Kelley v. Cooper

• Decision Date: 22 November 2013
• Docket Number: No. A13A0982.,A13A0982.
• Citation: 325 Ga.App. 145,751 S.E.2d 889
• Parties: KELLEY v. COOPER.
• Court: Georgia Court of Appeals

325 Ga.App. 145

751 S.E.2d 889

KELLEY

v.COOPER.

No. A13A0982.

Court of Appeals of Georgia.

Nov. 22, 2013.

McKee & Mitchell, Sammie Mark Mitchell, for Appellant.

James William Clifton, for Appellee.

BRANCH, Judge.

Following a bench trial, the trial court awarded Melissa Cooper damages on her claims of breach of promise to marry, fraud, and attorney fees. Without having moved for a directed verdict in the trial court, which limits his possible recourse to a new trial,¹ Christopher Ned Kelley raises five enumerations of error, including that a promise to marry is not enforceable when the parties are in a meretricious relationship. We find no error and affirm.

Construed in favor of the judgment, the evidence produced at trial shows that Kelley and Cooper had been living together since at least 2000 and had one child together, when, on December 23, 2004, Kelley proposed marriage to Cooper and gave her a ring valued at approximately $10,000. Cooper accepted the proposal. The couple continued to live together thereafter and moved to a new home. Cooper also left her job at Kelley's request in order to stay home and raise the children.² Although the couple was never formally married, Kelley often held out the couple as husband and wife.

The evidence also shows that after the proposal, Cooper discovered that Kelley had been in a two-year relationship with another woman that extended in time from before the proposal to afterward. After Cooper confronted Kelley, she agreed to stay with him because of his pledges not to see the other woman again and his promises thereafter to marry Cooper. In April 2011, when confronted about a relationship with another woman, Kelley told Cooper that he wanted to be with this woman and that Cooper and the children should move out. Cooper was “devastated” by this development.

Cooper filed suit and later amended the action to assert claims to establish paternity and to obtain child support, as well as to assert claims for an implied or constructive trust on certain assets, breach of contract to marry, unjust enrichment, fraud, and attorney fees. During the litigation, the parties resolved all issues concerning paternity, custody, visitation and support. The trial court held a bench trial on the remaining claims. Following the trial, the court entered an order in which it found in favor of Cooper on her claims of breach of promise to marry, fraud, and attorney fees. The court awarded damages on the claims of breach of promise to marry and fraud in the amount of $43,500 and awarded attorney fees of $6,500.

1. Kelley contends the trial court erred because the promise to marry was part of a meretricious relationship and therefore not enforceable.

“ ‘Breach of promise to marry is a common law contract action.’ ” Phillips v. Blankenship, 251 Ga.App. 235, 236(1), 554 S.E.2d 231 (2001), quoting Thorpe v. Collins, 245 Ga. 77, 78(1), 263 S.E.2d 115 (1980). The meretricious relationship defense to a contract claim is derived from OCGA § 13–8–1 and its precursors. Abrams v. Massell, 262 Ga.App. 761, 766(5), 586 S.E.2d 435 (2003); Rehak v. Mathis, 239 Ga. 541, 543, 238 S.E.2d 81 (1977) (citing Code Ann. § 20–501). OCGA § 13–8–1 provides: “A contract to do an immoral or illegal thing is void. If the contract is severable, however, the part of the contract which is legal will not be invalidated by the part of the contract which is illegal.” The Supreme Court of Georgia has held that parties who are unmarried and live together in a sexual relationship are in a meretricious relationship. Rehak, 239 Ga. at 542, 238 S.E.2d 81. See also Abrams, 262 Ga.App. at 766–767(5), 586 S.E.2d 435( Rehak is still binding precedent).

A review of the case law, however, shows that the meretricious relationship defense typically is asserted as a defense to a claim of breach of a financial agreement or arrangement between two parties when the agreement is seen as being in exchange for one party's agreement to cohabit with the other party and provide sexual relations.³ But OCGA § 13–8–1 “ ‘has been held inapplicable where the object of the contract is not illegal or against public policy, but where the illegality or immorality is only collateral or remotely connected to the contract.’ ” (Citation and punctuation omitted; emphasis in original.) Phillips, 251 Ga.App. at 237, 554 S.E.2d 231, quoting Liles, 176 Ga.App. at 66(2), 335 S.E.2d 168.

