IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
APPELLANT / CROSSAPPELLEE
DATE OF JUDGMENT:
COURT FROM WHICH APPEALED:
ATTORNEYS FOR APPELLANT:
ATTORNEYS FOR APPELLEE:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
APPELLEE / CROSSAPPELLANT
HON. PERCY L. LYNCHARD JR.
TATE COUNTY CHANCERY COURT
JONATHAN S. MASTERS
ROBERT M. STEPHENSON
JOHN THOMAS LAMAR JR.
DAVID MARK SLOCUM JR.
CIVIL - OTHER
DENIED APPELLEE / CROSSAPPELLANT’S REQUEST FOR
CONSTRUCTIVE AND/OR RESULTING
TRUST; AWARDED APPELLEE/CROSSAPPELLANT $44,995 IN PAYMENT FOR
AFFIRMED IN PART; REVERSED AND
RENDERED IN PART - 04/17/2012
MOTION FOR REHEARING FILED:
BEFORE IRVING, P.J., MAXWELL AND RUSSELL, JJ.
MAXWELL, J., FOR THE COURT:
Mona Cates and Elizabeth Swain were involved in an intimate relationship with one
another and cohabited for over five years in three different states. After Swain moved out
of Cates’s Tate County, Mississippi, home, Swain sued Cates seeking various equitable
We affirm the chancellor’s denial of Swain’s claim that, based on their living
arrangement, Swain was entitled to an interest in Cates’s house through a constructive and/or
resulting trust. But we hold the chancellor exceeded his discretion in finding Cates had been
unjustly enriched by Swain’s financial contributions during their cohabitation. An action for
unjust enrichment is based on an implied contract. And the Mississippi Supreme Court has
refused to circumvent the Mississippi Legislature’s abolishment of common law marriage
by extending implied contractual remedies to unmarried cohabitants. Similarly, this court
is restrained from delving into policy issues of this nature and extending implied contractual
remedies to unmarried cohabitants, whether opposite-sex or same-sex, when there is no
express agreement for remuneration beyond cohabitation. We, therefore, reverse the $44,995
unjust-enrichment award and render judgment in Cates’s favor.
FACTS AND PROCEDURAL HISTORY
Cates is a commercial pilot, and Swain, until her 2005 retirement, was a meteorologist
and oceanographer for the Navy. In 2000, while living in separate states, they met online
through a website for people seeking same-sex partners. Swain stated in her profile that she
was single. But Cates later learned Swain was married and her estranged husband lived in
another state. At trial, Swain admitted her marital status entitled her husband to coverage
under her medical insurance policy. By being married, Swain also benefitted by claiming
a greater housing allowance from the Navy. Swain did not divorce her husband until after
she retired and ended her relationship with Cates.
At the end of 2000, Swain transferred to Pensacola, Florida. Swain bought a house
in Pensacola and titled it in her name solely, though she was required to list her husband on
her mortgage. Cates provided $2,500 in earnest money. And Swain paid the mortgage,
significantly paying down the principal. Cates lived with Swain and traveled for work. Both
women made improvements to the home. They opened a joint checking account, but Swain
testified only Cates made financial contributions. Cates also paid $11,000 to trade in Swain’s
Toyota SUV for a Mercedes. They also purchased other vehicles jointly titled in both of
When asked at trial why they set up joint accounts, Swain testified because “we
trusted each other. We had a mutual relationship that we were investing together in.” After
the September 11, 2001 terrorist attacks, Cates set up an E-trade investment account in both
of their names as a joint tenancy with right of survivorship. Cates testified she was
concerned as a commercial pilot that something might happen to her and wanted Swain to
have access to the money.
In 2003, Swain transferred to Seattle, Washington. She sold the Florida home and
received approximately $32,000 in equity.
Cates, who flew to Seattle for work, moved to Washington with Swain. Cates
purchased a home in Washington for approximately $200,000. Swain gave Cates a check
for $34,000 representing the equity from the Florida home plus additional money from their
joint Florida account. Cates testified this was a loan repayment for the more than $34,000
Cates had given Swain during their time in Florida—an assertion the chancellor found
unsupported. Cates purchased the house in her name only. Swain testified she did not want
her name on the title because she was still married and “wasn’t going to take that chance.”
