On Mitchelson, palimony and contractual obligations

What a pity that the legal scuffle between actor Lee Marvin and his live-in lover, Michelle Triola, happened in the Dark Ages, before cable TV turned celebrity scandals into America’s wallpaper, with sound. Their fight began in 1970, when the Oscar-winning tough guy told his girlfriend to move out of their Malibu home. He cushioned the breakup with a promise to pay her $800 a month for the next five years. The checks stopped coming after a year and a half. By then Marvin had made his hometown sweetheart his second wife and Triola had changed her last name to his.

Marvin M. Mitchelson, who died in Beverly Hills on Saturday, was just the man to make their romantic feud a precedent-setting cause celebre. Mitchelson, who represented Michelle Triola Marvin, had already made a name for himself as a celebrity divorce lawyer in love with the limelight, but the Marvin case spread his fame as quickly as being caught naked on tape with Minnie Mouse would have. And it added to the popular lexicon a rather sweet-sounding term for a controversial idea: palimony.

Never underestimate the power of cute. Domestic partner post-dissolution support doesn’t have quite the ring of “palimony,” a felicitous pairing of pal and alimony that was coined by either Mitchelson or a Newsweek writer interviewing him. (It would not have been out of character for the attorney to claim credit for someone else’s creation.) The sexy case, cultivated in the rich loam of Hollywood, had everything today’s tabloid TV thrives on: intense emotions, lots of money at stake and broad social significance.

The fact that Marvin vs. Marvin earned Mitchelson a place in history is somewhat surprising, since with hindsight, palimony looks like just a phase, more evolution than hard-fought rebellion. In the ensuing years, palimony suits have been all but eclipsed by premarital agreements and cohabitation contracts. While the word lives on, not many people remember that Mitchelson, and the sorority of undocumented mistresses most likely to gain from his test case, lost their groundbreaking battle.

Mitchelson spent seven years on the case. He first went to court in 1972, claiming that Marvin and his client had an oral agreement that she would give up her career as a singer to become his companion and homemaker, and he would support her for the rest of her life. The trial court and intermediate appellate court rejected the suit because they considered a woman living with a man to whom she wasn’t married to be in a meretricious -- meaning a prostitution-like -- relationship. Mitchelson brought the case to the California Supreme Court, which ruled in 1976 that Michelle Marvin was entitled to a trial to prove she had the oral contract she claimed she had.

The ruling granting her the right to sue based on her claim of a significant relationship arising out of cohabitation represented Mitchelson’s most important win, one that established a precedent. In a bow to times that were a-changing, the state Supreme Court decided that the doctrine of meretricious relationships was no longer valid, because the law should not “impose a standard based on alleged moral considerations that have apparently been so widely abandoned by so many.”

The case went back to a lower court, and at the end of an 11-week trial in 1979, Los Angeles Superior Court Judge Arthur K. Marshall ruled that Lee Marvin had never made an agreement to share his earnings with his roommate, and she had no claim to $1.8 million, half the money he made in their six years together. The plaintiff and her lawyer enjoyed a brief triumph when the judge noted that her chances of resuming her singing career were “doubtful” and he awarded her $104,000, two --years’ worth of the highest weekly salary she had earned as a singer. The money, the judge ruled, was “for rehabilitation purposes ... to reeducate herself and to learn new, employable skills.” Two years later, the award was overturned on appeal.

Lee Marvin, who met Triola on a movie set where she worked as a bit player, called the case “the worst setback for show business since John Wilkes Booth.”

Michelle Triola Marvin explained her relationship philosophy by saying, “If a man wants to leave a toothbrush at my house, he better bloody well marry me.”

On “Saturday Night Live,” Dan Aykroyd called Ms. Marvin “a screeching, squealing, rapacious swamp sow.”

Mitchelson told Esquire magazine, “I’ve been waiting for a few years for a case like Michelle Marvin’s. I’ve always been fascinated by the question of why the existence or nonexistence of a marriage license should alter people’s rights. Any two idiots can get a marriage license.”

Acceptance, the undoing

And any idiot can sue for palimony, or such was the fear, not just in California but throughout the country. When Mitchelson won the right to bring the case to trial, he said, “There are over 1,000 cases out there, so fellows beware!” Mitchelson’s warning that men needed to give mailbox keys and garage door openers to their girlfriends with caution missed the point, if the object was to avoid palimony claims. The legal acceptance of palimony was actually its undoing, because it highlighted the importance of putting promises in writing. Enter cohabitation agreements.

