Gilbert v. Barkes

• Decision Date: 25 March 1999
• Docket Number: No. 97-SC-463-DG,97-SC-463-DG
• Citation: 987 S.W.2d 772
• Parties: Alvin D. GILBERT, Appellant, v. Suzanne BARKES, Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 772

987 S.W.2d 772

Alvin D. GILBERT, Appellant, v. Suzanne BARKES, Appellee.

No. 97-SC-463-DG.

Supreme Court of Kentucky.

March 25, 1999.

Edmund P. Karem, Scott E. Karem, Louisville, for Appellant.

Katie Marie Brophy, Louisville, for Appellee.

STEPHENS, Justice.

The issue we decide on this appeal is whether the claim of breach of promise to marry is still a viable legal cause of action in Kentucky. Recently, the Jefferson Circuit Court granted summary judgment to appellant dismissing a claim brought under this cause of action. Thereafter, the Kentucky Court of Appeals overruled the circuit court and reinstated the claim.

In reversing the Jefferson Circuit Court, the appellate panel expressed its disagreement with our previous decisions on this issue. However, the Court of Appeals correctly noted that under SCR 1.030(8)(a) and Special Fund v. Francis, Ky., 708 S.W.2d 641, 642 (1986), it lacked the authority to overrule a precedent established by this Court.

The facts which give rise to this action are as follows. Ms. Suzanne Barkes, appellee, and Dr. Alvin Gilbert, appellant, entered into a relationship beginning in January of 1989 which continued until June of 1994. Ms. Barkes claims that in September of 1990, Dr. Gilbert proposed marriage to her and that in December of 1990, she accepted. Ms. Barkes submits that she received an engagement ring from Dr. Gilbert. In reliance upon her impending marriage and at Dr. Gilbert's insistence, Ms. Barkes claims that she took early retirement in 1992. Subsequently, Ms. Barkes sold her home in January of 1993 and moved into Dr. Gilbert's home. Sometime in 1994, the parties' relationship began to deteriorate and Ms. Barkes left Dr. Gilbert's home.

In June of 1994 Ms. Barkes filed an action for Breach of Promise to Marry (BPM). Following Ms. Barkes' deposition, Dr. Gilbert filed a motion for summary judgment, which the trial court granted. Ms. Barkes appealed the decision of the trial court. As noted, the Kentucky Court of Appeals reversed the trial court and remanded the case for trial. Upon proper motion, we granted discretionary review. We now reverse the Court of Appeals.

I. HISTORY OF ACTION FOR BREACH OF PROMISE TO MARRY.

The right of an individual to sue for Breach of Promise to Marry is a common law hybrid of tort and contract. Homer H. Clark, Jr., The Law of Domestic Relations in the United States, 1 (2d ed.1987). Its origin; however, goes back to canon law, which only enforced such a breach through specific performance of the promise. W.J. Brockelbank, The Nature of the Promise to Marry, 41 Ill.L.Rev. 1, 3 (1946); Harter F. Wright, The Action for Breach of the Marriage Promise, 10 Va.L.Rev. 361, 364 (1924). Through time such harsh measures were no longer enforced. The common law has since adopted the action.

In the fifteenth century, English courts embraced the action, primarily because the basis of marriage was largely viewed as a property transaction. Clark, supra, at 2; G.M. Tevelyan, English Social History 313 (1942); W. Goodsell, A History of Marriage and the Family 328-31 (1934). However, in those early times, the aggrieved party was only able to recover monies expended on a deceitful promise to marry. Clark, supra, at 1. In the seventeenth century, the need to prove deceit was eliminated from the cause of action. Clark, supra, at 1; Brockelbank, supra, at 3-4.

Following the lead of England, the American colonies adopted the action. Wright, supra, at 366. The action found a receptive audience in this country eventually becoming more popular in America than in England. Michael Grossberg, Governing the Hearth: Law and Family in Nineteenth-Century America, 37 (1985). However, by the end of the last century commentators became highly critical of the BPM action and favored restricting or eliminating it. McCormick Handbook on the Law of Damages, 403-04 & n. 56 (1935); Wright, supra, at 371-75.

Today, the concept of marriage is generally no longer perceived as an economic transaction. Rather is regarded as a union of two persons borne out of love and affection, rather than a device by which property is exchanged. Clark, supra, at 3; Jeffrey Kobar, Note, Heartbalm Statutes and Deceit Actions, 83 Mich.L.Rev. 1770, 1778 (1985).

