Spouses Obliged to Provide Care, State Court Rules

A wife is obligated to provide nursing care to an ill husband and has no right to compensation for performing that duty, a state Court of Appeal ruled Tuesday.

The panel, over a sharp dissent chiding the majority for outdated notions, voted 2 to 1 to invalidate a contract in which a San Francisco Bay Area businessman promised before his death to give his wife property he owned in return for her care during his illness.

The man left the property instead to his daughter, and the wife brought suit. But the panel majority said that apart from rights to community property, a spouse is not entitled to compensation for the personal duties of marriage.

“Sickbed bargaining . . . is antithetical to the institution of marriage,” Justice James F. Perley wrote in an opinion joined by Justice Carl W. Anderson. “Even if few things are left that cannot command a price, marital support remains one of them.”

In dissent, Justice Marc Poche said the majority had saddled the wife with a “nondelegable duty to clean the bedpans herself” and improperly denied married couples the right others hold to contract for personal care.

Poche agreed that husbands and wives have a duty to care for an ill spouse. But women in particular now have the means to provide for other than personal care--such as paying for professional care, he said. Should a wife choose to provide the care herself, she should be allowed to contract for such service, he said.

The majority, Poche said, was implying that “if Mrs. Clinton becomes ill, President Clinton must drop everything and personally care for her.”

Tuesday’s ruling becomes binding on state trial courts unless the state Supreme Court later rules to the contrary. Whether an appeal will be filed to the high court could not be learned immediately.

The case arose in a dispute over the estate of Michael J. Borelli, founder of the M. J. Borelli Meat Co. in Emeryville, who died in 1989 at the age of 80. His widow, Hildegard Lee Borelli, filed suit contending that her late husband had failed to keep a promise he made in an oral agreement to pay her for her personal care.

Borelli, she said, had repeatedly told her during his illness that he was uncomfortable in the hospital, did not want to go to a nursing home and disliked being away from his home.

A Contra Costa County Superior Court judge dismissed the suit, saying any such contract was not enforceable and against public policy.

The appeal court upheld the ruling, saying legal precedents for 50 years have held that a spouse is obligated to care for the other and can claim no right to pay for doing so.

Steven B. Piser of Oakland, an attorney for the executor of the estate, welcomed the ruling but declined further comment except to note that it applied equally to the obligations of husbands and wives.

Attorneys for Hildegard Borelli could not be reached for comment.