Chapter 12: Breach of Promise to Marry

§12.1 Generally

The Case: Rivkin v. Postal , No. M1999-01947-COA-R3-CV, 2001 WL 1077952 (Tenn. Ct. App. Sept. 14, 2001).

The Basic Facts: An unmarried couple had a child together, lived together, and eventually ended the relationship. Mr. Rivkin filed suit seeking a partition of the parties' jointly owned property. Ms. Postal counterclaimed for breach of promise to marry. The trial court divided the property and awarded Ms. Postal $150,000.00 for breach of promise to marry.

The Bottom Line:

  • "In 1949, the Tennessee General Assembly passed an act which, according to its caption, was designed 'to prevent certain injustices in suits for damages for the breach of promise or contract of marriage.'FN7 This act circumscribes breach of promise claims in four significant ways. First, Tenn. Code Ann. § 36-3-405 provides that these claims could not be joined with other damage claims. Second, Tenn. Code Ann. § 36-3-401 requires that promises or contracts of marriage could only be established using either signed, written evidence of the promise or contract or the testimony of at least two disinterested witnesses. Third, Tenn. Code Ann. § 36-3-403 requires juries to consider the parties' age and experience in calculating damages.FN8 Finally, Tenn. Code Ann. § 36-3-404 prohibits awarding punitive damages in cases where the alleged breaching party was over sixty years old. These statutes survive to the present day, and thus this case is governed by their strictures.
    FN7Act of April 8, 1949, ch. 161, 1949 Tenn. Pub. Acts 486, now codified at Tenn. Code Ann. §§ 36-3-401-405 (1996).

    FN8 In fact, Tenn. Code Ann. § 36-3-403 specifically provided that '[a]ny previous marriage on the part of such plaintiff shall be considered by the court and jury in mitigation of the damages that might otherwise be allowed.'"
    2001 WL 1077952 at *4.
  • "A suit for breach of promise or contract to marry follows the procedures generally associated with other actions for breach of contract. Kaufman v. Fye, [42 S.W. 25, 30 (Tenn. 1897)]. Thus, the plaintiff has the burden of proving the existence of a contract, that is an offer of marriage and an acceptance, along with consideration (which need only be a return promise to marry). Weeks v. Mays, [10 S.W. 771, 771-72 (Tenn. 1889)]; Conn v. Wilson, 2 Tenn. (2 Overt.) 234, 234 (1814); Clark § 1.2, at 6. The plaintiff must also prove the other party's refusal to marry or the disavowal of intent to perform. Crossett v. Brackett, 105 A. 5, 6 (N.H. 1918)." Id.
  • "Ms. Postal's testimony alone is insufficient to prove the existence of a promise or contract to marry. Tenn. Code Ann. § 36-3-402. To meet her burden of proof in this case, Tenn. Code Ann. § 36-3-401 requires her to present either 'written evidence of such contract, signed by the party against whom the action is brought' or with the testimony of 'at least two disinterested witnesses.' We turn first to the 'written evidence.' In March 1996, one month after he purchased the Williamson County house, Mr. Rivkin executed a quitclaim deed conveying the property to himself and Ms. Postal as joint tenants with right of survivorship. The trial court appears to have decided that this quitclaim deed is the sort of written evidence that Tenn. Code Ann. § 36-3-401 requires. The quitclaim deed, however, falls far short of the mark." Id. at *5 (footnote omitted).
  • "We presume that the Tennessee General Assembly intended to make a useful contribution to the law governing breach of promise to marry cases when it enacted Tenn. Code Ann. § 36-3-401. Accordingly, the statute must contemplate that any writing proffered to satisfy Tenn. Code Ann. § 36-3-401 must have real probative force with regard to the existence of both an offer to marry and an acceptance. The writing must, in the language of Tenn. R. Evid. 401, make the existence of Mr. Rivkin's promise to marry more probable than it would be without the evidence." Id.
  • "'It is obvious,' as one treatise puts it, 'that not only are most engagements to marry arrived at informally and without witnesses or written record, but in many instances there is no explicit exchange of promises at all.' 1 Clark § 1.2. Accordingly, proof of an engagement would be impossible if the plaintiff were required to produce evidence that at some specific moment the parties formally exchanged promises and reduced these promises to writing. Tenn. Code Ann. § 36-3-401 is not intended to go that far. Rather, it calls for signed, written evidence that the parties were, by mutual agreement, on the way to becoming husband and wife. Many kinds of writings would suffice. FN10
    FN10 While not intended to be an exhaustive list, the following signed writings might fit the bill: an application for a marriage license, an attested petition to waive the age or waiting requirements for marriage, correspondence between the parties, writing dealing with wedding arrangements, or pre-nuptial agreements."
    Id.
  • "Mr. Rivkin testified that he gave Ms. Postal a joint tenant's interest in the Williamson County house as a way of making sure that their child would be provided for should something happen to him. In his words, the quitclaim deed was executed 'for the child, in the event something happened to me; [so] that the child would have a house to live in.' If we discount this explanation because the trial court stated that it 'disbelieve[d] Mr. Rivkin and his denial of any agreement to marry Ms. Postal,' we are left with no other direct evidence of Mr. Rivkin's reasons for this conveyance. Ms. Postal herself conceded that Mr. Rivkin never explained to her why he quitclaimed an interest in the Williamson County property to her.

