Courts did not, however, withdraw from legal regulation of engagements. Instead, the broader breach of promise action was restricted to legal adjudication of property transactions between the engaged couple. Within this narrower focus, legal issues continue to pivot on such questions as: Was this relation an engagement? What economic transactions belong to an engaged couple? And what rights does each of the parties have? While most American states today do not allow breach of promise suits (and few cases exist even when the plea is legally available), courts intervene regularly in formerly engaged couples’ property disputes (see Perovich 1972; Tomko 1996). Indeed, Philadelphia attorney Mark Momjian notes that during the 1990s family lawyers became increasingly involved in broken engagement cases, which “can be as litigious as those involving longterm marriages” (Momjian 1997: 1).
More specifically, current engagement law relies on a no-fault theory of conditional gifts. Twentieth-century American jurisprudence applied this doctrine precisely to distinguish engagement from other forms of relationships. In this theory, people undertake certain gifts and economic transactions on the expectation that marriage will result (Tomko 1996). The failure of a marriage to occur breaks the contract and poses the problem of restoring property acquired under that contract to its rightful owners. In principle, neither party bears the legal blame for an engagement’s termination, but courts must still decide what claims on joint or transferred property the ruptured contract entails. Whether an engagement terminates through mutual consent, the defection of one of the parties, or a death, the problem of adjudicating ownership of such property becomes acute. One engaged party, both engaged parties, or even third parties such as family members may have claims over the property remaining after a disrupted engagement.
Courts must therefore decide which sorts of transfers and joint acquisitions of property belong to the engagement as such, and which do not. Those that are contingent on marriage belong to the engagement contract, and differ from the rest. Courts thus commit themselves to identifying “gifts in contemplation of marriage.” But there lies the legal problem: How do engagement transfers differ from courtship transfers? And to what extent are joint purchases, joint savings, or jointly operated economic enterprises themselves part of the property attached to the engagement? Courts therefore have to resolve four related sets of issues: First, are the couple engaged or courting? Second, if engaged, what transfers and joint property belong to the engagement and which do not? Third, what rights do the parties in a broken engagement have to the property?
Finally, are the couple actually eligible for engagement? I will take up each of these questions in turn.
Are the couple engaged or courting? Legal manuals explicitly provide a rule that courtship refers to “the pre-engagement period, and it is deemed ended when the parties expressly or impliedly agree to marry” (Martin 1952: 582; see also Tomko 1996: 60). Engagement therefore typically begins with some public manifestation of the agreement to marry. Without such public manifestation, courts remain uncertain about the couple’s status until the parties supply further information about their behavior to each other or their declarations to third parties. A courting couple who have broken up have almost no legal rights with respect to property they have exchanged.
In a 1969 Louisiana case (Fortenberry v. Ellis, 217 So. 2d 792 (La Ct. App. 1969)), Earl C. Fortenberry was denied recovery of a Magnavox stereo-phonograph set he had given Barbara Ellis precisely because he could not prove that the couple had been engaged. Fortenberry purchased the $650 stereo on December 23, 1965, Ellis’s birthday. He testified that a month earlier the couple had become engaged, agreeing at that time to substitute the stereo for the conventional engagement ring as their official engagement gift. But Ellis, the defendant, countered that while she and Fortenberry had indeed dated for quite some time and shared two joint savings accounts, no engagement ever took place. The stereo therefore was not an engagement gift, but a combined birthday and Christmas present.
In an effort to prove his case, Fortenberry called on his mother, his sister, and his cousin to testify that he had informed them of the couple’s engagement. The three witnesses, however, failed to confirm the 1965 agreement to marry. Worse still, Fortenberry admitted under cross-examination that after the alleged engagement day, both he and Ellis had dated other partners and that he was the defendant in another woman’s paternity suit. He further acknowledged that he and Ellis had never announced their engagement publicly: there had been no party or newspaper release. Nor had the couple taken out a marriage license. On the basis of the evidence, the trial judge ruled that Fortenberry and Ellis had never been engaged. As a result, the stereo was not a gift in contemplation of marriage and therefore remained Ellis’s legitimate property. On January 6, 1969, an appellate court affirmed the initial ruling.
