v.
Barbara STARRETT, Defendant.
Supreme Court, New York County.
April 16, 1998.
Self-described lesbian who had entered into nonmarital separation agreement with her former partner at end of their 14-year relationship brought action against former partner for sums due under agreement, and former partner counterclaimed for rescission and restitution of sums already paid. The Supreme Court, New York County, Edward J. Greenfield, J., addressing issues of first impression, held that: agreement was supported by adequate consideration.
Judgment for plaintiff.
EDWARD J. GREENFIELD, Justice.
This case involves a challenge to the validity of a non-marital "separation agreement" negotiated after the breakup of a long relationship. The agreement is claimed to be void because *** it is alleged to have lacked consideration. There appear to be no reported cases dealing with the validity of a "separation agreement" between same-sex former partners.
The parties are self-described lesbians, now locked in a bitter battle in the aftermath of a fourteen year relationship. Defendant Starrett is a successful doctor who obviously suffers from low self esteem. While she is plain looking and considerably overweight, she describes plaintiff Silver, a younger woman, as strikingly beautiful, intelligent, but deaf--and a person who had difficulty in holding a steady job. Starrett invited Silver to live with her. She said this opened a new world for her--that it was exciting, mysterious and sensual to be with a beautiful deaf woman. As she was supporting Silver anyway, she ultimately offered her a paid position as "administrative assistant", to do what she now describes as essentially "menial work".
However, as time went on, Dr. Starrett came to feel she was being used financially and emotionally. She complained that she felt inadequate, and that Silver accused her of being "too fat and boring in bed." She experienced stress in her medical practice, for she was dealing with patients who were dying of AIDS. She became depressed and suicidal. After intensive psychotherapy, she decided to tell Silver that they could not continue on. Silver responded with a long, emotional statement [annexed to Starrett's affidavit] in which she said she was trying to transform her emotional hurt into forgiveness. First she set forth her own shortcomings in a long list of "If Only's"--such as:
But then, Silver went on to detail
why she was upset and angry:
Having gone on for pages about her hurts and grievances, she then listed the dreams, hopes and aspirations that they might be able to share together.
This emotional letter, self-accusatory, blaming and conciliatory at the same time, is declared by Starrett to have caused her to suffer extreme guilt, but then, shortly thereafter, she got a letter from a lawyer representing Silver, stating that Silver was seeking a settlement to get out of Starrett's life. At this point, Starrett says, she became "crazed" and obsessed with getting Silver out of her life and home, even if she had to pay. Starrett contends, "she forced me to make these offers as a result of her greed and avarice and control ... She refused to allow me to end our relationship until she was paid off ..."
Plaintiff Silver's position is that the initiative for a separation agreement with a payout came from Starrett, that Starrett prepared five successive drafts, that both parties were represented by counsel in the negotiations, and that the agreement was presented to Silver on a "take it or leave it" basis. Silver moved out, as agreed upon, and Starrett proceeded to make payments to Silver as provided in the agreement for the next three years.
Starting in the fourth year, when payment was no longer required for a sum certain, but for the difference between $21,000 and Silver's actual income, Starrett refused to pay, initially contending that Silver had not made any good faith effort to obtain employment. She now argues that the agreement is void and unenforceable for duress and lack of consideration. Silver, now a resident of Seattle, Washington, sues for the sums due under the agreement for the fourth and fifth years together with attorneys' fees. Defendant Starrett counterclaims for rescission and restitution of the sums already paid.
When a personal relationship between two people comes to an unhappy end, money is the balm which will sometimes assuage the torment of failure. The obligations of one party to another may be mutually agreed upon, they may be implied, or they may be imposed by law. If there has been a legally recognized marriage the law will define the financial consequences that flow-- for financial support, equitable distribution, real property interests and inheritance. Public policy, as it is embodied in the law, is vigilant to prevent overreaching by a dominant partner, even when there has been an express agreement. In non-marital breakups, the law largely leaves the post-relationship consequences to such agreement as its parties may work out.
Despite the highly publicized case of Marvin v. Marvin, 18 Cal.3d 660, 134 Cal.Rptr. 815, 557 P.2d 106, where a California court awarded a non- marital party, on her claim of "palimony", an amount of money to enable her to get started again after a breakup, New York courts have emphatically rejected that approach.
In Morone v. Morone, 50 N.Y.2d 481, 429 N.Y.S.2d 592, 413 N.E.2d 1154, the court, when required to pass upon an alleged agreement between two unmarried persons who had been living together, reaffirmed the long standing doctrine that an agreement founded only on what has been termed a "meretricious relationship" based on "illicit sex" would not be enforced by a court, but the fact of cohabitation without marriage would be no bar to carrying out an express agreement (but not an implied contract) within the normal rules of contract law based on consideration other than sex. See also, Whorton v. Dillingham, 202 Cal.App.3d 447, 452, 248 Cal.Rptr. 405.
