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Ten years later, the operation of the statute became the subject of an appeal in Zaremba v. Cliburn, 949 S.W.2d 822 (Tex.App.-Fort Worth 1997, writ pending). Renowned pianist Van Cliburn's former live-in lover, Thomas Zaremba, brought what was construed to be a palimony suit against him after their 17-year relationship disintegrated. They began cohabiting in 1977, well before the amendment to the statute of frauds. Zaremba alleged an oral or implied contract giving him the right to a share of Cliburn's income in exchange for the services he rendered after moving in with Cliburn. Those services allegedly included shopping, doing the mail, paying the bills, co-managing the household, etc.
Zaremba initially filed his suit in a Tarrant County family court. This seems to be the basis for the appellate court's determination that this was a palimony suit. Although Zaremba had raised claims based on an oral or implied partnership agreement, the court noted that since he originally filed in a family court that he "considered the suit a 'family' matter." Accordingly, the court decided that the services performed by Zaremba were merely collateral to a nonmarital conjugal cohabitation agreement. The partnership claims were dismissed as an attempt to "disguise" the palimony nature of the suit.
The 1987 amendment to the statute of frauds was not expressly made retroactive. According to the Texas Government Code, the statute must then be presumed to be merely prospective in operation. Since the two men began cohabiting in 1977, it would seem the amendment would not retroactively apply to their alleged agreement. In this case of first impression, the Fort Worth appellate court looked to the reasoning of a Minnesota court and decided otherwise. Its ruling: oral palimony agreements made prior to the amendment are barred if the nonmarital conjugal cohabitation continues past that date. Thus, Zaremba's suit was summarily dismissed in response to special exceptions raised by Cliburn, on a holding that claims arising from an oral contract within the statute of frauds are fatally flawed. The court noted that the parties had seven years in which to bring their agreement into compliance with the new statute by putting it in writing.
This decision raises an interesting point: it appears to validate the concept of enforceable nonmarital conjugal cohabitation agreements between persons of the same sex, so long as they are in writing. Perhaps for the first time, same-sex partners in Texas may have a vehicle by which they can access courts for a sort of property division when their relationship breaks down. Very likely this was not the legislature's intention. One doubts that when he proclaimed that he was killing palimony, Senator Caperton thought he was sponsoring a bill giving same-sex partners a means of asserting rights in one another's property. Perhaps this was not the court's intention either. However, it is hard (but not impossible, as any practicing lawyer knows) to lose both sides of an issue. Zaremba's suit was dismissed on a holding that his agreement needed to be in writing. Inferentially, then, had it been so, it would have been enforceable.
A less controversial but potentially more onerous consequence of this opinion may result if the court's reasoning is applied across-the-board to any oral agreement made prior to the enactment of a statute requiring a written agreement. This would be an astonishing departure from the long-held rule that contracting parties are entitled to rely on the law in existence at the time an agreement is made. The Texas Supreme Court has yet to speak on these issues. A writ application is pending.
The federal district court and the Fifth Circuit court of appeals found for the three Boggs children. However, the United States Supreme Court reversed those decisions. Boggs v. Boggs, _____ U.S. _____ (1997). The high court noted that if Dorothy and Isaac had divorced, Dorothy could have received her community property interest in the employee benefit plans pursuant to a QDRO, and then would have had testamentary disposition over the assets received by her. Since she merely died, the Boggs children were out of luck. Sandra stepped in to Dorothy's interest in the property accumulated over the 30-year marriage of Dorothy and Isaac.
The lesson is clear: don't die without getting divorced first.