Intimacy in Law
^Ve return to Louisiana more than a century later. In 1958, supermarket entrepreneur John G. Schwegmann Jr. began dating, and bedding, sixteen-year-old Mary Ann Blackledge. They continued to have sexual relations when they started living together in May 1966. At that point, according to Blackledge, the middle-aged, twice divorced Schwegmann offered to “share everything” with her, and she said “okay.” They cohabited for twelve years, until May 1978. During that time, they continued to share bed and board. Schwegmann supported Blackledge, paying her dental and medical bills, clothing, entertainment, and travel expenses, as well as providing her with a monthly allowance check. Meanwhile, she served as his companion, housekeeper, cook, and chauffeur. She also cared for Schwegmann’s daughter Melba Margaret, and for Schwegmann himself after he had a stroke. Blackledge further collaborated as business adviser, political assistant, and confidante to Schwegmann and the corporations he controlled; for example, she helped compose newspaper ads and offered investment advice. Although Blackledge moved out in 1978, their sexual relations continued thereafter when she visited Schwegmann at his house. So did his monthly allowance checks. According to Blackledge, “John and I made all the commitments and agreements to each other that anyone would take when they got married,” including sexual fidelity.
Once again, we know about this couple’s history because it later came to trial. Blackledge sued Schwegmann, his two children, and his corporate holdings for substantial compensation beyond the monthly check she had been receiving (Schwegmann v. Schwegmann, 441 So. 2d 316 (La. Ct. App. 19833)). In her suit, Blackledge alleged multiple breaches of contract—of an explicit oral agreement to split the returns from their efforts evenly, an implicit agreement to compensate her for multiple contributions to the relationship, and de facto establishment of a universal partnership, giving her claim to all of Schwegmann’s property.
Both the trial court and the court of appeals emphatically rejected all of Blackledge’s claims but one: compensation for her services to Schwegmann’s businesses. Unlike husbands and wives, concubines and their paramours, declared both courts, have no rights in each other’s property. As the appeals court noted, “The law could scarce be plainer: a sharing of bed and table, for a night or for a lifetime, does not by itself constitute marriage” (323). Nor could Blackledge collect for her domestic services, as they were “inextricably interwoven with sexual services” (324), and therefore part of unlawful concubinage. Faced with Blackledge’s claims that in this modern age, her relationship to Schwegmann should establish the same rights as a legally certified marriage, the court replied, “To equate the non-marital relationship of concubinage to a marital relationship is to do violence to the very structure of our civilized society” (326). Louisiana courts still justified judgments by their contribution to the defense of civilization. Yet both courts allowed compensation for Blackledge’s business services to the defendants, including Schwegmann. As long as “the commercial enterprise is independent of the illegal cohabitation,” the appeals court stated, “each party may assert his rights in the common endeavor” (325). In their view, Mary Ann Blackledge’s previously uncompensated business ties to the defendants were distinct from the concubinage relationship to Schwegmann.
The Blackledge-Schwegmann dispute sets the problem for this chapter: how does American law deal with intersections between intimacy and economic transactions? How do legislators, lawyers, judges, juries, and legal scholars create or transform the doctrines, distinctions, and practices that apply when participants in routine (or, for that matter, not so routine) social relations bring their disputes to court? In what ways does the law’s relational work differ from that of everyday practice? The chapter documents the presence of separate spheres and hostile worlds arguments in the law and then examines how legal doctrine and practice treat the intersection of intimate relations and economic transactions. From then, it moves on to contest and change over these legal practices, using the doctrines of coverture and consortium as prime examples. Its final sections deal with competing legal theories, including feminist theories, concerning the proper relationship between intimacy and economic transactions.
Warning: this book is not a guide to American law concerning intimate relations. Lawyers, judges, juries, and legal scholars usually get involved in such cases in one of two ways. In the first version, a dispute between two parties to an intimate relation generates legal proceedings, and legal specialists search for applicable statutes, principles, and precedents. In the second version, advocates of a change in existing law affecting intimate relations argue for the application of some legal principle to a certain body of cases, actual or potential. This book, however, steps back to look at similarities and differences between the ways that ordinary people manage the mingling of economic activity with intimate relations and how the legal system approaches the same sorts of intersections between intimacy and economic activity. I have chosen cases not to survey all legal principles that bear somehow on intimacy, much less to survey a representative sample of all such cases that come before the courts, but instead to clarify similarities and differences between everyday practices and legal contests over those practices.
Courts perform a distinctive variety of relational work. They adopt a fascinating procedure in dealing with intimate relations and economic transactions, calling up a matrix of possible relationships (in this case, concubine-paramour, husband-wife, and business partners) and implicitly distinguishing these relations from others, such as prostitute-customer, professional-client, friend-friend, or brother-sister. They then match economic transactions and ties connecting the pair under examination to that matrix. Indeed, they match different transactions to different sets of ties within the matrix. As participant in concubine-paramour relations, the court found Blackledge had already received the economic benefits of cohabitation. As Schwegmann’s business partner, however, she was entitled to more compensation than she had yet received. The court drew on standard doctrines of marital obligations and contract in reaching these decisions.
