                                                                                          04/25/2019
               IN THE COURT OF APPEALS OF TENNESSEE
                           AT NASHVILLE
                               November 7, 2017 Session

MARGARET WINEBRENNER v. JOHNNIE MACKALYN GODWIN ET AL.

                 Appeal from the Chancery Court for Maury County
                       No. 15-486 Stella L. Hargrove, Judge
                     ___________________________________

                           No. M2017-00270-COA-R3-CV
                       ___________________________________


This appeal illustrates the, not uncommon,1 choice of law problems that can arise when
an unmarried couple begins cohabitation in one state and then moves to another state and
one of the cohabitants dies. After meeting and living together in California, the
cohabitants moved to Tennessee, where they lived together for a number of additional
years. When one of the cohabitants died, the other sought a declaratory judgment against
the decedent’s children and the trustee of a trust created by the decedent that, among
other things, the cohabitants’ relationship entitled the surviving cohabitant to support in
the form of “palimony” as allowed by California law. The children and the trustee
moved for summary judgment, which was granted. On appeal, the surviving cohabitant
argues that the trial court erred in not applying California law to an agreement for support
that was made in California. We conclude that, under our choice of law rules, Tennessee
law applies.

 Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed
                               and Case Remanded

W. NEAL MCBRAYER, J., delivered the opinion of the court, in which RICHARD H.
DINKINS and THOMAS R. FRIERSON, JJ., joined.

T. Jake Wolaver and Adrienne L. Dale, Columbia, Tennessee, for the appellant, Margaret
Winebrenner.

Christopher J. Skinner and Robin J. Gordon, Nashville, Tennessee, for the appellees,
Johnnie Mackalyn Godwin and Jody Malinda Peppers.



       1
        See William A. Reppy, Jr., Choice of Law Problems Arising When Unmarried Cohabitants
Change Domicile, 55 SMU L. REV. 273 (2002).
                                       OPINION

                                            I.

                                            A.

        On June 11, 2015, Johnny Mack Galbreath died in Lewis County, Tennessee.
Some fifteen years prior, while living in California, Mr. Galbreath executed a will and
created the Trust of Johnny Mack Galbreath. The will left his entire estate to the trustee
of the trust.

       In 2005, Mr. Galbreath executed a “Second Amended and Complete Restatement
of Declaration of Trust of Johnny Mack Galbreath.” The declaration provided for
Mr. Galbreath’s two daughters, Johnnie Mackalyn Godwin and Jodi Livingston.
Additionally, the declaration stated Mr. Galbreath’s intention to marry Margaret
Winebrenner and made provision for her in the event of Mr. Galbreath’s death. The
arrangements included a life estate in their Tennessee residence and the creation of a
separate trust. Specifically, the declaration provided as follows:

             1.      If [Mr. Galbreath] is married to and living with MARGARET
      WINEBRENNER at the date of his death, then the house in which
      [Mr. Galbreath] resides at the date of his death, plus the sum of
      $350,000.00, shall constitute the principal of a separate trust for the benefit
      of MARGARET WINEBRENNER, to be held, managed, administered and
      distributed as follows:

             a.     MARGARET WINEBRENNER shall have the use and
      occupancy of the real property owned and used by [Mr. Galbreath] at the
      time of [Mr. Galbreath’s] death for residential purposes, free of rent. The
      right of MARGARET WINEBRENNER to the use and occupancy of such
      real property shall be during her lifetime; provided, however that such right
      shall terminate if MARGARET WINEBRENNER remarries or desires to
      no longer live on such property. Further, the right of MARGARET
      WINEBRENNER to the use and occupancy of such real property shall be
      personal to MARGARET WINEBRENNER and no other person shall have
      such right to the use and occupancy of such real property; provided
      however, that JOHNNIE MACKALYN GODWIN and her family shall also
      have the right to the use and occupancy of such real property.

             b.    The Trustee shall pay all mortgage payments, insurance,
      property taxes, assessments and utilities. Additionally, the Trustee shall
      expend such sums as shall be necessary to maintain such real property.

                                            2
              c.     Upon the death or remarriage of MARGARET
      WINEBRENNER, or if she no longer desires to reside on such property, or
      if her right to the use and occupancy of the property is terminated herein,
      then the trust provided for in this subparagraph 1 shall terminate and the
      property and other trust assets shall be distributed pursuant to the terms of
      subparagraph 2 below.[2]

             d.     If [Mr. Galbreath] and MARGARET WINEBRENNER are
      divorced or separated at the date of [Mr. Galbreath’s] death, then the
      provisions of this paragraph shall be null and void.

        Mr. Galbreath’s and Ms. Winebrenner’s relationship preceded the amended and
restated declaration of trust by many years. They became engaged in the 1990s but later
separated. The duration of the couple’s separation is a matter of dispute, but all agree
that, by the 2000s, the couple had reunited.

