equally in all property
[*675] acquired, and that defendant agreed to
support plaintiff. The terms of the contract as
alleged do not rest upon any unlawful
consideration. We therefore conclude that the
complaint furnishes a suitable basis upon which
the trial court can render declaratory relief.
(See 3 Witkin, Cal. Procedure (2d ed.) pp.
2335-2336.) The trial court consequently erred in
granting defendant's motion for judgment on the
pleadings.
3. Plaintiff's
complaint can be amended to state a cause of
action founded 18 Cal. 3d 660, *675; 557 P.2d
106, **116; 134 Cal. Rptr. 815, ***825 upon
theories of implied contract or equitable relief.
As we have
noted, both causes of action in plaintiff's
complaint allege an express contract; neither
assert any basis for relief independent from the
contract. In <=60> In re Marriage of Cary,
supra, 34 Cal.App.3d 345, however, the Court of
Appeal held that, in view of the policy of the
Family Law Act, property accumulated by
nonmarital partners in an actual family
relationship should be divided equally. Upon
examining the Cary opinion, the parties to the
present case realized that plaintiff's alleged
relationship with defendant might arguably
support a cause of action independent of any
express contract between the parties. The parties
have therefore briefed and discussed the issue of
the property rights of a nonmarital partner in
the absence of an express contract. Although our
conclusion that plaintiff's complaint states a
cause of action based on an express contract
alone compels us to reverse the judgment for
defendant, resolution of the Cary issue will
serve both to guide the parties upon retrial and
to resolve a conflict presently manifest in
published Court of Appeal decisions.
Both plaintiff
and defendant stand in broad agreement that the
law should be fashioned to carry out the
reasonable expectations of the parties.
Plaintiff, however, presents the following
contentions: that the decisions prior to Cary
rest upon implicit and erroneous notions of
punishing a party for his or her 18 Cal. 3d 660,
*675; 557 P.2d 106, **116; 134 Cal. Rptr. 815,
***825 guilt in entering into a nonmarital
relationship, that such decisions result in an
inequitable distribution of property accumulated
during the relationship, and that Cary correctly
held that the enactment of the Family Law Act in
1970 overturned those prior decisions. Defendant
in response maintains that the prior decisions
[**117] [***826] merely applied common law
principles of contract and property to persons
who have deliberately elected to remain outside
the bounds of the community property system. n11
Cary, defendant contends, erred in [*676] holding
that the Family Law Act vitiated the force of the
prior precedents.
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- - - - - - -
n11 We note that
a deliberate decision to avoid the strictures of
the community property system is not the only
reason that couples live together without
marriage. Some couples may wish to avoid the
permanent commitment that marriage implies, yet
be willing to share equally any property acquired
during the relationship; others may fear the loss
of pension, welfare, or tax benefits resulting
from marriage (see <=61> Beckman v. Mayhew,
supra, 49 Cal.App.3d 529). Others may engage in
the relationship as a possible prelude to
marriage. In lower socio-economic groups the
difficulty and expense of dissolving a former
marriage often leads couples to choose a
nonmarital relationship; many unmarried couples
may also incorrectly believe that the doctrine of
common law marriage 18 Cal. 3d 660, *676; 557
P.2d 106, **117; 134 Cal. Rptr. 815, ***826
prevails in California, and thus that they are in
fact married. Consequently we conclude that the
mere fact that a couple have not participated in
a valid marriage ceremony cannot serve as a basis
for a court's inference that the couple intend to
keep their earnings and property separate and
independent; the parties' intention can only be
ascertained by a more searching inquiry into the
nature of their relationship.
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As we shall see
from examination of the pre-Cary decisions, the
truth lies somewhere between the positions of
plaintiff and defendant. The classic opinion on
this subject is <=62> Vallera v. Vallera,
supra, 21 Cal.2d 681. Speaking for a four-member
majority, Justice Traynor posed the question:
"whether a woman living with a man as his
wife but with no genuine belief that she is
legally married to him acquires by reason of
cohabitation alone the rights of a co-tenant in
his earnings and accumulations during the period
of their relationship." <=63> (21
Cal.2d at p. 684.) Citing <=64> Flanagan v.
