Bereman v. Bereman

• Decision Date: 27 May 1982
• Docket Number: 5613A,Nos. 5613,s. 5613
• Citation: 645 P.2d 1155
• Parties: John S. BEREMAN, Appellant (Plaintiff), v. Loujen BEREMAN, Appellee (Defendant). Loujen BEREMAN, Appellant (Defendant), v. John S. BEREMAN, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

Page 1155

645 P.2d 1155

John S. BEREMAN, Appellant (Plaintiff), v. Loujen BEREMAN, Appellee (Defendant).

Loujen BEREMAN, Appellant (Defendant), v. John S. BEREMAN, Appellee (Plaintiff).

Nos. 5613, 5613A.

Supreme Court of Wyoming.

May 27, 1982.

William R. Jones and John P. McBride, argued, of Jones, Jones, Vines & Hunkins, Wheatland, for John S. Bereman.

C. Edward Webster, II, Cody, for Loujen Bereman.

Before ROSE, C. J., and RAPER, THOMAS, ROONEY and BROWN, JJ.

RAPER, Justice.

This appeal and cross-appeal arise from a divorce decree entered September 3, 1981. It was the second time that the parties had been divorced from each other. During their first marriage, a daughter was born; however, no issue resulted from the second union. For several years prior to the more recent wedding, the parties cohabitated. Appellant John Bereman raises the following challenges to the divorce decree entered by the district court:

"1. Considering the economic means of both parties, the Trial Court was in error in ordering the Plaintiff-Appellant to pay child support of Five Hundred Dollars ($500.00) per month.

"2. The debtor/creditor relationship of the parties in an amount of Seventy-two Thousand Five Hundred Fifty-three Dollars and Sixty Cents ($72,553.60), including a Thirty Thousand Dollar ($30,000.00) promissory note made prior to the parties' second marriage, loans made during the marriage, and claims for cash investments and expenses should not have been cancelled by the Trial Court.

"3. The Plaintiff-Appellant should not have been ordered by the Trial Court to pay Two Thousand Dollars ($2,000.00) for Defendant-Appellee's attorney's fees, considering the economic means of the Defendant-Appellee."

In her cross-appeal, Loujen Bereman presents these issues:

"1. Did the trial court err in refusing to recognize or accept evidence attempted to be presented by Loujen Bereman in which she claimed an increase in the value of the estate of John S. Bereman during the time the parties lived together and conducted business together from January 1, 1976 until the couple's marriage on December 28, 1980 (1979) under a theory of an express contract, an implied contract, a quasi contract, or under the theory of quantum meruit.

"2. Did the court err in refusing to allow testimony with regard to the increase in value of the 'Ridgway Home' at 802 Lane Drive in Cody during the time the parties cohabited in the home prior to their marriage."

We will affirm.

The parties, both relatively wealthy people, ¹ were originally married in 1966 and then resided in Cody, Wyoming. A daughter was born in 1970. In 1973 the parties were divorced. At that time Loujen moved to Hawaii. Custody of the one child was shared by the parties.

Commencing in 1976 the parties resumed living together in Cody. Loujen Bereman testified that during the time prior to the second marriage, the parties had not only recombined their lives but also their assets and business dealings. John Bereman disputed this, claiming that their business affairs were kept separate and that there was no commingling of property. However, he did seek to have the district court order Loujen to pay him $72,553.60-the amount he figured she owed him for loans he made to her prior to their remarriage. Thirty thousand dollars of this sum claimed by John was evidenced by a promissory note dated June 30, 1979.

On December 28, 1979, the parties were married for the second time. The date was partly chosen because it was the birthday of the parties' daughter. But, another consideration was the fact that the tax losses sustained by Loujen during the year helped John substantially reduce his 1979 taxes.

John Bereman testified that the parties separated in July of 1980 when he ceased spending nights at the marital home. Though he was unable to stay away during the day because his office was located there, he only resumed living in the house full time in September when Loujen left. Loujen Bereman disagreed claiming that John continued sleeping in the house until she moved out in September.

In any event, John Bereman filed for divorce on September 17, 1980. In his complaint he alleged that because of irreconcilable differences, he should be granted a divorce. He further asked the court to "make such disposition of and provision for the child of the parties as appears most expedient under the circumstances and most (sic) for the present comfort and future well being of the child" and to "also make such disposition of the property of the parties as appears just and equitable."

