Is palimony recognized in Arizona?

Full Question:

Is palimony recognized in Arizona?
06/23/2017   |   Category: Divorce ยป Palimony   |   State: Arizona   |   #40638


Verbal or implied agreement between to parties who cohabitated together for years was enforceable.  The basis for the decision was an implied contract.

148 Ariz. 10 (Ariz. 1986)712 P.2d 923 Judith (Lee) CARROLL, Appellee,v.Paul T. LEE, Appellant.No. 18382-PR.Supreme Court of Arizona.
January 6, 1986       In Banc.

       Reconsideration Denied Feb. 12, 1986.

148 Ariz. 11

Leighton Rockafellow, Tucson, for appellee.

       Aboud & Aboud, P.C., Tucson, by Michael Aboud, for appellant.

       GORDON, Vice Chief Justice.

       Judith Carroll (Judy) has petitioned this Court for review of a decision of the court of appeals reversing the trial court's judgment granting her request of partition of certain real and personal property. We

148 Ariz. 12

[712 P.2d 925] have jurisdiction pursuant to Ariz. Const. art. 6, § 5(3) and Rule 23, Ariz.R.Civ.App.P.

       Judith Carroll, aka Judith Lee cohabited with Paul T. Lee for fourteen years ultimately settling in Ajo, Arizona. They went their separate ways in 1982. The couple did not marry nor ever seriously contemplate marriage. However, they did hold themselves out as husband and wife and Judy assumed Lee as her surname. Little personal property was owned by either party prior to the relationship and neither owned any real property. Throughout the course of the relationship the couple jointly acquired three parcels of real estate, several antique or restored automobiles, a mobile home and various personal property. The parties filed joint tax returns as husband and wife several times.

       Paul is a mechanic by trade and operates an automobile repair shop in Ajo on a parcel of land acquired during the relationship. He supplied the vast majority of the money used to sustain the couple, while Judy kept the house (cleaning, cooking, laundry, working in the yard). Occasionally Judy helped Paul at the shop with billing and bookkeeping. The couple had a joint checking account out of which Judy paid the household bills. Paul did not utilize the account, preferring to deal in cash or money orders in his business.

       The real property was titled to the couple in one of three ways. Title was held either, 1) as joint tenants with the right of survivorship, 2) as husband and wife, or 3) as husband and wife as joint tenants with the right of survivorship. The various automobiles and mobile home were all titled to Paul T. Lee or Judith E. Lee.

       Judy was self-employed for approximately five years from 1978 to 1982 as a photographer/dark room technician. She made little money; most of it went back into the business. However, some was spent on the household. "Photos by Judy" had a separate business account with Judy the only signatory. After the parties "split up" Judy filed a partition action pursuant to A.R.S. § 12-1211.

       A bench trial was held and both parties testified. The trial court, in an amended judgment, essentially awarded each party a one-half interest in the real and personal property that was acquired by the couple during their relationship. The trial court found the following:

"A contract existed and exists between the parties. While said contract is not in writing, the Court finds that the contract was assiduously and scrupulously adhered to by both parties in the repeated acquisition of properties and the repeated taking of title to properties in both names, pursuant to the contract. The Court further finds that gifts to and from each, to and from the other, pursuant to this same silent contract, of time, money, labor, sharing of duties, and the like constituted an equal sharing of the cost of the acquisitions of the various properties."

       Paul appealed the decision of the trial court. The court of appeals reversed the award primarily on its interpretation of Cook v. Cook, 142 Ariz. 573, 691 P.2d 664 (1984). See Carroll v. Lee, 148 Ariz. 21, 712 P.2d 934 (1985). The court found that no valid agreement existed and that Judy held the property in a resulting trust for Paul's benefit. We believe the court of appeals construed the holding in Cook too narrowly and relied erroneously on Becchelli v. Becchelli, 109 Ariz. 229, 508 P.2d 59 (1973).

       In Cook v. Cook, supra, we exhaustively reviewed agreements between non-married cohabitants. The agreement approved of in Cook was one between unmarried cohabitants to pool income, acquire assets and share in the accumulations. 142 Ariz. at 576, 691 P.2d at 667. We compiled basic concepts of contract law:

"The sine qua non of any contract is the exchange of promises. Restatement (Second) of Contracts § 1 (1981). From this exchange flows the obligation of one party to another. 1 Williston on Contracts § 1 at 2 (1957). Although it is most apparent that two parties have exchanged promises when their words express

148 Ariz. 13

[712 P.2d 926] a spoken or written statement of promissory intention, mutual promises need not be express in order to create an enforceable contract. Restatement (Second) of Contracts § 4. Indeed, a promise 'may be inferred wholly or partly from conduct,' id., and 'there is no distinction in the effect of the promise whether it is expressed in writing, or orally, or in acts, or partly in one of these ways and partly in others.' Id. § 19, comment a. See also Arizona Board of Regents v. Arizona York Refrigeration Co., 115 Ariz. 338, 341, 565 P.2d 518, 521 (1977). Thus, two parties may by their course of conduct express their agreement, though no words are ever spoken. From their conduct alone the finder of fact can determine the existence of an agreement. Restatement (Second) of Contracts § 4; 1 A. Corbin, Contracts, § 9 at 20-21 (1963). See also Malcoff v. Coyier, 14 Ariz.App. 524, 484 P.2d 1053 (1971)."

