Rivkin v Postal

• Decision Date: 14 September 2001
• Docket Number: 99-01947
• Parties: DAVID RIVKIN v. LORI POSTALIN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE
• Court: Tennessee Court of Appeals

DAVID RIVKIN v LORI POSTAL

No. M1999-01947-COA-R3-CV

IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE

April 13, 2000 Session

Filed September 14, 2001

Appeal from the Chancery Court for Williamson County, No. 24930

Russ Heldman, Judge

This appeal involves the financial aftermath of a short-lived nonmarital affair that ended badly. The man filed suit in the Chancery Court for Williamson County seeking a partition of the jointly-owned property and the return of his personal property. The woman responded with a counterclaim for breach of promise to marry. Following a bench trial, the trial court divided the jointly-owned property and awarded the woman $150,000 in damages on her breach of promise claim. Both parties now take issue with the judgment. The man asserts that the evidence does not support awarding the woman $150,000 or granting the woman such a large share of the jointly-owned property. The woman takes issue with the reduction of her share of the property because of damage to the man's personal property while it was in her possession. We have determined that the evidence does not support the trial court's conclusion that a promise to marry existed or that the woman was damaged by the failure of the marriage to take place. We have also determined that, with the exception of a cedar chest belonging to the man's grandmother, the manner in which the trial court divided the parties' jointly-owned property was proper.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed in Part & Reversed in Part

WILLIAM C. KOCH, JR., J., delivered the opinion of the court, in which WILLIAM B. CAIN and PATRICIA J. COTTRELL, JJ., joined.

Mary Arline Evans and John Michael Garrett, Nashville, Tennessee, for the appellant, David Rivkin.

Grayson Smith Cannon, Goodlettsville, Tennessee, for the appellee, Lori Postal.

OPINION

I.

David Rivkin and Lori Postal met in April 1994 at a music convention in Memphis. Mr. Rivkin was a successful, award-winning producer. Ms. Postal was a 28-year-old divorce who was living in Atlanta with her mother and stepfather. She sold bathing suits at wholesale and had also started a record label. Ms. Postal was attending the Memphis convention to obtain a record contract for a singer and a band that she represented. Even though Ms. Postal knew that Mr. Rivkin was married and had three children,¹ she welcomed his romantic advances. Within a short period of time, they began living together at the Peabody Hotel in Memphis and later moved into a house Mr. Rivkin bought in a Memphis suburb.

In early 1995, Ms. Postal discovered she was pregnant with Mr. Rivkin's child. Mr. Rivkin suggested an abortion, but Ms. Postal did not agree. Their child was born in September 1995. Shortly after their child was born, Mr. Rivkin sold the house in Memphis, and the parties moved to Williamson County because they believed that Mr. Rivkin would have greater success as a producer in the Nashville area. Mr. Rivkin was the parties' sole source of support, and he was able to provide an exceptionally affluent lifestyle for Ms. Postal and their child despite his continuing obligations to his wife and children. He purchased a $420,000 home in Williamson County and horses for Ms. Postal. He also hired a nanny for the child. Not surprisingly, Ms. Postal took to this lifestyle. She did not work outside the home but rather spent her time raising the parties' child, training her horses, and entertaining her personal friends and Mr. Rivkin's business associates.

But all was not well with the parties. They entered counseling in an effort to save their relationship. One of their problems stemmed from Ms. Postal's concern that her family knew that she was living with a married man and had given birth to his child. She insisted that Mr. Rivkin buy her an engagement ring to enable her to save face with her family. When Mr. Rivkin did not purchase a ring for her, Ms. Postal ordered a ring herself. Mr. Rivkin eventually paid for the ring after Ms. Postal refused to return it and also permitted her to wear it in front of her family. Ms Postal told her parents that she and Mr. Rivkin were planning to wed after he was divorced, and Mr. Rivkin did not contradict her. However, the parties themselves never discussed specific wedding plans.

The parties' relationship had disintegrated further by August 1996. Ms. Postal accused Mr. Rivkin of sexually molesting their child, and the Williamson County Juvenile Court, at the insistence of the Department of Human Services, ordered Mr. Rivkin to move out of the house and to stay away from the child while the Department conducted its investigation. Despite her charges against Mr. Rivkin, Ms. Postal continued to have sexual relations with him. Although Mr. Rivkin was eventually cleared of all the molestation charges, Ms. Postal's allegations irretrievably damaged the parties' relationship.