       Beginning in 2004, Ms. Winebrenner moved into Mr. Galbreath’s Fresno,
California home. According to Ms. Winebrenner, they lived together in the home. But
according to Mr. Galbreath’s family, Mr. Galbreath only stayed in the home when he
returned to California; by that point, they claimed Mr. Galbreath had moved to Maury
County, Tennessee, to live on a large tract of land he had purchased. Again according to
Ms. Winebrenner, in March 2005, Mr. Galbreath promised that he would marry her and
provide for her financially if Ms. Winebrenner gave up her career, retired early, and
moved to Tennessee to live with him.

        A March 2005 letter supported Ms. Winebrenner’s claim. In the letter,
Ms. Winebrenner informed her California employer that she was resigning. The letter
stated, “I am soon to be married, and my fiancé and I are in the process of building a new
home in Tennessee!” Shortly thereafter, Ms. Winebrenner moved into a trailer with Mr.
Galbreath on his Tennessee property. In October of that year, Mr. Galbreath executed the
amended and restated declaration of trust referencing the parties’ intended marriage.

       Although they continued to live together, first in the trailer and later in a home
built on the property, Mr. Galbreath and Ms. Winebrenner never married.
Mr. Galbreath’s family claims the wedding was cancelled before Ms. Winebrenner
relocated to Tennessee, while Ms. Winebrenner claims “Mr. Galbreath decided to
postpone the wedding shortly after” her move. In either event, despite not being married,
until his death, Mr. Galbreath provided for the financial needs of Ms. Winebrenner, and
Ms. Winebrenner performed homemaking duties.



      2
          Subparagraph 2 specified distributions to be made to one of Mr. Galbreath’s daughters.
                                                    3
                                              B.

       Following Mr. Galbreath’s death, in the Chancery Court for Maury County,
Ms. Winebrenner filed suit against Mr. Galbreath’s two daughters and the trustee of the
trust (collectively, “Defendants”) seeking a declaratory judgment. Ms. Winebrenner
sought a declaration that the trust “create[d] a life estate in the residence for the benefit of
[Ms. Winebrenner], and that [Ms. Winebrenner] [wa]s entitled to the monetary gift set
forth in the Trust.” Alternatively or additionally, Ms. Winebrenner sought a declaratory
judgment that “her relationship with Mr. Galbreath constitute[d] a partnership and/or
joint venture under the laws of California and Tennessee, and that she [wa]s entitled to an
accounting of all partnership property and an equitable property division.” Finally,
Ms. Winebrenner sought a declaratory judgment that “her relationship with
Mr. Galbreath, which began in the State of California and ultimately relocated to the
State of Tennessee, entitle[d] her to support in the form of ‘palimony’, as allowed under
the common law of the State of California.”

       Defendants moved for summary judgment. Defendants argued that, because Mr.
Galbreath and Ms. Winebrenner never married, a condition precedent to
Ms. Winebrenner’s rights under the trust was never satisfied. According to Defendants,
Ms. Winebrenner’s partnership/joint venture theory failed because the concept of implied
partnership or joint venture did not extend beyond business relationships. Lastly,
Defendants argued that the palimony claim failed because Mr. Galbreath made no
agreement, written or parol, to support Ms. Winebrenner for the rest of her life.

       The chancery court granted summary judgment in favor of Defendants. Applying
California law because the trust “was created and executed in the State of California,” the
court determined that the trust imposes the conditions of both marriage and cohabitation
on the life estate in the residence and the creation of the separate trust. Because it was
undisputed that the parties did not marry, the court concluded that Ms. Winebrenner
could not recover under the trust. The court also agreed that an implied partnership or
joint venture required a business relationship under either Tennessee or California law
and that there was no evidence of a business undertaking between Mr. Galbreath and Ms.
Winebrenner.

       As for the palimony claim, the court stated that “Tennessee does not recognize
support known as palimony.” Then after citing the seminal California case on nonmarital
or “cohabitation” agreements, Marvin v. Marvin, 557 P.2d 106 (Cal. 1976), the court
concluded that “the relationship between [Ms. Winebrenner] and Mr. Galbreath which
began in California and ended in Tennessee [does not] entitle[] her to support recognized
as palimony in the State of California.”



                                               4
                                                  II.

       In this appeal, Ms. Winebrenner raises two issues. First, she argues that the
chancery court erred in “failing to apply California law to find an enforceable agreement
for future support.” Second, she argues that the chancery court “erred in disregarding the
disputed genuine issues of material facts that demonstrate an enforceable agreement for
support under California law.”

                                                  A.

