Reviewing a Marvin Action from a Litigator's Perspective

• Publication year: 2017
• Author: John Martin

Reviewing A Marvin Action From A Litigator's Perspective

John Martin

John P. Martin is a solo practitioner who focuses on civil litigation and mediation in San Diego, and is a member of the Family Law and Litigation Section of the State Bar of California. He may be reached at martlaww@msn.com.

This article addresses Marvin v. Marvin, 18 Cal. 3d 660 (1976) and its progeny, and provides an overview of points for every practitioner to consider when advising a client who is either contemplating or defending against a Marvin action. It reviews the nature of such actions and potentially related claims or defenses, the pros and cons of filing or threatening to file a Marvin action, and what type of expert or co-counsel associations, if any, may be useful, no matter how large or small the case.

An Overview of Marvin and its Progeny

Marvin involved the actor Lee Marvin and his girlfriend Michelle Marvin, who lived together for approximately seven years without marrying. Michelle, the plaintiff, claimed that she and Lee "...entered into an oral agreement" that during the time they lived together, she would give up her career as an entertainer and singer to devote herself full time to Lee as his companion, homemaker, housekeeper, and cook and they would share equally all property accumulated. Lee would also provide for all her financial support for the rest of her life. All property was in Lee's name. Michelle alleged that Lee thereafter forced her to leave his home and then repudiated the agreement about a year and a half later, refusing to provide further support as promised.¹Michelle prayed for declaratory relief, asking the court to determine her contract and property rights and to impose a constructive trust on one-half of the property acquired during the relationship. The trial court denied Michelle's request to amend her complaint to add contractual claims and granted a nonsuit to Lee. Michelle then appealed.²

The California Supreme Court reversed in part and remanded on the issue of legal and equitable relief, holding that Michelle stated a valid claim for express oral contract and could amend her complaint to make a claim for an implied contract, as well as allege equitable theories. The court rejected any claim of common law marriage or a contract based "primarily" on meretricious services, which would be void as a matter of law.³

Thus, the central holding of Marvin established that unmarried domestic partners may, through express or implied contractual agreements, establish enforceable contractual or equitable rights. Enforceable Marvin agreements most often focus on ownership and sharing of property, and/or an exchange of financial support for homemaking services, business assistance, or other lawful consideration.⁴

What Marvin is Not

A Marvin action is NOT a family Law action.

The Marvin court was quite explicit in stating that while recognizing the potential for concurrently filed civil and equitable remedies, the Family Code did not create a claim for community property or quasi-community property for cohabitees.⁵ However, the court also recognized at the outset that during the 1960s and '70s, there was a "substantial increase in the number of couples who live together without marrying."⁶ It observed that there were many reasons why people choose to live together, some related to a potential for future marriage, plus various others. The court opined that it was perfectly legal for a couple to enter into an agreement concerning their living arrangements, so long as the agreement is primarily non-sexual in nature.⁷ Thus, a Marvin action is a permissible claim founded on such an agreement, giving rise to legal remedies such as breach of contract (express or implied) or common counts,⁸ as well as equitable remedies including declaratory relief, quantum meruit, accounting, unjust enrichment, and a request to impose a constructive trust on property⁹ (if the court finds the plaintiff has a right to some property at issue based on the parties' agreement).

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Nevertheless, the litigants in a Marvin action often face property and support disputes that are fundamentally similar to those involved in a divorce (although governed by contract law rather than family law). Therefore, counsel representing such parties may need to bring in the same type of experts and consultants that would be consulted in a dissolution case—appraisers, accountants, financial planners, etc.¹⁰

Also, because people who cohabit without marriage form a legally distinct type of family from their married counterparts, but a family nonetheless, they frequently face the same emotional challenges that come with dismantling any family unit. Counsel should be prepared not only to deal with clients who may be more emotionally invested in the case than most, but also to recommend mediation, counseling, or other help with personal issues where appropriate.

Marvin actions can be especially thorny when the contract case is intertwined with a matter governed by family law. This most often occurs when a couple lived together for a significant period of time and then married, and/or had children.¹¹ A civil litigator representing a party in such circumstances will likely need to consult or associate with a family law practitioner, while an attorney who strictly practices in the family law arena may need the assistance of a colleague more familiar with contract litigation and other aspects of practice in civil court.

A Marvin Action is Not a Tort Action

Again, Marvin actions sound in contract, so available damages on such a claim are limited to contract damages—which means that neither emotional distress damages¹² nor punitive damages¹³ are ordinarily recoverable.

However, as in any contract case, the plaintiff may also have distinct tort claims that can be brought as alternative causes of action in the same lawsuit. For example, if one partner made factual representations to induce the other to cohabit (such as falsely claiming the financial ability to provide all support, promising to buy the other a new car, or similar inducements if he/she would relocate and provide housekeeping services) but fails to fulfill these promises, the wronged party may have a claim for fraudulent inducement to enter into the Marvin contract.¹⁴

Likewise, if one partner refuses to allow the other to remove his property from the home when the relationship ends, an action for conversion may lie. Of course, if one partner abuses the other, such claims as intentional infliction of emotional distress, civil assault, or domestic battery may be brought in a complaint or cross-complaint filed in a Marvin action. The addition of tort claims can complicate the case, but can provide powerful leverage toward a fair settlement and may give the plaintiff a chance to recover a broader range of damages, including emotional distress and punitive damages.¹⁵ Such damages have been held recoverable even when the underlying relationship between the parties was contractual, when the contract was shown to be the product of intentional fraudulent inducement or when other intentionally harmful behavior is proven.¹⁶

Where To File

At least initially, a Marvin claim must be filed in superior court rather than family court, as any effort to apply the Family Code in a Marvin case has consistently been rejected.¹⁷ If there is already a family law action pending, a party can file a Marvin claim in superior court and then request that the two cases be consolidated into one action on the grounds that consolidation serves the interest of the parties and judicial economy. However, careful consideration should be given to such a request, since when a party pleads a "legal" action (such as breach of contract, which is the gravamen of a Marvin action), the opposing party has the right to request a jury trial for a determination on that claim,¹⁸ as opposed to equitable claims, which do not come with a right to a jury and thus are more easily consolidated into a family law action. It is essential to evaluate how that option might impact your client's position, and whether the other party would waive the right to a jury, before either requesting or consenting to a consolidation of the family law and non-family law claims.

Subsequent Developments in the Law Governing Marvin Actions

In the forty years since Marvin was decided, California's courts have refined, but not fundamentally changed, the holding of this seminal case. Among the key decisions:

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• Bergan v. Wood, 14 Cal. App. 4th 854, 857 (1993) held that recovery in a Marvin action requires a showing of a "stable and significant relationship arising out of cohabitation." Thus, there is no Marvin case in which the parties reside separately, even if one paid for the other's housing and support. However, as clarified in Cochran...