       142 Ariz. at 576, 691 P.2d at 667.

       The court of appeals found that

"... no evidence, in words or conduct, suggests mutual promises to contribute funds to a pool in the instant case. On the contrary, the implied agreement specifically described and delimited by the conduct of the parties in this case was an exchange of unlike services: one cohabitant's homemaking services for the other's monetary support."

       712 P.2d at 935. (emphasis in original).

       Further the court stated,

"There is no evidence of an agreement express or implied which could be read: he went to work, I stayed home, and we agreed to pool our assets and share our accumulations. Without the later element in the agreement we do not approach the Cook v. Cook, supra, situation."

       at 935-936. (emphasis in original).

       We disagree with the above reasoning and now reach the unanswered question from Cook as to whether an agreement between unmarried cohabitants with homemaking services severable from a meretricious relationship as consideration can stand. In Arizona we recognize implied contracts, Arizona Bd. of Regents v. York Refrigeration Co., 115 Ariz. 338, 341, 565 P.2d 518, 521 (1977), and there is no difference in legal effect between an express contract and an implied contract. Swingle v. Myerson, 19 Ariz.App. 607, 609, 509 P.2d 738, 740 (1973). An implied contract is one not created or evidenced by explicit agreement, but inferred by the law as a matter of reason and justice from the acts and conduct of the parties and circumstances surrounding their transaction. Alexander v. O'Neil, 77 Ariz. 91, 98, 267 P.2d 730, 734 (1954). Furthermore, in this state monetary consideration is not always required as consideration. Adequate consideration consists of a benefit to the promisor and a detriment to the promisee. Cavanagh v. Kelly, 80 Ariz. 361, 363, 297 P.2d 1102, 1103 (1956); Mack v. Coker, 22 Ariz.App. 105, 107, 523 P.2d 1342, 1344 (1974). Clearly a promise for a promise constitutes adequate consideration, K-Line Builders Inc. v. First Federal Savings and Loan Ass'n, 139 Ariz. 209, 212, 677 P.2d 1317, 1320 (App.1983), and consideration need not be of like or identical value. Taylor v. Kingman Feldspar Co., 41 Ariz. 376, 381, 18 P.2d 649, 651 (1933).

       Mutuality of obligation is a requirement for a valid contract; however, mutuality is absent when only one of the contracting parties is bound to perform. Keck v. Brookfield, 2 Ariz.App. 424, 427, 409 P.2d 583, 586 (1965). When there are mutual promises between parties, as implied here, it is not necessary in order to render a particular promise by one party binding on the other party that there be a special promise on the part of the other party directed to that particular obligation. Id.; Taylor v. Kingman Feldspar Co., supra, 41 Ariz. at 381, 18 P.2d at 651 (1933). Furthermore, it is of no consequence that the parties exchanged "unlike services". Any performance which is bargained for is consideration, Restatement (Second) of Contracts, § 72, and courts do not ordinarily inquire into the adequacy of consideration.

148 Ariz. 14

[712 P.2d 927] Id.; Restatement (Second) of Contracts, § 78, comment a.

       Paul received the cooking, cleaning and household chores he bargained for while Judy received monetary support. Together they were able to acquire property through their joint efforts. Clearly Judy's homemaking services can be valued and constituted adequate consideration for the couple's implied agreement. See Bruch, "Property Rights of De Facto Spouse Including Thoughts on The Value of Homemakers' Services," 10 Family Law Q. 101 (1976). This is not a case of gross inadequacy of consideration on either party's part. "To the extent that the apportionment of productive energy and product in the economy are left to private action, the parties to transactions are free to fix their own evaluations". Restatement (Second) of Contracts, § 79, comment c. In the instant case each party gave up something of economic value and received something of economic value. See Bruch, supra, at 122-23 ("... it is clear that if services which are granted by one party to another have economic value so that the second person need not expend money to secure them elsewhere, the financial base of the second party is enhanced").

       We agree with the court in Marvin v. Marvin, 18 Cal.3d 660, 134 Cal.Rptr. 815, 557 P.2d 106 (1976) in that "homemaking", severable from the meretricious relationship can support an implied agreement as between two parties. It is important to note that Judy does not claim the parties had a "Marvin" agreement. In Marvin, supra, Michelle Triola Marvin alleged an oral agreement under which the parties would pool property and earnings while holding themselves out as husband and wife; she would provide household services and he would support her for life. Judy has only requested partition to property which is jointly titled to her and did not request, for example, certain automobiles titled to Paul separately or Paul's repair shop (a subject to later be addressed). This situation is not nearly as potentially expansive as a case like Marvin.

       We believe Judy proved the property requested to be partitioned was acquired through joint common effort and for a common purpose. It is not necessary for her to prove that she produced by her labor a part of the very money used to purchase the property. See Bruch, supra, at 123 n. 81 and cases cited therein. The parties had an implied partnership or joint enterprise agreement at the very least based on the facts and circumstances presented. Recovery for Judy should be allowed in accordance with these implied expectations. Paul's relevant testimony is as follows:

"Q Did you have a preference during your relationship, Paul, as to whether or not Judy should work or stay at home?

