Beal v. Beal

¶1concurring in part and dissenting in part.

¶2Because of the contemporary interest in the practice of cohabitation without marriage, this case risks being read for more than, on its facts, it actually decides. For that reason, it is important to separate the precise question being decided from dicta that range beyond this case and may or may not fit future cases.

¶3The factg are simple and probably not very typical of other cases. Plaintiff and defendant, who had been divorced, later contracted to buy a house in which they lived together for about two years. At that time, *125defendant moved out. Plaintiff, who remained in possession, brought this suit for an equitable determination of the respective rights of the parties to their interest in the real estate contract. Each party had made some financial contribution to the purchase, one primarily to the down payment, the other to the monthly payments. These amounts were far from equal, but defendant also asked to be credited for other contributions made to the joint household to balance the payments plaintiff made on the house.

¶4It should be understood how little is presented in this appeal and how much is not before us. The case does not involve a legal title to the real property but only the determination of the parties’ shares in the equity. It does not involve the obligations of each of these parties to continue payments under the purchase contract or other possible rights of third parties. The value of the equity itself is unknown. The questions how it might be divided, whether one party should buy out the interest of the other and if so, at what price, or any other claim for relief were not presented by the pleadings and the trial court declined to anticipate them. On this appeal, we have a 10-page brief by plaintiff, no response by defendant, and no oral argument. The broader issues were not addressed by the parties or by the trial court and have not had the benefit of briefing and argument even as applied to the present facts, let alone the range of highly diverse situations in which they might arise. Under the circumstances this case cannot be a reliable guide to such other situations.

¶5What the court holds is that the relative rights of the parties in their common interest in this property depends on their intent and that this intent is to be determined from any written instrument or such other evidence of an express or implied agreement as may be available. In this case, both a written instrument and other evidence is available. The parties chose to describe their interest in the purchase contract itself *126as being that of "husband and wife.” Also, plaintiff himself alleged in his complaint that the parties held themselves out to be husband and wife and bought the house as such, though they were divorced. One could hardly ask for stronger evidence of an intent, as between these parties, to acquire this home upon the assumptions and expectations as to their relative rights that apply to a husband and wife, and plaintiff is in no position to complain if the division of their interest upon a separation also takes into account factors similar to those that would be applied between spouses rather than between arm’s-length investors in real property.

¶6It is important, however, that this result follows from the well-documented agreement of the parties to treat their purchase as one by "husband and wife,” rather than as one implied by law from the circumstances of cohabitation. The evidence fixes this particular intention of these parties with respect to this property, but there is no reason to believe that the same principles of giving effect to the mutual intention and expectations of the parties would not apply equally between parties who were acquiring and sharing household property without cohabiting sexually1 or for that matter without living together at all. The court implies as much in recognizing that mechanical application of the rules of cotenancy along purely financial lines may fit commercial investments but often will not reflect accurately the shared expectations of parties in other relationships, and that cohabitation can be one item of evidence (though by itself perhaps too inexplicit)2 of those shared expectations. *127Similarly, the titles of articles cited in the opinion refer alternatively to "de facto spouses” and to "domestic partnerships,” and the court does not purport to distinguish these. Really the only relevance that the nature of the parties’ nonmarital cohabitation has to this decision is the preliminary question of the "nonjusticiability” of disputes in a "meretricious relationship,” which we dispose of in the opening pages of the opinion. If it were otherwise and the case involved some special rule for property rights in "nonmarital cohabitation,” this decision would come close to backing the state into a version of "common-law marriage” that has in the past and should in the future be left to legislation. See Or Gen Laws 1925, ch 269, repealed by Or Gen Laws 1929, ch 149; cf. Wadsworth v. Brigham, 125 Or 428, 259 P 299 (1927), aff’d on rehearing, 266 P 875 (1928); Huard v. McTeigh, 113 Or 279, 232 P 658 (1925).

¶7I have some doubts about the court’s disposition of several of the specifics in this case, such as the imposition of rental payments by plaintiff to defendant in the absence of any claim or evidence in the record that defendant’s choice to be the one to leave was in any way attributable to plaintiff, but since on the basis of the parties’ own agreement the court is unsnarling their mutual rights in the purchase contract more like those of spouses than of cotenants, I shall not pursue these specifics here.