Gail C. Tremblay v. Allan Bald et al.

SERVICE......ccscccssssssssssssssesesescssssscsesssescsesssssssssssessesesesesecesessnsvavececssssssesnsees 36

ADDENDUM......ccccssssssssosssccsceseerssseessesssssseseseeaescseseuseseussssssseassssssavssanes 36

Did the trial court err in ruling that the signed, written, and notarized agreements between the Plaintiff and Decedent are not enforceable for lack of adequate consideration?

Preserved: Plaintiff's Memorandum of Law in Support of Motion for Summary Judgment (Feb. 8, 2022) Appx. at 41; Plaintiff's Motion for Reconsideration (May 23, 2022) Appx. at 156.

Is cohabitation adequate consideration for a contract between two persons involved in a relationship and is the "magic" word of cohabitation necessary? See, Dunn v. CLD Paving, 140 N.H. 120, 122 (1995) (holding in a civil negligence action, no requirement exists “that the term negligence or any other magic words appear in the release, as long as the language of the release clearly and specifically indicates the intent to release the defendant from liability.”)

Preserved: Plaintiff's Motion for Reconsideration (May 23, 2022) Appx. at 157.

Is a term synonymous with cohabitation, such as “living together” or “engaged” sufficient to convey that cohabitation is the consideration for the contract?

Preserved: Plaintiff's Motion for Reconsideration (May 23, 2022) Appx. at 157.

Did the trial court contradict itself when stating, “While the documents state that certain property will be allocated to the plaintiff, if she and the decedent were living together, none of them state that cohabitation is the consideration of these exchanges.”? Preserved: Plaintiff's Motion for Reconsideration (May 23, 2022) Appx. at 157.

Should the trial court question the adequacy of a bargained for exchange freely entered into by the Plaintiff and Decedent and did

VI.

VI.

Vil.

the trial court err by failing to give any consideration to the intent of the Decedent/offeror?

Preserved: Plaintiff's Memorandum of Law in Support

of Motion for Summary Judgment (Feb. 8, 2022) Appx. at 41; Plaintiff's Motion for Reconsideration (May 23, 2022) Appx. at 156.

The proceeding question is posed in respect to this Court’s general proposition that it does not involve itself in evaluating adequacy of consideration because, “/w/hen the parties have bargained for an item, promise or forbearance, the adequacy of the exchange should not be examined except in unusual situations.” Burgess v. Queen, 124 N.H. 155, 160 (1983).

Preserved: Plaintiff's Memorandum of Law in Support

of Motion for Summary Judgment (Feb. 8, 2022)

Appx. at 44; Plaintiff's Motion for Reconsideration

(May 23, 2022) Appx. at 158.

Did the trial court err when denying the existence of an implied in fact contract or oral cohabitation agreement, evidenced by the Plaintiff's contributions to the household she shared with the Decedent, the Plaintiff’s caretaking of the Decedent, as well as the Plaintiff's contributions to the acquisition and maintenance of the Decedent's assets?

Preserved: Plaintiff's Motion for Reconsideration

(May 23, 2022) Appx. at 161.

Should cohabitation agreements be recognized as enforceable contracts, as a growing number of individuals forego marriage and elect to enter into contractual agreements concerning their property and assets?

Preserved: Plaintiff's Memorandum of Law in Support

of Motion for Summary Judgment (Feb. 8, 2022)

Appx. at 43.

XI.

Xi.

Did the trial court err in concluding that Plaintiff's contributions and continued cohabitation with the Decedent were an expectation of her relationship with the Decedent, rather than evidence of her detrimental reliance on the Decedent's promise that Plaintiff would receive property specified in written, signed, and notarized agreements in exchange for her cohabitation and her associated contributions.

Preserved: Plaintiff's Motion for Reconsideration

(May 23, 2022) Appx. at 160.

Did the trial court err in failing to recognize the Defendants passive acceptance of property which rightfully belongs to the Plaintiff, and which would be unconscionable for the Defendant to retain, therefore entitling the Plaintiff to relief under the theory of an implied in law contract?

Preserved: Plaintiff's Motion for Reconsideration

(May 23, 2022) Appx. at 162.

Upon the death of the Decedent, funds held in his and the Plaintiff's joint account became the sole property of the Plaintiff. Did the trial court err in ruling that the Plaintiff has no ownership to any property purchased from such joint account?

Preserved: Plaintiff's Motion for Reconsideration

(May 23, 2022) Appx. at 163.

Finally, did the trial court err in determining there was no material issue of fact regarding the Plaintiff's claim of promissory estoppel, implied-in-fact contract, implied-in-law contract, or assertion that she is entitled to property which was jointly purchased merely due to the Plaintiff's lack of contradictory affidavits, rather than relying on the totality of the pleadings, deposition, answers to interrogatories, and admissions on file?

