Posik v. Layton – Marriage Contracts
Posik v. Layton, 23 Fam. L. Rep. 1296, 695 So.2d 759 (Fla. 5th Dist. Ct. App. 1997).
NATURE OF THE CASE: This was a dispute over the waiver of a nuptial agreement.
FACTS: Posik (P) and Layton (D) were in a lesbian relationship entered into a written contract to govern their personal relationship. According to the contract Posik was to give up her job and take care of the home and Layton was to provide all the support for both parties. Layton agreed to execute a will leaving her entire estate to Posik and would maintain bank accounts and other investments in Posik’s name. The contract also provided that Posik would loan Layton $20,000 by a written note.
The contract provided that Posik could cease residing with Layton if Layton failed to provide support, if she requested in writing that Layton leave for any reason, if Layton brought a third party into the home for more than four weeks without her consent, or if Layton’s abuse, harassment, or abnormal behavior made her continued residence intolerable. In any such event, Layton agreed to pay Posik $2,500 per month for the remainder of her life as liquidated damages. Posik was 55 at the time the agreement was executed. Four years after the execution of the agreement, Layton told Posik that she wished to move in with another woman. Posik objected and Layton moved out and took up residence with the other woman. Layton served a three day eviction notice on Posik who then moved out and sued to enforce the terms of the agreement.
The court found that the $2,500 monthly payment provision was a penalty and therefore unenforceable. The court found waiver by Posik of a breach by Layton of the contract and a breach by Posik in that she failed to continue to perform housework. The court found that Posik was entitled to quantum meruit but that such an award was offset by the benefits Posik received by living with Layton. The court awarded Posik judgment on her note to Layton. Posik appealed.
ISSUE: Is a contract between consenting adults that mirrors a marriage agreement valid provided that the agreement does not rest upon illicit meretricious consideration?
RULE OF LAW: Yes. A contract between consenting adults that mirrors a marriage agreement is valid provided that the agreement does not rest upon illicit meretricious consideration.
HOLDING AND DECISION: The evidence clearly indicates that there were no written contracts or agreements between the parties governing their relationship. Although the parties undoubtedly expected a sexual relationship, the record shows that they contemplated much more. They contracted for a permanent sharing of and participating in one another’s lives. We find this contract enforceable.
We disagree that Posik breached the agreement because her conduct did not occur until Layton first breached the agreement. We also disagree that the $2,500 per month payment for life was a penalty. Damages were not readily ascertainable at the time the contract was created. The sum is reasonable under the circumstances of this case. It is less than what Posik was earning four years earlier when she entered into the agreement. Posik is now in her sixties and prospects for employment are greatly reduced. There are no allegations of fraud or overreaching against Posik and parties have the freedom to contract including the right to make a bad bargain.
Disposition: We affirm the award on the note and we reverse the portion that fails to enforce the agreement.
Concurring: These parties entered into a contract for support, which is something that they are legally capable of doing. Nothing in this contract agreement was for the delivery and payment of sexual relations between the parties.