Lead Opinion
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.]
Elliott Friedman (appellant), defendant in a "Marvin" action (Marvin v. Marvin (1976)
In its "Statement of Decision on Motion for Temporary Support" the court noted that respondent's motion presented a "compelling" case for an award of (temporary) support "based on an implied contract. . . ." The court found that the evidence presented was insufficient to support a finding of an express agreement to provide support but that it was adequate to support a finding of an "implied" agreement. Specifically, the court found that there was an implied contract between the parties "that if they separated, [respondent] would be supported by [appellant] in the same manner as if they had been legally married."
After finding an implied contract for support, the court examined the question of "whether it is appropriate to make the highly unusual provision for damages to be paid pending trial." The court found that trial could be years in the future, leaving respondent "in poor health living off her dwindling personal assets." The court found that such an award was proper because there were no other adequate remedies, respondent would suffer irreparable injury (if the award were not made) and respondent had a "reasonable probability of success at trial on the merits." Finally, the court awarded $1,426 per month in temporary support, based on Alameda County spousal support guidelines.
Apparently in response to appellant's request, the court issued a "Further Statement of Decision." This statement expanded the court's earlier findings on the issues of irreparable harm and inadequacy of legal remedies. On the question of irreparable harm, the court found that "injunctive relief" was required because respondent was totally physically disabled and had only modest liquid savings to use to "support her daily needs and to maintain her mortgage, insurance and real property tax payments. . . ." On the question of the inadequacy of monetary damages the court reiterated that trial might be years in the future. A formal "Order for Temporary Support" was then entered which ordered appellant to pay the sum of $1,426 per month, beginning April 21, 1992, until the time of trial or further order of the court.
Shortly thereafter appellant filed a motion to dissolve injunction and, in the alternative, to fix the amount of security for undertaking. During the course of that hearing, the court noted that its original order, indeed, had been framed as an injunctive order. However, the court ultimately "changed
In 1971 respondent and appellant purchased land in Alaska in partnership with several other individuals; title to their portion referred to them as "Husband and Wife." Over a period of two years, they built a home on their property. Appellant worked as an investigator the entire time they were in Alaska. Respondent initially worked as a waitress; however, her principal work was in contributing to appellant's career, building up and maintaining the property, and caring for their first child, who was born in 1974. Along the way they also acquired an interest in some commercial property, the deed to which listed respondent as "Terri Friedman." When they decided to leave Alaska that property was sold.
In 1978 or 1979 respondent and appellant moved back to the Bay Area; appellant began attending law school in 1979. Their plans for respondent to complete her college education fell through in part due to illness of their second child, who was born in 1981. Also in 1981 they purchased and fixed up a home in Berkeley; they apparently sold that home and purchased a new home in Kensington in 1986.
After law school appellant became a practicing attorney and entered into a small partnership; respondent assisted in designing and decorating his office. When that partnership dissolved appellant continued in practice and did well economically. Respondent involved herself in upgrading and maintaining their homes, cooking, cleaning, entertaining and caring for their children.
In the mid-1980's respondent was experiencing back trouble; ultimately, she was diagnosed as having a herniated disc which required surgery. Respondent is currently disabled; her ability to walk is extremely limited, and she must wear a back brace at all times, except when she is asleep.
In 1982 respondent and appellant planned to be formally married. However, appellant was prevented by a storm from returning to the Bay Area on the day of the wedding; so, no formal wedding ceremony ever took place.
At the hearing on the motion for temporary support, respondent testified that she and appellant had an understanding and had had conversations dealing with "financial, economic equality" and sharing of property. She further testified that they understood and appellant had said that all the property they were involved in was "equal in ownership. . . ."
Very little testimony was offered by appellant on the issue of support. Appellant testified that he and respondent never discussed the concept of support after separation. He stated, "That was not part of our life. It was not part of what we were doing. . . . [W]hen we split up, we split up." He also testified that he did nothing he was aware of to lead respondent to believe he would provide support for her if they separated.
Respondent's testimony on the issue of support was also limited. She testified that appellant did agree (expressly) at one time to support her if their relationship ended. She stated that, although she never expected that she and appellant would separate, they did discuss the subject on one or two occasions, and appellant said not to worry about support.
The Marvin court also held that, in the absence of an express agreement, the courts may look to a variety of remedies to protect the parties' expectations. Among those remedies, the court suggested that principles of constructive trust, resulting trust or quantum meruit might be employed by the courts. (MarvinI, supra,
The court made one other finding and reserved a decision on one other question which bear on the case before us. In footnote 24, the court stated: "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
Our analysis of the trial court's "order to pay money" is guided by the Supreme Court's pronouncements in Marvin. However, that analysis is complicated by the difficulty we face in understanding exactly what type of order was entered below.