Preserved: Plaintiff's Motion for Reconsideration

(May 23, 2022) Appx. at 156.

Appellant, Gail Tremblay (“Appellant” or “Gail”) was engaged to the Decedent, Donald Bald (“Decedent’ or “Donald’), who died intestate on July 26, 2020. The two lived together as an engaged couple for eleven years, until the Decedent’s death.

Gail and Donald met in the summer of 2009. They were neighbors at the time. The Appellant owned and resided at 19 Spruce Street Gorham, NH. The Decedent owned and resided at 16 Spruce Street Gorham, NH. In November 2009 Gail moved into 16 Spruce Steet, Gorham NH at the request of the Donald. Gail then sold her home located at 19 Spruce Street Gorham, NH to Donald for $93, 000.00, the approximate amount of the mortgage. From 2010 until 2012, 19 Spruce Street Gorham, NH remained unoccupied while the property underwent renovations and remodeling. Appellant and the Decedent both contributed financially and physically to renovations at 19 Spruce Street. Once the remodel was complete in 2012 the Appellant and Decedent listed the property for rent. 19 Spruce Street Gorham, NH was tenant occupied from 2012 to 2020. In February 2020, Appellant and Decedent decided to sell 16 Spruce Street, Gorham NH. When the property was sold, Gail and Donald relocated to 19 Spruce Street. Gail currently resides at 19 Spruce Street Gorham, NH.

During the relationship the Appellant and Decedent acquired personal property including vehicles. The vehicles were titled in the Decedent’s name, but Gail and Donald both contributed to the upkeep of the vehicles. The vehicles were driven by Gail and Donald.

Gail was primarily responsible for homemaking and caretaking,

although she also worked outside of the home as a waitress for much of her relationship with Donald. She contributed her tips, which comprised the majority of her income, to the household for day-to-day expenses such as groceries and utilities.

The Appellant and Decedent made certain written agreements concerning real and personal property during their relationship. See Appendix 4-7, Agreements.

The Appellant asserts that the agreements between her and the Decedent entitle her to the real and personal property bargained for. The agreements dated March 30, 2015 (2), December 23, 2009, and January 12, 2012 which by its terms supersedes the December 23, 2009 agreement, are signed by the Appellant and Decedent. Each Agreement was executed in the presence of a notary public. The first of the two agreements signed on March 30, 2015 states, “J, Donald D. Bald, in the event of my death, leave to Gail C. Tremblay the 2014 Ford Mustang with vin IZVBP8AM9E5260554; so long as we are still living together as an engaged couple.” See Appendix 4-7, Agreements. The second agreement dated March 30, 2015 states:

I, Donald D. Bald, in the event of my death, leave to Gail C.

Tremblay free and clear of any encumbrances, the property at 1

Marois Ave, Gorham, NH (including a garage and park model

home); as long as we are still living together in the same household.

This sheet being the third of three that we, as fiancées, have thus far

completed. There is no Will at this time.” See Appendix 4,

Agreements.

The agreement dated December 23, 2009 states: This agreement between Donald D. Bald and Gail C. Tremblay

dated January I, 2012 supersedes the December 23, 2009

agreement. In the event that Donald passes away and we are living

together, Gail will choose to keep, free and clear of any encumbrance, either 16 Spruce St. property or the 19 Spruce St. property, including the contents of her choice; and the choice of two vehicles. This does not include Donald’s gun collection” See

Appendix 7, Agreements.

Donald clearly stated his intent for the 2014 Ford Mustang, Gail’s choice of two additional vehicles, the property at 1 Marois Ave Gorham, NH, and her choice of either the property located at 16 Spruce St. Gorham, NH, or 19 Spruce St. Gorham, NH to become Gail’s property free and clear of any encumbrances, so long as he was engaged to and living with her upon his death.

The Appellee, Allan Bald (“Appellee” or “Allan”), is the estranged son of the Decedent and administrator of the Decedent’s estate. Donald and Allan were estranged for approximately seven years prior to the Decedent’s death. The Appellee denies that the agreements are enforceable contracts.

Gail filed a Complaint in the Coos County Superior Court on January 20, 2021, and later amended the Complaint on February 18, 2021. See Appendix 8, 14, Complaint and Amended Complaint. In Response, the Appellee filed an Answer to Complaint, Counterclaim and Demand for Jury Trial on March 19, 2021. See Appendix 23, Answer to Complaint.

On June 23, 2021, the Coos County Superior Court held a hearing on pending motions. Specifically, the Superior Court heard testimony, offers

of proof, and considered evidence with respect to the Motion to Enjoin the Sale, Transfer, or Encumbrance of Disputed Property, the Response to Motion to Enjoin the Sale, Transfer, or Encumbrance of Disputed Property and Cross Motion, Objection to Cross Motion, and Motion for Continued Use of Home. On June 23, 2021, the Coos County Superior Court issued its Order on the pending motions. See Appendix 30, Coos County Superior Court Order dated June 23, 2021.

