A prominent advertising executive's alleged promises to support his longtime girlfriend if they broke up are unenforceable because the couple never married, a Manhattan judge has ruled.
In declining to impose a constructive trust, Supreme Court Justice Ellen Gesmer ruled that such statements as "I will always take care of you" and "everything that we put in, we will enjoy together" do not constitute legally binding promises.
"Indeed, even if [the defendant] had made an explicit promise that, upon separation, [the plaintiff] would be entitled to 'equitable distribution' of their assets, it would be unenforceable, as it would be contrary to the long-standing law and policy in New York that unmarried partners are not entitled to the same property and financial rights upon termination of the relationship as married people," Justice Gesmer wrote in Ericson v. Baron, 350065/09.
"Unless and until the law imposes equitable distribution on unmarried couples, in New York, as least, the legal status of marriage remains vitally important to establishing the economic rights of members of a couple."
The plaintiff, Malin Ericson, filed suit in 2009 against Fabien Baron, the advertising executive and creative director best known for reinventing Burberry, producing racy ads for Calvin Klein and designing Madonna's "Sex" book. According to her complaint, Ericson began working for Baron's fledgling company, Baron & Baron, in 1993, and became romantically involved with Baron in 1994. They moved in together later that year, had a daughter in 1999 and remained a couple until 2007, though they never married.
Ericson alleged that, in addition to the assurances Baron made throughout their relationship, when they broke up, he promised he would treat the separation as if the couple had married.
When Baron purportedly failed to live up to that promise, Ericson filed the present petition seeking a constructive trust on his Mercer Street loft, which was purchased in 1997 for nearly $1.5 million, his Amagansett real estate, bought in 1999 for nearly $1.3 million, and three years of profits from Baron & Baron. The company, according to the decision, has gross annual revenues of some $20 million.
Ericson claimed she contributed to the couple's household and Baron's burgeoning business in reliance on his assurances.
"What is 'unfair' is that I had trusted Defendant and never appreciated how vulnerable I was by not asking Defendant to marry me. However, I believed Defendant, who repeatedly said I was just like a wife to him," Ericson stated in her affidavit.
She added that her request for a constructive trust on the business "is really a request for a three-year severance package" so she could take time off and look after her daughter.
Justice Gesmer wrote that she was "not entirely unsympathetic" to Ericson's circumstances, but nonetheless granted Baron's motion to dismiss the claim for a constructive trust.
The judge ruled that Ericson failed to establish three of the four elements necessary for such trusts: Although there had in fact been a "confidential relationship," there was no promise and no transfer made in reliance of such a promise, nor any unjust enrichment.
Ericson "argues that [Baron's] statements to her during their relationship to the effect that he would 'take care of' her and 'be there for' her, and 'what's mine is yours, what's yours is mine,' taken together, constitute a promise to share with her the assets accumulated in his name during the time they were together," Gesmer wrote. "However, the Court of Appeals has held that general remarks of this kind, while they may in some circumstances create a moral obligation, are insufficient to fulfill the promissory requirement for a constructive trust."
The judge added that the "long hours" Ericson claims to have worked for Baron's business and in renovating his apartment do not constitute a "transfer" for the purpose of a constructive trust. Ericson "has not cited to any cases, and the court has not located any, in which an expenditure of time and energy, without more, was held to constitute a transfer sufficient to trigger the constructive trust doctrine," Gesmer wrote.
The judge, however, declined to dismiss Ericson's causes of action for joint custody and an award of child support.
Baron argued that the Supreme Court lacked jurisdiction over child custody and child support cases where the parents are unmarried.
"If I were to decline jurisdiction," the judge wrote, "it would extend the amount of time that the parties and their child would have to wait for the issues ...to be resolved, and it would waste judicial resources."
Bernard Clair of Clair Greifer represented Baron.
The decision "re-emphasizes New York's long-standing policy, which places a very high evidentiary burden on unmarried individuals attempting an end-around of the Domestic Relations Law," Clair said. "My client remains disappointed that Ms. Ericson and her lawyer decided to proceed with aggressive litigation even though he had made a generous settlement offer in order to keep this a private matter."
Ericson was represented by Sharon Stein of Stein & Ott.
"If we were only given our day in court, we believe we could prove the elements [of constructive trusts]," said Stein. "We believe that the elements were properly pled, sufficiently to withstand a motion to dismiss."