Capital Nat. Bank (1931) 213 Cal. 664 [3 P.2d
307], which held that a nonmarital
"wife" could not claim that her
husband's estate was community property, the
majority answered that question "in the
negative." (Pp. 684-685.) Vallera explains
that "Equitable considerations arising from
the reasonable expectation of the continuation of
benefits attending the status of marriage entered
into in good 18 Cal. 3d 660, *676; 557 P.2d 106,
**117; 134 Cal. Rptr. 815, ***826 faith are not
present in such a case." (P. 685.) In the
absence of express contract, Vallera concluded,
the woman is entitled to share in property
jointly accumulated only "in the proportion
that her funds contributed toward its
acquisition." (P. 685.) Justice Curtis,
dissenting, argued that the evidence showed an
implied contract under which each party owned an
equal interest in property acquired during the
relationship.
The majority
opinion in Vallera did not expressly bar recovery
based upon an implied contract, nor preclude
resort to equitable remedies. But Vallera's broad
assertion that equitable considerations "are
not present" in the case of a nonmarital
relationship <=65> (21 Cal.2d at p. 685)
led the Courts of Appeal to interpret the
language to preclude recovery based on such
theories. (See <=66> Lazzarevich v.
Lazzarevich (1948) 88 Cal.App.2d 708, 719 [*677]
[200 P.2d 49]; <=67> Oakley v. Oakley
(1947) 82 Cal.App.2d 188, 191-192 [185 P.2d
848].) n12
- - - - - - - -
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- - - - - - -
n12 The cases
did not clearly determine whether a nonmarital
partner could recover in quantum meruit for the
reasonable value of services rendered. But when
we affirmed a trial court ruling denying recovery
in <=68> Hill v. Estate of Westbrook,
supra, 39 Cal.2d 458, we did so in part on the
ground that 18 Cal. 3d 660, *677; 557 P.2d 106,
**117; 134 Cal. Rptr. 815, ***826 whether the
partner "rendered her services because of
expectation of monetary reward" (p. 462) was
a question of fact resolved against her by the
trial court -- thus implying that in a proper
case the court would allow recovery based on
quantum meruit.
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Consequently,
when the issue of the rights of a nonmarital
partner reached this court in <=69> Keene
v. Keene (1962) 57 Cal.2d 657 [21 Cal.Rptr. 593,
371 P.2d 329], the claimant forwent reliance upon
theories of contract implied in law or fact.
Asserting that she had worked on her partner's
ranch and that her labor had enhanced its value,
she confined her cause of action to the claim
that the court should impress a resulting trust
on the property derived from the sale of the
ranch. The court limited its opinion accordingly,
rejecting her argument on the ground that the
rendition of services [**118] [***827] gives rise
to a resulting trust only when the services aid
in acquisition of the property, not in its
subsequent improvement. <=70> (57 Cal.2d at
p. 668.) Justice Peters, dissenting, attacked the
majority's distinction between the rendition of
services and the contribution of funds or
property; he maintained that both property and
services furnished valuable consideration, and
potentially afforded the ground for a resulting
trust.
18 Cal. 3d 660,
*677; 557 P.2d 106, **118; 134 Cal. Rptr. 815,
***827 This failure of the courts to recognize an
action by a nonmarital partner based upon implied
contract, or to grant an equitable remedy,
contrasts with the judicial treatment of the
putative spouse. Prior to the enactment of the
Family Law Act, no statute granted rights to a
putative spouse. n13 The courts accordingly
fashioned a variety of remedies by judicial
decision. Some cases permitted the putative
spouse to recover half the property on a theory
that the conduct of the parties implied an
agreement of partnership or joint venture. (See
<=71> Estate of Vargas (1974) 36 Cal.App.3d
714, 717-718 [111 Cal.Rptr. 779]; <=72>
Sousa v. Freitas (1970) 10 Cal.App.3d 660, 666
[89 Cal.Rptr. 485].) Others permitted the spouse
to recover the reasonable value of rendered
services, less the value of support received.
(See <=73> Sanguinetti v. Sanguinetti
(1937) 9 Cal.2d 95, 100-102 [*678] [69 P.2d 845,
111 A.L.R. 342].) n14 Finally, decisions affirmed
the power of a court to employ equitable
principles to achieve a fair division of property
acquired during putative marriage. ( <=74>
Coats v. Coats (1911) 160 Cal. 671, 677-678 [118
P. 441]; <=75> Caldwell v. Odisio (1956)
142 Cal.App.2d 732, 735 [299 P.2d 14].) n15
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- - - - - - -
n13 The Family
Law Act, in Civil Code section 4452, classifies
property acquired during a putative marriage as
"'quasi-marital property,'" and
requires that such property be divided upon
dissolution of the marriage in accord with 18
Cal. 3d 660, *678; 557 P.2d 106, **118; 134 Cal.
