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Albinger v. Harris


ty praying that the satisfaction of the mortgage on Sara Jane's property be stricken from the record, that she be ordered to return the gifts which had not been consumed, and pay back the moneys which she had gotten from him under a false promise to marry. Pavlicic, 136 A.2d at 129.

The Pennsylvania Supreme Court held that George's action was not barred by the state's "Heart Balm Act" and that all gifts, not just the wedding ring, were conditional gifts in anticipation of marriage which must be returned or repaid. The Pennsylvania Supreme Court cited Stanger v. Epler (1955), 115 A.2d 197, 199, stating:

A gift to a person to whom the donor is engaged to be married, made in contemplation of marriage, although absolute in form, is conditional; and upon breach of the marriage engagement by the donee the property may be recovered by the donor. See also 38 C.J.S. Gifts §§ 61. Pavlicic, 136 A.2d at 131.

The point is that there is no reason to limit the law of "conditional gifts" in anticipation of marriage to engagement rings. There is precedent for applying it to all gifts in anticipation of marriage and had either of the parties had any forewarning that this Court would have launched into the gender equity issue on which it bases its opinion, they could have pointed that out.

Also predicate to the majority's decision is its conclusion that the District Court implied that marriage was a condition to the gift. However, as previously noted, the Court implied no such thing. The Court made a finding that the gift was given in anticipation of marriage based on the testimony that was presented. The majority has simply chosen, as a matter of law, to ignore those facts in favor of the social theory it has chosen to impose on the parties and the people of this state without the benefit of input from anyone else.

I concur with the Court's conclusions that the District Court did not err when it held that Albinger was not entitled to reimbursement for Harris' telephone calls and when it awarded Harris damages for her pain and suffering.

However, I object to the gender stereotypes on which the majority Opinion is based and without which the majority could not have arrived at their legal conclusion, and I object to the majority's trivialization of something as important as equal rights by attaching them to the simple dispute involved in this case.

I dissent from the majority's conclusion that Montana, unlike any other jurisdiction which has considered this issue, should not apply traditional "conditional gift" or contract law to the resolution of the dispute between the parties. I dissent from the majority's interesting but inapplicable and factually unsupported social commentary and its interjection and ultimate reliance on constitutional theory which was never raised by any party, never considered by the District Court, and on which neither party had an opportunity to comment. The Opinion is based on sexual stereotypes, false assumptions unsupported by the record, constitutional theory never raised or considered by the parties or the District Court, and social theory that has nothing to do with the case as it was considered by the District Court or developed by the parties. In short, it breaks just about every rule of appellate decision- making.

I dissent from the majority's transformation of a simple case involving gift law to a soap box on which to analyze social customs and significant constitutional rights which have now been trivialized by their interjection in this case.

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