We do not recognize an implied agreement as grounds for granting Appellant an interest in the property. Appellant also argues that Dominguez v. Cruz, 95 N.M. 1, 617 P.2d 1322 (Ct.App. 1980) provides logical support for recognizing an implied agreement. In Dominguez, the court of appeals stated that "[I]f an agreement such as an oral contract can exist between business associates, one can exist between two cohabiting adults who are not married if the essential elements of the contractual relationship are present."
Cohabitating adults are "as competent as any other persons to contract"; however, they are required to enter into an express contract to jointly own property. Dominguez v. Cruz , 1980-NMCA-132, ¶ 4, 95 N.M. 1, 617 P.2d 1322 ; see Merrill , 1983-NMSC-070, ¶¶ 6-9, 100 N.M. 552, 673 P.2d 1285. {7} Pursuant to Merrill , Plaintiff had the burden to provide evidence resulting in reasonable inferences that the parties entered into an express agreement to share ownership of the business.
y where 20 years of cohabitation included promise to provide financial support in exchange for services as a homemaker and caretaker of children); Burns v. Koellmer, 11 Conn. App. 375, 527 A.2d 1210 (1987) (quantum meruit and unjust enrichment may support recovery between unmarried couple); Bright v. Kuehl, 650 N.E.2d 311, 315 (Ind.Ct.App. 1995) ("a party who cohabits with another without subsequent marriage is entitled to relief upon a showing of an express contract or available equitable theory such as an implied contract or unjust enrichment."); Wilcox v. Trautz, 427 Mass. 326, 693 N.E.2d 141 (1998) (contractual agreement between unmarried cohabitates is enforceable so long as it conforms with ordinary rules of contract law); Hudson v. DeLonjay, 732 S.W.2d 922 (Mo.Ct.App. 1987) (implied contract to share assets between parties living together); Kinkenon v. Hue, 207 Neb. 698, 301 N.W.2d 77 (1981) (express oral contract regarding disposition of personal property between cohabitants); Dominguez v. Cruz, 95 N.M. 1, 617 P.2d 1322 (App. 1980) ("It is well-established that this state does not recognize `common law marriage.' . . . [T]he presence or absence of the marital state is not relevant in this action . . . . [I]f an agreement such as an oral contract can exist between business associates, one can exist between cohabiting adults who are not married if the essential elements of the contractual relationship are present.") (internal citations omitted); Crowe v. De Gioia, 203 N.J. Super. 22, 495 A.2d 889 (App.Div. 1985) (court should enforce contracts between unmarried parties so long as not based only on a promise to marry); Suggs v. Norris, 88 N.C. App. 539, 364 S.E.2d 159 (1988) (agreements regarding finances and property of unmarried cohabiting couple whether express or implied are enforceable as long as sexual services or promises thereof do not provide the consideration); McHenry v. Smith, 45 Or. App. 813, 609 P.2d 855 (1980) (enforcing oral agreements with respect to pooling income, providing companionship, cooking
., Bishop v. Clark, 54 P.3d 804 (Alaska 2002) ; Cook v. Cook, 142 Ariz. 573, 691 P.2d 664 (1984) ; Bramlett v. Selman, 268 Ark. 457, 597 S.W.2d 80 (1980) ; Marvin v. Marvin, 18 Cal.3d 660, 134 Cal.Rptr. 815, 557 P.2d 106 (1976) ; Boland v. Catalano, 202 Conn. 333, 521 A.2d 142 (1987) ; Mason v. Rostad, 476 A.2d 662 (D.C.1984) ; Poe v. Estate of Levy, 411 So.2d 253 (Fla.Dist.Ct.App.1982) ; Simmons v. Samulewicz, 129 Hawai‘i 507, 304 P.3d 648 (Ct.App.2013) ; Glasgo v. Glasgo, 410 N.E.2d 1325 (Ind.Ct.App.1980) ; Donovan v. Scuderi, 51 Md.App. 217, 443 A.2d 121 (1982) ; Wilcox v. Trautz, 427 Mass. 326, 693 N.E.2d 141 (1998) ; Featherston v. Steinhoff, 226 Mich.App. 584, 575 N.W.2d 6 (1997) ; In re Estate of Eriksen, 337 N.W.2d 671 (Minn.1983) ; Cates v. Swain, No. 2010–CT–01939–SCT, ––– So.3d ––––, 2013 WL 1831783 (Miss. May 2, 2013) ; Hudson v. DeLonjay, 732 S.W.2d 922 (Mo.Ct.App.1987) ; Kinkenon v. Hue, 207 Neb. 698, 301 N.W.2d 77 (1981) ; Hay v. Hay, 100 Nev. 196, 678 P.2d 672 (1984) ; Dominguez v. Cruz, 95 N.M. 1, 617 P.2d 1322 (Ct.App.1980) ; Morone v. Morone, 50 N.Y.2d 481, 429 N.Y.S.2d 592, 413 N.E.2d 1154 (1980) ; Collins v. Davis, 68 N.C.App. 588, 315 S.E.2d 759 (1984), aff'd per curiam, 312 N.C. 324, 321 S.E.2d 892 (1984) ; McKechnie v. Berg, 667 N.W.2d 628 (N.D.2003) ; Beal v. Beal, 282 Or. 115, 577 P.2d 507 (1978) (en banc ); Knauer v. Knauer, 323 Pa.Super. 206, 470 A.2d 553 (1983) ; Bracken v. Bracken, 52 S.D. 252, 217 N.W. 192 (1927) ; Leek v. Powell, 884 S.W.2d 118 (Tenn.Ct.App.1994) ; Belcher v. Kirkwood, 238 Va. 430, 383 S.E.2d 729 (1989) ; In re Marriage of Lindsey, 101 Wash.2d 299, 678 P.2d 328 (1984) (en banc ); Goode v. Goode, 183 W.Va. 468, 396 S.E.2d 430 (1990) ; Watts v. Watts, 137 Wis.2d 506, 405 N.W.2d 303 (1987) ; Kinnison v. Kinnison, 627 P.2d 594 (Wy.1981).¶ 104 The recognition of claims between domestic partners has not revived the doctrine of common-law marriage in jurisdictions that have abolished it.
