LAW AND THE FAMILY The Return of Engagement Gifts Joel R. Brandes New York Law Journal October 27, 1998 A PERSON'S RIGHT to the return of wedding presents given in contemplation of a marriage that fails to materialize is governed by §80-b of the Civil Rights Law, which modified the "heart balm" act to permit the recovery of such gifts.
Nothing in this article contained shall be construed to bar a right of action for the recovery of a chattel, the return of money or securities, or the value thereof at the time of such transfer, or the rescission of a deed to real property when the sole consideration for the transfer of the chattel, money or securities or real property was a contemplated marriage which has not occurred, and the court may, if in its discretion justice so requires, (1) award the defendant a lien upon the chattel, securities or real property for monies expended in connection therewith or improvements made thereto, (2) deny judgment for the recovery of the chattel or securities or for rescission of the deed and award money damages in lieu thereof. A Strong Presumption Role of Legal Obligation - In 1935, New York adopted what became known as the "heart balm" statute. It abolished all causes of action "to recover sums of money as damage for * * * breach of contract to marry"1and provided that "No contract to marry * * * shall operate to give rise * * * to any cause or right of action for the breach thereof."2 The purpose of the heart balm statute was the abolition of actions based on alleged alienation of affections, criminal conversation, seduction and breach of contract to marry, because they were subject to grave abuses and caused monetary damage and emotional injury to many persons who were innocent of any wrongdoing and were merely the victims of circumstance. Following enactment of this legislation, it was held that the statute proscribed not only actions to recover damages for breach of promise to marry, but also prohibited suits to recover specific real or personal property given in contemplation of a marriage.3 As a consequence §80-b was enacted in 1965. It provides that: This statute permits recovery when the sole consideration for the transfer of the chattel, money or securities or real property was a contemplated marriage that has not occurred. It has been held that there is a strong presumption that any gifts made during the engagement period are given solely in consideration of marriage. This presumption is rebuttable, but clear and convincing proof is necessary to overcome it.4 In Gaden v. Gaden,5 the Court of Appeals held that fault was irrelevant under Civil Rights Law §80-b, which contemplates situations where one party has directly transferred property to another as well as situations where the transfer was made by a third party to both of the parties. The Court rejected the view that §80-b merely removed the impediment to such actions that had developed as a result of its previous interpretation of the heart balm statute and restored the common-law right of recovery in which fault was considered relevant to the controversy. The Court held that just as the question of fault or guilt has become largely irrelevant to modern divorce proceedings, so should it also be deemed irrelevant to the breaking of the engagement. The purpose of §80-b was to return the parties to the position they were in prior to their becoming engaged, without rewarding or punishing either party for the fact that the marriage failed to materialize.6 The parties in Gaden were married in 1953 and divorced in May of 1960. In July of 1960, they resumed living together with the expectation that they would ultimately remarry. They continued to live together, without remarrying, until the spring of 1962, when plaintiff and the couple's daughter moved away. Prior to that, defendant entered a contract to purchase premises in Islip. In conjunction with this transaction, it was necessary for the defendant to obtain a mortgage commitment for $25,000. At closing, title to the property was vested, at the request of the defendant, in the names of "Elmer Gaden Jr. and Dorothy J. Gaden, his wife." The bond and mortgage given to the bank for the loan extended was executed by both parties, and the difference in cash ($13,000) required to close the deal was furnished by the defendant. Subsequently, title to a vacant lot contiguous to the purchased premises was similarly acquired in both names for $5,000, $300 of which was advanced by defendant; the balance was obtained by a loan from his father. In June 1962, after plaintiff had moved out of the premises, both parties signed a promissory note for the $5,200 loan used for the purchase of this second parcel of land. In December 1967, plaintiff, as tenant in common, commenced an action for part of both parcels. Defendant counterclaimed for the imposition of a constructive trust and for rescission, based on a claim that the creation of the tenancy in common was a gift conditioned on remarriage of the parties. After a trial, Special Term found that §80-b of the Civil Rights Law was applicable and directed plaintiff to deliver to the defendant a deed of her interest in the parcels, provided she would be released from liability on the bond and note that were used to buy the parcels. The Appellate Division reversed. It held that §80-b was not applicable where a party undertakes a legal obligation with respect to the gift, as the plaintiff did in executing a bond and note, since it cannot then be said the sole consideration supplied by the party was the promise to remarry. The