Swain lived in the Washington home without paying rent or mortgage payments but testified
she made various improvements to the house. After two years, Cates sold the Washington
house for $300,000.
In 2005, the two returned to Cates’s native Mississippi where Cates purchased a home
in Tate County for $350,000. While Cates involved Swain in selecting a home, Cates bought
the house in her name only. But Swain provided a check for $5,000, with “closing costs”
written in the memo line. Swain also paid $4,449 to carpet the home.
After moving to Mississippi, the women’s relationship deteriorated. Swain ultimately
moved out of the Mississippi house in March 2006. Immediately after, Swain attempted to
liquidate the E-trade account. Cates learned of the stock sale and directed E-trade to deposit
the proceeds in her own bank account. When asked why she tried to withdraw money from
the account, Swain testified it was “because I ended up with absolutely nothing financially
from what I had invested, and so honestly, I was trying to get something back.”
In June 2006, Swain sued Cates in the Tate County Chancery Court. Swain alleged
she and Cates “were cohabitants prior to and at the time of delivery of the [Mississippi home]
deed” and they “were partners and were in several joint ventures together.” She also alleged
they had “entered into an agreement by and between themselves that [Swain] would invest
the proceeds from her sale of her real property in the state of Florida towards future
purchases of real property in the states of both Washington and Mississippi in order to
provide both [Swain] and [Cates] with a residence.” Swain requested the court declare a
constructive and/or resulting trust exists in the Mississippi home and that Swain be
reimbursed for her investments in both the Washington and Mississippi houses.
Cates moved to dismiss the complaint, arguing the requested relief “violates the
Mississippi Constitution’s prohibition against homosexual marriage.” The chancellor denied
the motion. He found, while the Mississippi Constitution only recognizes marriage between
a man and woman, the issues before him concerned a constructive and/or resulting trust and
The Mississippi Supreme Court denied Cates’s request for an interlocutory appeal,
and the case proceeded to trial. The chancellor found Cates and Swain were in a confidential
relationship but Cates had not abused that confidence. Thus, he denied a constructive trust.
The chancellor also held insufficient evidence of a resulting trust existed because there was
no evidence title to the Florida, Washington, or Mississippi properties was to be held by
Cates for Swain’s benefit. So he rejected Swain’s request that Cates be divested of a portion
of her interest in the Mississippi home.
But the chancellor found Cates had been unjustly enriched. He found, based on their
living arrangements in Florida and Washington, Swain was entitled to recoup her equity in
the Florida home, which she had given to Cates. The chancellor awarded Swain $38,000,
less the $2,500 Cates paid as earnest money on the Florida home.1 The chancellor also found
“the payment of $5,000 for the closing of the Tate County, Mississippi, property [fell] into
this same category” because this money was “clearly not an inter vivos” gift but was instead
made with “some reasonable expectation of some return by repayment or otherwise.” The
chancellor credited neither party for improvements they made to each other’s home because
both enjoyed the use of the others’ properties for extended periods of time. The one
exception was the $4,449 in carpeting in the Mississippi home because “Swain was able to
reap the benefits of that contribution for only a very short period of time before leaving the
residence with the full blessing and prodding of Cates only three months after its
installation[.]” In total, the chancellor awarded Swain a judgment of $44,995 2 to be paid by
Cates in cash.
ISSUES ON APPEAL
Cates appeals the judgment against her, arguing the $44,995 award is nothing more
than “monetary relief from the dissolution of [the couple’s] five year lesbian relationship.”
She claims the relief granted violates Mississippi’s public policy and asks that this court
reverse the award and render judgment in her favor.
Swain cross-appeals and seeks de novo review of the chancellor’s denial of a
constructive and/or resulting trust. She claims an equitable division of this trust entitles her
to “a minimum sum of $76,755.56” plus attorney’s fees—which is equivalent to 22% interest
These are the figures from the chancellor’s final order, which Swain admits contains
mathematical and scrivener’s errors.