The case proceeded to trial on July 23, 1981. At that time, Loujen Bereman attempted to establish that she was entitled to a portion of that increase in value of John Bereman's assets which occurred during the period of time the parties cohabitated prior to their second marriage. She premised her claim upon this court's opinion in Kinnison v. Kinnison, Wyo., 627 P.2d 594 (1981). However, the district court ruled that Loujen had failed to establish any kind of agreement between the parties which could have provided a basis for her claim and disallowed any evidence of the increase in value of John Bereman's assets.

Following the trial the district court granted John Bereman a divorce on September 3, 1981. The court order provided that Loujen Bereman would have custody of the parties' daughter subject to John's right to have the child visit for two months each summer. John Bereman was ordered to pay $500 a month child support excepting those months when he himself had custody. Further, the court ordered the cancellation of John Bereman's claims against Loujen Bereman in the amount of $72,553.60 plus interest; this sum included the $30,000 John claimed due him under the June 30, 1979 promissory note. According to its own characterization, this part of the decree was designed to bring about a "just and fair property settlement." And finally, the court ordered John Bereman to pay Loujen Bereman the sum of $2,000 to be used towards the payment of her attorney's fees. From the divorce decree both parties have appealed.

I

The first issues we shall address are those raised by cross-appellant Loujen Bereman. She contends that the district court erroneously ruled that she was not entitled to a portion of any increase in the value of John Bereman's estate or in the value of the parties' residence which occurred during the time period they cohabitated prior to their second marriage, and further that it should have allowed evidence of the increase in Mr. Bereman's wealth to be admitted. The basis of her claim lies with her testimony at trial. There she asserted that "effective January 1st, 1976, John and I made an agreement to recombine our lives and to recombine our property, management, life, our speculations in real estate life." This testimony was unrefuted. Now, Loujen Bereman argues that, because of this court's holding in Kinnison v. Kinnison, supra, the district court erred in not enforcing the alleged oral agreement. We believe that Ms. Bereman has misconstrued Kinnison.

The opinion in that case, contrary to some news accounts, did not approve or adopt the doctrine of "palimony" in Wyoming. There, both parties admitted that an oral agreement had been reached whereby Allan Kinnison would pay Lorena Kinnison $15,000 in order to settle any claims she had against him. This court held that the fact that the couple had been living together did not invalidate their agreement. That narrow holding was reflected in the following statement found in the majority opinion:

" * * * While repeatedly rejecting the doctrine of common-law marriage, this court has never held, however, that the fact that a man and a woman live together out of wedlock and engage in a sexual relationship in any way invalidates agreements between them or, because of the relationship, renders them incapable of contracting with one another. * * * " Kinnison v. Kinnison, supra, 627 P.2d at 595.

Thus, Kinnison stands for the proposition that couples cohabitating can enter into binding contracts. But, that in no way means that purported "agreements" between such couples are exempt from compliance with Wyoming's law of contracts. ²

In the present case, Loujen Bereman contends that there was an oral agreement with John Bereman to recombine their financial lives. In this regard she testified in direct examination as follows:

"Q. During the time that you were, prior to the actual time you were married did John go about a stock sale of his interest in Engineering Associates?

"A. That was step number one of the particular three-year plan. We had effective September, 1979, (1976) when we got back to living together, that made some very important changes. We planned and discussed the changes we would make after we were married. We were, you know, at that time in counseling. We are both pretty religious people. We were in counseling getting the permission of the Bishop to marry after we had been in this divorce situation. We had elaborate plans about that, with the tax picture being in there too. One of the reasons which otherwise seems strange for this January cutoff date for like my payment of interest on those notes, John simutaneously (sic) ceased paying rent on a piece of property that was in my separate name. Now please understand it, before we were legally married, for tax purposes, we had to keep those separate in terms of the notes. You can't go to the IRS and say hey, I am claiming this as a deduction on this without evidence and during all of the time that we were handling these properties together, before our legal marriage, that's the reason we exchanged notes in each occasion. We had notes on the Maui Kai, we had notes on the Red Buttes, we had assignments in case of death. We had elaborate documentation of these transactions between us as related to properties in our separate names. And I can explain those in great detail because I know every detail."

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