Bergen v. Wood

• Decision Date: 29 March 1993
• Docket Number: No. B056825,B056825
• Citation: Bergen v. Wood, 18 Cal.Rptr.2d 75, 14 Cal.App.4th 854 (Cal. App. 1993)
• Court: California Court of Appeals
• Parties: , 61 USLW 2659 Birgit BERGEN, Plaintiff and Respondent, v. Duane WOOD, Defendant and Appellant.

Page 75

18 Cal.Rptr.2d 75

14 Cal.App.4th 854, 61 USLW 2659

Birgit BERGEN, Plaintiff and Respondent, v.Duane WOOD, Defendant and Appellant.

No. B056825.

Court of Appeal, Second District, Division 3, California.

March 29, 1993.

Review Denied July 15, 1993.

Goldman & Kagon, A. David Kagon and Jared Laskin, Los Angeles, for defendant and appellant.

Marvin M. Mitchelson and Ira G. Derdiger, Los Angeles, for plaintiff and respondent.

KLEIN, Presiding Justice.

Defendant and appellantDuane Wood(Wood) appeals a judgment following a bench trial in favor of plaintiff and respondentBirgit Bergen(Bergen).

The essential issue in this "palimony" case is whether the trial court erred in awarding support to Bergen.

Because the parties never cohabited and the services Bergen rendered to Wood are not the type which is considered valuable consideration necessary to support a contractual promise, the judgment is reversed.

FACTUAL AND PROCEDURAL BACKGROUND

Wood, a Bel-Air resident, was a former president of Lockheed and a widower.He met Bergen, a German actress, in Monte Carlo in the summer of 1981.At that time, Wood was 65 and Bergen was 45.They quickly developed an intimate relationship.

The parties never cohabited.Bergen maintained her apartment in Munich, Germany.While Bergen was in California she kept a room at the Beverly Pavilion Hotel in Beverly Hills.Bergen was Wood's travelling companion and accompanied him to social events.Wood provided Bergen with money, and paid for travel expenses and hotel accommodations.

The relationship ended after seven years in late 1988, after Bergen retained attorney Marvin M. Mitchelson to represent her concerning various property and contractual claims arising from the relationship.

In April 1989, Bergen filed a complaint against Wood for breach of express contract, breach of implied contract and fraud and deceit.

Bergen alleged: In July 1982, the parties entered into an oral agreement whereby she agreed to be Wood's "companion, his confidante, homemaker, and assist [Wood] with his business affairs by acting as a social hostess."In return, Wood would provide for her financial support in accordance with her needs and his ability to pay.

Following a bench trial at which both parties and various witnesses testified, the trial court issued an extensive statement of decision, which is summarized as follows:

There was no implied-in-fact contract and no conduct by Wood to support the claim of fraud and deceit.However, there was an oral contract between the parties that Wood would provide for Bergen's support.This was not a meretricious relationship and sexual relations were collateral to the companionship of the parties.Bergen was a beautiful woman and Wood wanted to be seen with her.He took her to business and social functions all over the world.Bergen escorted and accompanied Wood as he desired, serving as his hostess and companion.While Wood repeatedly promised Bergen he would always provide for her, there were no discussions or promises between the parties regarding the specific duration or amount of support, or whether support would continue after the relationship ended.Despite the lack of express terms, the duration and amount of support could be ascertained from the circumstances, including the prior level of support.Based thereon, Bergen was entitled to $3,500 per month for 48 months.

The trial court also found: Severing the sexual aspects of the relationship, Bergen's services as a social companion and hostess were adequate consideration for the support promises.Wood was estopped to assert the statute of frauds.The lack of cohabitation did not preclude recovery by Bergen, and Bergen did not sacrifice her movie career for the relationship.

Wood appealed from the judgment.

CONTENTIONS

Wood contends: (1) in order to recover an award of "palimony" for services as an escort and companion, a sexual partner must prove cohabitation, which element is lacking here; (2) Bergen cannot recover damages because the contract was based upon an inseparable consideration of sexual services; (3) the judgment for four years of post-separation support must be reversed because it violates the principle that support should not be awarded unless it is warranted to protect the expectations of both parties; (4) there should be no award of support because the trial court found there was no express agreement for post-relationship support and Bergen testified she only expected support during the relationship; (5) the agreement found by the trial court is too vague to be enforced; (6) if the agreement required Bergen to remain in the relationship, she breached it, and if the agreement allowed Bergen to end the relationship and collect support, it is unenforceable for lack of mutuality; and (7) the judgment cannot be sustained because it fails to provide support shall terminate upon death or remarriage.

DISCUSSION

1.Trial court erred in awarding any support because lack of consideration is fatal to Bergen's claim.

a. Overview.

In Marvin v. Marvin(1976)18 Cal.3d 660, 666, 134 Cal.Rptr. 815, 557 P.2d 106, Michelle brought an action against Lee, alleging the parties had lived together for six years and had agreed he would support her for life.The trial court granted judgment on the pleadings for defendant.

The Supreme Court reversed, holding the complaint stated a cause of action for breach of an express contract.It stated: "[W]e 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....So long as the agreement does not rest upon illicit meretricious consideration, the parties may order their economic affairs as they choose, ..."(Marvin, supra, 18 Cal.3d at p. 674, 134 Cal.Rptr. 815, 557 P.2d 106, italics added.)

Since Marvin, case law has held recovery by an unmarried partner under Marvin requires a showing of a stable and significant relationship arising out of cohabitation.

In Taylor v. Fields(1986)178 Cal.App.3d 653, 224 Cal.Rptr. 186, Flossie sued Leo's widow, Jean, alleging Leo had promised to take care of Flossie financially for the rest of her life in exchange for her serving as his companion and confidante.Flossie and Leo had never cohabited during their 42-year relationship.During the entire period of his relationship with Flossie, Leo was married to and lived with Jean.Also, during the first 20 years of the relationship, Flossie was married to and lived with her own husband.(Id., at pp. 656-657, 224 Cal.Rptr. 186.)

Taylor affirmed a summary judgment against Flossie, observing that in Marvin and its progeny, the parties had lived together in stable nonmarital relationships.(Taylor, supra, 178 Cal.App.3d at p. 663, 224 Cal.Rptr. 186.)Taylor concluded cohabitation was a prerequisite to bring the relationship within Marvin principles.(Taylor, supra, at p. 663, 224 Cal.Rptr. 186.)

Cohabitation is necessary not in and of itself, but rather, because from cohabitation flows the rendition of domestic services, which services amount to lawful consideration for a contract between the parties.

We make the additional observation that if cohabitation were not a prerequisite to recovery, every dating relationship would have the potential for giving rise to such claims, a result no one favors.

Milian v. De Leon(1986)181 Cal.App.3d 1185, 226 Cal.Rptr. 831, which allowed recovery despite a lack of cohabitation, is inapposite.There, the parties dated for eight years.(Id., at p. 1189, 226 Cal.Rptr. 831.)They jointly purchased a house with the contemplation of marriage.(Ibid.)When the relationship ended, a dispute arose over the division of their real and personal property.(Id., at p. 1191, 226 Cal.Rptr. 831.)Milian held cohabitation and the rendition of housekeeping and similar services were important factors in determining the existence of an implied agreement or tacit understanding under Marvin, but cohabitation was not a prerequisite to finding an implied agreement between unmarried persons concerning their property.(Milian, supra, at p. 1193, 226 Cal.Rptr. 831.)

Milian is distinguishable because it involved an action for partition of jointly-purchased property, not a claim for future support.(...