A Yes.

Q What was your preference?

A I preferred that she stay home.

Q All right. You wanted her to stay at home so that you had a nice home environment, meals were prepared on time--

A Yes.

Q --clothing was washed and cleaned and ready; correct?

A Yes.

Q The yard was nice; correct?

A Yes.

Q Dishes were washed?

A Yes.

Q Did she do all of those things in the early years, as far as the yardwork--

A She kept, kept the home nice.

Q She kept the home nice up until the time you split up; didn't she?

A Yes.

Q That included washing all of your clothes--

A Yes.

Q --preparing all of your meals?

A Well, when she was there.

Q When wasn't she there?

A Trips out of, of town.

Q How many trips did she take out of town annually?

A It depended on her business.

Q Talking about her photography business?

148 Ariz. 15

[712 P.2d 928] A Yes.

Q It's true, is it not, Paul, the majority of the time Judy stayed home and took care of that home--

A Yes.

Q --in the manner that I just went through; correct?

A Yes.


Q Did you ever intend that she be an owner with you at that time, at the time that you were acquiring these properties that she be an owner of those properties at that time?

A You mean a co-owner?

Q Yes.

A I suppose at the time I had planned it that way. (emphasis added)

Q For her to be an equal, co-owner, or a co-owner with you at that particular moment, or at some time in the event that anything should happen to you?

A Mostly it was in case anything happened to me.

Q Is that what you told her?

A Yes.


Q Do you recall Mr. Aboud asking you that question about what your intention was, whether she would be a co-owner of that property at the time you took title to it?

A Yes, sir.

Q Do you recall pausing for quite a while before you answered?

A Yes, sir.

Q Wasn't your answer I guess at the time I did?

A At the time.

Q You've since changed your mind--

A Yes.


Q But she did open up a joint account--

A Yes.

Q --for the two of you; correct?

A Yes.

Q She paid the household bills out of that account?

A Yes.

Q And you really have no quarrel with the way that she took care of the home as you wanted her to; didn't you?

A No, sir.

Q That enabled you to work at your business and earn income --

A Yes."

       (emphasis added)

       Judy's relevant testimony is as follows:

"Q All right. What type of an arrangement, if any, did you and Paul discuss about what he expected from your relationship in terms of your contribution?

A We didn't really discuss it. It just was there. He went to work. I stayed home and kept the house and, mostly because that's what he wanted me to do.

Q He told you that's what he wanted you to do; didn't he?

A Oh, yeah.

Q And that, that included all the things that I went through with him, such as taking care of the laundry--

A Uh-huh, of course.

Q --doing the dishes--

A Yes.

Q --cleaning the house--

A Yes.


Q Judy, were you ever paid for the services you provided Paul: the bookkeeping and the housekeeping, and yardwork, the--

A No, I didn't expect it. That was part of my job as his mate, I felt."

       (emphasis added)

       There was evidence from which the trial court could find the existence of an agreement for property to be acquired and owned jointly, as such was the method in which Paul took title in both the real and personal property. A reviewing court should not set aside the findings of the trial court unless such findings are clearly erroneous. State ex rel. LaSota v. Arizona

148 Ariz. 16

[712 P.2d 929] Licensed Beverage Ass'n, 128 Ariz. 515, 519, 627 P.2d 666, 670 (1981).

       The finding of an agreement severable from a meretricious relationship is not so remarkable or a major change in the law. This was recognized in Cook v. Cook, supra. "The agreement ... would be perfectly enforceable if made between parent and child, brother and sister, friend and friend or any other parties in a cohabitant relationship. (citation omitted) The agreement would be enforceable if the parties had not lived together at all." 142 Ariz. at 577, 691 P.2d at 668. See also, Fernandez v. Garza, 88 Ariz. 214, 354 P.2d 260 (1960); Stevens v. Anderson, 75 Ariz. 331, 256 P.2d 712 (1953); Garza v. Fernandez, 74 Ariz. 312, 248 P.2d 869 (1952); Kinnison v. Kinnison, 627 P.2d 594 (Wyo.1981); Tyranski v. Piggins, 44 Mich.App. 570, 205 N.W.2d 595 (1973); 3 ALR 4th 13 (1981).

       The court of appeals found an agreement to exchange unlike services, but did not uphold the agreement based essentially on a failure of adequate consideration. Since we find a valid implied contract to combine efforts and jointly accumulate certain property we need not address the resulting trust theory of Becchelli v. Becchelli, supra, relied upon by the court of appeals. From the parties' words and actions the trial court could have found no resulting trust was intended. We believe there was sufficient evidence to justify the trial court's finding that at the time the property was acquired Paul intended joint ownership, even though he may have since changed his mind.

       This opinion does not discourage or shake the foundation of marriage in this state. Enforcement of the agreement is a logical extension of Cook and does not contravene public policy. This Court recognizes that community property rights derive solely from the marital relationship, A.R.S. § 25-211; Porter v. Porter, 67 Ariz. 273, 195 P.2d 132 (1948), and the law will not give non-marital cohabiting parties the benefit of community property. Cook v. Cook, supra. Community property is defined by A.R.S. § 25-211 as follows:

"all property acquired by either husband or wife during marriage, except that which is acquired by gift, devise or descent ..."