See note 1.
in the Mississippi property. Alternatively, Swain argues the chancellor’s unjust enrichment
award should be affirmed.
Cates and Swain take opposite approaches on the effect of their same-sex relationship
and cohabitation on Swain’s equitable claims. Swain suggests the nature of their relationship
is irrelevant, while Cates argues it precludes Swain from equitable recovery because Swain’s
claims are marriage-based remedies in disguise.
Nature of Cates and Swain’s Relationship
Though Swain alleged her living arrangement with Cates was a “joint venture,” the
chancellor found no business partnership existed. See Hults v. Tillman, 480 So. 2d 1134,
1142 (Miss. 1985) (“broadly defin[ing] a joint venture as an association of persons to carry
out a single business enterprise for profit, for which purpose they combine their property,
money, efforts, skill and knowledge”); see also Miss. Code Ann. § 79-13-202(a) (Rev. 2009)
(“[A] business for profit forms a partnership[.]”); Miss. Code Ann. § 79-13-202(c)(1) (Rev.
2009) (Common ownership of property “does not of itself establish a partnership[.]”). We
likewise find no evidence in the record to support Swain’s theory that the two entered a
business enterprise for profit.
Both women admit their relationship was personal and intimate. During the course
of their relationship the women cohabited, and both wrote large checks to the other, and
improved each other’s property. They jointly titled some assets, such as vehicles and
checking and investment accounts, while intentionally buying homes individually. In their
various financial interactions, they never formalized any loans to each other or agreements
to share an interest in property not jointly titled. And they did not enter into any contractual
agreements concerning their property should they separate. Cf. Estate of Reaves v. Owen,
744 So. 2d 799, 802 (¶11) (Miss. Ct. App. 1999) (finding a contract between same-sex
partners who were dissolving relationship to be valid and enforceable). In Swain’s own
words, they simply “trusted each other.”
The transcript from Swain’s chancery action reads similarly to a divorce trial. Much
emphasis was placed on how the couple met, who paid for what during the course of their
relationship, and what happened, in the words of Swain’s attorney, “after their separation.”
But this trial had a prominent distinction—Cates and Swain were not married. Nor could
they have been lawfully married under Mississippi law. When they met and throughout their
entire relationship, Swain was already married to a man in West Virginia. And even had she
divorced sooner, Swain could not have entered into a marriage with Cates that would be
recognized under Mississippi law. See Miss. Const. art. 14 § 263A; Miss. Code Ann. § 93-11(2) (Rev. 2004). With no contractual or marriage-based remedies available to her, Swain
bases her claim on the equitable principles of implied trusts and unjust enrichment.
No Implied Contracts Between Unmarried Cohabitants
Mississippi does not enforce contracts implied from the relationship of unmarried
cohabitants. In Davis v. Davis, 643 So. 2d 931, 934-35 (Miss. 1994), the Mississippi
Supreme Court addressed a claim by unmarried cohabitant, Elvis Davis, that she was entitled
to equitable distribution of property her boyfriend had acquired while they lived together.
Relying on Estate of Alexander, 445 So. 2d 836, 840 (Miss. 1984), the supreme court
acknowledged any rights of a cohabitant would have to be provided by the Legislature—and
the Legislature had clearly abolished common law marriage rights in 1956. Davis, 643 So.
2d at 934-35 (citing Miss. Code Ann. § 93-1-15(1) (1972)). In denying Elvis Davis equitable
distribution, the supreme court reiterated its earlier position in Estate of Alexander:
We are of the opinion that public policy questions of such magnitude are best
left to the legislative process, which is better equipped to resolve the questions
which inevitably will arise as unmarried cohabitation becomes an established
feature of our society. While the judicial branch is not without power to
fashion remedies in this area, we are unwilling to extend equitable principles
to the extent plaintiff would have us to do, since recovery based on principles
of contracts implied in law essentially would resurrect the old common-law
marriage doctrine which was specifically abolished by the Legislature.