    Thus, the only evidence we have regarding the significance of the deed is the deed itself. Nothing within the four corners of the deed alludes to any promise or contract of marriage or to the parties' betrothed status. Executing quitclaim deeds is not only within the province of persons who have agreed or contracted to marry the grantee named in the deed. Quitclaim deeds are commonly used for business transactions between partners, conveyances between family members, cleaning up a title for title insurance purposes, or gifts. Thus, in light of the ubiquitous nature of quitclaim deeds, we decline to hold that an unexplained quitclaim deed between an unmarried man and an unmarried woman, without much, much more, suffices as signed, written evidence of a promise of marriage for the purpose of Tenn. Code Ann. § 36-3-401." Id. at *5-*6.
  • "With reference to the plaintiff's burden of proof, the testimony of parties and other interested witnesses can only corroborate the testimony of at least two 'disinterested witnesses' or the written evidence of the promise to marry. Of course, any showing of interest on the part of a witness will continue to affect the weight of the witness's testimony. Creeping Bear v. State, [87 S.W. 653, 653-54 (Tenn. 1905)]." Id. at *7.
  • "All this brings us to the precise question that appears to have perplexed the trial court in this case - who is a 'disinterested witness' for purposes of Tenn. Code Ann. § 36-3-401? To find the answer, we begin with the statute itself. The term 'disinterested witness' is a legal term of art of long standing. Thus, we must give this term its technical meaning unless the context makes plain that some other meaning was intended. State v. Smith, 893 S.W.2d 908, 929 (Tenn. 1994) (Reid, J., concurring & dissenting in part); Cordis Corp. v. Taylor, 762 S.W.2d 138, 139-40 (Tenn. 1988). The language of law is as full of terms of art as any other mode of professional discourse. In this context, 'disinterested witness' happens to be such a term. Thus, as Justice Frankfurter once wrote, '. . . if a word is obviously transplanted from another legal source, whether the common law or other legislation, it brings the old soil with it.' Felix Frankfurter, Some Reflections on the Reading of Statutes, 47 Colum. L. Rev. 527, 537 (1947).