Rptr. 815, ***827 Civil Code section 4800.
n14 The putative
spouse need not prove that he rendered services
in expectation of monetary reward in order to
recover the reasonable value of those services. (
<=76> Sanguinetti v. Sanguinetti, supra, 9
Cal.2d 95, 100.)
n15 The contrast
between principles governing nonmarital and
putative relationships appears most strikingly in
<=77> Lazzarevich v. Lazzarevich, supra, 88
Cal.App.2d 708. When Mrs. Lazzarevich sued her
husband for divorce in 1945, she discovered to
her surprise that she was not lawfully married to
him. She nevertheless reconciled with him, and
the Lazzareviches lived together for another year
before they finally separated. The court awarded
her recovery for the reasonable value of services
rendered, less the value of support received,
until she discovered the invalidity of the
marriage, but denied recovery for the same
services rendered after that date.
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Thus in summary,
the cases prior to Cary exhibited a schizophrenic
inconsistency. By enforcing an express contract
between nonmarital partners unless it rested upon
an unlawful consideration, the courts applied a
common law principle as to contracts. Yet the
courts disregarded the common law 18 Cal. 3d 660,
*678; 557 P.2d 106, **118; 134 Cal. Rptr. 815,
***827 principle that holds that implied
contracts can arise from the conduct of the
parties. n16 Refusing to enforce such contracts,
the courts spoke of leaving the parties "in
the position in which they had placed
themselves" ( <=78> Oakley v. Oakley,
supra, 82 Cal.App.2d 188, 192), just as if they
were guilty parties in pari delicto.
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- - - - - - -
n16
"Contracts may be express or implied. These
terms however do not denote different kinds of
contracts, but have reference to the evidence by
which the agreement between the parties is shown.
If the agreement is shown by the direct words of
the parties, spoken or written, the contract is
said to be an express one. But if such agreement
can only be shown by the acts and conduct of the
parties, interpreted in the light of the subject
matter and of the surrounding circumstances, then
the contract is an implied one." (
<=79> Skelly v. Bristol Sav. Bank (1893) 63
Conn. 83 [26 A. 474], quoted in 1 Corbin,
Contracts (1963) p. 41.) Thus, as Justice Schauer
observed in <=80> Desny v. Wilder (1956) 46
Cal.2d 715 [299 P.2d 257], in a sense all
contracts made in fact, as distinguished from
quasi-contractual obligations, are express
contracts, differing only in the manner in which
the assent of the parties is expressed and
proved. (See <=81> 46 Cal.2d at pp.
735-736.)
18 Cal. 3d 660,
*678; 557 P.2d 106, **118; 134 Cal. Rptr. 815,
***827 - - - - - - - - - - - - - - - - -End
Footnotes- - - - - - - - - - - - - - - - -
Justice Curtis
noted this inconsistency in his dissenting
opinion in Vallera, pointing out that "if an
express agreement will be enforced, there is no
legal or just reason why an implied agreement to
share the property cannot be enforced."
<=82> (21 Cal.2d 681, [***828] 686; [**119]
see Bruch, Property Rights of De Facto Spouses
Including Thoughts on the Value of Homemakers'
Services (1976) 10 Family L.Q. 101, 117-121.) And
in <=84> Keene v. Keene, supra, 57 Cal.2d
657, Justice Peters observed that if the [*679]
man and woman "were not illegally living
together . . . it would be a plain business
relationship and a contract would be
implied." (Dis. opn. at p. 672.)
Still another
inconsistency in the prior cases arises from
their treatment of property accumulated through
joint effort. To the extent that a partner had
contributed funds or property, the cases held
that the partner obtains a proportionate share in
the acquisition, despite the lack of legal
standing of the relationship. ( <=85>
Vallera v. Vallera, supra, 21 Cal.2d at p. 685;
see <=86> Weak v. Weak, supra, 202
Cal.App.2d 632, 639.) Yet courts have refused to
recognize just such an interest based upon the
contribution of services. As Justice Curtis
points out "Unless it can be argued that a
woman's services as cook, housekeeper, and
homemaker are valueless, it would seem logical
that if, when she contributes money to the
purchase of property, her interest will be 18
Cal. 3d 660, *679; 557 P.2d 106, **119; 134 Cal.
