Opinion
No. 76-691
Decided December 15, 1977. Rehearing denied January 12, 1978. Certiorari granted May 30, 1978.
After finding that no common law marriage existed between the parties in dissolution of marriage proceeding, trial court ordered woman to reconvey to man her interest in residence that he had deeded to her during period parties lived together. Woman appealed.
Affirmed
1. GIFTS — Evidence — Supports Trial Court Findings — Conveyance of Real Property — During Engagement Period — Binding on Review. Where testimony supported trial court's conclusion that before conveyance by donor of house to donee who was then living with him, donee had agreed to marry the donor ceremonially, that he had bought her an engagement ring, and that donee later changed her mind, this evidence supported trial court's finding that the gift of the real property was made during the engagement period, and that she was at fault in breaking the engagement; hence those findings may not be set aside on review.
2. TRUSTS — Gift — Joint Interest — Real Property — Expectation — Eventual Marriage — Donee — Broke Engagement — Equitable Trust — Warranted. Where trial court found, in effect, that man would not have given joint interest in home to woman with whom he was living if he had not expected her to marry him formally at some future date and that woman had broken the engagement, such circumstances warrant the imposition of an equitable trust requiring that the woman reconvey her interest in the home to the man.
3. FRAUDS, STATUTE OF — Not Applicable — Equitable Trusts. The Statute of Frauds has no application to cases involving equitable trusts.
4. GIFTS — Heart Balm Statute — Not Preclude — Disallowance — Conditional Gift — Contemplation of Marriage. The Heart Balm Statute cannot be relied upon to disallow the recovery of a conditional gift by man to his fiancee made in contemplation of marriage, particularly when the donee broke the engagement.
Appeal from the District Court of Boulder County, Honorable Horace B. Holmes, Judge.
Burton L. Cawthorne, for appellant.
Jack O. Robinson, for appellee.
Beth Lovato and William Heinzman lived together from 1969 to 1973 with some brief periods of separation. William was married at the time he began living with Beth but obtained a divorce in 1970. In the fall of 1960, William purchased the home in Boulder which Beth had been leasing. The court found, on supporting evidence, that Beth and William had become "engaged" and had agreed to marry. Thereafter, William deeded the home to "William Heinzman and Beth Lovato as joint tenants." The parties lived there until June 1973, when Beth left the state.
In October 1973, Beth petitioned the Boulder District Court to dissolve what she claimed was her common law marriage to William and requested a property settlement. The parties presented testimony on the common law marriage issue and on the issue of property division. The court ruled there was no common law marriage, and that judgment is not appealed. The court ordered the parties to submit briefs on the property division question. They did so, and neither party questioned the power of the court to proceed. Therefore, the property division matter was tried by consent. See C.R.C.P. 15(b) and 54(c). After considering the briefs, the court ordered the reconveyance of the Boulder residence to William. Beth appeals this order and we affirm.
I.
[1] Beth alleges that insufficient evidence was presented to the court to support its findings that the gift of real property was made during the parties' engagement period and that she was at fault in breaking the engagement. Although the facts were in dispute, testimony was presented that supported the court's conclusion that, before the conveyance of the house, Beth had agreed to marry William ceremonially, that he had bought her an engagement ring, and that Beth had later changed her mind. These factual determinations may not be disturbed on review, because there was sufficient evidence to support them. Linley v. Hanson, 173 Colo. 239, 477 P.2d 453 (1970).
II.
[2] The trial court found, in effect, that William would not have given the joint interest in the home to Beth if he had not expected her to marry him formally at some future date and that Beth had broken the engagement. These circumstances warrant the imposition of an equitable trust. See generally Page v. Clark, 40 Colo. App. 24, 572 P.2d 1214; First National Bank v. Rabb, 29 Colo. App. 34, 479 P.2d 986 (1970); 5 A. Scott, Trusts § 462.2 (3d ed. 1967). In Beatty v. Guggenheim Exploration Co., 225 N.Y. 380, 122 N.E. 378 (1919), after characterizing trusts of this type as "the formula through which the conscience of equity finds expression," Judge Cardozo explained the doctrine as follows: "When property has been acquired in such circumstances that the holder of the legal title may not in good conscience retain the beneficial interest, equity converts him into a trustee."
For cases supporting the return of property as a gift made during the engagement period in contemplation of subsequent ceremonial marriage, when the marriage does not take place through no fault of the donor, see Gill v. Shively, 320 So.2d 415 (Fla.App. 1975); DeCicco v. Barker, 339 Mass. 457, 159 N.E.2d 534 (1959); Shaw v. Christie, 160 S.W.2d 989 (Tex.Civ.App. 1942); Guffin v. Kelly, 191 Ga. 880, 14 S.E.2d 50 (1941). See also Annot., 46 A.L.R.3d 578 at 607-611; 38 C.J.S. Gifts § 61.
In Semenza v. Alfano, 443 Pa. 201, 279 A.2d 29 (1971), a case involving facts similar to those here, after quoting this passage from Beatty, the court said, "[t]he receipt of an antenuptial gift in contemplation of a marriage which never takes place is just such a circumstance." See also Sharp v. Kosmalski, 40 N.Y.2d 119, 351 N.E.2d 721, 386 N.Y.S.2d 72 (1976); Guffin v. Kelly, supra. Consequently, to avoid unjust enrichment here, based upon the factual findings of the trial court, Beth, an equitable trustee, must reconvey her interest in the home to William.
III.
[3] Beth asserts that several section of the Colorado Statute of Frauds, §§ 38-10-106, 38-10-108, and 38-10-112, C.R.S. 1973, prevent William from proving the conditional nature of the deed because that condition was not set forth in writing signed by Beth. This contention is without merit. The Statute of Frauds has no application to cases involving equitable trusts. Vandewiele v. Vandewiele, 110 Colo. 556, 136 P.2d 523 (1943); Semenza v. Alfano, supra; 5 A. Scott, Trusts § 406 (3d ed. 1967).
IV.
Colorado's "Heart Balm" statute, § 13-20-202, C.R.S. 1973, provides that all claims for relief for breach of promise to marry, alienation of affection, criminal conversation, and seduction are abolished. Beth claims that because William's argument is based upon Beth's breach of her promise to marry him, that statute bars his assertion that he should recover the Boulder property. We disagree.
The predominant view is that Heart Balm statutes should be applied no further than to bar actions for damages suffered from loss of marriage, humiliation, and other direct consequences of the breach, and should not affect the rights and duties determinable by common law principles. Gill v. Shively, supra; Norman v. Burks, 93 Cal. App. 2d 687, 209 P.2d 815 (1949); Beberman v. Segal, 6 N.J. Super. 472, 69 A.2d 587 (1947); Pavlici v. Vogtsberger, 390 Pa. 502, 136 A.2d 127 (1957). See also Comment, California Reopens the "Heart Balm" Action, 9 Stan. L. Rev. 406 (1957); H. Clark, Domestic Relations § 1.5 (1968).
Public policy in Colorado follows this view. Section 13-20-201, C.R.S. 1973, contains a legislative declaration that causes of action for breach of promise to marry have been abolished because such actions have been gravely abused by people who have been unjustly enriched by bringing specious legal claims which allow the recovery of damages for broken engagements.
[4] The Heart Balm statute cannot be relied upon to disallow the recovery of a conditional gift, particularly when Beth, the donee, broke the engagement. To hold otherwise would encourage the kind of unjust enrichment the statute was designed to prevent.
Beth's other contentions have been considered and found to be without merit.
Judgment affirmed.
JUDGE ENOCH concurs.
JUDGE COYTE dissents.