On February 8, 2022, the Appellant filed a Motion for Summary Judgment and Memorandum of Law. See Appendix 33, 41, Motion for Summary Judgement and Memorandum of Law. On March 10, 2022, the Appellee filed a Cross Motion for Summary Judgment and Objection to Appellants Motion for Summary Judgment. See Appendix 47, Cross Motion for Summary Judgment and Objection to Appellant’s Motion for Summary Judgment.

On May 12, 2022, the Superior Court issued its Order on the Motion for Summary Judgment and Cross Motion for Summary Judgment denying the Appellant’s Motion and granting summary judgment in favor of the Appellee. See Appendix 148, Coos County Superior Court Order dated May 12, 2022.

The Appellant filed a Motion for Reconsideration and Motion to Stay Pending Appeal. See Appendix 156, 165, Motion for Reconsideration and Motion to Stay Pending Appeal. The Coos County Superior Court denied the relief requested within the Motion for Reconsideration and Motion to Stay Pending Appeal. See Appendix 171, 172, Coos County Superior Court Order dated June 8, 2022 and Coos County Superior Court Order dated July 13, 2021.

On July 8, 2022, the Appellant filed a Rule 7 notice of mandatory appeal form seeking to appeal the Order on her Motion for Summary Judgment and the Appellee’s Cross-Motion for Summary Judgment.

The Appellant and Appellee filed a Joint Memorandum in Support of Appeal on August 8, 2022. See Appendix 175, Joint Memorandum in Support of Appeal.

On September 7, 2022, the New Hampshire Supreme Court issued an Order directing the Superior Court to provide “written notification as to whether the counterclaim for unpaid rent is pending so that this court may determine whether the superior court has issued a final decision on the merits subject to review under Supreme Court Rule 7(1)(A).” See Appendix 186, New Hampshire Supreme Court Order dated September 7, 2022. On September 12, 2022, the Superior Court issued an Order which states that the Defendant’s counterclaim for unpaid rent remains pending. See Appendix 188, Coos County Superior Court Order dated September 12, 2022.

On September 29, 2022, the Supreme Court issued an Order dismissing the Rule 7(1) Appeal “without prejudice to raising the issues in a subsequent appeal either upon conclusion of the entire case in the trial court or by a properly filed interlocutory appeal in accordance with Rule 8.” See Appendix 191, New Hampshire Supreme Court Order dated September 29, 2022.

Gail filed an Interlocutory Appeal on January 12, 2023. The New Hampshire Supreme Court accepted the appeal by Order dated February 9, 2023.

Your Appellant now request that this Court overrule the Coos County Superior Court Order which granted the Summary Judgment in favor of the Appellee.

When reviewing a grant of summary judgment, the Court considers “affidavits and other evidence, and all inferences properly drawn therefrom, in the light most favorable to the non-moving party.” Palmer v. Nan King Restaurant, 147 N.H. 681, 682-83 (2002). The New Hampshire Supreme Court should overturn the grant of summary judgement unless the “evidence discloses no genuine issue of material fact, and [] the moving party is entitled to judgment as a matter of law.” Id. at 683. The Court should consider any fact that affects the outcome of the litigation under the applicable law, to be material for the purposes of summary judgment. Bates v. Phenix Mut. Fire Ins. Co., 156 N.H. 719, 720 (2008). The trial court’s application of the law to the facts shall be reviewed de novo. Palmer, 147 N.H. at 683.

lil. ARGUMENT

i. Agreements between the Appellant and Decedent are

enforceable contracts, supported by consideration. The agreements between the Decedent and Appellant contain all the

essential elements to the formation of an enforceable contract, including offer, acceptance, and consideration. Zsiatsios v. Tsiatsios, 140 N.H. 173, 178 (1995). Each of the written agreements includes an offer from the Decedent to give specified property such as real estate and vehicles to the Appellant if the Appellant continues to live with the Decedent.

The Appellant’s acceptance of all agreements is evidenced by her notarized signature on each written document. Additionally, acceptance may be evidenced by commencement of performance. Jd. The Appellant accepted the Decedents offer by continuing to live with him until the time of his death, both in the same household and as an engaged couple. The existence of these written agreements setting forth the terms of the parties’ agreement, including the necessary performance and the consideration to be received in exchange for this performance, all signed by the parties and duly notarized is not disputed by the Defendant.

The agreements include consideration, which “...may consist either in a benefit to the promisor or a detriment to the promisee.” Chasan v. Village Dist. Of Eastman, 128 N.H. 807, 816 (1986). Donald received the benefit of Gail continuing to live with him, as he requested in each offer made to the Appellant. The agreements clearly state what Gail is required to do in return for the items listed. At this time, she has fully performed under the terms of the contract. Gail is therefore entitled to the properties and

vehicles the parties bargained for.