Davis, 643 So. 2d at 934-35 (quoting Estate of Alexander, 445 So. 2d at 839) (emphasis
Prior to the supreme court’s 1984 decision in Estate of Alexander, Mississippi had not
addressed the equitable rights of unmarried cohabitants, though the Court had previously
considered the equitable rights of “putative wives”— women who had ceremonially married
but did not, in fact, have a legally valid marriage. See Chrismond v. Chrismond, 211 Miss.
746, 52 So. 2d 624 (1951) and Taylor v. Taylor, 317 So. 2d 422 (Miss. 1975). In Estate of
Alexander, the supreme acknowledged the “putative spouse” line of cases but found them
“factually quite dissimilar and thus not controlling” where there “was not even any attempted
legal ceremonial marriage but a mere ‘live-in’ relationship[.]” Estate of Alexander, 445 So.
2d at 839. Our supreme court evaluated a variety of approaches from other states, including
Georgia 3 and Illinois,4 which rejected claims that unmarried cohabitants were entitled to
equitable relief to recover for property accumulated during their cohabitation. The supreme
court also closely examined, but declined to follow California’s approach, which directed,
in the absence of an express contract, that its courts look to the cohabitants’ conduct to
determine whether the conduct demonstrates an implied contract, partnership, joint venture,
or other tacit understanding. Estate of Alexander, 445 So. 2d at 838 (discussing Marvin v.
Marvin, 557 P.2d 106, 110 (Cal. 1976)). Ultimately, Mississippi opted for what it deemed
“the logical view . . . [as] stated by a Michigan court”—that public policy questions of this
stature should be left to the legislative process, and the judicial branch should avoid
fashioning implied contractual remedies that would essentially resurrect common-law
marriage, which had been abolished by the Legislature. Id. at 839 (citing Carnes v. Sheldon,
311 N.W.2d 747, 753 (1981)).5
Based on the principle established in Estate of Alexander and Davis, we find public
policy questions concerning same-sex cohabitants’ rights, just as with opposite-sex
cohabitants rights, “are best left to the legislative process.” Davis, 643 So. 2d at 934. We
note the Mississippi Legislature in 1997 declared no marriage rights exist in Mississippi
Rehak v. Matthis, 238 S.E.2d 81, 82 (Ga. 1977) (holding, because unmarried
cohabitation constituted immoral consideration in an agreement to live together, the claimant
was not entitled to her portion of purchase money interest in a house).
Hewitt v. Hewitt, 394 N.E.2d 1204, 1208 (Ill. 1979) (holding unmarried cohabitant’s
claim to property accumulated during cohabitation violated Illinois’s public policy
disfavoring property rights for knowingly unmarried cohabitants).
Mississippi reaffirmed its adherence to Michigan’s approach in 1994 in Davis.
Davis, 643 So. 2d at 934-35.
between same-sex partners, even those with valid marriages in other jurisdictions. Miss.
Code Ann. § 93-1-1(2). And in 2004, House Concurrent Resolution 56 proposed to amend
Mississippi’s constitution by creating a new section on marriage.6 On November 2, 2004,
Mississippi voters ratified Section 236A. Under this constitutional amendment:
Marriage may take place and may be valid under the laws of this state only
between a man and a woman. A marriage in another state or foreign
jurisdiction between persons of the same gender, regardless of when the
marriage took place, may not be recognized in this state and is void and
unenforceable under the laws of this state.
Miss. Const. art. 14, § 263A.
Because the issue of same-sex marriage has been addressed by the legislative process,
we find we must yield to the supreme court’s admonition against judicially creating equitable
remedies that undermine these policy decisions—particularly when this policy has been
written into Mississippi’s constitution. Thus, we hold we cannot extend implied contractual
remedies to unmarried cohabitants, whether opposite-sex or same sex—especially here,
where the chancellor found no express agreement beyond mere cohabitation that would
support Swain’s claim that she be repaid for financial contributions she made during their
relationship. Furthermore, Swain was married to another man and could not validly marry
Cates even in a jurisdiction that recognizes same-sex marriage. Therefore, the limited
putative spouse doctrine is inapplicable.