       There is a strong legal presumption that all property acquired during marriage is community property. The spouse claiming particular property as separate must prove the separate nature by "clear and convincing" or nearly conclusive evidence. Porter v. Porter, 101 Ariz. 131, 416 P.2d 564 (1966). The presumption applies to property acquired during marriage even though title is taken in the name of only one spouse. Davis v. Davis, 9 Ariz.App. 49, 449 P.2d 66 (1969). Judy did not have the benefit of the marital presumption. She had to sustain a high burden of producing evidence in order to establish the agreement. Since Judy was a co-owner of the property under a contract theory, she had the right pursuant to A.R.S. § 12-1211 to seek partition and divide the jointly owned assets. However, the award to Judy of any interest in the shop appears inconsistent with the parties' intentions. Judy made no claim to the shop and disavowed any interest in it during the proceedings.

       We therefore vacate the opinion of the court of appeals and remand the case to the trial court for a redistribution of the property not inconsistent with this opinion.

       HOLOHAN, C.J., and HAYS, CAMERON and FELDMAN, JJ., concur.

142 Ariz. 573 (Ariz. 1984)691 P.2d 664Rose Marie COOK, aka Elsten, Plaintiff/Appellant,v.Donald COOK, Defendant/Appellee.No. 17520-PR.Supreme Court of Arizona.October 31, 1984[691 P.2d 665]

       In Banc.

       Rehearing Denied Dec. 11, 1984.

Page 666


142 Ariz. 575

Croswell & Cornelio by Carmine Cornelio, Tucson, for plaintiff/appellant.

       Messing & Glicksman by Elliot Glicksman, Tucson, for defendant/appellee.

       FELDMAN, Justice.

       Rose Marie Cook, aka Elsten, petitioned this court for review of a decision of the court of appeals affirming the trial court's judgment against her and in favor of the defendant, Donald Cook. We have jurisdiction pursuant to Ariz. Const. art. 6, § 5(3) and Ariz.R.Civ.App.P. 23, 17A A.R.S. We granted review on the issues pertaining to the enforceability of agreements made by non-marital cohabitants. A detailed version of the facts is set forth in Cook v. Cook, 143 Ariz. 1, 691 P.2d 713 (App.1984). We provide a brief summary.


       Intending to marry as soon as Donald's divorce became final, Rose and Donald moved to Tucson in 1969 and lived there together until 1981. Although they did not marry, Rose used Donald's last name and they represented themselves to the community as husband and wife. Both parties worked throughout most of the relationship, pooling their income in two joint accounts and acquiring a house, two cars and a number of shares of stock, all owned as joint tenants with right of survivorship. Rose left Donald in 1981. Of their joint assets, she received only one car and a few hundred dollars; Donald retained the balance.

       Rose brought an action against Donald in November, 1981 on a theory of implied partnership, seeking an accounting and alleging that Donald had breached the partnership agreement by retaining more than one-half of the assets. The trial court first granted relief to Rose on the theory that the parties "had implicitly a partnership," then vacated its original order and entered judgment for Donald because it was "persuaded that it was in error and exceeded its authority" in its original order granting relief to Rose. Rose appealed, and Division Two affirmed the amended judgment, which had granted no relief to Rose.

       The substantive issues which we first address are: 1) What was the nature of the alleged agreement between Rose and Donald? 2) Is such an agreement enforceable even though Rose and Donald were cohabiting at the time it was made and performed? 3) Is such an agreement rendered unenforceable if made in contemplation of an eventual marriage which did not occur?

       In resolving these issues we assume, but are by no means certain (see post at 671 - 672), that the trial court found that there was an agreement. The court of appeals concluded there was such an agreement, but held it unenforceable (143 Ariz. at 3, 691 P.2d at 715).


       Rose stated in her deposition that she and Donald had an agreement:

When we moved up here, we moved up here together as husband and wife. And everything we did and purchased, whether it be a vacuum cleaner or a car, was together as husband and wife. It was just something that we agreed on, that is how we were going to do it, it was both of us.

       Deposition of Rose Marie Elsten, 2/12/82, at 16 (emphasis supplied). Only fragments of Rose's deposition were offered in evidence at trial, and it is impossible to determine from the trial transcript precisely what those portions were. Nevertheless, the court of appeals described the evidence as follows:

[T]he circumstances of this case present a man and a woman cohabitating [sic] with an agreement to pool their earnings and share equally in their joint accumulations.

       (143 Ariz. at 3, 691 P.2d at 715.) In addition, the court of appeals determined that both parties had "admitted an intention to share equally in the various joint assets" (Id. at 1, 691 P.2d at 713) and that the trial court in its original order "divided the assets in accordance with the way the parties intend

142 Ariz. 576

[691 P.2d 667] ed to hold them." (Id. at 3, 691 P.2d at 715.) The conduct of the parties certainly demonstrates such an agreement and intent. Rose and Donald maintained two joint accounts, a checking account and a credit union savings account, in the names of "Rose and Don Cook" and held by them as joint tenants with right of survivorship. Neither Rose nor Donald maintained a separate account. Both deposited portions of their paychecks into the accounts and used the funds in the accounts to pay for household expenses and various assets they purchased. In addition, Rose and Donald held jointly a number of shares of Southwest Gas stock purchased with funds from the credit union account. In 1972 they purchased a house, taking the deed as husband and wife in joint tenancy with right of survivorship. Both signed the mortgage, incurring liability for the full purchase price of the house, and payments on the mortgage were made out of the joint checking account.