To be clear, the consideration for the contracts included only the promise for the Appellant to live with the Decedent. The parties in no way agreed that sexual relations would constitute the necessary consideration.

The Appellant is aware of the un-enforceability of contracts “founded upon the consideration of meretricious sexual relations.” Joan S. V. John S., 121 N.H. 96, 99 (1981). Rather, cohabitation is the consideration for the contracts between the Appellant and Decedent. Cohabitation is defined as living together as or as if a married couple or to exist together. Merriam- Webster.com Dictionary, s.v. “cohabit, ” accessed March 13, 2023, https://www.merriam-webster.com/dictionary/cohabitate. By conditioning the Appellant’s receipt of certain property upon the parties continuing to live together until the Decedent’s death, the Appellant and Decedent

expressly declared cohabitation to be the consideration for their agreement.

This Court has previously held that its “refusal to apply RSA 458 to dissolution of non-marital living arrangements does not, however, prevent equitable adjustment of the rights of the parties.” Joan S. V. John S., 121 N.H. 96, 99 (1981). In the case of Joan S. v. John S., the plaintiff appealed the decision from the trial court dismissing her petition which requested the court impose alimony, child support, and other obligations on the defendant. Jd. at 97. The plaintiff argued that the Court should decree the relationship between the parties to be a void marriage. Jd. at 97. This Court ultimately refused to apply a divorce-like property settlement but stated it would “enforce an action in contract, if one can be shown to exist, to the extent that it is not founded upon the consideration of meretricious sexual relations.” Id. The agreements between the Decedent and Appellant evidence a contract, founded upon cohabitation, which entitles the Appellant to equitable relief, just as the Court contemplated in Joan S. v. John S.

The Defendants have previously argued that the Appellant’s promise was illusory, making the contracts unenforceable. Illusory promises allow the promisor to “reserve a choice of alternative performances.” Restat 2d of Contracts, § 77. The contractual agreements in the instant matter state that the Appellant would receive the listed property if, and only if, she continued to live with the Decedent until the time of his death. One contract specified as an “engaged couple, ” while another contract specified “in the same household.” The Appellant did not reserve an alternative choice of performance. In fact, the Appellant had no alternative choice of performance. What was required as consideration is clear and unambiguous. If she had not continued to live with the Decedent in the same household, as an engaged couple, until the time of the Decedent’s death, she would not be entitled to the property. She would have breached the terms of the contract. These contractual agreements are not illusory

promises as the Appellant did not have a choice of alternative performance.

It is well established under New Hampshire law that one looks to the intent of the party when determining whether an action is illusory or not. In Hanke v. Hanke, 123 N.N. 175 (1983) a decedent’s spouse sought to exercise his right to a spousal share under RSA 560:1 and set aside transfers the decedent had made to a revocable trust containing ninety-eight percent of her assets she had established eight years earlier. The surviving spouse asked this Court to adopt the “illusory transfer doctrine.” This doctrine holds the only sound means of determining the validity of a challenged transfer is whether the transfer was “real or illusory.” /d. at 177, 123 N.H. 175. The Court pointed out that such an approach has been criticized by many courts and commentators. Accordingly, in New Hampshire “the intent tests which consider the objective manifestation of the transferor 8 intent, as our test does, have considerable merit.” Id. at 177, 123 N.H. 175. While the issue in Hanke pertained to transfers to a revocable trust, the analysis should be the same for the case at hand. There is no doubt or dispute that it was the decedent’s intent that the Appellant receive the property

enumerated in the various written, signed, and notarized agreements.

Finally, the trial Court contradicted itself when it stated. “While the documents state that certain property will be allocated to the Appellant, if she and the decedent were living together, none of them state that cohabitation is the consideration of these exchanges.” See Appendix 147, Coos County Superior Court Order dated May 12, 2022. The term “living together, ” is synonymous with cohabitation. Using the terms living together or cohabitation, is a distinction without meaning.

The contract itself need not specifically use the word cohabitation, as there is a long-standing history in the New Hampshire courts of not requiring the use of “magic words.” Ina civil negligence action, the Court stated, “we have imposed no requirement that the term negligence or any other magic words appear in the release, as long as the language of the release clearly and specifically indicates the intent to release the defendant from liability...” Dunn v. CLD Paving, 140 N.H. 120, 122 (1995) (emphasis added). Likewise, the Court found that in the context of non-assignment agreements no magic words are necessary to enter into a non-assignment agreement so long as it is clear that a party is relinquishing their power to resign. Singer Asset Fin. Co., LLC v. Wyner, 156 N.H. 468, 474 (2007).

Also in the criminal context, the Court has held that no magic words or specific charges are required when an arrest takes place, and a party is taken into custody. State v. Garceau, 108 N.H. 209, 210-211 (1967).