trial court had reacted to this factor by conditioning the return of the land on the release of plaintiff's legal liabilities. The Appellate Division specifically affirmed the factual findings made at Special Term. The Court of Appeals noted that the land was purchased, and an interest was given to plaintiff, in anticipation of the forthcoming remarriage of the parties. Moreover, real property is specifically mentioned in the statute as a class of gift that is recoverable. Although the obligation incurred by the plaintiff in signing the bond and note constituted legal consideration, the Appellate Division's interpretation of the word "consideration" failed to give effect to the intention of the Legislature to authorize actions seeking recovery of gifts given in contemplation of marriage. This conclusion was mandated by reading the second half of the statute in conjunction with the first, allowing the court, in its discretion, to award the donee a lien on the real property for money expended in conjunction with it or improvements to it. Thus, the statute specifically contemplates that the donee may contribute to some extent toward the gift in question. Making this contribution, however, does not defeat the donor's right to the return of the gift under the statute, but rather only provides the donee with a lien to the extent of the contribution. It held that to construe the words "sole consideration" in the first portion of the statute as meaning sole legal consideration would be to ignore the latter half of the statute and to render it meaningless. If the statute was so read it was applicable to the case. Shortly thereafter, the Court of Appeals, in a moment of moral hyperactivity, imposed the questionable qualification on §80-b that if the engagement was against public policy because the fiancee knew the object of his affections was a married woman, she was entitled to the loot of a $60,000 diamond ring, regardless of who broke the illicit engagement. In Lowe v. Quinn7 the plaintiff, a married man, sued for the return of a diamond "engagement" ring that he gave the defendant on her promise to marry him when and if he became free. He had been living apart from his wife for several years and they contemplated a divorce. About a month after receiving the ring, the defendant told the plaintiff that she had "second thoughts" about the matter and had decided against getting married. When he requested the return of the ring, she suggested that he "talk to [her] lawyer." He brought an action to recover the ring or, in the alternative, $60,000, its asserted value. The Court of Appeals noted that an engagement ring is in the nature of a pledge for the contract of marriage and, under the common law, it was settled that where no impediment existed to a marriage, if the recipient broke the engagement, she was required on demand to return the ring, on the theory that it constituted a conditional gift. The Court concluded in Lowe that a different result was compelled where one of the parties is married, because an agreement to marry under such circumstances is void as against public policy, and it is not saved or rendered valid by the fact that the married individual contemplated divorce and that the agreement was conditioned on procurement of the divorce. Based on such reasoning, it held that a plaintiff may not recover the engagement ring or any other property he may have given the woman. The Court also pointed out that §80-b of the Civil Rights Law had to be read in connection with §80-a, which effected the abolition of actions for breach of promise to marry. Section 80-b was added to make it clear that a man not under any impediment to marry was entitled to the return of articles that he gave the woman, even though breach of promise suits had been abolished as against public policy. This statute, however, did not alter the settled principle denying a right of recovery where either of the parties to the proposed marriage is already married. Nevertheless it has been held that where the fiancee is a married woman the donor is not penalized. In Witkowski v. Blaskiewicz,8 the plaintiff sought to recover $6,500, the claimed value of an engagement ring. He testified that after he and the defendant had been living together for about five years he presented her with a diamond engagement ring in exchange for her promise to marry him, although she was married to another at that time. The defendant thereafter broke the engagement, leaving their apartment and refusing to return the ring. The defendant testified that she wore the ring at the insistence of the plaintiff, who was the one who told people they were engaged and that she never intended to divorce her husband to marry the plaintiff. The court held that the purpose of §80-b is to return the parties to the position they were in prior to their becoming engaged, without rewarding or punishing either party for the fact that the marriage failed to materialize, and it held that the defendant was liable to the plaintiff for the value of the ring. (1) See former Civ.Prac.Act, s 61-b. (2) See former Civ.Prac.Act, s 61-d. (3) Andie v. Kaplan, 263 App.Div. 884, aff'd 288 N.Y. 685; Josephson v. Dry Dock Sav. Inst., 266 App.Div. 992, aff'd 292 N.Y. 666. (4) Friedman v. Geller, 1975, 82 Misc2d 291. See Vasinkevich v. Elm Drugs (2d Dept. 1994) 208 AD2d 522. (5) 29 NY2d 80 (1971). (6) Where the donor is a third party, fault as to breaking of the engagement is immaterial. See Bruno v. Guerra (1990) 146 Misc2d 206. (7) 27 NY2d 397 (1971). (8) (1994, Civ Ct) 162 Misc2d 66. *********