The trial court's statement of decision makes it clear that the court found that there was an "implied" agreement between appellant and respondent. However, the statement of decision does not reflect what specific conduct of the parties led to its conclusion that such an implied agreement existed. (Marvin I,supra,
Respondent does not reply directly to appellant's point about the trial court's order potentially passing muster only in the form of a preliminary
As to promissory estoppel, respondent refers to the Restatement of Contracts section 90, subdivision (1), which states that: "[a] promise which the promisor should reasonably expect to induce action or forbearance on the part of the promisee or a third person and which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise." Respondent argues that she relied on appellant's commitment "which included the promise of support in the event of a separation." However, that claim is unsupported by the record; no evidence was presented through respondent's declaration or at the hearings that she, in fact, relied on any promise by appellant regarding support after termination of their relationship. Moreover, no evidence was introduced or argument made that respondent acted or forbore from any action based on any promise allegedly made by appellant.
Respondent's "equitable estoppel" argument is based on Evidence Code section
Respondent's argument fails for at least two reasons. First, no evidence was presented and no argument made by respondent that the litigation in question (respondent's Marvin action) arose out of appellant's conduct (signing joint tax returns). Moreover, in order for estoppel principles to apply, the party invoking estoppel (respondent) must be ignorant of the true facts. (11 Witkin, Summary of Cal. Law (9th ed. 1990) Equity, § 177, pp. 858-860.) No such showing can be made here. The evidence was uncontroverted that respondent knew at all times that she was not married to appellant.
In sum, we conclude that an amorphous "order to pay money" is not a cognizable provisional remedy under California law and that appellant is not
We note, preliminarily, that although courts of equity have broad powers, they may not create totally new substantive rights under the guise of doing equity. (Marvin v. Marvin (1981)
We agree with the court in Marvin II. Under Marvin I, an award of temporary spousal support cannot be justified as a substantive right under the Family Law Act. Under the facts of this case, the only potential equitable remedy which could justify an award of temporary spousal support was an injunction. To the extent that the trial court's order was intended to constitute an award of such support under other "inherent equitable principles," the court exceeded its authority.3
(4) An implied contract "`. . . in no less degree than an express contract, must be founded upon an ascertained agreement of the parties to perform it, the substantial difference between the two being the mere mode of proof by which they are to be respectively established.'" (Silva v. Providence Hospital ofOakland (1939)
The net effect of the trial court's findings regarding support is to resurrect common law marriages in California. That institution was abolished by the Legislature in 1895, a fact emphasized by the court in Marvin I, supra,
Our reasoning is consonant with that of the Fourth District (Div. One) in Schafer v. Superior Court (1986)
After reviewing the decision in Marvin I, the Schafer court discussed the fact that the only two appellate cases sinceMarvin I to consider trial court orders granting support to nonmarital partners on implied contract theories (including the court in Marvin II) reversed the trial court's orders. (Schafer v. Superior Court, supra,
The trial court's findings reflect its understanding that the relief accorded respondent was supportable only in the form of a preliminary injunction. Moreover, they reflect the court's understanding that showings of irreparable injury and inadequacy of damages are required for such extraordinary relief. (Schafer
v. Superior Court, supra,
First, it is absolutely clear that respondent has an adequate remedy under the law. The Supreme Court has determined that nonmarital partners have the same contractual rights as any other unmarried persons, including the right to sue for breach of contract. (Marvin I, supra, 18 Cal.3d at pp. 682-685.) That is precisely what respondent has done: she has sued for breach of contract; the relief requested includes a prayer for an award of spousal support, based on express and implied agreements between the parties. An award of damages (spousal support) constitutes an adequate legal remedy, precluding issuance of an injunction. (Morrison v. Land (1915)
The trial court's findings on irreparable harm were presumably based on respondent's income and expense declarations, her declaration in support of her motion for an award of temporary support, and her testimony at the hearing in support of the motion which reflected that her savings had dwindled from $95,000 to $59,000 by the time of the hearing and that those savings constituted her only means for making mortgage payments and meeting her other monthly expenses.