The Decedent offered to the Appellant certain property upon his death so long as she continued to live with the Decedent as an engaged couple. The contract should not be deemed unenforceable for failure to use the magic word, cohabitation, rather than living together which clearly expresses that the consideration for the agreements is in fact cohabitation.

ii. The trial court should not have questioned the adequacy of a bargained for exchange, freely entered into by the Appellant and Decedent, and consideration should have been given to the intent of the Decedent/offeror.

As a matter of policy, the court should not task itself with evaluating the value of consideration for a bargained for exchange. “/W/hen the parties have bargained for an item, promise or forbearance, the adequacy of the exchange should not be examined except in unusual situations.” Burgess v. Queen, 124 N.H. 155, 160 (1983). Here, the trial court substituted its judgment for that of the Decedent as to the adequacy or value of the benefit Decedent received. The trial court’s judgment is contrary to that of the Decedent who made the bargain and received the bargained for benefit. In doing so, the trial court rewards those who the Decedent clearly did not intend to benefit. The Decedent clearly did not intend for the Appellee to have the assets that are the subject of the contractual agreements, as evidenced by the existence of the contractual agreements

with the Appellant. Had the Decedent intended for his estranged son or daughter to receive the assets identified in the agreements, he would not have taken the intentional and deliberate measure of preparing the contracts at issue, executing them, and having their execution notarized. The trial

court’s holding renders the Decedent’s actions meaningless.

Further, the Court should recognize the Decedent’s freedom to contract and enter into a bargain for the exchange of property in return for valuable consideration. The Court has held “as a matter of efficiency and freedom of choice, parties should be able to contract freely about their affairs.” Barnes v. NH. Karting Assoc., 128 N.H. 102, 106 (1986). Denying the enforceability of the Decedent’s contract with the Appellant obstructs both parties’ freedom to contract. The agreements express the Decedents intent to contract with Appellant to clearly and efficiently define the bargain

reached in consideration of continued cohabitation.

A growing number of individuals are choosing to forego marriage and elect to enter into contractual agreements concerning their property and assets. In New Hampshire specifically, cohabitation has become so common that it has attracted the attention of the legislature. House Bill 151 would “establish a committee to study the issue of unmarried cohabitants, domestic partnerships, and common law marriage.” 2023 Bill Text NH H.B. 151. If passed, the Bill will create a committee which shall, “...study

issues arising from accumulated assets during the course of a committed relationship as unmarried cohabitants, domestic partners, or through common law marriage arrangements.” 2023 Bill Text NH H.B. 151 Jurisdictions outside of New Hampshire have recognized contractual agreements wherein cohabitation is consideration, and as the New Hampshire Supreme Court stated in Joan S. v. John S. it would enforce such a contract so long as it is not founded on meretricious sexual relations. See Joan S. V. John S., 121 N.H. 96, 99 (1981). The Supreme Court of Connecticut found error and set aside the judgment of an attorney trial referee who, despite finding an implicit agreement between the parties evidenced by “their conduct and/or words to share their earnings and the fruits of their joint labor, ” determined each was not entitled to recover an equal share of the money and property they had accumulated while living together in an unmarried relationship from 1971 to 1980. Boland v. Catalano, 202 Conn. 333, 521 A.2d 142, 143-44 (Conn. 1987). The parties in Boland cohabitated and built a home together. /d. at 143. Title to the home was in the name of the defendant alone who was also solely liable for the mortgage loan. /d. The plaintiff helped plan, build, and improve the home. Jd. The plaintiff turned all her earned income over to the defendant during their relationship. /d. The plaintiff was also responsible for housework, grocery shopping, cooking, and landscaping by agreement of the parties. Jd. The Supreme Court of Connecticut held that the “courts should enforce expressed contracts between nonmartial partners except to the extent that the contract is explicitly founded on the consideration of meretricious sexual services, ” and further in the absence of an express contract, the courts should “inquire into the conduct of the parties to

determine whether the conduct demonstrates an implied contract, agreement of partnership or joint venture or some other tacit understanding between the parties.” Boland v. Catalano, 202 Conn. 333, 521 A.2d 142, 143-44 (Conn. 1987) (Citing Marvin v. Marin, 18 Cal. 3d 660, 683, 557 P.2d 106, 134 Cal. Rptr. 815 (1976).

The Court in Boland held that the “trend among commentators and courts that have found an agreement between unmarried cohabitants is to endorse the enforcement of such agreement.” Boland v. Catalano, 202 Conn. 333, 521 A.2d 142, 143-44 (Conn. 1987) (Citing 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, 413 N.E.2d 1154, 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.S.C.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 [202 Conn. 342] 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. Marvin: Preserving the Options, " 65 Calif:L.Rev. 937 (1977); J. Oldham & D. Caudill, "A Reconnaissance of Public Policy Restrictions Upon Enforcement of Contracts between Cohabitants, " 18 Fam.L.Q. 93 (1984).)

