Whorton v. Dillingham

• Decision Date: 23 June 1988
• Docket Number: No. D005340,D005340
• Citation: 248 Cal.Rptr. 405,202 Cal.App.3d 447
• Court: California Court of Appeals Court of Appeals
• Parties: Donnis G. WHORTON, Plaintiff and Appellant, v. Benjamin F. DILLINGHAM, III, Defendant and Respondent.

Page 405

248 Cal.Rptr. 405

202 Cal.App.3d 447

Donnis G. WHORTON, Plaintiff and Appellant, v. Benjamin F. DILLINGHAM, III, Defendant and Respondent.

No. D005340.

Court of Appeal, Fourth District, Division 1, California.

June 23, 1988.

Review Denied Aug. 31, 1988.

Hendrix & Aller, Daniel A. Martorella, Lemon Grove, Norman P. Spevack and Jan Stiglitz, San Diego, for plaintiff and appellant.

Barwick & Knowlton, Robert M. Knowlton and Eileen McGeever, Carlsbad, for defendant and respondent.

WORK, Associate Justice.

Donnis G. Whorton appeals a judgment dismissing his action against Benjamin F. Dillingham, III, after the court sustained a demurrer without leave to amend. Whorton claims property rights based on an oral cohabitors agreement with which he fully complied but which Dillingham breached after approximately seven years. The trial court found the pleadings showed the contract was unenforceable as expressly and inseparably based on sexual services. We conclude Whorton has alleged consideration for the purported contract substantially independent of sexual services, and reverse the judgment.

I

On appeal from a judgment of dismissal arising from the sustaining of a demurrer, we accept the facts pleaded in the complaint as true. (Noguera v. North Monterey County Unified Sch. Dist. (1980) 106 Cal.App.3d 64, 66, 164 Cal.Rptr. 808.)

The alleged facts include the following. At the time the parties began dating and entered into a homosexual relationship, Whorton was studying to obtain his Associate in Arts degree, intending to enroll in a four year college and obtain a Bachelor of Arts degree. When the parties began living together in 1977, they orally agreed that Whorton's exclusive, full-time occupation was to be Dillingham's chauffeur, bodyguard, social and business secretary, partner and counselor in real estate investments, and to appear on his behalf when requested. Whorton was to render labor, skills, and personal services for the benefit of Dillingham's business and investment endeavors. Additionally, Whorton was to be Dillingham's constant companion, confidant, traveling and social companion, and lover, to terminate his schooling upon obtaining his Associate in Arts degree, and to make no investment without first consulting Dillingham.

In consideration of Whorton's promises, Dillingham was to give him a one-half equity interest in all real estate acquired in their joint names, and in all property thereafter acquired by Dillingham. Dillingham agreed to financially support Whorton for life, and to open bank accounts, maintain a positive balance in those accounts, grant Whorton invasionary powers to savings accounts held in Dillingham's name, and permit Whorton to charge on Dillingham's personal accounts. Dillingham was also to engage in a homosexual relationship with Whorton. Importantly, for the purpose of our analysis, the parties specifically agreed that any portion of the agreement found to be legally unenforceable was severable and the balance of the provisions would remain in full force and effect.

Whorton allegedly complied with all terms of the oral agreement until 1984 when Dillingham barred him from his premises. Dillingham now refuses to perform his part of the contract by giving Whorton the promised consideration for the business services rendered.

II

Adults who voluntarily live together and engage in sexual relations are competent to contract respecting their earnings and property rights. Such contracts will be enforced "unless expressly and inseparably based upon an illicit consideration of sexual services...." (Marvin v. Marvin (1976) 18 Cal.3d 660, 672, 134 Cal.Rptr. 815, 557 P.2d 106.) One cannot lawfully contract to pay for the performance of sexual services since such an agreement is in essence a bargain for prostitution. ( Id. at p. 674, 134 Cal.Rptr. 815, 557 P.2d 106.)

