Carnes v. Sheldon

• Decision Date: 09 September 1981
• Docket Number: Docket No. 47352
• Citation: 311 N.W.2d 747,109 Mich.App. 204
• Parties: Bonnie Lee CARNES, a/k/a, Bonnie Lee Sheldon, Plaintiff-Appellant, v. Charles D. SHELDON, Defendant-Appellee. 109 Mich.App. 204, 311 N.W.2d 747
• Court: Court of Appeal of Michigan — District of US

Page 747

311 N.W.2d 747

Bonnie Lee CARNES, a/k/a, Bonnie Lee Sheldon, Plaintiff-Appellant, v. Charles D. SHELDON, Defendant-Appellee.

Docket No. 47352.

109 Mich.App. 204, 311 N.W.2d 747

Court of Appeals of Michigan.

Sept. 9, 1981.

Released for Publication Nov. 4, 1981.

[109 MICHAPP 206] Egnor, Hamilton & Muth by Walter K. Hamilton and Melanie J. Dunshee, Ypsilanti, for plaintiff-appellant.

Rowe, Talon & Jones, P. C., Southfield, for defendant-appellee.

Before V. J. BRENNAN, P. J., and KELLY and RILEY, JJ.

RILEY, Judge.

Plaintiff, Bonnie Lee Carnes, appeals as of right from a judgment rendered by a Wayne County Circuit Court judge denying her request for an equitable division of property held by defendant, Charles D. Sheldon, and denying her [109 MICHAPP 207] request for the custody of defendant's minor child, Mary Ellen Sheldon.

Prior to 1967, defendant was married to Constance Sheldon (now Constance Ward). Of this marriage four children were born, one of whom is Mary Ellen, the subject of the present custody dispute. Constance left defendant in 1967 and did not take the children with her. Shortly thereafter, defendant became acquainted with plaintiff, who was also separated from her husband, and who was the mother of three children. In May, 1967, plaintiff and two of her children moved into defendant's house with defendant and his children. The move was prompted by plaintiff's need for a place to live and defendant's need for someone to care for his children. In 1968, defendant obtained a divorce from his wife and was granted custody of all four children.

Plaintiff was unemployed at the time she moved in with defendant and remained so until September of 1970, when she worked part-time as a school bus driver. In 1972, her status was that of a full-time driver. For the most part, plaintiff continued at this job from 1972 through 1979, either part- or full-time, although she did collect unemployment compensation for the 1974-1975 school year.

At about the time plaintiff began working in 1970, the defendant bought a new home into which plaintiff, defendant, and the children moved. According to plaintiff, defendant had been anxious about the bills which would accompany the purchase of a new home and that she obtained her job in order to help pay the bills so as to quell defendant's anxieties. Plaintiff testified that her wages, which she received by-weekly, were used to pay utilities and to purchase food. She then would give the balance to defendant, who, in turn, would [109 MICHAPP 208] tender back to plaintiff an amount sufficient to cover the next week's bills. Plaintiff testified that she does not know what defendant did with the money left over.

Plaintiff testified that from the beginning, and at various times during her relationship with defendant, she was told by defendant that they would get married as soon as her divorce from Mr. Carnes was final. Plaintiff's divorce, funded by defendant, was obtained some time in 1977. Plaintiff testified that defendant changed his story after her divorce, saying that she was "rusing" him and that he did not trust her. Defendant's refusal to marry her ultimately led to the demise of the relationship.

At first, plaintiff testified that she and defendant never held discussions pertaining to a division of property between them. Later she testified that, while there had been discussions on this subject, there was never any agreement that any of the property they accumulated would be divided between herself and defendant. She testified that "(h)e's always felt everything was his and nothing was mine * * * ".

In addition, plaintiff testified that at the children's school she was known as Bonnie Sheldon and that the school principal referred to her as Sheldon. Defense counsel, however, produced a letter from the school principal addressed to Mrs. Bonnie Carnes. Plaintiff's driver's license and social security card were in the name of Carnes, and the parties' tax returns were filed separately. Plaintiff's bank accounts were in her name only. Plaintiff made no payments on the house, which was in defendant's name only. Defendant had a credit card, but plaintiff did not have access to it. Although defendant sometimes purchased items [109 MICHAPP 209] for plaintiff using the card, he told her that she would have to reimburse him for the cost of purchasing such items.