While chancellors typically enjoy discretion in determining equitable remedies in non-
domestic matters, the supreme court has held it is outside the chancellor’s discretion to
fashion an equitable remedy for an unmarried cohabitant “based on principles of contracts
Laws 2004, Ch. 620.
implied in law.” Estate of Alexander, 445 So. 2d at 839. But see Estate of Reaves, 744 So.
2d at 802 (¶11) (finding Mississippi’s public policy against same-sex marriage does not
prohibit same-sex partners from entering valid express contracts with each other).
“Unjust enrichment” is “modern designation for the doctrine of ‘quasi-contracts[.]’”
Koval v. Koval, 576 So. 2d 134, 137 (Miss. 1991) (quoting Magnolia Fed. Savings & Loan
v. Randal Craft Realty, 342 So. 2d 1308, 1311 (Miss. 1977)). “[T]he basis for an action for
‘unjust enrichment’ lies in a promise, which is implied in law, that one will pay to the person
entitled thereto which in equity and good conscience is his.” Id. “It is an obligation created
by law in the absence of any agreement; therefore, it is an implied in law contract.” 1704
21st Ave., Ltd. v. City of Gulfport, 988 So. 2d 412, 416 (¶10) (Miss. Ct. App. 2008) (citing
Koval v. Koval, 576 So. 2d 134, 137 (Miss. 1991)) (emphasis added).
By holding Cates was unjustly enriched through her cohabitation with Swain, the
chancellor essentially found an implied contract that Swain would be remunerated for her
financial contributions to Cates. Estate of Alexander and Davis restrict such an implied
contract arising between unmarried cohabitants. Swain testified to the financial benefits and
obligations arising out of her marriage to her estranged husband. Thus, it was reasonable for
her to understand similar rights did not arise from her relationship with Cates. As in Estate
of Alexander, Swain’s financial contributions to the homes in which she cohabited, rent free,
with Cates must be viewed as given gratuitously without expectation of repayment, absent
evidence of an express agreement between the two. See Estate of Alexander, 445 So. 2d at
840. In the instructive words of supreme court in Estate of Alexander, “[a] deed or contract
would also have sufficed.” Id.; see Estate of Reaves, 744 So. 2d at 802 (¶11).
The chancellor made no finding of any express agreement, but instead found Swain’s
expectation of repayment was implied based on the women’s cohabitation arrangements.
The supreme court has been explicit that cohabitation alone cannot form the basis of an
equitable remedy between non-married cohabitants. Because we find the chancellor’s unjust
enrichment remedy was outside the bounds of a chancery court’s equitable powers regarding
such cohabitants, we must reverse the award of $44,995 and render judgment in Cates’s
With respect to Chief Judge Lee’s dissent, we find he treads on policy issues that the
supreme court has emphasized are “best left to the legislative process.” 7 We note the dissent
does not contest the majority’s holding that Mississippi law precludes fashioning an unjust
enrichment award under these facts. Instead, the dissent would craft an alternate remedy
based on the chancellor’s power to grant equitable division under the “putative spouse
doctrine,” first expressed in Chrismond, 211 Miss. at 757, 52 So. 2d at 629.8
In addition to the supreme court’s stance against delving into this policy issue, we find
the cases the dissent cites inapplicable. The supreme court has held the equity power in
Chrismond does not extend to cohabitants, like Swain and Cates, who never attempted a
valid marriage. Davis, 643 So. 2d at 935-936; Estate of Alexander, 445 So. 2d at 839. “Such
a remedy is only available where ‘the couples had either been married or contended to have
Davis, 643 So. 2d at 934.
Chrismond held “the equity powers of the court are sufficient to protect the rights
of the putative wife, where the supposed marriage which she entered into in good faith turns
out to be void, and . . . she is entitled to an equitable division of the property accumulated
by their joint efforts during the time they lived together as man and wife.” Chrismond, 211
Miss. at 757, 52 So. 2d at 629 (emphasis added).
married.’” Cotton v. Cotton, 44 So. 3d 371, 374 (¶6) (Miss. Ct. App. 2010) (quoting Nichols
v. Funderburk, 883 So. 2d 554, 558 (¶11) (Miss. 2004). Here, both women testified they
were never married in another state, nor did they contend to be married. And had they
attempted to marry in Mississippi, they could not lawfully have done so. Therefore, the
chancellor lacked authority to grant Swain an equitable distribution under the narrow
putative-spouse doctrine. Id.
