Proof of Agreement Required in ‘Palimony’ Suit : Appeal Court Orders Retrial on Evidence of Couple’s Intent to Share Property

A state appellate court decision Tuesday made it more difficult for an unmarried partner to claim assets in a so-called “palimony” case.

Unmarried partners who once lived together and later claim a right to land acquired during the relationship must prove with clear and convincing evidence that the partners agreed to share equally, according to the 4th District Court of Appeal majority opinion.

The opinion was written by Justice Edward J. Wallin, joined by Justice Thomas F. Crosby Jr.

The court ordered a new trial in the case, focusing on whether Sam Finch should keep or split property in Arizona with Elaine Tannehill, with whom he lived for six years. An Orange County jury had been instructed erroneously to find for Tannehill if a preponderance of evidence was on her side, the appellate court ruled.

The decision “could have a considerable impact” on palimony lawsuits, said Robert E. Scott, Tannehill’s lawyer.

The decision applies specifically to claims to real property, primarily buildings or land.

“I would guess most palimony cases involve real property,” according to Scott, who said he is considering an appeal. “That’s usually where the bulk of a couple’s financial wherewithal is. In most cases, if there isn’t real property, there isn’t enough money to justify bringing a lawsuit.”

Jury Believed Woman

In dissent, Justice Sheila Prell Sonenshine recounted the evidence in the case, in which Finch denied Tannehill’s claim that the two had agreed to split all property accumulated during the relationship.

“Thus the jury had to choose one version over the other. It did! It believed Tannehill,” Sonenshine wrote. “And the record, no matter what the applicable burden of proof, supports that conclusion. I would affirm the judgment.”

Finch and Tannehill lived in a trailer park in Newport Beach between 1975 and 1981. They worked together, buying, renovating, reselling and renting trailers.

Tannehill, now a resident of Santa Ana, acted as a secretary and bookkeeper. She claimed Finch agreed to “live together as a family unit, combine their efforts, pool their earnings, share expenses and share equally in any and all property.”

Finch denied any such agreement and characterized Tannehill’s contribution as “homemaking” and “women’s work.”

The majority decision turned on the standard of proof--how much evidence Tannehill had to show to win her case.

“The normal standard of proof in a civil action is a preponderance of the evidence,” Scott said. “The much higher standard will make it much more difficult for plaintiffs (like Tannehill) to prevail.

“Sonenshine was right when she said the jury believed Tannehill,” Scott said. “Her testimony was more credible. That’s what it often boils down to in a situation like this.”