Thomas v. LaRosa, 19629

• Decision Date: 09 November 1990
• Docket Number: No. 19629,19629
• Citation: 184 W.Va. 374,400 S.E.2d 809
• Court: West Virginia Supreme Court
• Parties: Karen J. THOMAS, also known as Karen J. LaRosa v. James D. LaROSA.

Page 809

400 S.E.2d 809

184 W.Va. 374

Karen J. THOMAS, also known as Karen J. LaRosa v. James D. LaROSA.

No. 19629.

Supreme Court of Appeals of

West Virginia.

Nov. 9, 1990.

Concurring Opinion of Justice Miller Dec. 19, 1990.

Syllabus by the Court

1. "A court may order a division of property acquired by a man and woman who are unmarried cohabitants, but who have considered themselves and held themselves out to be husband and wife. Such order may be based upon principles of contract either express or implied, or upon a constructive trust. Factors to be considered in ordering such a division of property may include: the purpose, duration, and stability of the relationship and the expectations of the parties. Provided, however, that if either the man or woman is validly married to another person during the period of cohabitation, the property rights of the spouse and support rights of the children of such man or woman shall not in any way be adversely affected by such division of property." [Emphasis added]. Syllabus Point 3, Goode v. Goode, 183 W.Va. 468, 396 S.E.2d 430 (1990).

2. Agreements (express or implied) made between adult, non-marital partners for future support, even when such contracts are not explicitly and inseparably founded on sexual services are not enforceable in this State because they attempt to evade our proscription against common law marriage, and if one partner to the contract is already married, enforcing such contracts would also be tantamount to a condonation of bigamy.

Clark B. Frame, Wesley W. Metheney, J. Michael Benninger, Wilson, Frame & Metheney, Morgantown, for Karen J. Thomas (LaRosa).

James A. Varner, Catherine D. Munster, McNeer, Highland & McMunn, Clarksburg, for James D. LaRosa.

NEELY, Chief Justice:

This case presents the following certified question from the Circuit Court of Harrison County:

Are agreements (express or implied) which are made between adult non-marital partners for future support and which are not explicitly and inseparably founded on sexual services enforceable?

Stated another way, we are asked to decide today whether moral standards have changed sufficiently in the last thirty years that a man can now be married to two women at the same time. Our answer is an emphatic "no."

On 4 August 1989, the appellant, Karen J. Thomas (who in the caption sets out that she is "also known as Karen J. LaRosa") filed a civil action against the appellee, James D. LaRosa, alleging that, inter alia, the parties agreed that they would hold themselves out and act as husband and wife. Appellant asked the court to enforce an alleged oral contract under which the appellee agreed to provide financial security for appellant for her lifetime and to educate her children. The appellee moved to dismiss the complaint for failure to state a claim upon which relief could be granted and the circuit court granted the motion. Thus, what we have before us are only the appellant's original complaint and her affidavit in opposition to the motion to dismiss, both of which we must assume to be true for the purpose of answering the certified question.

According to the complaint, in August, 1980, the parties became acquainted while both were living in Clarksburg, West Virginia. Thereafter, during the Spring of 1981, appellant and appellee agreed that they would hold themselves out and act as husband and wife. It was further agreed that appellant would perform valuable services for appellee, including being his companion, housekeeper, confidante and business helper. In consideration of the valuable services and obligations undertaken and performed by appellant, appellee promised and agreed to provide financial security for appellant for her lifetime and to educate appellant's children. Appellee carried out such agreement for approximately eight years, but now has breached and reneged.

At the appellee's insistence and in furtherance of their agreement, appellant relocated to Atlanta, Georgia, in August of 1984. The parties obtained a house that is jointly owned by them. The parties consulted and agreed on where the house would be located and the manner in which it would be furnished. Appellee provided the money to buy, furnish and maintain the house. From the Spring of 1981 until July, 1988 appellant continued to provide valuable services to appellee as agreed, and appellee provided financial support and security for appellant and her children. Then in July, 1988, appellee breached and refused to continue to honor his agreement to provide support for appellant and her children.