is whether there was an agreement, either express or implied in fact, between the parties which was supported by valid consideration . . . even though the parties' contemplation of cohabitation may have been the reason for their entering into such an agreement at the outset"); Taylor v. Frost, 202 Neb. 652, 656, 276 N.W.2d 656, 658 (1979) (adopting rule that "'[a] bargain in whole or in part for or in consideration of illicit sexual intercourse or of a promise thereof is illegal; but subject to this exception such intercourse between parties to a bargain previously or subsequently formed does not invalidate it'" (quoting Restatement of Contracts § 589)); WesternStates Constr., Inc. v. Michoff, 108 Nev. 931, 937, 840 P.2d 1220, 1224 (1992) (holding that "[u]nmarried couples who cohabit have the same rights to lawfully contract with each other regarding their property as do other unmarried individuals" (citing Hay v. Hay, 100 Nev. 196, 199, 678 P.2d 672, 674 (1984))); Dominguez v.Cruz, 95 N.M. 1, 2, 617 P.2d 1322, 1323 (App. 1980) (holding that "if an agreement such as an oral contract can exist between business associates, one can exist between two cohabiting adults who are not married if the essential elements of the contractual relationship are present" (footnote omitted)); Suggs v. Norris,88 N.C.App. 539, 541, 364 S.E.2d 159, 161 (1988) (allowing "recovery by a plaintiff partner to an unmarried but cohabiting or meretricious relationship, from the other partner's estate, for services rendered to or benefits conferred upon the other partner through the plaintiff's work in the operation of a joint business when the business proceeds were utilized to enrich the estate of the deceased partner"); Shuraleff v. Donnelly, 108 Or.App. 707, 710, 817 P.2d 764, 766 (1991) (reaffirming that "'courts, when dealing with the property disputes of a man and a woman who have been living together in a nonmarital domestic relationship, should distribute the property based upon the express or implied intent of those parties'" (q
Courts in other jurisdictions have concluded, as we did in Margolies v. Hopkins, supra, that an express agreement between adult unmarried persons living together is unenforceable only to the extent that it explicitly and inseparably is founded on sexual relations. Kozlowski v. Kozlowski, 80 N.J. 378, 385 (1979), citing Marvin v. Marvin, 18 Cal.3d 660 (1976). See Cook v. Cook, 142 Ariz. 573 (1984); Boland v. Catalano, 202 Conn. 333 (1987); Kinkenon v. Hue, 207 Neb. 698 (1981); Hay v. Hay, 100 Nev. 196 (1984); Dominiquez v. Cruz, 95 N.M. 1 (Ct.App. 1980); Morone v. Morone, 50 N.Y.2d 481 (1980); Mullen v. Suchko, 279 Pa. Super. 499 (1980); Latham v. Latham, 274 Or. 421 (1976), S. C., 281 Or. 303 (1978); Small v. Harper, 638 S.W.2d 24 (Tex.Ct.App. 1982); Kinnison v. Kinnison, 627 P.2d 594 (Wyo. 1981). Cf. Poe v. Estate of Levy, 411 So.2d 253 (Fla.Dist.Ct.App. 1982) (express, implied, and equitable remedies); Glasgo v. Glasgo, 410 N.E.2d 1325 (Ind.Ct.App. 1980) (contractual and equitable remedies); Collins v. Davis, 68 N.C. App. 588, S. C., 312 N.C. 324 (1984) (contractual and equitable remedies); Watts v. Watts, 137 Wis.2d 506 (1987), S. C., 152 Wis.2d 370 (1989) (express, implied, and equitable remedies). Furthermore, such agreements are not invalid merely because the parties may have contemplated the creation or continuation of a nonmarital relationship when they entered into the agreement.
