Dade v. Anderson

*9JUSTICE LACY,

dissenting.

The linchpin of the majority’s conclusion barring an interspousal suit for recovery of the value of non-marital services is its declaration that Alexander v. Kuykendall, 192 Va. 8, 63 S.E.2d 746 (1951), “held that one spouse may not recover in implied contract for services rendered to the other.” I disagree with the majority’s conclusion because it is based on language in Alexander which was no more than dicta in relation to the dispositive issues in that case and which is even less applicable to the issues presented here.

Alexander was not a suit on an implied contract but a suit based on fraud. The parties had participated in a ceremony that the man represented as a true marriage ceremony, when in fact he knew it was not. The “marriage” was subsequently declared void. The woman then sued the man “to recover damages which she alleged resulted from an invalid marriage contract which he, by false representations, induced her to enter into with him.” Id. at 9, 63 S.E.2d at 746.

As reflected in the record on file with the Court, the defendant sought to defeat' he action by arguing that any recovery would allow the woman to be compensated twice because she had already received the benefits of support during the “marriage.” Furthermore, he argued that when the marriage was declared void, he had no obligation of support, alimony was not available, and there were no martial rights in his estate because there had been no marriage.

The Court in Alexander framed the issues for its consideration as: (1) whether a woman “may maintain an action against a man, who, by misrepresentation, fraud and deceit, induced her to enter into what she thought was a valid marriage, but which in fact was void;” and (2) whether her pleading was sufficient to sustain an action based on misrepresentation and fraud. Id. at 9, 13, 63 S.E.2d at 747, 749. The Court concluded that such a suit could be maintained and that the putative wife’s pleading was sufficient. Id. at 12, 14-15, 63 S.E.2d at 748, 749-50. Discussion in Alexander of matters extraneous to the validity of the cause of action based on fraud and misrepresentation or concerning the sufficiency of the pleading is no more than dicta.

The consideration of interspousal implied contracts is found in that part of the Alexander opinion examining various theories upon which damages could be measured. The Court itself raised the theory of implied contract as a measure of damages when it discussed theories used by other jurisdictions to award damages for fraud in litigation stemming from void marriages. The concept of interspousal implied contracts was rejected in Alexander only to the extent that deter*10mining damages on the basis of a contract theory was found to be inappropriate in a suit for fraud of the type brought by the plaintiff in Alexander. These considerations were not necessary to reach the decision made in that case regarding the ability of the plaintiff to maintain the action, and, in the instant case, the majority improperly relies on this discussion as authority for the proposition that the cause of action is barred.

Furthermore, even assuming for the moment that the discussion on implied contract in Alexander was not merely dicta, the rationales used to reject the contract measure of damages are not applicable to the case at hand. The Court rejected the contract theory as a measure of damages on two grounds. The Court first concluded that, even though a marriage did not in fact exist due to the fraud, the woman thought of herself as married, and that perception excluded the inference that her marital services were for hire. Without the expectation of reimbursement, there could be no implied contract. Id. at 10, 63 S.E.2d at 747.

The Court in Alexander did not list the services for which a wife would expect reimbursement, but the court’s rationale was clearly limited to payment for “marital services.” In the instant case, Mrs. Dade seeks compensation for services which she identifies as ones which were not the “result of the marital relationship per se.” Given the difference in the type of services at issue, this portion of the Alexander opinion does not provide binding precedent for the allegations made in this case.

The second reason the Court in Alexander rejected an implied contract measure of damages was that allowing such actions placed the marriage relation on “too much of a commercial basis.” Id. at 11, 63 S.E.2d at 747. The desire to preserve the unique qualities of the marriage contract, and to protect that relationship from being equated with other contracts between individuals and business entities, was laudable at the time Alexander was decided and remains valid today. But neither Alexander, nor this case, implicates commercialization or disruption of an existing marriage relationship. The cited public policy is neither furthered nor relevant when the marriage has terminated, in this case through the death of a spouse. Again, in my opinion, this public policy rationale applicable to damages in a fraud case is not relevant to determining whether Mrs. Dade has pleaded a cause of action under the circumstances presented here.

While acknowledging instances in which the existence of the marital relationship does not preclude litigation between spouses, see, *11e.g., Code §§ 8.01-220.1 (abolishing interspousal tort immunity), 18.2-61 (marital rape), and 20-107.3 (equitable distribution), the majority does not consider these legislative initiatives sufficient indication of a legislative policy which would allow the type of action at issue here. Any such change, the majority concludes, must be undertaken by the General Assembly, and it has not done so. Even assuming that Alexander espoused the principles the majority draws from it, I disagree with the majority’s perception of legislative policy and with its conclusion that this Court should not consider alteration of such a judicially-created principle.

The most striking example of legislative policies favoring the ability to assert claims for services between spouses is the equitable distribution statute. That statute directs that, on the termination of a marriage relationship, compensation based on contribution to the marital estate during its existence is a valid basis for determining the distribution of assets. If the marriage in this case had been terminated by divorce rather than by death, the $69,480 which Mr. Dade recovered as a result of Mrs. Dade’s nursing services, presumably would be considered as part of the “marital share” as defined in Code § 20-107.3(H) and would be available for distribution as marital property. The legislative policy reflected in this statute is one which acknowledges the economic value of services rendered between spouses.

Finally, policy shifts in the areas of interspousal and intra-familial matters have not occurred solely through legislative activity. This Court abolished interspousal and parental tort immunity for personal injuries sustained as a result of motor vehicle accidents. Surratt, Adm’r v. Thompson, 212 Va. 191, 183 S.E.2d 200 (1971); Smith v. Kauffman, Adm’r, 212 Va. 181, 183 S.E.2d 190 (1971). In both cases, this Court rejected arguments that such litigation would lead to fraud and collusion, or disruption of the “peace and tranquility of the home,” because “today’s changed circumstances vitiate the underlying reason for” those immunity rules. Smith, 212 Va. at 185-86, 183 S.E.2d at 194; Surratt, 212 Va. at 192, 183 S.E.2d at 201. It was not until ten years later that the General Assembly acted, revoking inter-spousal tort immunity generally. Code § 8.01-220.1. The fact that no specific statute exists authorizing the type of suit at issue here should not be a bar to this proceeding. No statute prohibits the action; our jurisprudence does not preclude the action;3 and, under the circumstances of this case, no public policy of discouraging commercializa*12tion or friction in the marriage relationship is furthered by prohibiting this action from going forward.

The degree to which non-marital services are provided between spouses today has greatly increased since 1951 when Alexander was decided. Professional services in such areas as medicine, dentistry, accounting, and law, to name but a few, may be and often are provided by one spouse to another.4 Like those realities considered relevant to this Court in 1971 in Surratt and Smith, the reality of interspousal services, particularly services beyond the marital relationship per se, should be reflected in the jurisprudence of this Commonwealth. Mrs. Dade seeks to recover, not property created by Mr. Dade during his lifetime, but property which was created solely by virtue of her actions, actions which she alleges are beyond those included in “marital services.” Whether Mrs. Dade would prevail is not clear, but she should have the opportunity to present her case. Accordingly, I would reverse the order of the trial court and remand the case for further proceedings.

My research revealed no other appellate case in this Commonwealth either precluding a cause of action like that asserted by Mrs. Dade here or relying on Alexander for that proposition.

In fact, although child care may normally be considered part of “marital services,” in a recent case the settlement received by a severely injured wife was valued based on the premise that reimbursement to the husband of over $11,000 for child care expenses he paid was an independent obligation. Bohle v. Henrico County School Board, 246 Va. 30, 32, 431 S.E.2d 36, 40 (1993).