Here, as in Boland two cohabitating individuals, the Appellant and Decedent, lived together and accumulated assets. They pooled their income to pay their expenses and to make purchases. They each worked to improve and maintain the real property at issue. They also worked together to maintain their personal property, including the vehicles. Legal title to the majority of assets was held solely by the Decedent. The Plaintiff was responsible primarily for the household. She also worked outside of the home and handed the majority of her earnings over to the Decedent. The written contracts between the Appellant and Decedent should be recognized and enforced as the consideration of continuing to live together as an engaged couple is adequate.

Many of the cases cited by the court in Boland refer to Marvin v. Marvin, a case in which the Supreme Court of California held that “the fact that aman and woman live together without marriage, and engage in a sexual relationship, does not in itself invalidate agreements between them relating to their earnings, property, or expenses.” Marvin v. Marvin, 18 Cal.3d 660, 134 Cal.Rptr. 815, 822, 557 P.2d 106 (Cal. 1976). “Adults who

voluntarily live together...are nonetheless as competent as any other persons to contract respecting their earnings and property rights” Id. at 825. The plaintiff in Marvin alleged that the parties agreed to pool their earnings, contracted to share equally in all property acquired, and the defendant agreed to support the plaintiff. Jd. In exchange the plaintiff provided companionship, homemaking, and housekeeping services. Id. at 819. In Marvin, the California Supreme Court reversed the trial court’s judgment in favor of the defendant and stated that the plaintiff’s claim for breach of expressed contract constituted suitable grounds for the trial court to render declaratory relief. Jd.

Again, the oral contract at issue in Marvin, closely mirrors the written contract between the Appellant and Decedent. As such this Court should find that the Plaintiff is entitled to relief on the basis of the enforceable expressed contracts, she and the Decedent freely entered into concerning the personal and real property. Alternatively, the actions of the parties to act in partnership in the joint venture of accumulating assets and renovating properties is evidence of an implied in fact contract.

Conversely, Ohio case Williams v. Ormsby, involved a short-term tumultuous relationship, wherein the record does not support the existence of a partnership. Williams v. Ormsby, 131 Ohio St. 3d 427, 1-4 (2012). One of the parties was in fact married for the first year of the relationship. Id. at J 3. On two occasions the plaintiff left the shared residence. Jd. at 3. When the plaintiff left the first time the parties signed an agreement to sell the residence and allocate the proceeds amongst themselves. Jd. at 3. The parties reconciled but the plaintiff then left the residence a second time and refused to return unless the defendant granted her an interest in the real property. Jd. at ] 4. The parties signed a second agreement granting the plaintiff an interest in the real property. Id. at { 4. The Ohio Supreme Court ultimately found both agreements to be unenforceable. The Ohio court stated that the proposition accepted in Williams “does not refer broadly to all circumstances involving cohabitation and defines cohabitation as (1) sharing of familial or financial responsibilities and (2) consortium.” Id. at J 10. The Williams Court stated further, “Jn the case before us, the issue is only whether the emotional aspect of resuming a relationship by moving in together can serve as consideration for a contract — separate and apart from the sharing of financial resources and obligations.” Id. at { 10. The Williams Court recognizes cohabitation; however, it states that the consideration to be evaluated is “resuming a relationship by moving in together, ” not cohabitation. Jd. at { 1, 10.

The facts of the present matter are clearly distinguishable from Williams. The Appellant and Decedent were an engaged, stable couple, that had a relationship lasting greater than eleven years. They shared familial and financial responsibilities. They invested their mutual labor and financial resources in personal and real property they used and shared. Therefore, the analysis here must go beyond that of the Ohio Court, which limited its review to whether resuming a relationship by moving in together can serve as consideration. The agreements between Decedent and Appellant were drafted to safeguard the Appellant’s financial future, given the parties pooling of financial resources, and their decision for real and personal property to be held in the Decedent’s name alone. The agreements were supported by consideration in the form of cohabitation, unlike the

agreements at issue in Williams.

i. The trial court should have considered the totality of the pleadings, depositions, answers to interrogatories, and admissions on file, rather than determining there was no material issue of fact regarding the Appellant’s claim of promissory estoppel, implied in fact contract, or assertion that she is entitled to property which was jointly purchased merely due to the lack of contradictory affidavits.

The Appellant’s Complaint filed with the Coos County Superior Court raised alternative theories of relief. Namely, the Appellant asserted promissory estoppel, implied in fact contract, implied in law contract, and jointly owned property. The Appellant sought summary judgment solely on the enforceability of the four contracts. The Appellee’s cross motion sought summary judgment regarding the enforceability of the contracts, and all of the Appellant’s alternative theories of relief.

Summary judgement should only be rendered when “pleadings, depositions, answer to interrogatories, and admissions on file, together with affidavits filed, show that there is no genuine issue as to any material fact.” RSA 491:8-a, TIT.