       Ms. Winebrenner’s claim sounds in contract. As she notes, “[i]t is a familiar rule
in Tennessee that the construction and validity of a contract are governed by the law of
the place where the contract is made.”3 Ohio Cas. Ins. Co. v. Travelers Indem. Co., 493
S.W.2d 465, 466 (Tenn. 1973). California law governs, Ms. Winebrenner asserts,
because her relationship with Mr. Galbreath began in California, they resided together in
California, they were engaged in California, and the “promise for support arose in
California.” Apparently conceding all these facts, the Defendants respond that the
chancery “court applied California law although not in [Ms. Winebrenner’s] favor.”

         The problem with Ms. Winebrenner’s argument is that she does not provide a
complete statement of the choice of law rule. Our courts “look[] to the intention of the
parties in determining their contractual rights and obligations.” Deaton v. Vise, 210
S.W.2d 665, 668 (Tenn. 1948). While it is true that negotiating and entering into a
contract in a particular place might indicate an intention on the part of the parties for the
law of that place to govern, a contrary intention can be shown. Id. Thus, we only
“presume[] [a contract is] made with reference to the law of the place where it was
entered.”     Id. The presumption can be overcome if “it [clearly] appears that [the
contract] was entered into in good faith with reference to the law of some other state.”
Id.; In re Estate of Davis, 184 S.W.3d 231, 234-35 (Tenn. Ct. App. 2004).

       The intention of the parties is gathered from the facts and circumstances attending
the contract. Deaton, 210 S.W.2d at 669. One of the attending facts and circumstances is
the place of performance of the contract. See Edgington v. Edgington, 162 S.W.2d 1082,
1086 (Tenn. 1942) (recognizing that the law of the place of performance may govern);
Solomon v. FloWarr Mgmt., Inc., 777 S.W.2d 701, 705 n.5 (Tenn. Ct. App. 1989) (same).
Where parties agree to performance of the contract in a foreign state and performance in
the foreign state benefits or is desired by one of the contracting parties, absent fraud, the
law of the foreign state will govern the transaction. See Deaton, 210 S.W.2d at 669.

       3
          The choice of law rule is often dubbed lex loci contractus. See, e.g., Ohio Cas. Ins. Co. v.
Travelers Indem. Co., 493 S.W.2d 465, 467 (Tenn. 1973) (“[W]e are of the opinion that the conflicts rule
of Lex loci contractus applies . . . .”).

                                                   5
       Here, we conclude that Tennessee law governs Ms. Winebrenner’s claim for
support. As we must, we take as true Ms. Winebrenner’s assertion that Mr. Galbreath
agreed to support her for the remainder of her life. We further accept that Mr. Galbreath
made the promise while both parties cohabitated in California. Yet, undisputedly
Ms. Winebrenner was to receive the promised support in Tennessee. According to
Ms. Winebrenner, Mr. Galbreath “promised to provide for her financially if she gave up
her career, retired early, and moved to Tennessee to live him.” And without question
Mr. Galbreath desired performance of his obligation in Tennessee because he had already
“purchased a large tract of land in Hampshire” and planned to move here. The claimed
contract for support was entered into with reference to the law of Tennessee.

                                                    B.

        Ms. Winebrenner’s second issue on appeal is premised on the application of
California law. She argues that the court “erred by failing to consider the disputed
genuine issues of material facts that, when taken in the light most favorable to the
nonmoving party, demonstrate an enforceable agreement for support under California
law.” (emphasis added) Significantly, she does not challenge the chancery court’s
determination that the agreement for support would be unenforceable under Tennessee
law.4 So we consider that issue waived. See Tenn. R. App. P. 13(b) (“Review generally
will extend only to those issues presented for review.”); Hodge v. Craig, 382 S.W.3d 325,
333-34 (Tenn. 2012) (“The scope of our review . . . depends, in large part, on the issues
that the parties have presented to this Court.”).

      Because we conclude that Tennessee and not California law applied, we need not
reach Ms. Winebrenner’s second issue. We offer no opinion regarding whether the
chancery court properly held that the alleged agreement by Mr. Galbreath to provide
support for Ms. Winebrenner would be unenforceable under California law.




        4
           In her statement of issues, Ms. Winebrenner frames the issue without reference to California
law, stating the trial court erred “[i]n disregarding the material facts which remain in dispute and render
summary judgment inappropriate.” But in her argument, she discusses the disputed factual issues in the
context of California law and only cites to a California case, Byrne v. Laura, 60 Cal. Rptr. 2d 908 (Cal.
Ct. App. 1997). To be properly raised on appeal, an issue must be presented in the manner prescribed by
Tennessee Rule of Appellate Procedure 27, which requires the appellant to give, not only her contentions,
but also citations to applicable authority. Hodge v. Craig, 382 S.W.3d 325, 333-34 (Tenn. 2012); Tenn.
R. App. P. 27(a)(7)(A).

                                                    6
                                        III.

       For the foregoing reasons, we affirm the grant of summary judgment. And we
remand the case for such further proceedings as may be necessary and consistent with
this opinion.


                                               _________________________________
                                               W. NEAL MCBRAYER, JUDGE




                                         7
