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Appeals Court Says a Promise to Marry is Enforceable

Georgia Court of Appeals rejects man's defense that couple was living in sin when he gave girlfriend a $10K ring

, Daily Report

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Judge Elizabeth Branch wrote the majority opinion in case over breakup.
Judge Elizabeth Branch wrote the majority opinion in case over breakup.

The breakup of a longtime couple who never married has divided judges of the state Court of Appeals, setting up a possible Georgia Supreme Court case.

The short version of the saga is that Christopher Ned Kelley gave his live-in girlfriend, Melissa Cooper, a $10,000 ring, but the two never legally tied the knot. After an affair by Kelley led to a split, Cooper persuaded a Coweta Circuit judge to award her $43,500, plus attorney fees, based on claims of broken promises and fraud.

Kelley appealed the award, saying any promise he made to marry Cooper wasn't enforceable because it was part of a meretricious relationship—a legal euphemism for unmarried people in a sexual relationship living together. In a Nov. 22 decision, the appeals court rejected that defense and, by a vote of 5-2, upheld the verdict. None of the judges protested the majority opinion's conclusion that Kelley couldn't assert a meretricious relationship defense to Cooper's claim for breach of promise to marry, but the majority's decision to affirm the ruling for Cooper on her fraud claim, as well as the monetary award, drew a dissent from two judges.

Cooper's attorney, Jason Smith of Newnan, said last month's decision was interesting because it recognized a claim for breach of contract to marry. He said prior appellate rulings had recognized that such a claim could be made in Georgia in theory but most of them had gone against the person making the claim based on the specific facts of the case. He said Cooper was able to succeed because she showed that the couple's agreement to marry wasn't based on sex but on things like who would contribute what to the household. "I'm glad that Georgia still recognizes breach of contract to marry," said Smith.

Newnan lawyer S. Mark Mitchell, who represents Kelley, said his client hadn't decided whether to appeal. He said the judges' disagreement seemed to be primarily over how to apply the law to the facts of the case, rather than what the law is. "Typically, you think about fraud being an issue between business partners ... as opposed to two people who are living together in a relationship," said Mitchell.

According to the majority opinion by Judge Elizabeth Branch, Kelley and Cooper had been living together since at least 2000 and had one child together when, in December 2004, Kelley gave Cooper a ring and she accepted his marriage proposal. Kelley works in information technology, said Smith, and Cooper was a "well compensated" administrative assistant.

According to Smith, the couple built a new home in an upscale area of Newnan. There's evidence that Cooper left her job at Kelley's request in order to stay home and raise their child and her child from a prior relationship, according to the court opinion. After the proposal, according to the court opinion, Cooper discovered that Kelley had been in a two-year relationship with another woman that continued after he proposed. Cooper confronted Kelley, and she agreed to stay with him based on his pledges to marry her and not to see the other woman again. But, said the court's opinion, the couple still hadn't married by the spring of 2011, and, when confronted about a relationship with yet another woman, Kelley told Cooper that he wanted to be with that woman and that Cooper and the children should move out.

Cooper sued Kelley, alleging claims to establish his paternity of their child, child support and equitable division of their property. A mediation resolved some of those issues. According to Smith, Cooper has primary physical custody of the child, and Kelley pays child support. Cooper amended her complaint, however, to assert claims for implied/constructive trust, breach of a contract to marry, unjust enrichment and fraud.

After a bench trial, Coweta Circuit Superior Court Judge Jack Kirby found in favor of Cooper on her claims of breach of promise to marry and fraud. He awarded her $43,500, plus $6,500 in attorney fees. According to Smith, $43,500 represented half of the equity in the house the couple had shared.

Kelley's appeal was assigned to Branch, Chief Judge Herbert Phipps and Judge John Ellington. Because those judges couldn't agree on the outcome of the case, Judges Anne Elizabeth Barnes, Gary Andrews, M. Yvette Miller and William Ray II were brought in per the court's rules for when a three-judge cannot reach a unanimous decision.

What's being said

  • steve134

    In NY, the BRINGING of such an action is a misdemeanor!

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