Hudson v. DeLonjay

• Citation: 732 S.W.2d 922
• Decision Date: 23 June 1987
• Docket Number: No. 51326,51326
• Parties: Marshall HUDSON, Plaintiff-Appellant, v. Brigitte DeLONJAY Defendant-Respondent.
• Court: Court of Appeal of Missouri (US)

Page 922

732 S.W.2d 922

Marshall HUDSON, Plaintiff-Appellant, v. Brigitte DeLONJAY Defendant-Respondent.

No. 51326.

Missouri Court of Appeals,

Eastern District,

Division Five.

June 23, 1987.

Thomas M. Blumenthal, Susman, Schermer, Rimmel & Parker, St. Louis, for plaintiff-appellant.

Allan H. Zerman, Michael A. Gross, St. Louis, for defendant-respondent.

SNYDER, Chief Judge.

This is an appeal by plaintiff Marshall F. Hudson from the judgment in an equitable action between an unmarried woman and man, who cohabited for several years and during the cohabitation acquired substantial assets. Hudson filed two suits in the circuit court of St. Louis County, the first praying for partition in one count and damages for false imprisonment in the other. In the second suit Hudson asked for a judgment declaring that he was entitled to money deposited in the registry of the court which had been held as an asset of Dollco, an unincorporated business. Defendant-respondent Brigitte DeLonjay counterclaimed in contract, fraud, breach of fiduciary duty, assault, intentional infliction of emotional distress and implied in fact contract.

The suits were consolidated in the circuit court, tried, and judgment rendered in favor of DeLonjay. The judgment is affirmed.

In Hudson's first point relied on he claims the trial court erred in rendering judgment for DeLonjay on an implied in fact contract between Hudson and DeLonjay, who had cohabited as an unmarried couple during the period in which the assets in question were accumulated.

Much of appellant's argument is based on the public policy of Missouri which, according to appellant, prohibits the recovery of damages from a cohabitant based on a meretricious relationship. The case under review does not present that issue, but is simply a contract question between two individuals. DeLonjay makes no claim that the sexual relationship of the parties was in any way consideration for the contract which the trial court found to exist.

Hudson raises five more points. He alleges the trial court erred in:

1. Rendering judgment based on "internally antagonistic and inconsistent facts" and an erroneous application of the law by finding (a) both an express and an implied in fact contract, and (b) a breach of a confidential relationship, and at the same time the lack of any such breach.

2. Applying the law by using a burden of proof substantially less than that required by case law.

3. Applying the case law on the contribution of each party toward acquisition of property as set forth in Brooks v. Kunz, 637 S.W.2d 135 (Mo.App.1982) in the judgment dividing the assets.

4. Dividing the Dollco assets because the division was against the weight of the evidence.

5. Dividing the stock of Affiliated Metals Company, a corporation, because it was beyond the scope of the pleadings.

The allegation that the judgment was against the weight of the evidence in any respect, or that it is not supported by substantial evidence, which permeates the argument portion of Hudson's brief, may be disposed of by referring to the often cited precepts prescribed in Murphy v. Carron, 536 S.W.2d 30, 32 [1-3] (Mo. banc 1976). This court finds the judgment was supported by substantial evidence and was not against the weight of the evidence. It was for the trial court to determine the credibility of the witnesses and in doing so it may have taken into consideration the evidence that Hudson had lied under oath in another case, or as he put it, when the court asked him for an explanation, he "stretched the truth" or was "evasive".

The facts, briefly, are these. Brigitte DeLonjay and Marshall F. Hudson began to cohabit in April, 1976, after each had been divorced from other spouses. They purchased a residence for $80,750.00, the down payment of $32,515.29 having been supplied from the proceeds of the sale of a residence owned solely by DeLonjay. The new residence was conveyed to "Marshall F. Hudson and Brigitte DeLonjay as joint tenants, and not as tenants in common, and to the survivorship," by general warranty deed. The note payments on the house were made by Hudson for ten months and from a joint checking account of the parties for the next fifty-nine months.

Throughout the parties' relationship, Hudson earned far more money than DeLonjay did. In the years '80 through '83 while the parties were both working at Affiliated, he earned a total of $170,959.62 and she earned $45,734.62. Both contributed to the considerable number of joint bank accounts they opened and closed during the years they lived together. Her contributions included in addition to her Affiliated earnings, income from sewing and child support payments from her former husband. They paid most of their household expenses from joint funds.