Century City attorney Ron Litz, who first faced Mitchelson in court in 1967, said, “I never did a cohabitation agreement before the Marvin decision, but since that case, I’ve done many. Before the Marvin ruling, we didn’t think such a claim would work. We just assumed that a person who wasn’t married had no rights.... Palimony suits were most common in the early ‘80s, and they’d pretty much stopped by around 1995.”

Palimony cases are expensive to litigate and few lawyers will take them on a contingency basis. The plaintiff, usually the less wealthy half of the couple, can rarely afford attorney’s fees, which cannot be paid from community property as in divorces. Since civil rather than family law governs palimony suits, they often take five years to get to trial, while divorces are normally tried within 18 months of filing.

Palimony did not become an example of “as California goes, so goes the nation.” Although by 1979, appellate courts in Oregon, Minnesota, Washington, Illinois, Connecticut and Michigan recognized contractual obligations between couples living together, cohabitation was still against the law in more than 20 states, so it was unlikely their courts would enforce a contract based on an illegal relationship. Common-law marriage was abolished in California in 1895, and ultimately in most states. A year after the Marvin decision, the Georgia Supreme Court ruled that a woman who lived with a man for 18 years was not entitled to alimony or any property, because the couple’s arrangement was founded on “immoral consideration.”

In many ways, the 1970s was an odd time for Mitchelson’s legal breakthrough. The second wave of feminism had washed ashore in the mid-’60s, unleashing stores of pent-up frustration. In women’s manifestoes, consciousness-raising groups, popular novels and movies, men were portrayed as insensitive exploiters who used up women and threw them away.

When Marvin was ordered to pay $104,000, Gloria Steinem told The Times: “As for the impact of this decision on other marriages and similar relationships, I think women will now be far more likely to insist on a financial agreement in writing before they give up their careers or wash even one dish -- and that’s probably healthy.”

Some newly liberated women, marching under the flags of independence and self-reliance, were embarrassed by palimony suits. Reactions to palimony depended on the view of who was exploiting whom. Was Triola Marvin a gold digging opportunist or an oppressed romantic? Feminism never advocated that women should manipulate men for financial gain, or that a girl with ambition, and in the words of Joan Rivers, “a trick pelvis,” should use it to acquire a lifetime income.

High on feminism’s agenda was giving women the freedom to choose to be a corporate president or a domestic goddess, and for the contributions of those who worked as homemakers to be valued. Divorce laws protected women who put their husbands through medical school, only to be abandoned when the docs reached their greatest earning potential, or saw that those who served as party planners and caterers to advance a spouse’s corporate career weren’t left destitute just because they weren’t the one bringing home a paycheck. Palimony acknowledged that the pillow talk pledge, “You can give up your career -- I’ll always take care of you,” was unreliable, no matter how luxurious the linens.

Relationships on alert

The list of men and women sued for palimony provides the sort of celebrities-behaving-badly material that keeps the schadenfreude pot simmering. Ex-girlfriends of Marlon Brando, Johnnie Cochran and Bob Dylan sued them. Liberace’s confidant, bodyguard and chauffeur sued him for $113 million in palimony, but the case was dismissed. Mitchelson was always careful not to describe his clients as mistresses, since to do so would have implied that they were seeking money for sexual services. He used job titles like “traveling companion,” “confidante” or -- in the case of Vicki Morgan, who sued the estate of Diners Club founder Alfred Bloomingdale for $11 million in 1982 -- “therapist.” Los Angeles Superior Court Judge Christian E. Markey Jr. rejected Morgan’s claim, saying that the Supreme Court never intended its Marvin ruling to become a “mistresses’ recovery act.”

As Mitchelson learned, there are fates worse than palimony. The attorney’s former girlfriend Nina Iliescu fed incriminating information to the IRS when the feds were building a tax fraud case against him. She was one of several ex-girlfriends whose testimony helped the government convict Mitchelson.

Lee Marvin died in 1987 of a heart attack at 63. Michelle Marvin went on to transform herself from a brunet to a blond, and in 1976 began a romance with Dick Van Dyke. They lived together, for a while at the Marina City Club, and she had a small part in an episode of his TV series “Diagnosis Murder” in 1993. She was credited as Michelle Triola. The couple never married, but in 1983 she told The Times that she did have a written contract.