A standard which inquires whether an agreement involves or contemplates a sexual relationship is vague and unworkable because virtually all agreements between nonmarital (and certainly, marital) cohabitors involve or contemplate a mutual sexual relationship. Further, a compact is not totally invalid merely because the parties may have contemplated creating or continuing a sexual relationship, but is invalid only to the extent it rests upon a consideration of sexual services. (Id. at pp. 670-671, 134 Cal.Rptr. 815, 557 P.2d 106.) Thus, "even if sexual services are part of the contractual consideration, any severable portion of the contract supported by independent consideration will still be enforced." ( Id. at p. 672, 134 Cal.Rptr. 815, 557 P.2d 106.) For instance, contracting parties may make a variety of arrangements regarding their property rights--i.e., agree to pool their earnings and to hold all property in accord with the law governing community property, or to treat monetary earnings and property as separate property of the earning partner, or to keep property separate but compensate one party for services which benefit the other, or to pool only a part of their earnings and property, etc. ( Id. at p. 674, fn. 10, 134 Cal.Rptr. 815, 557 P.2d 106.) "So long as the agreement does not rest upon illicit meretricious consideration, the parties may order their economic affairs as they choose, and no policy precludes the courts from enforcing such agreements." ( Id. at p. 674, 134 Cal.Rptr. 815, 557 P.2d 106.)

Regarding the issue of what constitutes adequate consideration, Marvin notes "[a] promise to perform homemaking services is, of course, a lawful and adequate consideration for a contract...." ( Id. at p. 670, fn. 5, 134 Cal.Rptr. 815, 557 P.2d 106.) Marvin expressly rejects the argument that the partner seeking to enforce the contract must have contributed either property or services additional to ordinary homemaking services. (Ibid.)

In Marvin, the plaintiff alleged the parties orally agreed that while they lived together they would combine their efforts and earnings and would share equally all property accumulated as a result of their efforts, that they would hold themselves out to the general public as husband and wife, that plaintiff would render services as companion, homemaker, housekeeper and cook, that plaintiff would give up her career in order to provide these services full time, and that in return defendant would provide for all of plaintiff's financial support for the rest of her life. ( Id. at p. 666, 134 Cal.Rptr. 815, 557 P.2d 106.) The court stated:

"... plaintiff alleges that the parties agreed to pool their earnings, that they contracted to share equally in all property acquired, and that defendant agreed to support plaintiff. The terms of the contract as alleged do not rest upon any unlawful consideration." (Id. at pp. 674-675, 134 Cal.Rptr. 815, 557 P.2d 106.)

The holding in Marvin suggests the court determined that the contract before it did not expressly include sexual services as part of the consideration, and thus, it did not need to reach the issue of whether there were severable portions of the contract supported by independent consideration. The only reference to sexual services in Marvin 's alleged facts was that the parties agreed to hold themselves out to the public as husband and wife, which apparently the court did not interpret as expressly indicating sexual services were part of the consideration. (See Alderson v. Alderson (1986) 180 Cal.App.3d 450, 462-464, 225 Cal.Rptr. 610 [even though couple engaged in sexual relations and plaintiff perceived this as part of her "role", no evidence that implied agreement between the parties explicitly rested upon a consideration of meretricious sexual services].)

III

Unlike the facts of Marvin, here the parties' sexual relationship was an express, rather than implied, part of the consideration for their contract. The contract cannot be enforced to the extent it is dependent on sexual services for consideration, and the complaint does not state a cause of action to the extent it asks for damages from the termination of the sexual relationship.

The issue here is whether the sexual component of the consideration is severable from the remaining portions of the contract. ¹ We reiterate the guiding language of Marvin v. Marvin, supra, 18 Cal.3d at page 672, 134 Cal.Rptr. 815, 557 P.2d 106: "[E]ven if sexual services are part of the contractual consideration, any severable portion of the contract supported by independent consideration will still be enforced." One test for determining the enforceability of a contract having both lawful and unlawful factors for consideration is stated in the Restatement Second of Contracts, section 183, "If the parties' performances can be apportioned into corresponding pairs of part performances so that the parts of each pair are properly regarded as agreed equivalents and one pair is not offensive to public policy, that portion of the agreement is enforceable by a party who did not engage in serious misconduct." (See also Civ.Code, § 1599: "Where a contract has several distinct objects, of which one at least is lawful, and one at least is unlawful, in whole or in part, the contract is void as to the latter and valid as to the rest.")

Tyranski v. Piggins (1973) 44 Mich.App. 570, 205 N.W.2d 595, 596-597, evaluates the issue of severability as follows:

"Professor Corbin and the drafters of the Restatement of Contracts both write that while bargains in whole or in part in consideration of an illicit relationship are unenforceable, agreements between parties to such a relationship with respect to money or property will be enforced if the agreement is independent of the illicit relationship.

"Neither these authorities nor the large body of case law in other jurisdictions ... articulate a guideline for determining when the consideration will be regarded as 'independent', and when it is so coupled with the meretricious acts that the agreement will not be enforced. A pattern does, however, emerge...