Dade v. Anderson

439 S.E.2d 353, 247 Va. 3, 10 Va. Law Rep. 695, 1994 Va. LEXIS 6

• Court: Supreme Court of Virginia
• Decided: January 7, 1994
• Docket: Record 930025
• Status: Published

Opinions

CHIEF JUSTICE CARRICO

delivered the opinion of the Court.

In Alexander v. Kuykendall, 192 Va. 8, 63 S.E.2d 746 (1951), this Court held that one spouse may not recover in implied contract for services rendered to the other.¹ We are asked in the present case to overrule Alexander and allow the plaintiff, June A. Dade, to recover from the estate of her deceased husband, Thomas Gwendol Dade, for services she rendered to him during a period of illness. We decline the request and affirm the dismissal of the plaintiff’s claim.

The plaintiff asserted her claim in a motion for declaratory judgment filed on June 16, 1992, against John W. Anderson, the administrator of her husband’s estate. On July 1, 1992, Zina M. Rambo, Gwendolyn E. Barnes, and Thomasine C. Dade, children of Thomas Dade by a previous marriage, filed a petition to intervene as defendants in the declaratory judgment proceeding.

The children alleged in their petition that Thomas Dade had died intestate on April 22,1991, and that they were entitled to two-thirds of his estate and, hence, were necessary parties to the proceeding. The petition was granted without objection, and the children (hereinafter, the defendants) demurred to the plaintiff’s motion for declaratory judgment.

The plaintiff was granted leave to file an amended motion for declaratory judgment, and the defendants’ demurrer was treated as having been addressed to the amended motion. After argument, the trial court sustained the demurrer and dismissed the amended motion.

Because the amended motion was dismissed on demurrer, we take as true those facts which are “ ‘expressly alleged, those which fairly can be viewed as impliedly alleged, and those which may be fairly and justly inferred from the facts alleged.’ ” CaterCorp, Inc. v. Catering Concepts, Inc., 246 Va. 22, 24, 431 S.E.2d 277, 279 (1993) (quoting Rosillo v. Winters, 235 Va. 268, 270, 367 S.E.2d 717, 717 (1988)).

According to the allegations of the amended motion for judgment, Thomas Dade was rendered encephalopathic on March 25, 1989, as a result of anoxic brain damage suffered while in the care of Richmond Memorial Hospital. Between the date of Dade’s injury and November 4, 1990, with the exception of those days during which he was a hospital inpatient, the plaintiff provided Dade with “healthcare services necessary for his benefit, welfare, and comfort.” These services “were not such as would be required to be provided by an incapacitated person’s spouse as a result of the marital relationship per se” and were “in lieu of provision of same by healthcare professionals.” Had these services been provided by healthcare professionals, the services would have had a value of $69,480.

On January 7, 1991, Richmond Memorial Hospital agreed to pay Thomas Dade $800,000 in full and complete settlement of his claims. The agreed amount was paid with court approval. “The services provided by the plaintiff and the value thereof was a factor in determining the amount of settlement.” There are sufficient funds in the estate to pay for the services rendered by the plaintiff.

On appeal, the plaintiff points out that in Browning v. Browning, 2 Va. Dec. 710, 36 S.E. 108 (1899), modified on reh’g, 2 Va. Dec. 714, 36 S.E. 525 (1900), this Court recognized the right of a husband to be compensated under an implied contract for services rendered on a farm owned by the wife. The plaintiff acknowledges, however, that under our later decision in Alexander, supra, services rendered by one spouse to the other are “presumptively gratuitous and to uphold [implied] contracts would violate public policy.”

The plaintiff argues that during the forty-two years since Alexander was decided, “there has been a major evolution of public policy as to the marital relationship.” She lists the abolition of the defense of interspousal immunity in tort (Code § 8.01-220.1), the recognition of marital rape as a criminal offense (Code § 18.2-61), and the introduction of equitable distribution into domestic relations law (Code § 20-107.3) as “examples of the changes in the law concerning the relationship of husbands and wives.” Notably absent from the list, however, is any statutory enactment indicating a change in public policy concerning payment for services rendered by one spouse to the other.

The plaintiff argues further that “[a]s the common law has evolved in the area of implied contracts, it now seems clear that . . . there may be implied contracts for services beyond the scope of those demanded by the marital relationship.” For this proposition, the only Virginia authority the plaintiff cites is Warren Trucking Co. v. Chandler, 221 Va. 1108, 1115, 277 S.E.2d 488, 493 (1981). There, the plaintiff says, this Court adopted the so-called ‘“modem rule,’” which, according to the plaintiff, “recognizes that there are services rendered [by a wife to her husband] beyond the scope of ‘normal household duties’ [for which] she is entitled to be compensated.” The plaintiff opines that while Warren involved a claim against an employer in a worker’s compensation case, “the same rule by correlation must apply to services rendered to a spouse for which a tortfeasor would be liable.”

We disagree with the plaintiff about the Warren decision’s effect on the outcome of this case. The issue in Warren was not whether the wife was entitled to recover the value of nursing care from her husband on implied contract but, rather, whether the husband could recover such value from his employer under Code § 65.1-88, part of the Workmen’s Compensation Act (now § 65.2-603 of the Workers’ Compensation Act), which required an employer to furnish an injured employee “necessary medical attention ... as the nature of the injury may require.”