       This evidence of Rose and Donald's express agreement, intention and subsequent course of conduct strongly supports a finding that they did contract to pool their earnings and share equally in certain assets. The sine qua non of any contract is the exchange of promises. Restatement (Second) of Contracts § 1 (1981). From this exchange flows the obligation of one party to another. 1 Williston on Contracts § 1 at 2 (1957). Although it is most apparent that two parties have exchanged promises when their words express a spoken or written statement of promissory intention, mutual promises need not be express in order to create an enforceable contract. Restatement (Second) of Contracts § 4. Indeed, a promise "may be inferred wholly or partly from conduct," id., and "there is no distinction in the effect of the promise whether it is expressed in writing, or orally, or in acts, or partly in one of these ways and partly in others." Id. § 19, comment a. See also Arizona Board of Regents v. Arizona York Refrigeration Co., 115 Ariz. 338, 341, 565 P.2d 518, 521 (1977). Thus, two parties may by their course of conduct express their agreement, though no words are ever spoken. From their conduct alone the finder of fact can determine the existence of an agreement. Restatement (Second) of Contracts § 4; 1 A. Corbin, Contracts § 9 at 20-21 (1963). See also Malcoff v. Coyier, 14 Ariz.App. 524, 484 P.2d 1053 (1971).

       Although isolated acts of joint participation such as cohabitation or the opening of a joint account may not suffice to create a contract, the fact finder may infer an exchange of promises, and the existence of the contract, from the entire course of conduct between the parties. Here, there is ample evidence to support a finding that Rose and Donald agreed to pool their resources and share equally in certain accumulations; their course of conduct may be seen as consistently demonstrating the existence of such an agreement. Thus, the trial court would not need to find an agreement by relying on the testimony of one party to the exclusion of the other, as some courts have done. See Bridges v. Bridges, 125 Cal.App.2d 359, 270 P.2d 69 (1954); Garcia v. Venegas, 106 Cal.App.2d 364, 235 P.2d 89 (1951); Kinkenon v. Hue, 207 Neb. 698, 301 N.W.2d 77 (1981). Neither need the court look solely to the title in which joint property is held to determine ownership. See Weak v. Weak, 202 Cal.App.2d 632, 21 Cal.Rptr. 9 (1962); In re Estate of Thornton, 81 Wash.2d 72, 499 P.2d 864 (1972).

       The legal effect of Rose and Donald's actions and expressions may have been the formation of a partnership in contemplation of marriage, or it may have been the creation of a contract as to joint ownership of assets in expectation of a continuing cooperative effort, irrespective of marriage. The label we attach is unimportant. See Bruch, Property Rights of De Facto Spouses Including Thoughts on the Value of Homemakers' Services, 10 Family L.Q. 101, 116 (1976); Annot., Property Rights Arising from Relationship of Couple Cohabiting Without Marriage, 3 A.L.R.4th 13 (1981). Compare Lee v. Slovak, 81 App.Div.2d 98, 440 N.Y.S.2d 358

[691 P.2d 668]

142 Ariz. 577

(1981) with Knauer v. Knauer, 323 Pa.Super. 206, 470 A.2d 553 (1983). Whatever the label, an agreement fairly and freely made and embodying the intent of the parties is enforceable; a court will not set it aside unless it is contrary to public policy, Galbraith v. Johnston, 92 Ariz. 77, 373 P.2d 587 (1962), or not supported by proper consideration, Malcoff v. Coyier, supra.


       We turn to a consideration of whether enforcement of the alleged agreement would contravene the public policy of Arizona. Protection of the marital relationship is the public policy of this state. Maricopa County v. Douglas, 69 Ariz. 35, 43, 208 P.2d 646, 651 (1949). That policy is furthered by the state's community property laws, A.R.S. §§ 25-211 to 217, which are "deeply rooted in the policy of this state." In re Baldwin's Estate, 50 Ariz. 265, 275, 71 P.2d 791, 795 (1937). The law will not give to non-marital cohabiting parties the benefit of community property rights, since these rights derive solely from the marital relationship. A.R.S. § 25-211; Porter v. Porter, 67 Ariz. 273, 195 P.2d 132 (1948).

       Thus, plaintiff could not obtain from this court the benefits which the law grants to those in the status of husband and wife. Those rights are conferred without need of a contract, and those who wish to obtain those benefits can do so only by becoming husband and wife. But what if plaintiff seeks only to enforce an agreement for the pooling of income and the ownership of the property acquired with that income? The court of appeals held that Rose could not prevail because

Arizona is not a jurisdiction which will permit division of property acquired during a non-marital cohabitation arrangement in accordance with the intent of the parties.