Rptr. 815, ***828 protected, then when she
contributes her services in the home, her
interest in property accumulated should be
protected." ( <=87> Vallera v.
Vallera, supra, 21 Cal.2d 681, 686-687 (dis.
opn.); see Bruch, op. cit., supra, 10 Family L.Q.
101, 110-114; Article, Illicit Cohabitation: The
Impact of the Vallera and Keene Cases on the
Rights of the Meretricious Spouse (1973) 6 U.C.
Davis L.Rev. 354, 369-370; Comment (1972) 48
Wash.L.Rev. 635, 641.)
Thus as of 1973,
the time of the filing of <=90> In re
Marriage of Cary, supra, 34 Cal.App.3d 345, the
cases apparently held that a nonmarital partner
who rendered services in the absence of express
contract could assert no right to property
acquired during the relationship. The facts of
Cary demonstrated the unfairness of that rule.
Janet and Paul
Cary had lived together, unmarried, for more than
eight years. They held themselves out to friends
and family as husband and wife, reared four
children, purchased a home and other property,
obtained credit, filed joint income tax returns,
and otherwise conducted themselves as though they
were married. Paul worked outside the home, and
Janet generally cared for the house and children.
In 1971 Paul
petitioned for "nullity of the
marriage." n17 Following a hearing on that
petition, the trial court awarded Janet half the
property 18 Cal. 3d 660, *679; 557 P.2d 106,
**119; 134 Cal. Rptr. 815, ***828 acquired during
the relationship, although all such property was
traceable to Paul's earnings. The Court of Appeal
affirmed the award.
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- - - - - - -
n17 The Court of
Appeal opinion in <=91> In re Marriage of
Cary, supra, does not explain why Paul Cary filed
his action as a petition for nullity. Briefs
filed with this court, however, suggest that Paul
may have been seeking to assert rights as a
putative spouse. In the present case, on the
other hand, neither party claims the status of an
actual or putative spouse. Under such
circumstances an action to adjudge "the
marriage" in the instant case a nullity
would be pointless and could not serve as a
device to adjudicate contract and property rights
arising from the parties' nonmarital
relationship. Accordingly, plaintiff here
correctly chose to assert her rights by means of
an ordinary civil action.
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[*680] Reviewing
the prior decisions which had denied relief to
the homemaking partner, the Court of Appeal
reasoned that those decisions rested upon a
policy of punishing persons guilty of
cohabitation without marriage. The Family Law
Act, the court observed, aimed to eliminate fault
or guilt as a 18 Cal. 3d 660, *680; 557 P.2d 106,
**119; 134 Cal. Rptr. 815, ***828 basis for
dividing marital property. But once fault or
guilt is excluded, the court reasoned, nothing
distinguishes the property rights of a nonmarital
"spouse" from those of a putative
spouse. Since the latter is entitled to half the
"'quasi marital property'" (Civ. Code,
@ 4452), the Court of Appeal concluded that,
giving effect to the policy of the Family Law
Act, a nonmarital cohabitator should also be
entitled to half the property accumulated during
an "actual [**120] [***829] family
relationship." <=92> (34 Cal.App.3d at
p. 353.) n18
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- - - - - - -
n18 The court in
Cary also based its decision upon an analysis of
Civil Code section 4452, which specifies the
property rights of a putative spouse. Section
4452 states that if the "court finds that
either party or both parties believed in good
faith that the marriage was valid, the court
should declare such party or parties to have the
status of a putative spouse, and, . . . shall
divide, in accordance with Section 4800, that
property acquired during the union . . . . "
Since section 4800 requires an equal division of
community property, Cary interpreted section 4452
to require an equal division of the property of a
putative marriage, so long as one spouse believed
in good faith that the marriage was valid. Thus
under section 4452, Cary concluded, the
"guilty spouse" (the spouse who knows
the marriage is invalid) has the same right to 18
Cal. 3d 660, *680; 557 P.2d 106, **120; 134 Cal.
Rptr. 815, ***829 half the property as does the
"innocent" spouse.
Cary then
reasoned that if the "guilty" spouse to
a putative marriage is entitled to one-half the
marital property, the "guilty" partner
in a nonmarital relationship should also receive
one-half of the property. Otherwise, the court
stated, "We should be obliged to presume a
legislative intent that a person, who by deceit
leads another to believe a valid marriage exists
between them, shall be legally guaranteed half of
the property they acquire even though most, or
all, may have resulted from the earnings of the
blameless partner. At the same time we must infer
an inconsistent legislative intent that two
persons who, candidly with each other, enter upon
an unmarried family relationship, shall be denied
any judicial aid whatever in the assertion of
otherwise valid property rights."