We said that nursing care given an injured employee at home by a spouse is allowable under Code § 65.1-88 provided the employee proves, inter alia, that the care is of the type “usually rendered only by trained attendants and beyond the scope of normal household duties.” 221 Va. at 1116, 277 S.E.2d at 493. The services rendered by the wife consisted of moderate nursing care at home, including “bathing, shaving, feeding, assistance in walking, help with braces, aid upon falling, driving and administering routine medication.” Id. at 1118, 277 S.E.2d at 494. Finding that the care rendered by the wife “was not beyond the scope of normal household duties” and that none of the duties was “of the type usually rendered only by trained attendants,” id., we reversed the award of compensation to the employee and dismissed his application.

Because the claim for compensation in Warren was based strictly upon statute, the case is not authority for the proposition that the law on implied contracts has evolved from the time Alexander was decided to the point that one spouse may now recover from the other for services rendered, whether the services are within or beyond the scope of normal household duties. We think that Alexander correctly states the law of Virginia as prohibiting such recovery in the absence of an express agreement and that if a different rule is desired, it should be left to the General Assembly to effect the change.

The plaintiff contends, however, that because the value of her services was included in the settlement her husband received, it would constitute unjust enrichment of his estate to disallow her claim. She argues that “[w]henever services are rendered and received, a contract of hiring or an obligation to pay compensation will generally be presumed unless the services are rendered between near relatives in which case the services are presumed to be gratuitous.”

The plaintiff asserts that “[t]his presumption may be overcome by clear proof of circumstances from which payment is necessarily implied.” She says she stands ready to supply the clear proof under the allegations of her amended motion for declaratory judgment that she rendered healthcare services to her husband, that the value of the services was a factor in determining the amount of the settlement for his injuries, and that he received payment for the services in the $800,000 he collected from the tortfeasor.

Concluding, the plaintiff opines that

[i]f a spouse receives money for the value of the services provided by his spouse, it would be an unjust enrichment for him to be allowed to keep those funds in derogation of her claim. He cannot claim on the one hand that the wife’s services are a medical expense . . . and then on the other argue that they are not an expense but gratuitous acts.

But, in Alexander, we rejected the theory of unjust enrichment as a basis for implying a contract between husband and wife for services rendered by one to the other. In the course of our opinion, we noted that in some jurisdictions, a woman who has been induced by fraud to marry a man may recover upon an implied contract for the value of services rendered to him on the theory that he “has been enriched at her expense, and that equity demands she shall be made whole, — that is, that he should reimburse her for the actual money value of the services to him.” 192 Va. at 10, 63 S.E.2d at 747.

Concerning the decisions finding an implied contract based upon the theory of unjust enrichment, we said that “[t]he reasoning in these cases appears to us to be unsound.” Id. Continuing, we stated:

The authorities which allow a recovery on the theory of implied contract seem to us to place the marriage relation on too much of a commercial basis, and to treat the marital relation as any other business association, whereby each expects to obtain material advantage from the marriage. This is not, in our opinion, the true concept of the relation.

Id. at 11, 63 S.E.2d at 747.

This brings us to the plaintiff’s final contention, viz., that the trial court erred in refusing to allow her to amend her amended motion for declaratory judgment. The plaintiff’s entire argument on this subject is as follows:

If by proper amendment plaintiff can state a case upon the facts entitling her to maintain an action at law, the opportunity to make such an amendment should be afforded.

The difficulty with this argument is that it overlooks the fact the plaintiff did not tender to the trial court a second amended motion for declaratory judgment or otherwise proffer what she would have alleged had she been allowed to amend. “As the record fails to show what amendments plaintiff sought to make,... we cannot determine whether the trial court abused its discretion in refusing plaintiff’s [motion] for leave to amend [her] motion for [declaratory] judgment.” Niese v. Klos, 216 Va. 701, 705, 222 S.E.2d 798, 801 (1976).²

For the reasons assigned, the judgment of the trial court will be affirmed.

Affirmed.

1 In Alexander, the plaintiff was induced by false representations to marry the defendant, and she lived with him until she discovered the fraud. She then filed an action for damages sounding in both implied contract and fraud and deceit. The trial court sustained the defendant’s demurrer and dismissed the plaintiff’s action. This Court ruled that while the plaintiff could not recover in implied contract for the reasonable value of the services she had rendered to the defendant during the time she believed they were married, 192 Va. at 10-11, 63 S.E.2d at 747, she could recover in fraud and deceit for the damages she had suffered, id. at 14,63 S.E.2d at 749.

2 In response to a question from the bench during oral argument, counsel for the plaintiff stated that the “facts” the plaintiff would have alleged had site been granted leave to amend could be found in “a very lengthy objection [that was typed on] the order sustaining the demurrer.” However, the objection contains no allegations of fact, only argument, and, in any event, does not qualify as the tender of a second amended motion for declaratory judgment or a proffer of what the plaintiff would have alleged had she been allowed to amend.