Mr. Rivkin was finally divorced from his wife in March 1997. However, by this time, Mr. Rivkin was no longer living in the parties' house. He saw Ms. Postal on occasion and continued to pay for all her living expenses, the mortgage on the house, the payments on her truck, and all of the child's expenses. One of their last meetings was Ms. Postal's birthday in May 1997. On this occasion, Mr. Rivkin asked Ms. Postal to return the "engagement" ring and to begin paying some of her living expenses. Ms. Postal returned the ring, and approximately one month later, Mr. Rivkin told her that their relationship was over and that he no longer wished to see her.

When it became evident that their relationship had ended, neither party followed Emily Post's sage advice "to take the high road - and move on."² In September 1997, Mr. Rivkin filed suit in the Chancery Court for Williamson County seeking a partition of the parties' jointly-owned property and the return of his personal property that was still in Ms. Postal's possession. Ms. Postal responded with a counterclaim seeking damages for breach of promise to marry. As a result of this litigation, Mr. Rivkin stopped paying Ms. Postal's living expenses and the mortgage on the house. Ms. Postal was required to borrow money from her mother and father in order to stave off foreclosure. Eventually, the parties agreed to sell the house and to place the proceeds in escrow. Before the case came to trial, Ms. Postal's father attempted to intervene in the lawsuit to recover the money he had loaned his daughter.

The trial court heard the case without a jury in November 1998. In April 1999, the trial court filed a memorandum concluding that Mr. Rivkin had breached his promise to marry Ms. Postal and that Ms. Postal was entitled to $150,000 in damages. The trial court awarded the parties equal shares of the remaining proceeds from the sale of the house and divided the other pieces of personal property generally according to schedules submitted by the parties, except for Mr. Rivkin's grandmother's cedar chest which was awarded to Ms. Postal. The court also reduced Ms. Postal's award by $2,000, representing the damage to Mr. Rivkin's gold and platinum records that had been in her possession, and dismissed Ms. Postal's father's motion to intervene.

Both parties filed Tenn. R. Civ. P. 59.04 motions asking the trial court to address the 1993 GMC truck that had been overlooked in the memorandum opinion and judgment. The trial court filed an order in August 1999 awarding the truck to Ms. Postal, and then vacated and re-entered the order in October 1999 because neither of the parties had received its August 1999 order. On this appeal, Mr. Rivkin takes issue with the $150,000 damage award and the division of the jointly-owned property. Ms. Postal takes issue with the trial court's decision to deduct $2,000 from her judgment because of the damage to Mr. Rivkin's gold and platinum records.

II.

Thomas Hardy offended the Victorian opinionmakers of his day by suggesting in his 1896 novel Jude the Obscure that marriage was merely a contract that some persons entered into as unwisely as they entered into other contracts. Many persons, other than clerics and literary critics, sensed that Hardy had a point. Less than three-quarters of a century after the publication of Jude the Obscure in book form, much of the polite squeamishness over Hardy's suggestion had evaporated, and even the courts were openly characterizing marriage as a contract. See, e.g., Jambrone v. David, 156 N.E.2d 569, 571 (Ill. 1959); Diemer v. Diemer, 203 N.Y.S.2d 829, 834 (N.Y. 1960).

Though some may still object to characterizing marriage as a contract, promises to marry have been enforceable as contracts well before Hardy wrote about Jude Fawley and Susanna Bridehead. See 1 Homer H. Clark, Jr., The Law of Domestic Relations in the United States 1.1 (2d ed. 1987) ("Clark") (discussing the history of breach of promise to marry). The contract to marry has been described as "essentially different from every other contract known to the law." Lewis v. Tapman, 45 A. 459, 461 (Md. 1900). Some courts have said that it "stands on a different footing from the general commercial contract." Minsky v. Satenstein, 143 A. 512, 514 (N.J. 1928). Professor Williston points out that while ordinary contract principles "find special and peculiar applications" to contracts to marry, such executory mutual promises are nevertheless subject for the most part to the rules governing any other bilateral contract. 10 Samuel Williston, Treatise on the Law of Contracts 1289 (Walter H. Jaeger ed., 3d ed. 1967). As far as contracts go, one is just as binding as the other. Attridge v. Pembroke, 256 N.Y.S. 257, 260 (App. Div. 1932).

In England, before the founding of this country, questions touching on marriage and breach of a promise of marriage were chiefly the province of the ecclesiastical courts. Lewis v. Tapman, 45 A. at 460; Lawrence M. Friedman, A History of American Law 202 (2d ed. 1985). Those courts, however,...