In their reasoning, courts strongly invoke separate spheres and hostile worlds arguments. They claim to protect the sacredness of marriage both against illicit sexual relationships and against the intrusion of improper economic considerations. Essentially, courts defend the principle that business should not mix with pleasure, since contamination runs in both directions. Concubinage as well as marriage provide their own rewards and should not be treated as ordinary business transactions, whereas business equally needs defense from sexually tinged sentiment. The courts’ hostile worlds reasoning does not simply draw a sanitary perimeter around the sacred zone of traditional marriage. Instead, it distinguishes a range ofinti – mate relations from each other.
For a surprising variation on the same theme, consider the 1980 suit by Leonard Wilson Trimmer against Catherine Bryer Van Bomel (Trimmer v. Van Bomel, 434 N. Y.S.2d 82 (N. Y. Sup. Ct. 1980)). When Trimmer was a fifty-five-year-old travel operator, he met Van Bomel on one of his tours. She was a sixty-three-year old widow with assets of some $40 million. Trimmer left his $8,900-a – year job to become her full-time companion. With her subsidy, his life was transformed: “He moved to larger quarters and modified his wardrobe to suit her tastes. He accompanied her to lunch and dinner, escorted her to the theatre and parties, and traveled with her on her trips to Europe. .. . He also acted as her confidante, and her friends became his friends” (83) Over the next five years, Mrs. Van Bomel spent an estimated $300,000 on Trimmer’s personal expenses. Her payments covered not only rent and travel expenses, but Italian and British handmade suits, two Pontiacs and
a Jaguar, plus jewelry and a monthly stipend. They never became sexual partners.
When the relationship ended, so did Trimmer’s perks. In a case that dragged through New York courts for eight years, Trimmer sued Van Bomel, demanding $1.5 million compensation for his past services as her companion and escort, and for violation of an oral agreement that Van Bomel would take care of “costs and expenses for sumptuous living and maintenance for the remainder of his life” (83). The New York County Supreme Court judge rejected Trimmer’s claims for what the judge dubbed “companiomony.” The judge had to work hard in matching this unusual relationship to the standard matrix. He said explicitly, for example, that since no sexual relationship was involved, “at best the plaintiff may be regarded as a companion and paid escort, and not as a substitute mate” (84). Surely Trimmer and Van Bomel’s ties were not marital, nor were they paramour-concubine, or just ordinary friends. Was it perhaps a routine employer-employee relationship, or a peculiar form of unmarried cohabitation? With apparent discomfort, the judge’s answer was some of each, but not enough to establish claims to further compensation.
Edward J. Greenfield, the judge in question, began his opinion on the case in a philosophical mood, reflecting that “The complex and varied relationships between men and women, when they come to an end, oft leave a bitter residue and a smoldering irritation for which the salve, often the only soothing balm, is cash. It is a poor substitute for love, affection or attention, but for many its satisfactions are longer lasting” (83). But soon Justice Greenfield reverted to the tried-and-true principles of hostile worlds, declaring:
The claims of friendship, like the claims of kinship, may be many and varied. To imply an obligation by a wealthy friend to compensate a less wealthy companion for being together, dining together, talking together and accepting tokens of regard stretches the bond of friendship to the breaking point. The implied obligation to compensate arises from those things which, in normal society, we expect to pay for. An obligation to pay
for friendship is not ordinarily to be implied—it is too crass.
Friendship, like virtue, must be its own reward. (85-86)
By this reasoning, the court separated the anomalous relationship
at hand from true friendship.
Note the parallels between the two decisions, Schwegmann v. Schwegmann, and Trimmer v. Van Bomel. Despite differences between Louisiana’s civil law and the common law of New York, as well as striking contrasts in relations between the parties, interpretive principles in the two cases greatly resemble each other. Both courts voice vehement separate spheres rhetoric distinguishing intimate relations from economic transactions. Mary Ann Blackledge could collect for business services, not personal attention; Leonard Trimmer’s contributions were deemed exclusively sentimental, and therefore not compensable.
If we take a closer look at these legal proceedings, however, we observe both the people involved and the judicial authorities constructing roads across the boundaries of intimacies and economic transactions. The Louisiana court acknowledged that Schwegmann paid Blackledge a monthly allowance check in addition to subsidizing her living and entertainment expenses. The New York court, while declaring Trimmer’s relationship to Van Bomel sentimental in the eyes of the law, explicitly recognized the transfer of $300,000 in cash and kind from defendant to plaintiff. Thus, in practice, people and courts do not segregate spheres of intimacy and economic transactions but engage in a complex process of matching certain forms of intimacy to particular types of economic transactions. They discriminate sharply between appropriate and inappropriate matchings.