<=93> (34 Cal.App.3d at p. 352.)
This reasoning
in Cary has been criticized by commentators. (See
Note, op. cit., supra, 25 Hastings L.J. 1226,
1234-1235; Comment, In re Marriage of Carey
[sic]: The End of the Putative-Meretricious
Spouse Distinction in California (1975) 12 San
Diego L.Rev. 436, 444-446.) The commentators note
that Civil Code section 4455 provides that an
"innocent" party to a putative marriage
can recover spousal support, from which they
infer that the Legislature intended to give only
the "innocent" spouse a right to
one-half of the quasi-marital property under
section 4452. 18 Cal. 3d 660, *680; 557 P.2d 106,
**120; 134 Cal. Rptr. 815, ***829 We need not now
resolve this dispute concerning the
interpretation of section 4452. Even if Cary is
correct in holding that a "guilty"
putative spouse has a right to one-half of the
marital property, it does not necessarily follow
that a nonmarital partner has an identical right.
In a putative marriage the parties will arrange
their economic affairs with the expectation that
upon dissolution the property will be divided
equally. If a "guilty" putative spouse
receives one-half of the property under section
4452, no expectation of the "innocent"
spouse has been frustrated. In a nonmarital
relationship, on the other hand, the parties may
expressly or tacitly determine to order their
economic relationship in some other manner, and
to impose community property principles
regardless of such understanding may frustrate
the parties' expectations.
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[*681] Cary met
with a mixed reception in other appellate
districts. In <=95> Estate of Atherley,
supra, 44 Cal.App.3d 758, the Fourth District
agreed with Cary that under the Family Law Act a
nonmarital partner in an actual family
relationship enjoys the same right to an equal
division of property as a putative spouse. In
<=96> Beckman v. Mayhew, supra, 49
Cal.App.3d 529, however, the Third District
rejected Cary on the ground that the Family Law
Act was not intended to change California law
dealing with nonmarital relationships.
18 Cal. 3d 660,
*681; 557 P.2d 106, **120; 134 Cal. Rptr. 815,
***829 If Cary is interpreted as holding that the
Family Law Act requires an equal division of
property accumulated in nonmarital "actual
family relationships," then we agree with
Beckman v. Mayhew that Cary distends the act. No
language in the Family Law Act addresses the
property rights of nonmarital partners, and
nothing in the legislative history of the act
suggests that the Legislature considered that
subject. n19 The delineation of the rights of
nonmarital partners before 1970 had been fixed
entirely by judicial decision; we see no reason
to believe that the Legislature, by enacting the
Family Law Act, intended to change that state of
affairs.
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- - - - - - -
n19 Despite the
extensive material available on the legislative
history of the Family Law Act neither Cary nor
plaintiff cites any reference which suggests that
the Legislature ever considered the issue of the
property rights of nonmarital partners, and our
independent examination has uncovered no such
reference.
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- - - - - - -
But although we
reject the reasoning of Cary and Atherley, we
share the perception of the Cary and Atherley
courts that the application of former 18 Cal. 3d
660, *681; 557 P.2d 106, **120; 134 Cal. Rptr.
815, ***829 precedent in the factual setting of
those cases would work an unfair distribution of
the property accumulated [**121] [***830] by the
couple. Justice Friedman in <=97> Beckman
v. Mayhew, supra, 49 Cal.App.3d 529, 535, also
questioned the continued viability of our
decisions in Vallera and Keene; commentators have
argued the need to reconsider those precedents.
n20 We should not, therefore, reject the
authority of Cary and Atherley without also
examining the deficiencies in the former law
which led to those decisions.
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- - - - - - -
n20 See Bruch,
op. cit., supra, 10 Family L.Q. 101, 113;
Article, op. cit., supra, 6 U.C. Davis L.Rev.
354; Comment (1975) 6 Golden Gate L.Rev. 179,
197-201; Comment, op. cit., supra, 12 San Diego
L.Rev. 436; Note, op. cit., supra, 25 Hastings
L.J. 1226, 1246.
