Whorton v. Dillingham
1988 Cal. App. LEXIS 576, 248 Cal. Rptr. 405, 202 Cal.App.3d 447 (1988)
Rule of Law:
An oral agreement between nonmarital cohabitants for financial support and property rights is enforceable if it is supported by consideration substantially independent of sexual services, even if a sexual relationship is an express part of the overall agreement, provided the lawful and unlawful portions are severable.
Facts:
- Donnis G. Whorton was studying for an Associate in Arts degree with plans to pursue a Bachelor of Arts degree at a four-year college.
- Whorton and Benjamin F. Dillingham III began dating and entered into a homosexual relationship.
- In 1977, Whorton and Dillingham began living together and orally agreed that Whorton's exclusive, full-time occupation would be Dillingham’s chauffeur, bodyguard, social and business secretary, partner and counselor in real estate investments, and public representative.
- Whorton also agreed to render labor, skills, and personal services for Dillingham’s business endeavors, be his constant companion, confidant, and lover, terminate his schooling upon obtaining his A.A. degree, and make no investments without Dillingham's consultation.
- In consideration of Whorton’s promises, Dillingham agreed to give him a one-half equity interest in all real estate acquired in their joint names and all property Dillingham subsequently acquired, to financially support Whorton for life, and to provide him access to bank accounts and charging privileges on Dillingham's personal accounts.
- The parties specifically agreed that any portion of their agreement found to be legally unenforceable was severable and the balance of the provisions would remain in full force and effect.
- Whorton allegedly complied with all terms of the oral agreement until 1984, when Dillingham barred him from his premises.
- Dillingham subsequently refused to perform his part of the contract by giving Whorton the promised consideration for the business services rendered.
Procedural Posture:
- Donnis G. Whorton filed a complaint against Benjamin F. Dillingham III.
- Benjamin F. Dillingham III filed a demurrer to Whorton's complaint.
- The trial court sustained Dillingham's demurrer without leave to amend.
- The trial court entered a judgment dismissing Whorton's action.
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Issue:
Does an oral agreement between nonmarital cohabitants become unenforceable if it expressly includes sexual services as part of the consideration, even when other severable consideration like business and personal services are also present?
Opinions:
Majority - WORK, J.
Yes, an oral agreement between nonmarital cohabitants can be enforceable even if it expressly includes sexual services, provided there is severable consideration for other parts of the contract. The court found that Whorton's complaint alleged sufficient facts to demonstrate consideration substantially independent of sexual services, thus rendering the contract potentially enforceable despite the express inclusion of a sexual relationship. The court relied on Marvin v. Marvin, which established that cohabitant contracts are enforceable "unless expressly and inseparably based upon an illicit consideration of sexual services." It clarified that a contract is invalid only to the extent it rests upon consideration of sexual services, and any severable portion supported by independent consideration will still be enforced. To determine severability, the court cited Restatement Second of Contracts, section 183, and Civil Code section 1599, which allow for the enforcement of lawful portions of contracts containing both lawful and unlawful objects, provided performances can be apportioned into agreed equivalents. The court distinguished Whorton's case from Jones v. Daly, where the services were limited to those naturally flowing from sexual cohabitation (e.g., homemaker, companion). In contrast, Whorton alleged specific, monetarily valuable services such as chauffeur, bodyguard, secretary, and business partner, which are distinct from those normally incident to cohabitation and for which monetary compensation would ordinarily be anticipated. These services were characterized as consideration independent of the sexual aspect of the relationship. The court also noted the parties' express agreement that any unenforceable portion would be severable. Furthermore, the court rejected Dillingham’s arguments that the contract was barred by the Statute of Frauds (finding that Whorton's alleged reliance and change of position could estop Dillingham from asserting this defense) and the Statute of Limitations (determining the action was timely filed after the breach in 1984). It also dismissed the applicability of Labor Code section 2922, stating the case involved a cohabiters’ agreement, not an employment contract.
Analysis:
This case significantly clarifies and extends the principles from Marvin v. Marvin by establishing a framework for dissecting cohabitation agreements. It underscores that the mere presence of an explicit sexual relationship within a contract does not automatically invalidate the entire agreement, particularly when other valuable, severable services are stipulated. The distinction between 'domestic' or 'companion' services and 'business-oriented' or 'professional' services provides crucial guidance for courts in evaluating independent consideration, potentially broadening the scope of enforceable agreements for nonmarital partners, including same-sex couples. This ruling encourages parties to explicitly define roles and compensations, offering greater legal protection for financial and property arrangements in diverse cohabiting relationships.