The trial court stated, “the summary judgment record does not demonstrate that the plaintiff detrimentally relied on the decedent's promise, her theory fails.” The summary judgment record contained the Appellant’s Complaint which states she “did not secure her own separate

and individual assets because she detrimentally relied on Decedents promises.” See Appendix 8, 14, Complaint and Amended Complaint. The promise referenced is that which is contained in the agreements between Appellant and Decedent, for Appellant to receive specific real and personal property. The Appellant relied on this promise to her detriment, as she did not take steps to secure her own assets separate from Donald. Additionally, the Consolidated Statement of Material Facts states that Gail sold her home located at 19 Spruce Street Gorham, NH, to Donald after she moved in with him at 16 Spruce Street Gorham, NH. As part of the sale, the Appellant and Decedent signed the first of the four agreements which entitled Gail to share of the proceeds from the sale of 19 Spruce Street, or ownership of 16 Spruce Street, if Donald were to pass away before 19 Spruce Street was sold. Gail relied on the promise that she would receive proceeds from the sale of 19 Spruce Street, or the real property located at 16 Spruce Street. She remained living with the Decedent and pooling her income to pay shared living expenses and to acquire assets in the Decedent’s name.

In regard to the Appellants claim to relief under the theory of implied in law contract, the trial court stated, “There is no evidence in summary judgment record tending to show that the decedent engaged in wrongful acts or that he passively accepted a benefit that would be unconscionable to retain.” See Appendix 148, Coos County Superior Court Order dated May 12, 2022. The Appellant’s Complaint states the Decedent and his Estate benefitted from contributions Gail made to the joint accumulation of assets. See Appendix 8, 14, Complaint and Amended Complaint. Additionally, the Decedent “received the benefit of Petitioners continued presence in the shared home.” See Appendix 8, 14, Complaint and

Amended Complaint. During the deposition of the Appellant, Gail stated “Early on in the relationship we discussed and decided that I would primarily be the homemaker and work part time, and this is pretty much the way that we lived.” See Appendix 123. Gail went on to explain during her deposition that all her tip money, the majority of her income as a waitress, was placed into a jar within the shared home, and used for expenses such as groceries and utility bills. See Appendix 120, 121. It is unconscionable that the Decedent and his estate retain the benefit of Gail’s continued presence in the home, as a homemaker for Donald, as well as her contributions to the accumulation of assets.

The trial court failed to look to the entirety of the summary judgment record including pleadings, depositions, answers to interrogatories, and admissions. If it had, the trial court would and should have ruled that there are remaining genuine issues of material fact concerning Appellant’s

alternative theories of relief, making summary judgment improper.

ii. The Appellant’s contributions and cohabitation with the Decedent are evidence of her detrimental reliance on the Decedent’s promise that Appellant would receive property specified in the written, signed, and notarized agreements in exchange for her

contributions and cohabitation.

Promissory estoppel “serves to impute contractual stature based upon an underlying promise, and to provide a remedy to the party who detrimentally relies on the promise.” Great Lakes Aircraft Co., Inc. v. City of Claremont, 135 N.H. 270, 290 (1992). A promise which “reasonably induces action or forbearance” may be enforced under promissory estoppel. Jackson v. Morse, 152 N.H. 48, 51 (2005).

The trial court stated that Gail did not act in reliance upon the agreements because her actions were “part and parcel of the plaintiff and decedent’s ‘old fashioned’ relationship.” The trial court’s statement is unsupported by the record. The totality of the pleadings, depositions, answers to interrogatories, and admissions on file evidence that Gail acted in reliance upon Donald’s promise to convey real property and vehicles to her.

Gail contributed to upkeep, improvement, and procurement of the properties and vehicles which are now held by Donald’s Estate. She contributed her income, pooling it with Donald’s. Gail remained in the home she shared with Donald and loyally contributed to the accumulation of assets and wealth. Gail did not secure her own separate and individual assets in order to provide for her eventual retirement because she detrimentally relied on Decedent’s promises. Gail sold Donald her home located at 19 Spruce Street, below fair market value. Further, by contributing her regular earnings toward basic monthly expenses, Gail allowed Donald to contribute more of his regular income toward the acquisition of assets. Gail then readily contributed to maintenance and improvement of assets. Additionally, Gail provided general housekeeping and homemaking to ensure that Donald lived a healthy lifestyle. Her contributions were made in exchange for the expectation of receiving a number of assets upon the Decedent’s death. This was the agreement Donald and Gail had bargained for and what they intended when they listed

living together, as an engaged couple, as the consideration for the contract.

Due to the lack of a formal marriage, that often is associated with an old-fashioned relationship, the parties entered into contractual agreements. The existence of the contractual agreements assured Gail she would have the financial means to care for herself as she progressed into retirement age and beyond.