       (143 Ariz. at 3, 691 P.2d at 715). We granted review because we disagree with this statement. See Ariz.R.Civ.App.P. 23(c), 17A A.R.S. In Fernandez v. Garza, 88 Ariz. 214, 354 P.2d 260 (1960), this court stated:

       [I]t is the established law of the case that the fact that the parties engaged in a meretricious relationship does not bar either from asserting against the other such claims as would be otherwise enforceable.

       Id. at 219, 354 P.2d at 263. The agreement which the court of appeals described (143 Ariz. at 3, 691 P.2d at 715)--to "pool their earnings and share equally in their joint accumulations"--would be perfectly enforceable if made between parent and child, brother and sister, friend and friend or any other parties in a cohabitant relationship. Beal v. Beal, 282 Or. 115, 126, 577 P.2d 507, 512 (Linde, J., concurring in part and dissenting in part). The agreement would be enforceable if the parties had not lived together at all. Id.

       Whether the parties "became lovers" before or after entering into an agreement is not the relevant inquiry. The relevant question is whether the agreement was made for proper consideration. Marvin v. Marvin, 18 Cal.3d 660, 134 Cal.Rptr. 815, 823-24, 557 P.2d 106, 114-15 (1976); Folberg & Buren, Domestic Partnership: A Proposal for Dividing the Property of Unmarried Families, 12 Willamette L.J. 453, 465 (1976). This court long ago alluded to the rule which we think is proper:

There is much authority for allowing recovery where both parties know of the illegality of their activities, but where there exists an independent agreement that the property acquired during the period of their unlawful practices shall be owned in a certain manner. If the unlawful practices are merely incidental or separate from their contract concerning the ownership of property, the courts will give effect to the agreement and grant relief.

       Stevens v. Anderson, 75 Ariz. 331, 335, 256 P.2d 712, 714-15 (1953) (emphasis supplied). This rule is in accord with recognized authority. See 6A A. Corbin, Contracts § 1476 at 622.

       The question, then, is whether there was an "independent agreement." The

142 Ariz. 578

[691 P.2d 669] court of appeals rejected "the notion that the agreement stood independently of the cohabitation arrangement." (143 Ariz. at 3, 691 P.2d at 715.) We agree that the facts indicate that any agreement here was made in view of the cohabitation arrangement and in that sense was not "independent" of that arrangement. Most agreements of this type are made as an adjunct to or part of the cohabitation arrangement. We do not believe, however, that enforceability depends upon whether the agreement is independent of the living arrangement, but whether the agreement can stand independently as a valid contract. In our view, this depends upon whether the agreement is supported by consideration and whether that consideration is independent of the meretricious relationship. If the agreement is independent, in the sense that it is made for a proper consideration, it is enforceable even though the parties are in a meretricious relationship. That relationship will not prevent enforcement of the agreement unless the relationship is the consideration for the agreement. Cross v. Cross, 94 Ariz. at 32, 381 P.2d at 575; Stevens v. Anderson, supra; Garza v. Fernandez, 74 Ariz. 312, 248 P.2d 869 (1952).

       The record here would support a finding that the consideration was not against public policy. As the court of appeals indicates, the alleged agreement seems to be one to pool income, acquire assets and share in the accumulations. There is no finding to indicate that the agreement to provide sexual or cohabitant services was part of the consideration for the agreement, though certainly the contemplation of cohabitation and marriage may have been part or all of the reason for making the agreement. [1] Again, however, the question is not why the agreement was made, but whether it was made and whether it was made for proper consideration. We therefore disapprove of the court of appeals' holding (143 Ariz. at 3, 691 P.2d at 715) that the judgment below may be affirmed because the agreement did not stand "independently of the cohabitation arrangement." Even though "the commingling of funds and the concurrent agreement to share them equally would never have existed but for the [cohabitation] relationship" (143 Ariz. at 3, 691 P.2d at 715), the agreement may be enforced if it is supported by consideration and if that consideration is not contrary to public policy. A promise to contribute funds to a "pool" of income is proper consideration. Fernandez v. Garza, 88 Ariz. at 219, 354 P.2d at 263; Stevens v. Anderson, 75 Ariz. at 335-36, 256 P.2d at 714-15; Garza v. Fernandez, 74 Ariz. at 316, 248 P.2d at 871. The record here shows that Rose may have agreed to contribute her earnings to a common pool and to hold the property acquired as an equal owner with Donald, and that Donald may have made the same promise. Such mutual promises are adequate consideration to support an enforceable contract. Palmer v. Kelly, 52 Ariz. 98, 79 P.2d 344 (1938); 1 A. Corbin, Contracts § 142; Restatement (Second) of Contracts § 75.

       It may be argued that the courts should follow a policy of not enforcing otherwise valid agreements between those in meretricious relationships because to do so would undermine the public policy which favors marriage over non-marital cohabitation. The argument is that if cohabitants know that the courts will not enforce their agreements, they will be more likely to accept the legal status of marriage. See, e.g., Hewitt v. Hewitt, 77 Ill.2d 49, 31 Ill.Dec. 827, 394 N.E.2d 1204 (1979). This view ignores a very real danger.

