(CN) – A Beverly Hills woman cannot force her former fiance to financially support the child she conceived via in vitro fertilization with the sperm of an anonymous donor, a federal judge ruled.
In a 2012 complaint, Tracey Smith claimed that Gregory Carr committed breach of contract by failing to provide lifetime financial support to her and her nearly 2-year-old daughter.
A former aesthetician with the Peninsula Hotel in Beverly Hills, Smith says Carr was a former client she began dating in 2007. She claims Carr “overwhelmed” her with financial generosity, paying for expensive vacations and renting a beach house in Malibu for the two to share.
Carr allegedly promised to provide Smith with lifetime financial support in 2009 after paying for two unsuccessful attempts at in vitro fertilization, using Smith’s eggs and donor sperm.
As the couple prepared to marry that year, Smith says she quit her job, sold her aesthetician equipment and moved out of her apartment.
She claims that she and Carr shared joint bank accounts, planned their wedding and were house hunting.
But things fell apart four days after Smith underwent a third IVF procedure on Nov. 11, 2010, using donor sperm, according to the complaint. She says Carr “abruptly ended” their relationship while she was on doctor-ordered bed rest, and ordered her out of their shared home.
In July, Smith had a daughter from that third IVF procedure.
Carr removed the complaint to federal court on the basis of his Alaska residency and moved to dismiss.
In her motion to remand the case to Los Angeles County Superior Court, Smith claimed that Carr owns a home in Pebble Beach, Calif., and has four cars in the Golden State. She said Carr spends up to 80 percent of his time in California and that his parents live in Palm Springs.
Carr countered the motion by pointing to his vehicle and voter registration in Alaska. He says he also pays his taxes there, owns property there, has bank accounts there, and goes there to see doctors, lawyers, accountants and other professionals.
U.S. District Judge Christina Snyder sided with Carr on residency and dismissal last week.
“An express contract between nonmarital partners will be enforced unless ‘expressly and inseparably based upon an illicit consideration of sexual services,'” Snyder wrote, quoting precedent. “Because virtually all agreements between nonmarital partners involve a mutual sexual relationship, any severable portion of the contract supported by independent consideration will still be enforced. However, where the ‘rendition of sexual services’ is an ‘inseparable part’ of the consideration, the entire contract is unenforceable.”
Smith’s claim that she would provide Carr with “full time attention, availability, domestic services, companionship, comfort, love, and emotional support” is “strikingly similar” to another case, in which the court found that such a promise was inseparable from the provision of sexual services, the decision states.
Snyder also held that “plaintiff has not alleged any other facts suggesting that her relationship with defendant was ‘stable and significant.'”
“First, although plaintiff’s and defendant’s relationship lasted for three years, they were engaged to be married for only twelve months, and allegedly cohabited for only eleven months,” she wrote. “Additionally, there are no allegations that the parties held themselves out as husband and wife or pooled financial resources to jointly acquire property.”
“Given the short duration and the lack of consistency, the court finds that plaintiff has not adequately alleged cohabitation,” Snyder added.