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- - - - - - -
[*682] The
principal reason why the pre-Cary decisions
result in an unfair distribution of property
inheres in the court's refusal to permit a
nonmarital partner to assert rights based upon
accepted principles of implied contract or
equity. We have examined the reasons advanced to
justify this denial of relief, and find that none
have merit. 18 Cal. 3d 660, *682; 557 P.2d 106,
**121; 134 Cal. Rptr. 815, ***830 First, we note
that the cases denying relief do not rest their
refusal upon any theory of "punishing"
a "guilty" partner. Indeed, to the
extent that denial of relief "punishes"
one partner, it necessarily rewards the other by
permitting him to retain a disproportionate
amount of the property. Concepts of
"guilt" thus cannot justify an unequal
division of property between two equally
"guilty" persons. n21
- - - - - - - -
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- - - - - - -
n21 Justice
Finley of the Washington Supreme Court explains:
"Under such circumstances [the dissolution
of a nonmarital relationship], this court and the
courts of other jurisdictions have, in effect,
sometimes said, 'We will wash our hands of such
disputes. The parties should and must be left to
their own devices, just where they find
themselves.' To me, such pronouncements seem
overly fastidious and a bit fatuous. They are
unrealistic and, among other things, ignore the
fact that an unannounced (but nevertheless
effective and binding) rule of law is inherent in
any such terminal statements by a court of law.
The unannounced but inherent rule is simply that
the party who has title, or in some instances who
is in possession, will enjoy the rights of
ownership of the property concerned. The rule
often operates to the great advantage of the
cunning and the shrewd, who wind up with
possession of the property, or title to it in
their names, at the end of a so-called
meretricious relationship. So, 18 Cal. 3d 660,
*682; 557 P.2d 106, **121; 134 Cal. Rptr. 815,
***830 although the courts proclaim that they
will have nothing to do with such matters, the
proclamation in itself establishes, as to the
parties involved, an effective and binding rule
of law which tends to operate purely by accident
or perhaps by reason of the cunning, anticipatory
designs of just one of the parties." (
<=99> West v. Knowles (1957) 50 Wn.2d 311
[311 P.2d 689, 692] (conc. opn.).)
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- - - - - - -
Other reasons
advanced in the decisions fare no better. The
principal argument seems to be that
"[equitable] considerations arising from the
reasonable expectation of . . . benefits
attending the status of marriage . . . are not
present [in a nonmarital relationship]." (
<=100> Vallera v. Vallera, supra, 21 Cal.2d
at p. 685.) But, although parties to a nonmarital
relationship obviously cannot have based any
expectations upon the belief that they were
married, other expectations and equitable
considerations remain. The parties may well
expect that property will be divided in accord
with the parties' own tacit understanding and
that in the absence of such understanding the
courts will fairly apportion property accumulated
through mutual effort. We need not treat
nonmarital partners as putatively married persons
in order to apply principles of implied contract,
or extend equitable remedies; we need to treat
them only as we do any other unmarried persons.
n22 18 Cal. 3d 660, *682; 557 P.2d 106, **121;
134 Cal. Rptr. 815, ***830
- - - - - - - -
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- - - - - - -
n22 In some
instances a confidential relationship may arise
between nonmarital partners, and economic
transactions between them should be governed by
the principles applicable to such relationships.
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- - - - - - -
[*683] The
remaining arguments advanced from time to time to
deny remedies to the nonmarital partners are of
less moment. There is no more reason to presume
that services are contributed as a gift than to
presume that funds are contributed as a gift; in
any event the better approach is to presume, as
Justice Peters suggested, "that the parties
intend to deal fairly with each other." (
<=101> Keene v. Keene, supra, 57 Cal.2d
657, 674 (dissenting opn.); see Bruch, op. cit.,
supra, 10 Family L.Q. 101, 113.)
[**122] [***831]
The argument that granting remedies to the
nonmarital partners would discourage marriage
must fail; as Cary pointed out, "with equal
or greater force the point might be made that the
pre-1970 rule was calculated to cause the
income-producing partner to avoid marriage and
thus retain the benefit of all of his or her
accumulated earnings." <=102> (34
Cal.App.3d at 18 Cal. 3d 660, *683; 557 P.2d 106,
**122; 134 Cal. Rptr. 815, ***831 p. 353.)
Although we recognize the well-established public
policy to foster and promote the institution of
marriage (see <=103> Deyoe v. Superior
Court (1903) 140 Cal. 476, 482 [74 P. 28]),
perpetuation of judicial rules which result in an
inequitable distribution of property accumulated
during a nonmarital relationship is neither a
just nor an effective way of carrying out that
policy.