The unannounced but inherent rule [of the doctrine that the courts will not enforce agreements between cohabitants] is simply that the party who has title, or in some instances who is in possession, will enjoy the rights of ownership of the property concerned. The rule often operates to the great advantage of the cunning

142 Ariz. 579

[691 P.2d 670] and the shrewd, who wind up with possession of the property, or title to it in their names, at the end of a so-called meretricious relationship. So, although the courts proclaim that they will have nothing to do with such matters, the proclamation in itself establishes ... an effective and binding rule of law which tends to operate purely by accident or perhaps by reason of the cunning, anticipatory designs of just one of the parties.

       West v. Knowles, 50 Wash.2d 311, 315-16, 311 P.2d 689, 692 (1957).

       The facts here are not far removed from the view expressed in Knowles. Though our courts might attempt to do equity by giving Rose the benefit of her pro rata contributions to the joint property, this places upon her the burden of attempting to prove the specific amounts contributed to each asset. Failing that burden, she is left by such a rule in a position where she may lose all interest in specific assets. [2] This evidently is the result of the judgment of the trial court. Why should Rose, not Donald, bear that burden? The only reason, of course, is that Donald refused to give Rose what he allegedly had agreed she should have--half of the jointly owned property acquired with their pooled income. Thus, assuming Donald reneged on the agreement and held possession of the assets, Rose was forced to become the plaintiff and assume the burden of proof of her contributions to obtain, at best, pro rata reimbursement. If Rose had held the assets and refused to honor the agreement, then Donald would have had to assume the burden. The rule of non-enforcement thus favors the strongest, the most unscrupulous, the one better prepared to take advantage or the more cunning of the cohabitants. We do not believe this rule to be equitable or good public policy. We think the better rule is simply that valid agreements made by the parties will be enforced according to the intent of the parties.

       Nor do we believe that as a matter of policy cases like this can be resolved on the basis of a failure of consideration. The expectation of marriage was not realized, but this, we think, is not relevant to the decision. Despite their postponement of the wedding day, the parties continued to pool their income and share the proceeds by acquiring property in their joint name. It is evident that the agreement was not intended to terminate if the parties failed to marry within a reasonable time because they continued to perform financially through twelve years of cohabitation. There being no evidence of an express contingency to the financial arrangement, we cannot conclude, as did the court of appeals (143 Ariz. at 3, 691 P.2d at 715), that the financial agreement was intended to be contingent on marriage. Any inference on this question must be drawn, if at all, by the trial judge.

       Because of the interest in the so-called "palimony" question, we think it important to emphasize what we do not hold in this opinion. In Marvin v. Marvin, supra, the California Supreme Court enforced an oral agreement between non-marital cohabiting parties even though the alleged consideration was that the plaintiff " 'would further render her services as a companion, homemaker, housekeeper and cook to ... defendant.' " 135 Cal.Rptr. at 819, 557 P.2d at 110. The court held that although the provision of sexual services would not support such an agreement, the provision of homemaking services would, and that such consideration was severable from the meretricious aspects of the arrangement. We need not reach the issue of whether an agreement would be enforceable in Arizona if supported only by the consideration of what is commonly thought of as performance of cohabitants' marital functions, and we do not decide that issue. The consideration for any agreement to share assets in the case at bench is not plaintiff's promise to be a homemaker or cohabitant but plaintiff's promise, which she performed, to contribute her income to a "pool" and to share

142 Ariz. 580

[691 P.2d 671] in the assets purchased with funds from that pool.


       The substantive legal principles applicable to this case are not nearly as complex as the procedural maze with which we are presented. The case appears to have been tried on one theory, appealed on a second, decided in the court of appeals on a third and submitted here for review on a fourth theory. We granted review because we disagreed with the legal conclusions reached by the court of appeals. As a practical matter, however, resolution of Rose's claim is difficult because we cannot determine just what factual conclusions the trial judge reached. When Rose filed the suit, she described it in the caption as an action for "Partnership/Accounting." The key allegation of the complaint is as follows:

V. That the plaintiff and defendant intended to be partners under an implied agreement to acquire property for their joint benefit and to share equally in all profits and accumulations. (Emphasis supplied.)

       The relief demanded included prayers designed to enforce plaintiff's alleged fifty percent partnership interest in specified property.

       Although the parties had not requested findings of fact and conclusions of law, the judge did make such findings and conclusions in his first post-trial order. The key finding reads as follows:

1. Notwithstanding their meretricious relationship and apart from it, the parties had implicitly a partnership to which both contributed labor and funds toward their accumulation of property ....

       The trial judge further found as facts that the parties had intended to share certain assets equally but had not had such an intention with regard to other assets. He reached the following conclusion of law:

1. Each party to this implicit partnership is entitled to his or her equal share where that was their intent, or contribution share otherwise, even though there existed independently a meretricious relationship between the parties. Fernandez v. Garza, 88 Ariz. 214, 354 P.2d 260 (1960); Cross v. Cross, 94 Ariz. 28, 381 P.2d 573 (1963).

       The trial judge proceeded to divide assets in accordance with the intent of the parties and, with some assets--presumably where there was no intent of the parties--in relation to their contribution.