Hudson was employed in the steel business as a salesman when the relationship with DeLonjay began. In 1979 Hudson and DeLonjay organized a steel processing and cutting business of their own, which they incorporated under the name of Affiliated Metals Company. The corporation was financed by $17,000.00 from a joint checking account in the Gravois Bank, $9,000.00 from an untraced source, and by a $27,184.90 loan from Community Federal Savings and Loan Association, for the payment of which the parties were jointly obligated. There were other loans to the corporation for substantial amounts from 1979 to 1983. The total of these loans was $2,498,000.00. The money was lent by three different banks. The loans were repaid by the corporation, although both parties personally guaranteed payment. The parties' residence was pledged as security for at least one loan.

The company was extremely successful, the book value at the time of the trial being $1,400,000.00. In the fiscal year ended August 31, 1985, the after-tax net income of the business was $690,091.00, according to the testimony of the certified public accountant who was called as an expert witness by DeLonjay. The accountant also testified that in his opinion the business as of August 31, 1985 had a minimum value of $5,443,902.00. Both parties worked at the business but Hudson was the major force behind the success of the company.

DeLonjay was an officer and a director of Affiliated from its inception until November, 1983. Although corporate tax returns showed each party as a 50% shareholder in 1980 and 1981, they are silent as to DeLonjay in 1982 and 1983, and show Hudson as a 99% shareholder in 1984 and 1985. Of the authorized 30,000 shares of common stock, 29,495 were issued to Hudson and 5 shares were issued to "Brigitte Hudson". Various financial statements of the parties showed that they owned all of their assets jointly. Most documents of the corporation were signed by Hudson as the sole shareholder.

The parties also formed a fictitious name business called Dollco in 1981. The capital for the business came from jointly held bank accounts. Dollco purchased various pieces of equipment which were rented to Affiliated, in addition to real estate in Piedmont, Missouri, which was purchased for $102,000.00 and was used for the recreation and entertainment of Affiliated employees and customers. Title to the real estate was taken in the name of "Marshall F. Hudson d/b/a Dollco Company".

There was extensive testimony from the parties concerning their domestic finances, the operations of Affiliated and Dollco, and the bank accounts and assets held by the parties throughout their relationship. There was also voluminous documentary evidence.

The parties separated in June of 1984, after which Hudson filed his lawsuits.

The trial court made extensive findings of fact and conclusions of law and rendered judgment in favor of Hudson on Count I of his petition for partition of the parties' residential real property and against Hudson on Count II, his claim of false imprisonment and malicious prosecution. The court, in ruling on the other counts, rendered judgment in favor of DeLonjay based upon an implied in fact contract, breach of a confidential relationship, constructive fraud and constructive trust, and awarded DeLonjay, in addition to her equal share of the residential property, one half the stock of Affiliated, one half the value of the Dollco assets, an equal share of money deposited in the registry of the Court, certain money appropriated by Hudson, and the balance in a joint bank account. The court ruled against DeLonjay on her fraud, assault and intentional infliction of emotional distress counts.

In appellant's first point he argues that the trial court erred in finding an implied in fact contract to share the assets accumulated during the parties' relationship, because that finding contravenes the public policy of Missouri, which, according to appellant, prevents the enforcement of implied in fact contracts between unmarried cohabitants. The point is denied.

Appellant emphasized this point in his brief and in oral argument, but in fact, it has no validity. Although it is true that this jurisdiction no longer recognizes common law marriages, Rone's Estate v. Rone, 218 S.W.2d 138 (Mo.App.1949), no citation is required to support the proposition that any two parties may enter into a valid and binding contract with each other if all of the contractual elements are present. The fact that a man and a woman are living together in a meretricious relationship does not prevent them from entering into an enforceable contract with each other.

Courts in numerous other jurisdictions have held that express contracts between nonmarried cohabitants should be enforced except to the extent that such contracts are explicitly founded on the consideration of meretricious sexual services, and that in the absence of any express agreement, courts should look to the conduct of the parties to determine whether there exists an implied contract between them. Boland v. Catalano, 202 Conn. 333, 521 A.2d 142, 146 (1987); Cook v. Cook, 142 Ariz. 573, 691 P.2d 664, 668 (1984); Kinkenon v....