If the couple are engaged, which transfers and joint property correspond to the engagement, and which do not? Judges and lawyers commonly make the distinction between absolute and conditional gifts; the crucial difference being that conditional gifts are those that depend explicitly on a commitment to marry. Courts are actually adjudicating among three categories: first, property belonging to courtship but not part of an engagement (such as that in the Fortenberry v. Ellis case); second, property belonging to the engagement; and finally property exchanged during the engagement but not qualifying as conditional gifts. One legal commentator further differentiates the engagement gift economy. Besides the engagement ring, he identifies three other types: those “casual gifts such as affectionately disposed persons might be expected to give from time to time”; “gifts between engaged persons at Christmas and on holidays, all intended for the donee’s sole enjoyment”; and “gifts, or transfers having the form of gifts, intended in one way or another to promote the marital economy, such as household furnishings and homes” (Martin 1952: 601-2).
In an ironic way, courts thus become gift counselors. It is not always an easy task, since drawing boundaries around the different categories of gift transfers may turn into a contested legal struggle. Consider for instance, Philip I. Lewis’s and Rochelle Permut’s claims against each other (Lewis v. Permut, 320 N. Y.S.2d 408 (N. Y. Civ. Ct. 1971)). After their four-month engagement ended on February 17, 1970, Lewis went to court demanding recovery of the $1,350 diamond engagement ring; six other pieces of jewelry he had given Permut during their courtship; eight wedding gifts the couple received from Lewis’ parents, relatives, and friends; plus one-half of a joint savings account in which the couple had deposited savings and cash gifts. Permut in turn demanded that Lewis return a gold pocket watch and chain she had given him as an engagement gift, plus a Hitachi FM-AM stereo radio and receiver with two speakers that she had loaned him.
Despite New York’s no-fault rules, Judge Nat H. Hentel assigned responsibility for the couple’s breakup to Lewis, the plaintiff, and on that ground allowed Permut to keep the engagement ring. Nevertheless, for the remainder of the transfers and joint property, Judge Hentel relied on conditional gift doctrine quite consistently. He tried accordingly to discern which transfers and acquisitions of property the couple had made in expectation of their marriage. Thus, Permut was instructed to return her garnet-set gold wedding band to Lewis, since regardless of who had broken off the engagement “such a gift was predicated upon the parties entering into marriage.. .. The Court cannot see any logic in allowing the defendant to retain such unhappy souvenirs of an event which was never consummated” (410). She also had to return the contested wedding gifts.
But Permut was allowed to keep the other items of jewelry claimed by Lewis, as they were “delivered by plaintiff to defendant as gifts on her birthday or for other holiday or representative occasions” (410). Thus, these qualified as friendship, not engagement gifts. Using a similar rationale, the Court ruled that Lewis was not obliged to return the gold pocket watch and chain Permut had given him: “If defendant gave to plaintiff a gold watch and chain to express her happiness at her engagement and her love for and esteem of her fiance, it was a completed gift with no ‘strings attached’ ” (411). On the other hand, the court agreed that Lewis should return the Hitachi FM-AM stereo and receiver, because the transfer was not a gift, but a temporary loan. What’s more, the judge divided the couple’s joint savings bank account according to the sums deposited by each party. When it came to a $350 deposit for a bedroom set that had been paid by, and credited to, Lewis’ parents, the judge turned down, for lack of evidence, Permut’s claim that she had contributed $175 for the deposit.