    The concept of 'disinterestedness' is commonly associated with a person's ability to be impartial. As applied to witnesses, a 'disinterested witness' is one who has no right, claim, title, or legal stake in the claim or matter at issue. Carlon Co. v. Board of Review, 572 N.W.2d 146, 150 (Iowa 1997). Thus, a 'disinterested witness' does not stand to gain a benefit or suffer a detriment as a result of the outcome of the case, Jones v. Larrabee, 47 Me. 474, 475 (Me. 1860) (separate opinion by Goodenow, J.); Smith v. Stribling, 649 A.2d 1003. 1006 (Pa. Commw. Ct. 1994); State v. Easterlin, 39 S.E.250, 251 (S.C. 1901); 1 Simon Greenleaf, A Treatise on the Law of Evidence §§ 390, 395 (15th ed. 1892) ("Greenleaf"), and thus has no motivation based on personal or pecuniary interest. Sands v. Prudential Prop. & Cas. Ins., 789 So. 2d 745, 748 (La. Ct. App. 2001)." Id.
  • "A pecuniary interest, of course, involves having a direct or indirect financial stake in the outcome of the proceeding. See generally Tenn. Code Ann. § 39-16-101(3) (1997); Creeping Bear v. State, [87 S.W. at 653] (comparing pecuniary interests to other potential influences on a witness' testimony). In determining whether pecuniary interest exists, the courts look not at how great or how little money may be at stake but rather at the nature of the interest. 3 Jones on Evidence § 20:6. The pecuniary advantage or personal interest may be, in some cases, indirect or removed. For example, a witness may not be considered disinterested if the witness desires a certain outcome that could then be used in support of the witness's own monetary claims or as defenses against monetary claims in another action. 1 Greenleaf §§ 386, 404. Thus, a creditor of one of the parties, who may be testifying with an eye toward a fund that he or she may later pursue, may not qualify as a disinterested witness. 1 Greenleaf § 392." Id. at *8.
  • "Because we have already determined that the March 1996 quitclaim deed does not suffice as written evidence of a promise to marry for the purpose of Tenn. Code Ann. § 36-3-401, Ms. Postal's breach of promise claim hinges on whether she produced at least two disinterested witnesses to substantiate her claim that Mr. Rivkin had promised to marry her. The only witnesses she called regarding this issue were her parents, Diana Schuyler and Barry Postal. While it is doubtful that a claimant's parent can ever be a disinterested witness in cases of this sort, Ms. Postal's parents are clearly not disinterested witnesses because at the time of trial they were also Ms. Postal's creditors." Id.
  • "It is plain that both Mr. Postal and Ms. Schuyler had immediate, outstanding financial claims against their daughter when they testified in support of her breach of promise claim against Mr. Rivkin. Each of them expected that their claims would be satisfied once Ms. Postal got something out of this suit. Therefore, both had a financial interest in the outcome of this proceeding. In light of these witnesses' financial stake in the outcome, the trial court erred by concluding that they were 'disinterested witnesses' for the purposes of Tenn. Code Ann. § 36-3-401." Id. at *9.
  • "In summary, we have concluded that Ms. Postal failed to carry the statutory burden of proof placed on persons seeking money damages for a breach of promise or contract of marriage. Her own self-serving testimony was insufficient. Tenn. Code Ann. § 36-3-402. She offered no written evidence that this promise or contract ever existed, and she failed to produce the two disinterested witnesses required by Tenn. Code Ann. § 36-3-401 to substantiate her claim. Accordingly, we find that the evidence preponderates against the trial court's finding that Mr. Rivkin had promised or contracted to marry Ms. Postal." Id.
  • "Even though breach of promise of marriage claims are essentially contract claims, the measure of damages is not the same as the customary measure of damages for breach of contract. When it comes to damages, 'the complexion of the action mysteriously changes from contract to tort, with the corresponding broadening of the principles governing the damages which the . . . [factfinder] may impose.' 1 Clark § 1.4. Cases of this sort are all about the plaintiff's character and honor. By filing the suit, the plaintiff, usually a woman, 'declares herself suitable for a wife, and the mother of a family,' Weeks v. Mays, [10 S.W. at 771], and seeks to recover damages for the harm done to her happiness, honor, and character. Goodal v. Thurman, 38 Tenn. (1 Head) 209, 215 (1858). These damages are based upon (1) disappointment of reasonable expectations of social, domestic, and material advantage from the promised marriage, (2) injury to the plaintiff's future prospects in life, (3) harm to the plaintiff's affections, and (4) anguish and mortification stemming from the rejection. Brown v. Odill, [56 S.W. at 844]." Id.
  • "Ms. Postal never articulated at trial exactly what specific social, domestic, and material advantages she expected to derive from marrying Mr. Rivkin that she had not already obtained. Nor did she testify about the injuries to her future expectations, her mental anguish and mortification, or how not being married to Mr. Rivkin had destroyed her happiness, honor, and character. Simply asserting that she 'would certainly have gained such advantages' by a marriage is no substitute for proof. Thus, in addition to failing to present sufficient evidence of the existence or a promise or contract of marriage, Ms. Postal failed to present any evidence regarding the sorts of injuries that would have entitled her to $150,000 in damages." Id.

Other Sources of Note: Tenn. Code Ann. § 36-3-401, et seq.

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