Even if we accept respondent's showing at face value, it still fell far short of establishing that she would be irreparably harmed by a failure to award temporary support. At best, the record reflected that respondent had a need and that appellant was able to meet it; such a showing is not enough to
Marvin I makes it clear that unmarried cohabitants have the same contract rights as other civil litigants; however, nonmarital cohabitation does not confer any special privilege over and above those of other civil litigants. (Schafer v.Superior Court, supra, 180 Cal.App.3d at pp. 309-310.) Case law has made it clear that mere monetary loss does not constitute irreparable harm in the context of proposed injunctive relief unless there is some showing that one against whom injunctive relief is sought is insolvent or otherwise unable to respond in damages. (West Coast Constr. Co. v. Oceano Sanitary Dist.
(1971)
In sum, the effect of the trial court's order was to give respondent relief to which other, noncohabiting contracting parties would not have been entitled. An award of such relief constitutes an abuse of discretion.
Marvin I was decided in 1976. Since that time the Legislature has not seen fit to extend spousal rights under the Family Law Act to unmarried cohabitants. Nor has the Legislature acted to expand the provisional remedies available to unmarried cohabitants beyond those available to other litigants. Respondent's remedy, if any, lies with that branch of government. Accordingly, we reverse and remand to the trial court to vacate its order granting temporary support to respondent. Respondent is to bear the costs of appeal.
Perley, J., concurred.
Dissenting Opinion
I dissent. From our lofty perch my colleagues perceive a very different reality than I do. They fault the trial judge for awarding to a now disabled woman interim support from her partner in a 21-year relationship
Judge Duncan was candid and direct: "If ever there is to be an award of support based on an implied contract in a Marvin case, it is difficult to imagine a scenario more compelling than [the one] presented herein." On the basis of the uncontradicted evidence summarized below, I concur fully in Judge Duncan's assessment.
The majority gloss over significant details of the parties' 21 years of life together. Plaintiff and defendant began living together in 1967, forming a family which included her seven-year-old son by a previous marriage. In 1971, at defendant's insistence, they moved to Alaska. Once in Alaska they set about homesteading, and built a cabin some 12 miles from the nearest town. When defendant left for a job as an investigator in Anchorage, some 200 miles away, plaintiff, then 5 months pregnant remained at the remote cabin in the company of her son.
During the winter months defendant worked in Anchorage. Much of the physical burden of homesteading was literally borne by plaintiff. "During these months, the inside of our cabin was so cold that standing water would freeze. We had no indoor plumbing, and water was hand carried in 5 gallon containers from a frozen stream nearby." Plaintiff kept the home fires burning by splitting wood "and breaking up large blocks of coal with a sledge hammer." She used a sled or a wheelbarrow to bring in clean laundry and food. Summer months were filled with the heavy labor of constructing improvements to the cabin or the homestead. "In the early fall of each year I would do the harvesting, filleting of Salmon, butchering, packaging, canning and freezing of our foods in large volume." Defendant by his declaration characterizes their Alaskan experience as "without any of the comforts of modern life." He, however, emphasizes the communal endeavor: "We grew our own food, built our own cabin, had no modern utilities, and scraped a living from the land as best we could."
After seven years defendant decided he wished to return to the Bay Area to attend law school. Although plaintiff was reluctant to leave the now developed homestead, she did so on the understanding that she too would return to school. While defendant attended law school plaintiff renovated and decorated a "fixer-upper" home that they purchased from their Alaskan savings. The couple had a second child whose poor health precluded plaintiff from returning to college. Defendant completed law school and went into
Defendant and plaintiff separated in 1988. As of April 1992 plaintiff described her physical condition as: "I wear a hard fiberglass back brace all the time except for sleeping. I cannot walk more than one short block, sit for more than 45 minutes a day or drive for more than 20 minutes. I need two periods during the day to lay [sic] down and hired help to run my household."
During the course of the relationship the parties raised their own two children and plaintiff's son. They consistently held themselves out as husband and wife to the Internal Revenue Service, to their insurers, their bankers, and in numerous real estate transactions.