What property rights do couples have after a broken engagement? As Judge Hentel’s complex allocation of resources in the Lewis v. Permut case indicates, courts are not merely organizing equitable distribution of property but deciding item by item what rights and obligations are in play. The most obvious and common cases concern the ultimate conditional gift, the engagement ring. The issue figures clearly in the case of Mclntire v. Raukhorst (585 N. E.2d 456 (Ohio Ct. App. 1989)). The couple began dating in October 1986. In January 1988, after Teresa Raukhorst accepted his marriage proposal, Craig McIntire gave her a $440 diamond solitaire ring. The bride- to-be chose her wedding dress and put down a deposit on a hall for the wedding reception, in addition to other expenses in preparation for their marriage. About a month after his proposal, McIntire terminated the engagement and requested the ring back. When Rauk — horst refused, he went to court, then appealed the first decision allowing Raukhorst to keep her ring. An appellate court reversed that initial decision, declaring that regardless of who breaks the engagement, “the gift of an engagement ring, given in contemplation of marriage, is a conditional gift which, absent an agreement to the contrary, must be returned to the donor if the condition of marriage is not fulfilled” (467). The disappointed bride-to-be lost twice: not only her engagement ring but also the money she had spent in preparation for her wedding.11
Brides to be, however, do not always lose. In a 2003 case pitting Virginia DeFina as plaintiff against Stephen Scott as defendant (DeFina v. Scott, 755 N. Y.S.2d 587 (N. Y. Sup. Ct. 2003)), a court awarded substantial damages in compensation for the money DeFina had spent in preparation for her wedding to Scott. DeFina, a nurse practitioner, and Scott, a twice-divorced attorney, became engaged in 2000. The couple registered at luxury stores and planned a wedding at St. Patrick’s Cathedral and a reception at the United Nations Plaza Hotel. Scott purchased an expensive engagement ring at Tiffany’s for DeFina. The couple agreed that DeFina would pay for all wedding-related expenses. For his part, Scott transferred to DeFina one-half interest in his condominium apartment. In March 2001, the couple split up “in a flurry of heated actions” (589), and by April they went to court. At issue were not only wedding expenses, but also the engagement ring, the apartment, and third-party gifts. [28]
Although DeFina claimed that the ring had been a Valentine’s Day gift, the court ruled that, since it remained covered by Scott’s homeowner’s policy, it remained his property. But because the ring had vanished from DeFina’s lower Manhattan apartment soon after September 11, 2001, Scott was instead able to keep insurance proceeds that covered the loss. When it came to the apartment, however, the court rejected Scott’s claim that DeFina return her halfinterest. Instead, the court, citing DeFina’s almost $16,000 prewedding expenses (which included half the cost of Scott’s bachelor party), granted her a lien on the condominium, leaving title to Scott. Scott was also ordered to compensate DeFina for the five engagement gifts he had kept, despite the couple’s agreement that all gifts should be returned to their respective donors. Judge Diane A. Lebe — deff said of the case:
The distinguishing feature of this case—that both parties were well-established professional adults who embarked upon preparations for a formal wedding paid for from their own funds, primarily acting upon clear plans regarding their engagement and the establishment of their eventual economic union—calls for application of contract-based theories to the maximum extent possible, a legally novel approach, but one particularly suited to couples of this type and to contemporary society. (588-89)
Once again, property rights depended simultaneously on a definition of the couple’s relationship and on the legal interpretation of the contract attached to that relationship.
Are the couple actually eligible for engagement? In the cases considered so far, both parties had the legal right to contract an engagement. However, several impediments can exist to that right—notably, fraud, present marriage by either party, or the condition of one or both parties being underage (Tomko 1996). In any of these cases, the usual transactions that an engaged couple can legally undertake become invalid. Consider the case of Guy A. Armitage against Ann Tracy Hogan (Armitage v. Hogan, 171 P.2d 830 (Wash. 1946); see also Martin 1952: 595). In 1942, Armitage, a traveling shoe salesman in his early fifties, and Hogan, a known prostitute, met in Seattle during one of his business trips. She recalled the encounter as follows: “Well, I was walking on Pike Street, and I ran into him, and I spoke to him… . And he said he was lonesome and invited me to come to the hotel, and I went, and he paid me for my entertainment, and I stayed, and I got ready to leave. He didn’t want me to go, so I remained overnight, and he give me money” (833).
Their meetings continued each time Armitage traveled to Seattle; he regularly gave her expensive presents, such as a fur coat and money, including $500 to buy a massage parlor and $375 to aid her sick sister. Several times, he gave her $200 to $300 when she asked for cash. In July 1944, Armitage allegedly proposed marriage to Hogan, although no definitive time was set for the ceremony. He then put down $2,500 as down payment for the purchase of a hotel Hogan was to operate. In September of that year, Armitage gave Hogan a $2,000 diamond ring. Two months later, Hogan married Joe Ennette, a “colored man.”