In summary, we
believe that the prevalence of nonmarital
relationships in modern society and the social
acceptance of them, marks this as a time when our
courts should by no means apply the doctrine of
the unlawfulness of the so-called meretricious
relationship to the instant case. As we have
explained, the nonenforceability of agreements
expressly providing for meretricious conduct
rested upon the fact that such conduct, as the
word suggests, pertained to and encompassed
prostitution. To equate the nonmarital
relationship of today to such a subject matter is
to do violence to an accepted and wholly
different practice.
We are aware
that many young couples live together without the
solemnization of marriage, in order to make sure
that they can successfully later undertake
marriage. This trial period, n23 preliminary to
marriage, serves as some assurance that the
marriage will not subsequently end in dissolution
to the harm of both parties. We are aware, as we
have stated, of the pervasiveness of nonmarital
relationships in other situations. 18 Cal. 3d
660, *683; 557 P.2d 106, **122; 134 Cal. Rptr.
815, ***831
- - - - - - - -
- - - - - - - - - -Footnotes- - - - - - - - - - -
- - - - - - -
n23 Toffler,
Future Shock (Bantam Books, 1971) page 253.
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- - - - - - -
[*684] The mores
of the society have indeed changed so radically
in regard to cohabitation that we cannot impose a
standard based on alleged moral considerations
that have apparently been so widely abandoned by
so many. Lest we be misunderstood, however, we
take this occasion to point out that the
structure of society itself largely depends upon
the institution of marriage, and nothing we have
said in this opinion should be taken to derogate
from that institution. The joining of the man and
woman in marriage is at once the most socially
productive and individually fulfilling
relationship that one can enjoy in the course of
a lifetime.
We conclude that
the judicial barriers that may stand in the way
of a policy based upon the fulfillment of the
reasonable expectations of the parties to a
nonmarital relationship should be removed. As we
have explained, the courts now hold that express
agreements will be enforced unless they rest on
an unlawful meretricious consideration. We add
that in the absence of an express 18 Cal. 3d 660,
*684; 557 P.2d 106, **122; 134 Cal. Rptr. 815,
***831 agreement, the courts may look to a
variety of other remedies in order to protect the
parties' lawful expectations. n24
- - - - - - - -
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- - - - - - -
n24 We do not
seek to resurrect the doctrine of common law
marriage, which was abolished in California by
statute in 1895. (See <=104> Norman v.
Thomson (1898) 121 Cal. 620, 628 [54 P. 143];
<=105> Estate of Abate (1958) 166
Cal.App.2d 282, 292 [333 P.2d 200].) Thus we do
not hold that plaintiff and defendant were
"married," nor do we extend to
plaintiff the rights which the Family Law Act
grants valid or putative spouses; we hold only
that she has the same rights to enforce contracts
and to assert her equitable interest in property
acquired through her effort as does any other
unmarried person.
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- - - - - - -
The courts may
inquire into the conduct of the parties to
determine whether that conduct demonstrates an
implied contract or implied agreement of
partnership or joint venture (see <=106>
Estate of Thornton (1972) 81 Wn.2d 72 [499 P.2d
864]), or some other tacit understanding between
the parties. The courts may, when appropriate,
employ principles of constructive trust (see
<=107> Omer v. Omer (1974) 11 Wash.App. 386
[523 P.2d 957]) or resulting 18 Cal. 3d 660,
*684; 557 P.2d 106, **122; 134 Cal. Rptr. 815,
***831 trust (see <=108> Hyman v. Hyman
(Tex.Civ.App. 1954) 275 S.W.2d 149). Finally, a
nonmarital partner may recover in quantum meruit
for the reasonable value [**123] [***832] of
household services rendered less the reasonable
value of support received if he can show that he
rendered services with the expectation of
monetary reward. (See <=109> Hill v. Estate
of Westbrook, supra, 39 Cal.2d 458, 462.) n25
- - - - - - - -
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- - - - - - -
n25 Our opinion
does not preclude the evolution of additional
equitable remedies to protect the expectations of
the parties to a nonmarital relationship in cases
in which existing remedies prove inadequate; the
suitability of such remedies may be determined in
later cases in light of the factual setting in
which they arise.
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- - - - - - -
Since we have
determined that plaintiff's complaint states a
cause of action for breach of an express
contract, and, as we have explained, can [*685]
be amended to state a cause of action independent
of allegations of express contract, n26 we must
conclude that the trial court erred in granting
defendant a judgment on the pleadings. 18 Cal. 3d
660, *685; 557 P.2d 106, **123; 134 Cal. Rptr.
