Askew v. Askew
| Decision Date | 17 February 1994 |
| Docket Number | G014610 and G014892,Nos. G014021,s. G014021 |
| Court | California Court of Appeals Court of Appeals |
| Parties | Ronald L. ASKEW, Plaintiff and Respondent, v. Bonnette M. ASKEW, Defendant and Appellant. |
Queen Victoria's reign still had more than 30 years to go when, in 1868, attorney William Gilbert sketched his operetta Trial by Jury which lampooned lawsuits for breach of promise of marriage. 1 In Gilbert's story, the defendant was a cad--who loved one young lady today--and another young lady tomorrow. The plaintiff, as one might guess, was one of yesterday's young ladies. But while she may have been brokenhearted, she was not so despairing as to ignore the opportunity to profit on her distress. "Blessing--what love and caressing" rhymed with "assessing"--as in damages--in her plea for a large jury award against the monster defendant. 2 And even though she told the jury how madly she worshipped and adored her erstwhile suitor, she did not hesitate to run off with the judge at the end.
If there was a serious "legal" point behind Gilbert's satire of breach of promise cases, it was the potential for abuse inherent in such lawsuits, which, when Gilbert was writing, could still result in the redistribution of a large part of a defendant's wealth as the result of the breakup of a "relationship" (to use the modern term). This potential was to be well noted by the 1930's in more prosaic legal literature discussing breach of promise suits, 3 and in 1939 the California Legislature, following the lead of several other states, 4 decided to put an end to such causes of action. 5
The present case, like Gilbert's Trial by Jury, also involves a breach of promise suit. The plaintiff, of course, does not call it that. For him, this is a case of fraud: before he married the defendant, his bride-to-be told him she felt sexual attraction for him, and in reliance on that statement he married her and put certain parcels of real property (which he claims are his separate property) into both their names as joint tenants. Thirteen years and two children after his marriage to the defendant he sued her, claiming she "never" felt sexual attraction for him and her "fraud" justified imposing a trust on her share of certain property taken in joint tenancy.
Under certain circumstances spouses can sue each other for torts after marriage (In re Marriage of McNeill (1984) 160 Cal.App.3d 548, 206 Cal.Rptr. 641, disapproved on another point in In re Marriage of Fabian (1986) 41 Cal.3d 440, 451, fn. 13, 224 Cal.Rptr. 333, 715 P.2d 253). The allegations here, however, involved representations that were for the most part made before the marriage and, in any event, constituted statements of love and sexual desire which are not legally cognizable, whether made before or after marriage. The California anti-heart-balm statutes which long ago did away with breach of promise actions establish a public policy against litigation of the affairs of the heart. This case may be gussied up as a fraud action, but it is still essentially a breach of promise suit.
Ronald and Bonnette Askew married on December 9, 1977. They had two children, a girl born in 1979 and a boy born in 1982, and in May 1991, Bonnette 6 filed for dissolution. Ronald filed his response by July 5. In October 1991, five months after the dissolution action was filed, Ronald filed a separate civil lawsuit for fraud and spin-off causes of action. 7
The complaint was expressly predicated on five premarital "representations" made in the summer and fall of 1977 by Bonnette to Ronald:
--She "loved, desired, and cared for" him, and wanted to marry him "solely because of the affection and desire she had for him."
--She loved his minor children (from a prior marriage) and "would watch over, care, assist in the rearing, and provide financially for" them in the event he could not provide for them.
--She would hold any separate property he transferred to her for the benefit of his minor children.
--She answered "nothing," when asked "if there was anything he should know before they got married."
[22 Cal.App.4th 948] --Her "actions prior to the marriage" [the complaint did not specify what actions] "were performed to show" that she did, in fact "physically desire and have passion" and, further, were indeed "performed for the purpose of inducing" him to marry her. 8
The complaint also alleged one post marital representation: that Bonnette would hold "the property" (meaning, from the context, any of Ronald's separate property to which she was put on title) "for his benefit and that of his children."
The complaint then listed a total of 10 properties which, it claimed, had been purchased with Ronald's separate funds; title to these properties, however, had been put in joint tenancy because of Bonnette's representations. (Nine of the ten properties had been acquired after the marriage.)
Bonnette demurred to the civil suit and sought its consolidation with the dissolution action. Both motions were denied. 9 The parties then agreed that all property issues in the dissolution action, "both separate and community," should be continued until after the civil action.
The issues of custody, support and attorney fees in the dissolution action went to trial in November 1992. The family law court awarded Bonnette $15,000 in attorney fees toward the dissolution case only, and indicated she would need to bring a special motion for attorney fees toward the civil action. 10
Bonnette filed such a motion in January 1993, which was heard in February 1993, about six weeks before the civil action would be called for trial. The family law court denied the motion. It reasoned that consolidation was a "condition precedent" to a fee award, and the cases were not consolidated. Bonnette soon filed a notice of appeal from the order.
Trial commenced in the civil action in late March 1993. At that point Ronald dropped his claims with regard to five of the ten pieces of property listed in the complaint.
After a few preliminaries, the opening statement on Ronald's behalf began by recounting something Bonnette had said at a counseling session in 1991, just prior to the commencement of dissolution: Ronald's counsel then went on to emphasize that the remaining five pieces had been acquired with Ronald's separate property 11 as part of an "investment plan" intended to benefit Ronald's two children. Counsel then referred to Bonnette's lack of passion and sexual attraction for Ronald at the inception of the marriage, and how Ronald would never have married her or put any of his property in her name if he had known of it. 12 After the opening statement Bonnette made a motion for nonsuit, which was denied.
Ronald testified there were "numerous discussions" with Bonnette about "passion, desire or physical attraction" before their marriage. Bonnette said (in Ronald's words) Later he testified that Bonnette She also said, Many times Ronald asked her to tell him Bonnette said there was "nothing" Ronald "need[ed] to know."
Ronald then testified he relied on these statements in transferring the five properties "into her name." 13 (Four of the five properties were acquired after the marriage.) But he would not have transferred the properties if he had "known the truth" (referring to the revelations from the 1991 counseling session) that he knew "now"--i.e., that she really had no desire for him "physically" or "sexually," that she had no "passion" for him prior to the marriage, or "during" the marriage.
Ronald also testified that on a number of occasions both prior to and just after the marriage he spoke with Bonnette about a particular property on Pine Street (the one property among the 10 listed in the complaint that was acquired before the marriage). The pair talked about transferring title "from [Ronald's] name" into their "joint names," and Bonnette "would hold this in trust, that in the event that something should happen to [Ronald], that this property, this Pine Street property, would be used for the benefit of my children [from the previous marriage], as well as, my mother."
Bonnette was called as part of Ronald's case-in-chief. She admitted that she did not have sexual desire for Ronald prior to or during the marriage, even though she "may," at one point "early on in the relationship," have told Ronald that the two of them had a "very satisfying" sexual relationship. Ronald also called a friend of the Askews who testified that in about 1989 while at dinner at a local restaurant Bonnette told her that she did not love Ronald when they first got married.
Ronald's son from the previous marriage testified about three discussions where both Ronald and Bonnette were present concerning financial arrangements for his education. At one discussion, Ronald had said "things [had] been provided" for his education, and...
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