In this case, Kelley asserts the defense against Cooper's claim of breach of promise to marry. However, the object of such a promise is not illegal or against public policy. In Georgia, the legislature has specifically announced that “[m]arriage is encouraged by the law.” OCGA § 19–3–6. Kelley has not cited any cases, nor has our research uncovered one, where the meretricious relationship defense was asserted or upheld in response to a claim of breach of a promise to marry. We therefore conclude that the fact that the parties were living together both before and after the marriage proposal is only collateral to the promise to marry. The meretricious relationship defense is therefore inapplicable, and the promise to marry is enforceable. Cf. Thorpe, 245 Ga. at 81, 263 S.E.2d 115 (the obligation recognized by statute that the father of an illegitimate child is bound for its maintenance and education supports an agreement between the biological parents to provide for future support for the child, and “acts of cohabitation between the father and mother, which are not part of the consideration for the contract, do not render the contract void”) (citations and punctuation omitted). Accordingly, Kelley is not entitled to a new trial on this ground.

2. Kelley's argument that Cooper cannot recover in tort that which is not recoverable in contract is made moot by our decision in Division 1.

3. Kelley contends that Cooper cannot recover in fraud because the alleged fraudulent statements were only promises as to future acts.

In the appellate review of a bench trial, this Court will not set aside the trial court's factual findings unless they are clearly erroneous, and this Court properly gives due deference to the opportunity of the trial court to judge the credibility of the witnesses. The standard by which findings of fact are reviewed is the “any evidence” rule, under which a finding by the trial court supported by any evidence must be upheld.

Singh v. Hammond, 292 Ga. 579, 581(2), 740 S.E.2d 126 (2013) (citation and punctuation omitted). Because there is some evidence supporting the trial court's finding of fraud, we cannot say the court's decision was clearly erroneous.

It is true that “[a] claim of fraud cannot be predicated on statements which are promissory in their nature as to future acts.” See generally Beard v. McDowell, 174 Ga.App. 793, 794(2), 331 S.E.2d 104 (1985) (citation omitted). But “an exception to this rule exists where a promise as to future events is made with a present intent not to perform or where the promisor knows that the future event will not take place.” (Citation omitted.) JTH Tax, Inc. v. Flowers, 302 Ga.App. 719, 725(2), 691 S.E.2d 637 (2010). Also, “[f]raud may be proved by slight circumstances, and whether a misrepresentation is fraudulent and intended to deceive is generally a jury question.” (Citations and punctuation omitted.) Id.

Here, some evidence was presented to show that at the time he proposed, Kelley did not intend to marry Cooper. First, at the very time that he gave her a $10,000 ring and proposed marriage, he was having an affair with another woman that began before his proposal to marry and continued after Cooper accepted the proposal. He certainly equivocated frequently about his actions and his intent at the time. When asked whether he had seen another woman within three months prior to the proposal, Kelley testified, “It's possible.” He gave the same answer when asked if he saw the same woman within three months after the proposal. He also testified “We never had very many discussions around marriage. I personally never initiated any conversations around marriage” and “I never initiated the concept of marriage with her, outside of giving her that ring.” Kelley's testimony about the proposal itself was that although he gave Cooper the ring, “I never said the words will you marry me to her.” When asked if he gave Cooper a card that started with “What is a wife?”, Kelley responded, “Throughout our ten-year relationship, there will be very emotional times and you will do things that doesn't necessarily represent, you know, the actuality of life.” When construed in favor of the verdict, this testimony, when juxtaposed with Cooper's testimony about the proposal and her acceptance, can be construed as an admission that Kelley never intended to marry Cooper. Finally, the fact that after Cooper discovered the affair that circumscribed the proposal Kelley promised not to do it again is not relevant to Kelley's intent on the day he proposed and Cooper accepted. For these reasons, the trial court's decision was not clearly erroneous and Kelley is not entitled to a new trial based on this argument.

4. Kelley contends that the damage award for fraud was erroneous for three reasons: (a) it was made by a judge rather than a jury; (b) OCGA § 51–12–6 was inapplicable because the measure of damages in a fraud action is the actual loss sustained as a result of the fraud; and (3) because Cooper failed to present evidence of any “actual loss suffered as a result of Mr. Kelley's purported claim.” ⁴

(a) With regard to the first argument, “ ‘a party may waive a right to jury trial by his or her actions, [including] by appearing at the hearing and allowing the bench trial to proceed without objection.’ ” Cole v. ACR/Atlanta Car Remarketing, 295 Ga.App. 510, 512, 672 S.E.2d 420 (2008), quoting Fine v. Fine, 281 Ga. 850, 851(2), 642 S.E.2d 698 (2007). Kelley did not object to a bench trial and therefore has no basis to claim error as a result of not having...