       Donald then moved for modification of the judgment under Ariz.R.Civ.P. 59(a)(1), 16 A.R.S., arguing that the evidence showed no agreement apart from the meretricious relationship and that the claim was based solely on the fact that Rose and he had lived together as husband and wife. Arguing that the court had acted contrary to the law in implying a partnership agreement only on evidence that "the couple lived together and commingled their assets," Donald contended that the proper remedy was that the parties recover the value of their relative contributions to the acquisition of the property. Donald argued further that plaintiff had failed to show such contributions but had instead "sought one-half of all property acquired." Claiming that Rose had failed to carry her burden of showing the amount of her contributions and that the question of partnership had been the only issue tried with the consent of the parties, Donald argued that Rose should receive nothing.

       The trial court then entered an amended order, stating that it was

persuaded that it was in error and exceeded its authority in awarding the judgment dated March 28, 1983, since that was not the relief sought by plaintiff in the complaint or the trial...

       The court stated that it was

satisfied that the plaintiff failed to prove to a preponderance of the evidence that there existed any implied partnership that would justify in law or fact the relief sought....

       The court therefore denied all relief.

       We cannot tell from this sequence of orders what the court found. It may have

142 Ariz. 581

[691 P.2d 672] concluded that there was an agreement to pool income and share equally in all or certain assets but that there was no agreement to enter into a partnership and that the court could not imply such a partnership agreement from cohabitation. On the other hand, the trial court may have meant that there was an agreement to pool income and share assets but that the plaintiff had not brought an action to recover on that theory and therefore could not be awarded relief on that theory. Finally, the court may have held that Rose's recovery of a pro rata share of her contributions was precluded because she had not asserted such a theory in the complaint or at trial, or, if asserted, because she had not carried the burden of showing the amount of such contributions. This interpretation of the court's conclusion is problematic, however, because in its earlier order the court had indicated that it had found the amount of Rose's contributions to the credit union account and the residence. It is difficult to ascertain, therefore, why the court later granted Rose no relief at all.

       Confronted with these various possibilities as to the trial court's findings and intentions, the court of appeals described the facts as showing "a man and a woman cohabiting with an agreement ...." (143 Ariz. at 3, 691 P.2d at 715.) Noting the procedural problems below and stating that Rose "steadfastly relies on [the partnership] interpretation of the law as the sole basis for ... relief," the court of appeals then affirmed the trial court, concluding that the agreement was not enforceable because the "contingency of their agreement [marriage] never occurred." (Id. at 3, 691 P.2d at 715.) It also affirmed on the grounds that the agreement was not independent "of the cohabitation arrangement." As noted (ante at 668), we do not believe that the judgment may be affirmed on these grounds.

       We find that remand is the solution to these problems. The proper principles of law are correctly set forth in the trial court's conclusion (minute entry order of March 28, 1983) quoted above. Leaving aside the label of "partnership," two principles are stated in the cases cited by the trial court. First, if there was an agreement between the parties, supported by proper consideration, that agreement may be enforced according to the intention of the parties, even though the parties were engaged in a meretricious relationship while the agreement was being made and performed. Fernandez v. Garza, 88 Ariz. at 219, 354 P.2d at 263; Stevens v. Anderson, 75 Ariz. at 335-36, 256 P.2d at 714-15; Garza v. Fernandez, 74 Ariz. at 316,248 P.2d at 871. If, on the other hand, there was no agreement but the property was acquired through the contributions of both parties with an intention that both would share in its benefits, equity will allow each a share of the property in proportion to their respective contributions and efforts. Stevens v. Anderson, supra; Garza v. Fernandez, supra.

       Thus, implying a partnership is both unnecessary and irrelevant unless, of course, Rose's pleadings, pretrial memoranda and trial theories prevent a granting of relief except upon the finding of an implied partnership. We note, however, that the trial court may base a partnership finding on the existence of an agreement to pool assets and share in profits since a partnership is "an association of two or more persons to carry on as co-owners a business for profit." A.R.S. § 29-206. The issue is not whether Rose and Donald agreed to be partners. There is no evidence that they ever made such an agreement. If they are to be called partners, it is because the law applies that label to the agreement they did make. The key question is whether they exchanged promises, and thus agreed, for a proper, independent consideration, to pool their income and divide certain assets in a certain percentage. If they did, the court may enforce that contract, subject to the procedural problems mentioned above.

       We therefore vacate the opinion of the court of appeals, vacate the judgment of the trial court and remand the case to the trial court with instructions that it shall apply the legal principles outlined above to

142 Ariz. 582

[691 P.2d 673] whatever factual situation it concludes has been established by the evidence. If, because of the limitation of issues resulting from plaintiff's complaint and the theories raised at trial, the court is unable to reach any conclusion with regard to whether an agreement existed, then it may indeed find that Rose has failed in her burden of proof on that point.

       HOLOHAN, C.J., GORDON, V.C.J., and HAYS and CAMERON, JJ., concur.



[1] In his order of March 28, 1983, the trial judge appeared to answer any question on this issue. He found an "implicit" partnership "apart from" the meretricious relationship. In his first conclusion he stated that "there existed independently a meretricious relationship."

[2] The evidence here indicates that the burden is onerous. Since she expected to get married, Rose did not keep detailed records of her contributions.