I concur in the result reached by the majority that Mr. LaRosa is not subject to the financial claims of Karen J. Thomas because Mr. LaRosa is a married person. Most courts have confined this type of claim to unmarried persons who cohabit together so long as the agreement for financial support or accumulated asset division can be found to exist on grounds other than meretricious sexual services. E.g., Levar v. Elkins, 604 P.2d 602 (Alaska 1980); Marvin v. Marvin, 18 Cal.3d 660, 134 Cal.Rptr. 815, 557 P.2d 106 (1976); Boland v. Catalano, 202 Conn. 333, 521 A.2d 142 (1987); Kinkenon v. Hue, 207 Neb. 698, 301 N.W.2d 77 (1981); Dominguez v. Cruz, 95 N.M. 1, 617 P.2d 1322 (Ct.App. 1980); Suggs v. Norris, 88 N.C. App. 539, 364 S.E.2d 159, cert. denied, 322 N.C. 486, 370 S.E.2d 236 (1980); Beal v. Beal, 282 Or. 115, 577 P.2d 507 (1978); Warden v. Warden, 36 Wn. App. 693, 676 P.2d 1037, review denied, 101 Wn.2d 1016 (1984); Watts v. Watts, 137 Wis.2d 506, 405 N.W.2d 303 (1987). Were Mr. LaRosa not married, I believe the certified question would be answered in the affirmative.
See Levar v. Elkins, 604 P.2d 602 (Alaska 1980); Poe v. Estate of Levy, 411 So.2d 253 (Fla.App. 1982); Artiss v. Artiss, 8 Fam. L. Rptr. (BNA) 2313 (Hawaii 1982); Glasgo v. Glasgo, 410 N.E.2d 1325 (Ind.App. 1980); Donovan v. Scuderi, 51 Md. App. 217, 443 A.2d 121 (1982); Carnes v. Sheldon, 109 Mich. App. 204, 311 N.W.2d 747 (1981); Carlson v. Olson, 256 N.W.2d 249 (Minn. 1977); Kinkenon v. Hue, 207 Neb. 698, 301 N.W.2d 77 (1981); Joan S. v. John S., 121 N.H. 96, 427 A.2d 498 (1981); Kozlowski v. Kozlowski, 80 N.J. 378, 403 A.2d 902 (1979); Dominguez v. Cruz, 95 N.M. 1, 617 P.2d 1322 (1980); Morone v. Morone, 50 N.Y.2d 481, 407 N.E.2d 438, 429 N.Y.S.2d 592 (1980); Beal v. Beal, 282 Or. 115, 577 P.2d 507 (1978); Mullen v. Suchko, 279 Pa. Super. 499, 421 A.2d 310 (1980); In re Estate of Thornton, 81 Wash.2d 72, 499 P.2d 864 (1972); In Matter of Estate of Steffes, 95 Wis.2d 490, 290 N.W.2d 697 (1980); Kinnison v. Kinnison, 627 P.2d 594 (Wyo. 1981); see also M. Glendon, The New Family and the New Property (1981); G. Douthwaite, Unmarried Couples and the Law (1979); G. Blumberg, "Cohabitation Without Marriage: A Different Perspective," 28 U.C.L.A. L. Rev. 1125 (1981); C. Bruch, "Property Rights of De Facto Spouses Including Thoughts on the Value of Homemakers' Services," 10 Fam. L.Q. 101 (1976); R. Casad, "Unmarried Couples and Unjust Enrichment: From Status to Contract and Back Again?" 77 Mich. L. Rev. 47 (1978); H. Folberg W. Buren, "Domestic Partnership: A Proposal for Dividing the Property of Unmarried Families," 12 Willamette L.J. 453 (1976); H. Kay C. Amyx, "Marvin v
Most courts have ruled that express, oral agreements, if proved, will be enforced by the courts. Poe v. Estate of Levy, Fla.App., 411 So.2d 253 (1982); Glasgo v. Glasgo, 78 Ind.Dec. 477, 410 N.E.2d 1325 (1980); Donovan v. Scuderi, 51 Md. App. 217, 443 A.2d 121 (1982); Carnes v. Sheldon, 109 Mich. App. 204, 311 N.W.2d 747 (1981); Carlson v. Olson, Minn., 256 N.W.2d 249 (1977); Kinkenon v. Hue, 207 Neb. 698, 301 N.W.2d 77 (1981); Kozlowski v. Kozlowski, 80 N.J. 378, 403 A.2d 902 (1979); Dominguez v. Cruz, 95 N.M. 1, 617 P.2d 1322 (1980); Morone v. Morone, 50 N.Y.2d 481, 429 N.Y.S.2d 592, 413 N.E.2d 1154 (1980); Beal v. Beal, 282 Or. 115, 577 P.2d 507 (1978). See also, Matter of Estate of Steffes, 95 Wis.2d 490, 290 N.W.2d 697 (1980) (Court rules that evidence supports a finding of contract implied in fact or implied in law and court also voices approval of express contracts under the same circumstances.) It is the general view that an agreement to accumulate or transfer property and the legally viable consideration, such as household or personal services, upon which the agreement is based can be enforced to the extent that the contract is independent of any agreement to pay for sexual services.
In New Mexico, marriage is a civil contract which must be licensed. Dominguez v. Cruz, 95 N.M. 1, 617 P.2d 1322 (Ct.App. 1980); State v. Lard, 86 N.M. 71, 519 P.2d 307 (Ct.App. 1974). It is also a contract in which the public is interested and to which the state is a party.