No Evidence Supporting an Implied Trust
We also affirm the chancellor’s holding that no implied trust arose in Swain’s favor.
The existence of a constructive or resulting trust is a question of law, which we review de
novo. Van Cleave v. Estate of Fairchild, 950 So. 2d 1047, 1051 (¶12) (Miss. Ct. App. 2007)
(citing Allred v. Fairchild, 785 So. 2d 1064, 1068 (¶7) (Miss. 2001)). “Clear and convincing
proof is necessary to establish a resulting or constructive trust.” Nichols v. Funderburk, 881
So. 2d 266, 273 (¶29) (Miss. Ct. App. 2003) (citing Allgood v. Allgood, 473 So. 2d 416, 421
A constructive trust “is designed to prevent fraud, overreaching, or other wrongful act
by which one person has obtained legal title to property rightfully belonging to another.”
Simmons v. Simmons, 724 So. 2d 1054, 1057 (¶7) (Miss. Ct. App. 1998) (citing George
Gleason Bogert, The Law of Trusts and Trustees § 451 (2d ed. rev. 1991)). It is “a means
by which one who unfairly holds a property interest may be compelled to convey that interest
to another to whom it justly belongs.” In re Estate of Hood, 955 So. 2d 943, 949 (¶21) (Miss.
Ct. App. 2007) (citing In re Estate of Horrigan, 757 So. 2d 165, 170 (¶25) (Miss. 1999)).
“A constructive trust: ‘arises by operation of law against one who, by fraud, actual or
constructive, by duress or abuse of confidence, by commission of wrong, or by any form of
unconscionable conduct, artifice, concealment, or questionable means, or who in any way
against equity and good conscience, either has obtained or holds the legal right to property
which he ought not, in equity and good conscience, to hold and enjoy.’” Id. (quoting
Sojourner v. Sojourner, 247 Miss. 342, 353, 153 So. 2d 803, 807 (1963)). There are two
relevant intertwined considerations. “It is the relationship [whether fiduciary, moral, social,
domestic, or personal] plus the abuse of confidence that authorizes a court of equity to
construct a trust for the benefit of the party whose confidence has been abused.” Id. (quoting
Thornhill v. Thornhill, 905 So. 2d 747, 753 (¶18) (Miss. Ct. App. 2004)).
The chancellor deemed the evidence insufficient to impose a constructive trust.
Though he found Cates and Swain were in a confidential relationship, he found no abuse of
that confidence by Cates. We too find no evidence, let alone clear and convincing evidence,
that Cates abused her relationship with Swain to obtain title to the Washington or Mississippi
homes. See Estate of Hood, 955 So. 2d at 949 (¶22) (finding no constructive trust because,
though the parties did not dispute a confidential relationship existed between a deceased
homeowner and his neighbors, no abuse of confidence led to the homeowner conveying his
home to this neighbors).
We have previously addressed constructive trusts in terms of a promise made with no
intention to perform it. Nichols, 881 So. 2d at 273 (¶29). In Nichols, a long-term, live-in
girlfriend argued her boyfriend held his business and personal properties in constructive trust
because “she worked and contributed to all of the businesses and the home . . . .” Id. at 272
(¶28). But this court found the boyfriend had never promised his girlfriend to convey any
interest in his businesses or personal properties in exchange for her efforts. Id. at 273 (¶30).
Thus, she was “not now entitled to division of the property under this theory.” Id.