In Trimmer v. Van Bomel, 107 Misc.2d 201, 206, 434 N.Y.S.2d 82 aff'd. 82 A.D.2d 1023, 441 N.Y.S.2d 762, app. den. 55 N.Y.2d 602, 446 N.Y.S.2d 1025, 431 N.E.2d 310, cert. den. 456 U.S. 918, 102 S.Ct. 1774, 72 L.Ed.2d 178, involving a non-sexual relationship between an unmarried couple, a wealthy elderly widow and a gentleman who acted as her steady (and well-subsidized) escort, this court dismissed the claim of an implied contract for support beyond breakup, declaring: "The implied obligation to compensate arises from those things which, in normal society, we expect to pay for. An obligation to pay for friendship is not ordinarily to be implied--it is too crass. Friendship, like virtue, must be its own reward." Accord, Whorton v. Dillingham, supra, at 454, 248 Cal.Rptr. 405.
The court then applied the ordinary tests as to validity of an express contract, but found it wanting for vagueness, lacking specificity as to amount and duration.
In Kastil v. Carro, 145 A.D.2d 388, 536 N.Y.S.2d 63, a woman employed by a law firm claimed an agreement with a partner with whom she had a personal and sexual relationship. When the relationship ended she received further payments for a while, but when they ceased she sued, claiming there was an oral agreement to continue payments until she could obtain a comparable position. The court found there was no enforceable agreement, absent an expressly stated obligation.
In this case, there is no question as to the existence of an express written agreement worked out by the parties at the termination of their relationship, nor is there any question that defendant is refusing to abide by that agreement. Defendant's position is that the agreement is void and unenforceable because of *** lack of consideration.
Consideration
It is the further position of the defendant that even in non-marital agreements which are construed as ordinary contracts, the agreement must be considered void if it lacks consideration. Defendant contends that she was the party who gave up everything and that all plaintiff did was to agree to do that which she already had a legal obligation to do. The valid consideration which will support a contract need not be equal on both sides, and if a minimal yielding of a position by one side promotes an agreement, then it will be deemed enforceable. There is no need to measure the relative weight of the consideration provided by each party.
The agreement in question, drafted by lawyers, provides at the very outset that it is made "in consideration of the mutual promises contained herein". The agreement "is executed as and for a final settlement of all claims between them ..." Defendant agreed to make specified payments and plaintiff agreed to vacate the premises at 112 East 19th Street by March 1, 1991. They agreed to exchange releases and plaintiff expressly relinquished all claims to any and all holdings of the defendant, including three New York properties and a summer shore house in Belmar, New Jersey.
Defendant claims that the plaintiff was giving up nothing by this agreement as she would have been obliged to move out in any event, and she had no valid claims to any of the real property.
The affidavits reveal that plaintiff did make some payments toward the maintenance of the apartment they lived in and that she provided some of the money necessary to purchase a time share in the house at Belmar. (Neither plaintiff nor defendant were on the deed to that house).
It should be noted that from the very beginning, defendant Starrett was proposing to "buy Ann out of the Belmar house at market value ... for 28% of our 1/3 holdings", and to divide all personal property as amicably as possible. Defendant can hardly be heard now to argue that a property release she insisted on was of no value.
Plaintiff resided in the 19th Street residential loft for many years. There is no need to parse out what property rights or tenant rights she may have acquired by living there and making some payments. [At the least the parties perceived she had some interest].
Defendant wanted two things and wanted them enough so that she agreed to pay a considerable sum of money over a five year period. She wanted plaintiff out of her apartment immediately without further disputes or complications, and she wanted her to relinquish any claim she might have to any of defendant's property. She got what she bargained for. [emphasis added by your auspicious editor]
Defendant viewed the bargain as acceptable, and *** [w]hat is recited in the contract is both past and present consideration, and that is sufficient to validate it.
Plaintiff has pleaded a valid and enforceable contract which was ratified by continued performance for three years, and is not subject to the defenses of lack of consideration. Plaintiff is therefore entitled to summary judgment on the amounts demanded for the fourth and fifth years, as corrected and defendant's counterclaims for restitution of the support already provided are dismissed.
Further, the agreement provides that in the event one party is compelled to commence litigation to enforce the contract, the costs, disbursements and reasonable attorneys' fees shall be awarded to the prevailing party. Plaintiff's attorneys have submitted a breakdown of the legal services performed and the valuation thereof. These are not contested by defendant and the Court finds that the value of the services so itemized is reasonable. Therefore, plaintiff is entitled to an award of attorneys' fees of $15,751.50[wow! - auspicous editor] together with expenses necessarily incurred of $431.35.