Metropolitan News-Enterprise


Friday, April 5, 2002


Page 1


Contract Requiring Spouse to Pay Liquidated Damages For Infidelity Unenforceable, Court of Appeal Rules


By a MetNews Staff Writer


A contract by which spouses agree to pay liquidated damages in the event of a breach of a promise of marital fidelity is unenforceable, the Court of Appeal for this district ruled yesterday.

Div. Four affirmed a judgment in favor of Manuel Diosdado, whose ex-wife sought $50,000 in damages for an affair he allegedly had prior to their separation and divorce.

Manuel and Donna Diosdado were married in 1998. They separated five years later, allegedly after Manuel Diosdado had an affair.

They later reconciled and signed an agreement, allegedly drafted by the husband’s lawyer, in which they promised each other “an exclusive relationship…premised upon the values of emotional and sexual fidelity, and mutual trust.”

That relationship would be violated, the parties declared, if either were to “engage in any act of kissing on the mouth or touching in any sexual manner of any person outside of said marital relationship.”

In the event of such a breach, the contract declared, the non-offending party would be entitled to have the other leave the family residence immediately, and to recover $50,000 as liquidated damages, along with attorney fees, over and above any property distribution or support award in a separation or divorce proceeding. 

The agreement also provided, however, that if the parties divorced, and the non-offending party remarried, he or she would have to return the money.

Donna Diosdado filed suit two years ago. She alleged that she and her husband had separated 18 months earlier, and had divorced, and that prior to separation she verified her husband’s unfaithfulness through an independent who said she saw him kissing another woman.

The result, she said, was a great deal of emotional trauma.

The suit went to trial, but Los Angeles Superior Court Judge John Torribio granted judgment on the pleadings on the first day of trial.

The trial judge was correct, Justice Norman Epstein wrote yesterday for Div. Four. The contract, he said, “was contrary to the public policy underlying California’s no-fault divorce laws.”

Under the 1969 reform of California’s divorce laws, Epstein reasoned, nearly all considerations of fault have been banished from the process of dissolving a marriage. Specific acts of misconduct may be relevant to certain types of proceedings, such as child custody disputes, but not to property distribution or support matters, the justice said.

The Diosdados’ agreement, in seeking to impose liability for marital fault, lacks a “lawful object,” the jurist continued.

He distinguished In re Marriage of Bonds+ (2000) 24 Cal.4th 1, which upheld the enforceability of a premarital agreement in which the wife gave away certain rights with regard to marital property.

Bonds does not support Donna’s position,” the justice said. The high court, he noted, recognized that “freedom of contract with respect to marital arrangements is tempered with statutory requirements and case law expressing social policy with respect to marriage.” 

Donna Diosdado’s attorney, Nathan Goldberg of Allred, Maroko & Goldberg, said no decision had been made on whether to seek review in the state Supreme Court.

The veteran family law practitioner said he had never seen a contract like the Diosdados and had been unable to find any case in California or elsewhere dealing with one. The agreement, he said, “does not fly in the face of no-fault” and should have been upheld.

The Legislature, he said, should look at the decision with an eye toward giving married persons, “an avenue to get legal protection against their spouse cheating on them.”

Manuel Diosdado’s attorney, San Gabriel sole practitioner Rudy Aguirre, said his client always denied the allegation of an affair. Donna Diosdado, he said, “just wanted the $50,000.”

The suit, he said, was an attempt to get around California’s repeal of the old “heart balm’ causes of action such as alienation of affection, criminal conversation, seduction, and breach of promise, Aguirre said.  

The case is Diosdado v. Diosdado, B150941.


Copyright 2002, Metropolitan News Company