According to appellant's affidavit, she is thirty-eight years old and the mother of three daughters. From the beginning of their relationship, appellee pressured appellant and demanded her attention by visiting her place of employment frequently and by telephoning her and eventually by visiting her in her home. Although appellant knew that appellee was married, appellant alleges that appellee represented to her that he had no meaningful relationship with his wife, but was unable to obtain a divorce for financial reasons.

At first, appellant's relationship with appellee began as a friendship; later, however, appellant worked and traveled with appellee as he began the construction of the East Point Mall in Bridgeport, West Virginia. Appellant routinely discussed business ideas and suggestions with appellee about the development of the mall. Appellant alleges that it was she, in fact, who suggested the name chosen for the mall. Appellant traveled extensively with appellee on business trips designed to evaluate potential businesses to be located within the East Point Mall. She acted as his business assistant and helped appellee decide which hotels to solicit for incorporation into the mall complex.

In addition, appellant provided valuable assistance to appellee in the planning and development of a golf course that was to serve the corporate market. At times appellee would use appellant as a "sounding board" for his ideas and plans. Appellant and appellee would discuss, explore and talk about how the golf course would be developed.

Appellant further averred that during the time of her relationship with appellee, appellee demanded a commitment that she be available to work and travel with him as he directed. Appellee further requested that appellant relocate to Georgia. In exchange for the appellant's trust, commitment and valuable services provided, appellee (according to appellant's affidavit) agreed as follows:

At that time he realized how hard it would be for both of my children and myself to move to Georgia and to leave family, to leave friends. And he was trying to make the transition as easy as he could. We went together and we got a house, we leased a house. At that point, he promised if I would make the move and the transition to Georgia, to be there for him, to help him; then he would buy a house for me, provide for myself and my children for the rest of our lives.

In explaining the extent of appellee's assurances, appellant testified that appellee promised her, as well as her mother and her father, that "he would take care of their education and their uprooting--they would not lose because they [children] were uprooted and left everything." Appellee further reassured appellant and her family by stating that:

I'm going to take care of her and those children for the rest of their lives, there is no problem, there shouldn't be a fear, she shouldn't be afraid.

Appellant alleges that she not only left the Clarksburg area, but removed herself, at the direction of the appellee, from her family, her friends and her work. At the time of making the agreement with appellee, appellant was working at Lockheed in Clarksburg, West Virginia. Speaking about the impact of the move on her daughters, appellant stated that while in Clarksburg they were very active in the community and in high school. They were both varsity cheerleaders, members of the homecoming court, and either president of the student body or president of the student council. She reiterated that "we left the family, we left friends."

Pursuant to his agreement, appellee did, in fact, undertake to support and maintain appellant and her children. He provided appellant with a monthly stipend of $3,000 and covered the household expenses. Appellee also initially undertook to support and educate appellant's children.

I.

At the outset we must point out that this is not a case of alleged common-law marriage. The appellant admits that at the time she entered into the putative contract she knew that the appellee was already married. Thus this case is easily distinguished from Goode v. Goode, 183 W.Va. 468, 396 S.E.2d 430 (1990) where we recognized that under circumstances that would give rise to a common-law marriage in many states, there is a right in West Virginia to equitable distribution of property acquired during the course of the relationship. Although in Syllabus Points 1 and 2 of Goode, we reaffirmed that common-law marriages are not valid in this State, and that every marriage here must be solemnized under a license, we went on to say in Syllabus Point 3:

A court may order a division of property acquired by a man and woman who are unmarried cohabitants, but who have considered themselves and held themselves out to be husband and wife. Such order may be based upon principles of contract, either express or implied, or upon a constructive trust. Factors to be considered in ordering such a division of property may include: the purpose, duration, and stability of the relationship and the expectations of the parties. Provided, however, that if either the man or woman is validly married to another person during the period of cohabitation, the property rights of the spouse and support rights of the children of such man or woman shall not in any way be adversely affected by such division of property. [Emphasis added.]

II.

Appellant directs the Court...