Swain argues she trusted Cates and their relationship, investing money and “sweat
equity” in the Washington and Florida homes. But as in Nichols, there is no record evidence
that Cates promised to convey Swain an interest in the Washington or Mississippi properties
in exchange for her financial contributions and improvements. The record instead shows
Swain invested in Cates’s properties based on their long-term personal relationship. And
there is no evidence Cates abused that relationship. See In re Estate of Parker, 13 So. 3d
877, 880 (¶8) (Miss. Ct. App. 2009) (finding no proof of the existence of a constructive trust
on live-in girlfriend’s home because no evidence of dominant influence by girlfriend over
live-in boyfriend). Swain argues the abuse lay in Cates’s keeping the property after they
broke up. But a constructive-trust analysis focuses on the acquisition of property and
whether it was obtained through fraud or abuse of a confidential relationship. Simmons, 724
So. 2d at 1057 (¶7).
Further, Cates testified Swain did not desire to own the properties because she was
still married to her husband and “didn’t want to take that chance,” presumably that her
husband might receive a portion of any interest she may have obtained. We find equity does
not demand Swain receive an interest in property she intentionally did not acquire because
of her estranged husband. We find no error in the chancellor’s denial of a constructive trust.
“[A] resulting trust arises in a transaction when one person is granted a legal title but
is required to hold this title for the benefit of another.” In re Estates of Gates, 876 So. 2d
1059, 1064 (¶17) (Miss. Ct. App. 2004). “[W]here one buys an asset in the name of another,
the asset will be deemed held by the record owner in a resulting trust for the benefit of the
person actually advancing the purchase money.” Simmons, 724 So. 2d at 1058 (¶10) (citing
Brabham v. Brabham, 226 Miss. 165, 172, 84 So. 2d 147, 151 (1955)).
The chancellor found insufficient evidence of a resulting trust because he “[could not]
say that title to [the Florida, Washington, or Mississippi] properties was to be held by one for
the benefit of the other.” Our de novo review leads us to the same conclusion. While Swain
testified she did not want to title another home in her name because of her husband, the
evidence is certainly not clear and convincing that Swain actually purchased the Washington
or Mississippi home in Cates’s name. Thus, we also affirm the denial of a resulting trust.
¶39. THE JUDGMENT OF THE TATE COUNTY CHANCERY COURT IS
AFFIRMED ON CROSS-APPEAL AND REVERSED AND RENDERED ON DIRECT
ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE
GRIFFIS, P.J., BARNES, ROBERTS, CARLTON AND FAIR, JJ., CONCUR.
IRVING, P.J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE
WRITTEN OPINION. RUSSELL, J., SPECIALLY CONCURS WITH SEPARATE
WRITTEN OPINION JOINED BY IRVING, P.J.; ISHEE, J., JOINS IN PART. LEE,
C.J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED IN PART BY
RUSSELL, J., SPECIALLY CONCURRING:
I agree with the majority’s opinion based on the law as it exists in Mississippi and in
no way suggest equitable distribution be applied to cohabitants. However, I write separately
to note the inequitable result in such situations as exist in this case, albeit unintended.
Mississippi does not recognize or condone same-sex relationships. See Miss. Code
Ann. § 93-1-1 (Rev. 2004). Further, our Legislature abolished common-law marriage in
1956. See Miss. Code Ann. § 93-1-15(1) (Rev. 2004). Thus, we also refuse to provide a
remedy to cohabiting heterosexual partners who jointly accumulate property without the
benefit of a valid marriage. See Davis v. Davis, 643 So. 2d 931, 934-35 (Miss. 1994); see
also Jamie R. Ballard, Comment, Property Rights (or Lack Thereof) of Unmarried
Cohabitants in Mississippi, 29 Miss. C. L. Rev. 613 (2010).9 But by refusing to divide
property, one party benefits while the other receives nothing when both parties are equally
“guilty” of participating in the relationship. This concept was noted by the Wisconsin
[A]llowing no relief at all to one party in a so-called “illicit” relationship
effectively provides total relief to the other, by leaving that party owner of all
the assets acquired through the efforts of both. Yet it cannot seriously be
argued that the party retaining all the assets is less “guilty” than the other.
Such a result is contrary to the principles of equity.