Judge Duncan made his finding of an implied contract to support expressly in reliance upon Marvin v. Marvin (1976)
Judge Duncan was fully aware of the novelty of what he was being asked to do: "The court finds that `what the parties were doing' was maintaining a marriage relationship with everything except a license and ceremony and that there was an implied contract between them that if they separated, plaintiff would be supported by defendant in the same manner as if they had been legally married. . . .1
"Finding there is a contract for support, the question remains whether it is appropriate to make the highly unusual provision for damages to be paid
The majority does not challenge Judge Duncan's conclusion that plaintiff was confronting irreparable injury if left unaided. Nor does the majority dispute his estimation that plaintiff was likely to prevail on the merits at trial. This would ordinarily be more than enough to uphold the preliminary injunction. (See, e.g., King v. Meese (1987)
It is generally true that equity will not act where there is an adequate legal remedy, and that the legal remedy of damages is ordinarily deemed adequate to redress a breach of contract. But the very authority cited by the majority for these principles admits not only that the legal remedy must be "full and adequate and does complete justice" but also that damages are sometimes inadequate to compensate for a breached contract. (Morrison v.Land (1915)
The majority further fail to appreciate how adequacy is decided. "The question whether or not a given remedy at law is adequate is in the first instance a question of fact for the trial court and even where the evidence is unconflicting, if opposing inferences may be reasonably drawn therefrom, it still remains a question of fact in the first instance. The finding and conclusion of the trial court thereon will not be disturbed upon appeal, therefore, unless it is shown that the evidence is legally insufficient to support the same." (People v. StaffordPacking Co. (1924)
The evidence supports Judge Duncan viewing the situation in this light: There was an implied contract for support. In the face of defendant's refusal to honor that agreement, plaintiff was forced to seek judicial redress. Ultimate vindication, in the form of a money judgment, was years in the future. In the meantime plaintiff "is left in poor health living off her dwindling assets." Clearly, plaintiff was deemed to face the very real prospect of insolvency or considerably straightened circumstances while awaiting trial, with little or no chance of compensating employment. In the circumstances there is ample basis for the trial court's conclusion that a lump sum money judgment awarded sometime in the not so near future was not a "speedy" remedy, was not a remedy that would secure plaintiff's "whole right [to support] in a perfect manner at the present time," and thus was not adequate.
The majority concludes that the trial court wandered into legal error in equating plaintiff's need to spend her liquid assets with irreparable harm, absent a showing that defendant was insolvent or would be unable to respond to a judgment for damages. (Maj. opn., ante, at p. 890.) In short the majority dismisses plaintiff's injury as "mere monetary loss."
Plaintiff is severely disabled and unable to work. How in good conscience can we postulate such a legal fiction in the face of the reality that she will be forced to liquidate what assets she has as she awaits some far off day when our overloaded judicial system finally accords her a trial on her contract claim? To quote Mr. Bumble, "If the law supposes that . . . the law is a ass — a idiot." (Dickens, Oliver Twist, ch. 51, p. 489.)
The evidence fully supports the trial court's finding that the parties did have an implied contract whereby defendant agreed to support plaintiff in the event they separated. Uncontradicted evidence shows that defendant voluntarily paid approximately $190,000 in monthly support payments to plaintiff following their separation, and that these payments were still being made at the time the order for support was made. As an implied contract is one identified by conduct (Civ. Code, §
In light of these circumstances, the trial court was fully justified in concluding that the parties were "maintaining a marriage relationship" in all
The majority speak of the trial court exceeding its jurisdiction by "creat[ing a] totally new substantive right
under the guise of doing equity." (Maj. opn., ante, at p. 886.) The only "right" involved here is the right to support based directly and solely on the parties' agreement. The trial court was thus not creating a right, but only an equitable remedy to preserve that right. (Cf. Camp v. Board of Supervisors (1981)
The majority take great umbrage at the notion that any principles of the Family Law Act be applied to nonmarital partners. Apparently they adopt the position that a trial court may not use the magic language of "temporary support," nor base its relief upon the county guidelines used in dissolutions. Such literal mindedness has no place in the law of equity.
Judge Duncan specifically described the problem before him. He noted that the parties had "not probed income and expense issues." "If this were a family law case (it is not), temporary spousal support per Alameda County guidelines would be $1426 per month. In her apparently disabled situation, such awards would not come close to meeting the budget plaintiff has filed with the court. . . . Given the court's conclusion that the parties have agreed to be treated as a married couple, the guideline amount will be ordered." This sounds like equity to me. Indeed it sounds like injunctive relief measured by the only available legal standard in a situation where the parties had failed to offer an alternative measure of damages. There is nothing mysterious about the order or suspect about its rationale.
If 21 years of living together in a mutually supportive family relationship, of taking title to property and otherwise conducting one's financial affairs as if one were married is insufficient evidence of an implied contract to conduct oneself as married with all the moral and legal obligations to the other spouse that such a relationship entails, then I simply cannot imagine any relationship which the majority would find sufficient. The result reached by the majority may be, in the eyes of some, good law; it is lousy justice.
A petition for a rehearing was denied December 27, 1993.