Borelli v. Brusseau

• Decision Date: 19 January 1993
• Docket Number: No. A055685,A055685
• Citation: 16 Cal.Rptr.2d 16,12 Cal.App.4th 647
• Court: California Court of Appeals Court of Appeals
• Parties: Hildegard Lee BORELLI, Plaintiff and Appellant, v. Grace G. BRUSSEAU, as Executor, etc., Defendant and Respondent.

Page 16

16 Cal.Rptr.2d 16

12 Cal.App.4th 647

Hildegard Lee BORELLI, Plaintiff and Appellant, v. Grace G. BRUSSEAU, as Executor, etc., Defendant and Respondent.

No. A055685.

Court of Appeal, First District, Division 4, California.

Jan. 19, 1993.

As Modified Jan. 22, 1993.

Rehearing Denied Feb. 17, 1993.

Review Denied April 1, 1993.

Richard T. White, Virginia Palmer, Maria I. Lawless, Fitzgerald, Abbott & Beardsley, Oakland, for plaintiff and appellant.

Steven B. Piser, Law Offices of Steven B. Piser, P.C., Oakland, Bryce C. Anderson, Law Offices of Bryce C. Anderson, Concord, for defendant and respondent.

PERLEY, Associate Justice.

Plaintiff and appellant Hildegard L. Borelli (appellant) appeals from a judgment of dismissal after a demurrer was sustained without leave to amend to her complaint against defendant and respondent Grace G. Brusseau, as executor of the estate of Michael J. Borelli (respondent). The complaint sought specific performance of a promise by appellant's deceased husband Michael J. Borelli (decedent) to transfer certain property to her in return for her promise to care for him at home after he had suffered a stroke.

Appellant contends that the trial court erred by sustaining the demurrer on the grounds that the "alleged agreement [appellant] seeks to enforce is without consideration and the alleged contract is void as against public policy." We conclude that the contention lacks merit.

FACTS

The only "facts" we can consider on this appeal from the sustaining of a demurrer are those "material facts properly pleaded, but not contentions, deductions or conclusions of fact or law." (Blank v. Kirwan (1985) 39 Cal.3d 311, 318, 216 Cal.Rptr. 718, 703 P.2d 58.) Since both parties' briefs wander far from the allegations of the complaint we will set out those allegations in some detail.

On April 24, 1980, appellant and decedent entered into an antenuptial contract. On April 25, 1980, they were married. Appellant remained married to decedent until the death of the latter on January 25, 1989.

In March 1983, February 1984, and January 1987, decedent was admitted to a hospital due to heart problems. As a result, "decedent became concerned and frightened about his health and longevity." He discussed these fears and concerns with appellant and told her that he intended to "leave" the following property to her.

1. "An interest" in a lot in Sacramento, California.

2. A life estate for the use of a condominium in Hawaii.

3. A 25 percent interest in Borelli Meat Co.

4. All cash remaining in all existing bank accounts at the time of his death.

5. The costs of educating decedent's step-daughter, Monique Lee.

6. Decedent's entire interest in a residence in Kensington, California.

7. All furniture located in the residence.

8. Decedent's interest in a partnership.

9. Health insurance for appellant and Monique Lee.

In August 1988, decedent suffered a stroke while in the hospital. "Throughout the decedent's August, 1988 hospital stay and subsequent treatment at a rehabilitation center, he repeatedly told [appellant] that he was uncomfortable in the hospital and that he disliked being away from home. The decedent repeatedly told [appellant] that he did not want to be admitted to a nursing home, even though it meant he would need round-the-clock care, and rehabilitative modifications to the house, in order for him to live at home."

"In or about October, 1988, [appellant] and the decedent entered an oral agreement whereby the decedent promised to leave to [appellant] the property listed [above], including a one hundred percent interest in the Sacramento property.... In exchange for the decedent's promise to leave her the property ... [appellant] agreed to care for the decedent in his Appellant performed her promise but the decedent did not perform his. Instead his will bequeathed her the sum of $100,000 and his interest in the residence they owned as joint tenants. The bulk of decedent's estate passed to respondent, who is decedent's daughter.

home, for the duration of his illness, thereby avoiding the need for him to move to a rest home or convalescent hospital as his doctors recommended. The agreement was based on the confidential relationship that existed between [appellant] and the decedent."

DISCUSSION

"It is fundamental that a marriage contract differs from other contractual relations in that there exists a definite and vital public interest in reference to the marriage relation. The 'paramount interests of the community at large,' quoting from the Phillips case [Phillips v. Phillips (1953) 41 Cal.2d 869, 264 P.2d 926] is a matter of primary concern." (Hendricks v. Hendricks (1954) 125 Cal.App.2d 239, 242, 270 P.2d 80.)