815, ***832
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- - - - - - -
n26 We do not
pass upon the question whether, in the absence of
an express or implied contractual obligation, a
party to a nonmarital relationship is entitled to
support payments from the other party after the
relationship terminates.
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- - - - - - -
The judgment is
reversed and the cause remanded for further
proceedings consistent with the views expressed
herein. n27
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- - - - - - - - - -Footnotes- - - - - - - - - - -
- - - - - - -
n27 We wish to
commend the parties and amici for the exceptional
quality of the briefs and argument in this case.
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- - - - - - -
CONCURBY: CLARK
(In Part)
18 Cal. 3d 660,
*685; 557 P.2d 106, **123; 134 Cal. Rptr. 815,
***832 DISSENTBY: CLARK (In Part)
DISSENT: CLARK,
J., Concurring and Dissenting. The majority
opinion properly permit recovery on the basis of
either express or implied in fact agreement
between the parties. These being the issues
presented, their resolution requires reversal of
the judgment. Here, the opinion should stop.
This court
should not attempt to determine all anticipated
rights, duties and remedies within every
meretricious relationship -- particularly in
vague terms. Rather, these complex issues should
be determined as each arises in a concrete case.
The majority
broadly indicate that a party to a meretricious
relationship may recover on the basis of
equitable principles and in quantum meruit.
However, the majority fail to advise us of the
circumstances permitting recovery, limitations on
recovery, or whether their numerous remedies are
cumulative or exclusive. Conceivably, under the
majority opinion a party may recover half of the
property acquired during the relationship on the
basis of general equitable principles, recover a
bonus based on specific equitable considerations,
and recover a second bonus in quantum meruit.
18 Cal. 3d 660,
*685; 557 P.2d 106, **123; 134 Cal. Rptr. 815,
***832 The general sweep of the majority opinion
raises but fails to answer several questions.
First, because the Legislature specifically
excluded some parties to a meretricious
relationship from the equal division rule of
Civil Code section 4452, is this court now free
to create an equal division rule? Second, upon
termination of the relationship, is it equitable
to impose the economic obligations of lawful
spouses on [*686] meretricious parties when the
latter may have rejected matrimony to avoid such
obligations? Third, does not application of
equitable principles -- necessitating examination
of the conduct of the parties -- violate the
spirit of the Family Law Act of 1969, designed to
eliminate the bitterness and acrimony resulting
from the former fault system in divorce? Fourth,
will not application of equitable principles
reimpose upon trial courts the unmanageable
burden of arbitrating domestic disputes? Fifth,
will not a quantum meruit system of compensation
for services -- discounted by benefits received
-- place meretricious spouses in a better
position than lawful spouses? Sixth, if a quantum
meruit system is to be allowed, does fairness not
require inclusion of all services and all
benefits regardless of how difficult the
evaluation?
When the parties
to a meretricious relationship show by express or
implied in fact agreement they intend to create
mutual obligations, the courts should enforce the
agreement. However, in the absence of [**124]
[***833] agreement, we should stop and consider
the ramifications before creating 18 Cal. 3d 660,
*686; 557 P.2d 106, **124; 134 Cal. Rptr. 815,
***833 economic obligations which may violate
legislative intent, contravene the intention of
the parties, and surely generate undue burdens on
our trial courts.
By judicial
overreach, the majority perform a nunc pro tunc
marriage, dissolve it, and distribute its
property on terms never contemplated by the
parties, case law or the Legislature.
LEVEL 1 - 6 OF
88 CASES
GLADYS A. BYRNE,
Plaintiff and Appellant, v. CHARON A. LAURA et
al., Defendants and Respondents.
A070909
COURT OF APPEAL
OF CALIFORNIA, FIRST APPELLATE DISTRICT, DIVISION
FOUR
1997 Cal. App.
LEXIS 109
January 18,
1997, Filed
NOTICE: [*1] THE
LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO
CHANGE PENDING RELEASE OF THE FINAL PUBLISHED
VERSION.
PRIOR HISTORY:
San Francisco County Super. Ct. No. 958240.
Honorable Raymond J. Arata, Jr., Honorable Stuart
R. Pollak.
DISPOSITION:
Judgment against appellant on the quantum meruit
cause of action affirmed. The balance of the
judgment reversed.
|