Defendant testified that there was no agreement to share his property with plaintiff and that he never promised to place title to any of his property in her name. According to defendant, throughout their relationship he always told plaintiff that he "couldn't see getting married because I couldn't see a woman changing her mind and taking half of what you own just because she decides she don't want you anymore * * * ". Defendant testified that plaintiff offered to go to a lawyer to sign an agreement stating that she would receive no property in the event of a divorce. Plaintiff admitted that she made this offer.

On April 24, 1979, plaintiff filed the instant suit, seeking an equitable division of the property accumulated during the years she and defendant lived together and seeking custody of Mary Ellen Sheldon.

The trial judge granted custody of the child to its natural mother, Constance Ward. With respect to her claim for an equitable distribution of property, the court held that plaintiff had failed to sustain her burden of proving that an express agreement existed between the parties regarding the ownership of personal and real property accumulated during their years of unmarried cohabitation. The court noted that plaintiff's claim of an express agreement was based in part on asserted promises by the defendant to marry (and thus share property accumulated from joint efforts) in the future. The trial court found that defendant did not make such a promise and on this point found defendant's testimony credible. Further, the court denied recovery on plaintiff's implied contract[109 MICHAPP 210] theory holding that implied contracts in this setting have been neither recognized by case law nor authorized by the Legislature.

Plaintiff first argues that the lower court's finding that plaintiff failed to prove the existence of an express agreement is "contrary to the evidence". Since this issue concerns the weight of the evidence, it has not been properly preserved for appeal because plaintiff did not file a motion for a new trial.

" 'Under GCR 1963, 527.1, where the losing party claims that a verdict of a jury or decision of a judge is against the great weight of the evidence he may raise that claim by a motion for a new trial. Such a motion is addressed to the discretion of the trial judge and, accordingly, if such a motion is not filed, such a claim is not preserved for appellate review.' " Arnsteen v. U. S. Equipment Co., 52 Mich.App. 177, 179, 217 N.W.2d 61 (1974), quoting Arnsteen v. U. S. Equipment Co., 390 Mich. 776 (1973).

Furthermore, our review of the record convinces us that the trial court's findings of fact are supported by the evidence. This Court will not substitute its own judgment on factual questions in a nonjury case for that of the trial court unless the facts clearly indicate that an opposite result must be reached. In re Leonard Estate, 45 Mich.App. 679, 207 N.W.2d 166 (1973), GCR 1963, 517.1. In the instant case we cannot say that the judge should have reached an opposite result. Plaintiff so much as admitted during trial that there was no express agreement with respect to a division of property. In addition, plaintiff's credibility on this issue seriously was weakened by her contradictory and equivocal testimony. For all these reasons, we reject plaintiff's contention that she proved an express agreement at trial.

[109 MICHAPP 211] Alternatively, plaintiff contends that the evidence supports recovery on the basis of either a contract implied in law or implied in fact.

By statutory enactment in Michigan, common-law marriages are valid only if contracted before January 1, 1957. M.C.L. § 551.2; M.S.A. § 25.2, People v. Stanford, 68 Mich.App. 168, 242 N.W.2d 56 (1976). Since that time, Michigan has refused to recognize such marriages with the result that the property rights afforded a legally married couple have not been extended to those engaged in meretricious relationships. Michigan has also abolished the civil cause of action for breach of contract to marry. M.C.L. § 551.301; M.S.A. § 25.191.

This state will not enforce contracts made in consideration of meretricious relationships. In Tyranski v. Piggins, 44 Mich.App. 570, 205 N.W.2d 595 (1973); however, this Court recognized that the existence of a meretricious relationship does not render all agreements between the parties illegal. In Tyranski, supra, 573-574, 205 N.W.2d 595, the Court said:

"But where there is an express agreement to accumulate or transfer property following a relationship of some permanence and an additional consideration in the form of either money or of services, the courts tend to find an independent consideration."

To the extent the rule announced in Tyranski concerns an express oral agreement entered into during the course of a meretricious relationship, it is inapplicable to plaintiff's implied contract claim.

With respect to implied contracts, only one case in Michigan has recognized a cause of action based upon a contract implied in fact in the context of a meretricious relationship. In Roznowski v. Bozyk, 73 Mich.App. 405, 251 N.W.2d 606 (1977), the defendant owned and managed a resort which had a [109 MICHAPP 212] tavern on its premises. The plaintiff previously had worked as a cocktail waitress in other local establishments but in 1968 moved into defendant's home, whereupon the parties began living together as husband and wife. She aided the defendant in operating his resort, including painting and cleaning the cabins and working in the bar. In addition, plaintiff performed most of the...