"The laws relating to marriage and divorce (Civ.Code, [former] §§ 55-181) have been enacted because of the profound concern of our organized society for the dignity and stability of the marriage relationship. This concern relates primarily to the status of the parties as husband and wife. The concern of society as to the property rights of the parties is secondary and incidental to its concern as to their status." (Sapp v. Superior Court (1953) 119 Cal.App.2d 645, 650, 260 P.2d 119.)

"Marriage is a matter of public concern. The public, through the state, has interest in both its formation and dissolution.... The regulation of marriage and divorce is solely within the province of the Legislature except as the same might be restricted by the Constitution." (Haas v. Haas (1964) 227 Cal.App.2d 615, 617, 38 Cal.Rptr. 811.)

In accordance with these concerns the following pertinent legislation has been enacted: Civil Code section 242--"Every individual shall support his or her spouse...." Civil Code section 4802--"[A] husband and wife cannot, by any contract with each other, alter their legal relations, except as to property...." Civil Code section 5100--"Husband and wife contract toward each other obligations of mutual respect, fidelity, and support." Civil Code section 5103--"[E]ither husband or wife may enter into any transaction with the other ... respecting property, which either might if unmarried." Civil Code section 5132--"[A] married person shall support the person's spouse while they are living together...."

The courts have stringently enforced and explained the statutory language. "Although most of the cases, both in California and elsewhere, deal with a wife's right to support from the husband, in this state a wife also has certain obligations to support the husband." (In re Marriage of Higgason (1973) 10 Cal.3d 476, 487, 110 Cal.Rptr. 897, 516 P.2d 289, disapproved on other grounds in In re Marriage of Dawley (1976) 17 Cal.3d 342, 352, 131 Cal.Rptr. 3, 551 P.2d 323.)

"Indeed, husband and wife assume mutual obligations of support upon marriage. These obligations are not conditioned on the existence of community property or income." (See v. See (1966) 64 Cal.2d 778, 784, 51 Cal.Rptr. 888, 415 P.2d 776.) "In entering the marital state, by which a contract is created, it must be assumed that the parties voluntarily entered therein with knowledge that they have the moral and legal obligation to support the other." (Department of Mental Hygiene v. Kolts (1966) 247 Cal.App.2d 154, 165, 55 Cal.Rptr. 437.)

Moreover, inter-spousal mutual obligations have been broadly defined. "[Husband's] duties and obligations to [wife] included more than mere cohabitation with her. It was his duty to offer [wife] his sympathy, confidence [citation], and fidelity." (In re Marriage of Rabie (1974) 40 Cal.App.3d 917, 922, 115 Cal.Rptr. 594.) When necessary, spouses must "provide uncompensated protective supervision services for" each other. (Miller v. Woods (1983) 148 Cal.App.3d 862, 877, 196 Cal.Rptr. 69.)

Estate of Sonnicksen (1937) 23 Cal.App.2d 475, 479, 73 P.2d 643, and Brooks v Brooks (1941) 48 Cal.App.2d 347, 349-350, 119 P.2d 970, each hold that under the above statutes and in accordance with the above policy a wife is obligated by the marriage contract to provide nursing type care to an ill husband. Therefore, contracts whereby the wife is to receive compensation for providing such services are void as against public policy and there is no consideration for the husband's promise.

Appellant argues that Sonnicksen and Brooks are no longer valid precedents because they are based on outdated views of the role of women and marriage. She further argues that the rule of those cases denies her equal protection because husbands only have a financial obligation toward their wives, while wives have to provide actual nursing services for free. We disagree. The rule and policy of Sonnicksen and Brooks have been applied to both spouses in several recent cases arising in different areas of the law.

Webster's New Collegiate Dictionary (1981) p. 240, defines consortium as "The legal right of one spouse to the company, affection, and service of the other." Only married persons are allowed to recover damages for loss of consortium. (Elden v. Sheldon (1988) 46 Cal.3d 267, 277, 250 Cal.Rptr. 254, 758 P.2d 582.)

Rodriguez v. Bethlehem Steel Corp. (1974) 12 Cal.3d 382, 115 Cal.Rptr. 765, 525 P.2d 669, held that a wife could recover consortium damages. The Supreme Court's reasoning was as follows. "But there is far more to the marriage relationship than financial support. 'The concept of consortium includes not only loss of support or services, it also embraces such elements as love, companionship, affection, society, sexual relations, solace and more.' [Citation.] As to each, 'the interest sought to be protected is personal to the wife' [citation]...." (Rodriguez v. Bethlehem Steel Corp., supra, at pp. 404-405, 115 Cal.Rptr. 765, 525 P.2d 669.) "The deprivation of a husband's physical assistance in operating and maintaining the family home is a compensable item of loss of consortium." (Id. at p. 409, fn. 31, 115 Cal.Rptr. 765, 525 P.2d 669.)

In Krouse v. Graham (1977) 19 Cal.3d 59, 66-67, 137...