The trial court has erroneously assumed that Gail would continue to make the same contributions over the span of more than a decade, without the contractual expectation of receiving property upon the Decedent’s death. Gail’s reliance and expectations are a genuine issue of material fact which will certainly impact any determination regarding relief under the theory of promissory estoppel. Summary judgment is improper.

iii. The Appellant’s contributions to the household she shared with the Decedent, her caretaking of the Decedent, as well as her contributions to the acquisition and maintenance of the Decedent’s assets are evidence of an implied in fact contract or oral

cohabitation agreement.

If the expressed contracts are found to be unenforceable, the Appellant is alternatively entitled to relief on the basis of implied in fact contract. “An implied in fact contract is a true contract that is not expressed in words; the terms of the parties’ agreement must be inferred from their conduct.” Chase Home for Child. v. New Hampshire Div. for Child., Youth & Fams., 162 N.H. 720, 728 (2011). An implied in fact contract still requires offer, acceptance, consideration, and a meeting of the minds. Durgin v. Pillsbury Lake Water Dist., 153 N.H. 818, 821 (2006).

The trial court states in its analysis of the Appellant theory of implied in fact contract that “/a/s previously discussed, the undisputed material facts establish that the agreements were not supported by adequate consideration and, therefore, there is no enforceable implied-in- fact-contract.” See Appendix 148, Coos County Superior Court Order dated May 12, 2022. The trial court failed to address whether consideration can be inferred from the parties’ conduct or actions. It only refers to the prior analysis regarding consideration contained within the written agreements. Implied in fact contracts require an analysis of what can be implied or inferred given the parties’ conduct or actions rather than what is expressed

in the words.

The pleadings and consolidated statement of material facts support the existence of an implied in fact contract. Gail was a self-supporting, single mother, and homeowner when she met Donald. She was amassing her own assets and wealth for her future. During Gail’s relationship with Donald, she agreed to cohabitate, combine her assets with his, and provide caretaking and homemaking to Donald in exchange for the bargained for property. Donald wanted Gail to live with him and serve a traditional wife’s

role, without providing her with the assurance of marriage.

Cohabitation and the Appellant’s caretaking of the Decedent is the consideration for the implied in fact contract. The Appellant committed

herself to a traditional old-fashioned relationship with the Decedent, in return for real and personal property upon his death. The Appellant and Appellee dispute the conduct, action, and intentions of the Appellant and Decedent. Therefore, summary judgment is improper in regard to this alternative theory of relief.

iv. The Appellant is entitled to relief under the theory of an implied in law contract, due to the Appellee’s passive acceptance of property which is unconscionable for the Appellee to retain because it rightfully belongs to the Appellant.

“An implied in law contract... is not a contract but is a legal remedy imposed by a court without reference to the assent of the obligor, (arising) from the receipt of a benefit the retention of which is unjust and requiring the obligor to make restitution.” Morgenroth & Associates, Inc. v. Town of Tilton, 121 N.H. 511 (1981).

The Appellant contributed to the household she shared with the Decedent financially and through homemaking and caretaking of the Decedent. Gail’s contributions undoubtably benefited Donald physically, emotionally, and financially. Due to the parties’ pooling of financial resources and sharing of monthly expenses, there was more disposable income for Donald to purchase assets. Furthermore, the Plaintiff sold the Decedent her home below market value. It would be unreasonable and unconscionable for the Decedent’s estate to retain the contributions of the Plaintiff, which the Decedent passively accepted.

This issue is not ripe for summary judgement, as the Appellee has questioned the Appellant’s contributions to the household. The Appellee has also asserted that Donald Bald did not wrongfully accept a benefit which was unconscionable to retain. The Appellee nor the trial court addressed the unconscionable action of the estate in unjustly retaining property which rightfully belongs to the Appellant.

v. Property purchased from the Appellant and Decedent’s joint bank account should become the sole property of the Appellant upon the Decedent’s death.

The Appellant and Decedent had joint bank accounts which they used to purchase property, including a 2019 Subaru Forester. The balance of the joint accounts became Gail’s sole property upon the Decedents death. Likewise, Gail has an ownership interest in the vehicles such as the 2019 Subaru Forester, purchased using a joint bank account. Additionally, Gail provided ongoing maintenance for the Subaru, which maintained the value of the vehicle overtime. The Appellant was motivated to contribute to the purchase and maintenance of the Subaru because she considered it to be a joint asset.

The New Hampshire Supreme Court should overturn the Order granting summary judgment in favor of the Appellee because the Appellee is not entitled to judgment as a matter of law. The agreements between the Appellant and Decedent are enforceable contracts supported by consideration. Furthermore, the Coos County Superior Court should not have evaluated the adequacy of the bargained for exchange, limiting the Appellant and Decedent’s freedom to contract, and ignoring the intent of the Decedent/offeror. Finally, there are material issues of fact that remain regarding the Appellant’s alternative theories of relief, making summary judgment improper.