Armitage went to court claiming that Hogan had broken her agreement to marry him and therefore should return the diamond ring—or its cash equivalent—and the down payment for the hotel. Both gifts, he argued, were given in consideration of their intended marriage. He expected no compensation for his earlier courtship gifts. He declared that Hogan “always presented herself in a ladylike manner, and that he had no idea she was a prostitute.” She had therefore defrauded Armitage of his money, intending all along to marry Ennette, not him. When asked, “Was there any reason why you should give her this money and these gifts than what you have already testified?” Armitage responded, “No, nothing other than the marriage agreement which was inducement for me to make these loans and gifts” (833, 835-36). If Armitage’s story was correct and if Hogan had fraudulently agreed to marry him without any intention of doing so, the gifts were indeed conditional on their marriage. He was therefore entitled to recover those expenses.
But Hogan denied Armitage’s claims. She testified that “from the first time she entertained him at his hotel” (833), Armitage was aware of her occupation. He had never proposed. His gifts therefore were offered only in exchange for her affections. For instance, when it came to the hotel down payment, Hogan recounted, “He said, ‘Well what will you do for me if I pay this other $2,500?’ I said, ‘I would be nice to you like I have always been. Haven’t I been nice?’ Shortly afterwards I received a letter after he left telling how nice I had been with him” (834). As for the engagement ring, Hogan testified as follows:
That morning we were lying in bed in the Drexel Hotel, and I told him, “Let’s get up early,” and wanted him to go and buy me something. So we went to Dootson’s for breakfast. .. [and went] to the jewelry store. I said, “Here it is, ” and so we asked to show the ring I had looked at, and they showed it. .. . He bought it. . . and [we] were waiting for the red light at Fifth and Pike. He said, “I should have waited a little while and bought this for your Christmas gift.” I said, “That’s fine. We’ll call it a Christmas gift anyway.” He said, “Would you?” and I said, “Yes.” (835)
Asked if “there was any talk about being an engagement ring at any time,” Hogan declared, “Never” (835).
In October 1945, the court dismissed Armitage’s suit; the following year, the Supreme Court of Washington affirmed that judgment. There had been, both courts agreed, no valid agreement to marry between the parties. Two features of the situation wrecked Armitage’s claims; first the court established that Hogan was a known prostitute and concluded that Armitage must have been aware of this. In fact the court stated:
[W]e are convinced that appellant was induced to give respondent the presents which he did, and to furnish her the money for financing the hotel deal, by his desire to have the illegal and immoral association with respondent continued; that he never asked for or expected a return of the ring or money, but the only payment appellant ever expected to receive from respondent was the pleasure he apparently enjoyed and expected to enjoy from such association. (836)
The court’s second finding was even more devastating. It turned out that Armitage was still married to another woman. He and his wife had separated some years before, but Armitage had taken no legal steps toward divorcing her. Armitage and Hogan were thus doubly ineligible to marry. The doctrine of conditional gift could not possibly apply to any of Armitage’s generosity toward Hogan. All his gifts were hers to keep (see also Martin 1952: 595).
Jeffers, one of the appellate judges, spoke emphatically:
As I have listened to this testimony now for more than two days, I am satisfied that this is a case solely of a scheming woman who is engaged in prostitution.. . having met the plaintiff and peddled her wares, and apparently Mr. Armitage, a married man, became infatuated with her and gave her considerable money over a period of several years. To put it in the vernacular,
I am satisfied that he was just a plain sucker, and that she played him for all that he was worth. .. . [W]hile I regret that she is permitted to retain these funds, I must conclude that the funds were given to her. (836)
In essence, the judge reluctantly decided that Armitage was simply paying a very high price for sexual services. Hostile worlds had clashed once more.
Here again, the outcome of the case depended first of all on the court’s assessment of the relationship between the parties. Under other circumstances, exactly the same transactions would have led to recovery by Armitage. Despite what happened in the Armitage v. Hogan case, generally speaking, courts treat engagement rings as quintessential conditional gifts, returnable to the donor almost regardless of the circumstances that ended the engagement. In contrast, wedding rings fall under a different regime, since courts do not require their return after a divorce, even in the case of a shortlived marriage (Tushnet 1998: 2603).