The elements of the BPM action are predicated upon contract principles with the exception of damages, which has its roots in tort. Scharringhaus v. Hazen, 269 Ky. 425, 107 S.W.2d 329, 336 (1937). Case authority with respect to the elements is quite old. First, there must be mutual promises to marry one another. Burnham v. Cornwell, 55 Ky. (16 B.Mon.) 284, 286, 63 Am.Dec. 529 (1855). Furthermore, an offer and acceptance of the promise must be proven for an action to lie. Burks v. Shain, 5 Ky. (2 Bibb) 341, 342, 5 Am.Dec. 616 (1811). The offer, however, need not be formal. "Any expression ... of readiness to be married is sufficient." Elmore v. Haddix, Ky., 254 Ky. 292, 71 S.W.2d 620, 622 (1934) (citing 9 C .J. 336). In addition, the contract to marry must be free from fraud based on the presumptions of innocence and purity of each promising party when entering into the agreement. Barrett v. Vander-Meulen, Ky., 264 Ky. 441, 94 S.W.2d 983, 985 (1936).

When the contract to marry has been breached, the injured party must suffer some form of damages. Because the issue of damages stems from tort principles, the amount is not limited to what is recoverable in the typical contract action for a breach of promise. Scharringhaus v. Hazen, Ky., 269 Ky. 425, 107 S.W.2d 329, 336 (1937). Three general classes of damages have emerged from this action: compensatory damages relating to the loss of the marriage, aggravated damages for seduction under promise of marriage, and punitive damages for malicious conduct. Stanard v. Bolin, 88 Wash.2d 614, 617-19, 565 P.2d 94, 96 (1977). See also Annotation: Measure and Elements for Breach of Contract to Marry, 73 A.L.R.2d 553 (1960). In Kentucky, this Court laid down an exhaustive list of factors to consider when estimating damages:

[I]t is proper to consider anxiety of mind produced by the breach; loss of time and expenses incurred in preparation for the marriage; advantages which might have accrued to plaintiff from the marriage; the loss of a permanent home and advantageous establishment; plaintiff's loss of employment in consequence of the engagement or loss of health in consequence of the breach; the length of the engagement; the depth of plaintiff's devotion to defendant; defendant's conduct and treatment of plaintiff in his whole intercourse with her; injury to plaintiff's reputation or future prospects of marriage; plaintiff's loss of other opportunities of marriage by reason of her engagement to defendant; plaintiff's lack of independent means; her altered social condition in relation to her home and family, due to defendant's conduct; and the fact that she was living unhappily at the time of the alleged promise.

Scharringhaus at 336 citing, 9 C.J. 372.

The last case in which this Court issued a ruling on the breach of promise to marry action was in the 1937 Scharringhaus case.

II. SHOULD THE CAUSE OF ACTION FOR BREACH OF PROMISE TO MARRY BE ABOLISHED FROM KENTUCKY COMMON LAW?

In deciding whether to modify the common law, this Court must weigh the benefits versus the burdens of the proposed change. We shall examine the rationale for removing the BPM action from the common law and then we shall discuss the reasons why it should be retained.

The primary argument in favor of abolition of the BPM action is that society's view of marriage and women have changed dramatically since this cause of action was adopted. While technically either a man or a woman could bring the cause of action in question, this Court is unaware of a man ever asserting such claim before the courts of the Commonwealth. The cases which interpret this cause of action make clear the party who is sought to be protected A promise to marry is not infrequently one of the base and wicked tricks of the wily seducer to accomplish his purposes by overcoming that resistance which female virtue makes to his unholy designs.

Scharringhaus v. Hazen, 269 Ky. 425, 107 S.W.2d 329, 336 (1937) (citing Goodall v. Thurman, 38 Tenn. 209, 1 Head 209 (Tenn. Dec. Term 1858). This language reflects the sexism and paternalism that pervade this cause of action. While one could certainly debate whether equality has been achieved between women and men in our society, it is certainly beyond issue that women today possess far more economic, legal and political rights than did their predecessors. Accordingly, we must examine the utility of the BPM action in the context of the present day, not in the era in which it was created.

Our review of the actions taken by other jurisdictions indicates that twenty-eight states have legislatively or judicially abolished the Breach of Promise to Marry action. ¹ The work of various commentators on this issue demonstrates criticism starting late in the last century and continuing up to the present. ²

"Although marriages are still contracted for material advantages, it is now popularly believed that the choice of a spouse should be the result of that complex experience called love." Clark, supra, at 3. The public policy of the Commonwealth undoubtedly calls for this Court to uphold marriage vows; however, "we see no benefit in discouraging or penalizing persons who realize, before making these vows, that for whatever reason, they are unprepared to take such an important step." Jackson v. Brown, 904 P.2d 685, 687 (Utah 1995) (emphasis in original).

Given these arguments in favor of abolition as well as the support offered by other jurisdictions and commentators, we now turn to the arguments in favor of its retention. There are two primary arguments in favor of retaining the BPM action. The first is that the General Assembly has implicitly adopted it by placing a statute of limitations upon the period in...