Watts v. Watts, 405 N.W.2d 303, 314 (Wis. 1987). See also Marvin v. Marvin, 557 P.2d 106,
121 (Cal. 1976) (noting that “to the extent that denial of relief ‘punishes’ one partner, it
necessarily rewards the other by permitting [the party] to retain a disproportionate amount
of the property. Concepts of ‘guilty’ thus cannot justify an unequal division of property
between two equally ‘guilty’ persons.”). As a result, the party who has title to property can,
The narrow exception to this rule is the situation where the parties were lawfully
married, divorced, and subsequently cohabited with each other. In that situation, Mississippi
courts have equitably divided property even though the parties were not lawfully married at
the time of the property division. See Pickens v. Pickens, 490 So. 2d 872, 876 (Miss. 1986);
Wooldridge v. Wooldridge, 856 So. 2d 446, 452 (Miss. Ct. App. 2003).
in essence, use the relationship as a defense to prevent the other party, regardless of
contributions, from receiving anything upon the dissolution of the relationship. In my view,
such a result is inequitable. Cohabitants who want to ensure they receive something in return
for their contributions are forced to reduce their personal relationship to an impersonal
contract. But, as correctly stated by the majority, it is the duty of the Legislature – not the
courts – to provide a remedy to unmarried cohabitants in the context of property disputes.
Therefore, I concur with the majority.
IRVING, P.J., JOINS THIS OPINION. ISHEE, J., JOINS THIS OPINION IN
LEE, C.J., DISSENTING:
With respect to the majority, and notwithstanding that there was not a valid marriage
between Swain and Cates, I find it was within the chancellor’s discretion to apply the rules
of equity and award Swain a share of the property accumulated by the joint efforts of the
parties during their relationship. Thus, I would affirm the award of a judgment in favor of
Although Swain did not specifically request an equitable division of the couple’s
jointly-accumulated assets, Swain did ask the chancellor for “any other awards . . . deem[ed]
necessary and just.” “[I]t is axiomatic that the relief need not be limited in kind or amount
by the demand but may include relief not requested in the complaint.” Pilgrim Rest
Missionary Baptist Church ex rel. Bd. of Deacons v. Wallace, 835 So. 2d 67, 75 (¶19) (Miss.
2003). I also note it is standard practice to affirm the decision of a lower court when the right
result has been reached, even if for the wrong reason. Tedford v. Dempsey, 437 So. 2d 410,
418 (Miss. 1983). I believe the chancellor reached the right result.
I recognize the rule which recognizes marriage only as the joining of a man and a
woman in conformity with state law. See Miss. Code Ann. § 93-1-1(2) (Rev. 2004). I do not
purport to usurp legislative authority nor do I condone such action. However, I recognize
that our law sanctions an equitable division of property accumulated by two persons as the
result of their joint efforts. See Cotton v. Cotton, 44 So. 3d 371, 374 (¶¶7-10) (Miss. Ct. App.
2010); Wooldridge v. Wooldridge, 856 So. 2d 446, 452 (¶17) (Miss. Ct. App. 2003); see also
Pickens v. Pickens, 490 So. 2d 872, 875-76 (Miss. 1986); Taylor v. Taylor, 317 So. 2d 422,
423 (Miss. 1975); Chrismond v. Chrismond, 211 Miss. 746, 757, 52 So. 2d 624, 629 (1951).
As the Mississippi Supreme Court stated in Pickens, “our law authorizes and sanctions an
equitable division of property accumulated by two persons as a result of their joint efforts.
This would be the case were a common[-]law business partnership breaking up.” Pickens,
490 So. 2d at 875.
I am mindful of our standard of review: this Court will not disturb a chancellor’s
findings “unless the chancellor was manifestly wrong, clearly erroneous or an erroneous legal
standard was applied.” Ward v. Ward, 825 So. 2d 713, 715-16 (¶5) (Miss. Ct. App. 2002).
In this case, there was substantial evidence to uphold the chancellor’s decision. Over the
course of the relationship, Swain and Cates shared homes, contributed money to these homes,
made improvements to these homes, shared a joint checking account, owned vehicles
together, and shared an investment account. I find Swain was a substantial contributor to the
accumulation of assets with Cates such that she should receive an equitable share of those
ISHEE, J., JOINS THIS OPINION IN PART.