December 15, 2016
JULIA V. McGRATH
ETHAN L. DOCKENDORF
THE CIRCUIT COURT OF FAIRFAX COUNTY Daniel E. Ortiz, Judge
STEPHEN R. McCULLOUGH JUSTICE.
resolve in this appeal whether the "heart balm"
statute, Code § 8.01-220, bars an action in detinue for
recovery of an engagement ring following the breakoff of the
engagement. We conclude that the heart balm statute does not
bar such an action, and, therefore, we affirm.
August 25, 2012, Ethan L. Dockendorf proposed to Julia V.
McGrath. She accepted. He offered her a two-carat engagement
ring worth approximately $26, 000. In September 2013, after
the relationship deteriorated, he broke off the engagement.
The parties never married. Love yielded to litigation, and
Dockendorf filed an action in detinue seeking, among other
things, the return of the ring. In response, McGrath demurred
to Dockendorf's complaint, arguing that it was barred by
Code § 8.01-220. Following a hearing, the trial court
agreed with Dockendorf. The court found that the ring was a
conditional gift. It also held that Code § 8.01-220 did
not bar the action in detinue for recovery of the ring. The
court ordered McGrath to either return the ring within 30
days or it would enter judgment in the amount of $26, 000 for
Dockendorf. This appeal followed.
issue before us is one of statutory construction, which we
review de novo. Jones v. Williams, 280 Va. 635, 638,
701 S.E.2d 405, 406 (2010).
previously recognized suits for breach of a promise to marry.
Such suits allowed an aggrieved fiancée to recover
damages for improper breach of an engagement. See Grubb
v. Sult, 73 Va. (32 Gratt.) 203, 207 (1879). Because it
was "impossible to fix any rule or measure of damages,
" the factfinder could "take into consideration all
the circumstances of the case, the loss of comfort, the
injury to the feelings, affections and wounded pride of the
plaintiff." Id. at 209. The plaintiff could
seek "expectation damages to place [him or] her in the
financial and social position [he or] she would have attained
had the marriage taken place (very much akin to the rights of
a divorced spouse)." Alan Grant & Emily Grant,
The Bride, the Groom, and the Court: A One-Ring
Circus, 35 Cap. U. L. Rev. 743, 745 (2007). The
plaintiff could also ask for "traditional tort damages
to recover for the emotional anguish and humiliation of the
broken engagement." Id. Finally, the plaintiff
could seek "reliance damages including the lost economic
security, opportunity costs of a foregone alternative such as
employment, and also the impaired prospects of marrying
another due to the [plaintiff's] status now as
'damaged goods.'" Id.
the late nineteenth century, breach of promise to marry suits
were more popular in America than they were in England."
Id. at 746. Such "trials had become 'social
phenomen[a]'--entertainment for the entire town and
fodder for sensationalistic tabloid media." Id.
Over time, such actions were severely "criticized as
being anachronistic, contrary to modern notions of justice,
and subject to abuse by blackmail." Note: Heartbalm
Statutes and Deceit Actions, 83 Mich. L. Rev. 1770, 1770
(1985). Breach of promise to marry actions were criticized
for excessive verdicts, fueled by "[l]ax evidentiary
standards [that] allowed for private and sensational details
to be admitted and often skewed the outcome of the case in
favor of the plaintiff." Grant & Grant, 35 Cap. U.
L. Rev. at 746.
response, beginning in the 1930's, states began to enact
"statutes colloquially called 'heart balm' acts
that abolished actions for breach of promise to marry and
often abolished the related common law actions for alienation
of affections, criminal conversation, and seduction as
well." Heartbalm Statutes and Deceit Actions,
83 Mich. L. Rev. at 1771. See also Matthew v.
Herman, 56 V.I. 674, 682-84 (V.I. 2012) (discussing
reasons underlying legislative and judicial abrogation of
amatory torts of alienation of affection and criminal
conversation, as well as cause of action for breach of
promise to marry). In 1968,  the Virginia General Assembly enacted Code
§ 8.01-220, which currently provides in subsection (A):
Notwithstanding any other provision of law to the contrary,
no civil action shall lie or be maintained in this
Commonwealth for alienation of affection, breach of promise
to marry, or criminal conversation upon which a cause of
action arose or occurred on or after June 28, 1968.
addition to an action for breach of promise to marry,
Virginia law also recognized a separate right to seek the
return of an engagement ring when the engagement is broken
off. This right of action is rooted in the common law of
conditional gifts. We held in Pretlow v. Pretlow,
177 Va. 524, 555, 14 S.E.2d 381, 388 (1941), that when a
prospective husband makes a present to his intended wife
"and the inducement for the gift is the fact of her
promise to marry him, if she break off the marriage, he may
recover from her the value of such present."
argues that the text of the statute forecloses
Dockendorf's action. She notes that an action to recover
an engagement ring is, in effect, an action for breach of
promise to marry because without a breached promise to marry
there would be no action to recover the ring. Dockendorf
responds that the text and purpose of the statute evince a
legislative intent to abolish a specific type of common law
action not at issue in this case. We agree with Dockendorf.
primary objective in statutory construction is to determine
and give effect to the intent of the legislature as expressed
in the language of the statute." Appalachian Power
Co. v. State Corp. Comm'n, 284 Va. 695, 706, 733
S.E.2d 250, 256 (2012). As a textual matter, Code §
8.01-220(A) bars three specific civil actions: (1) alienation
of affection; (2) breach of promise to marry, and (3)
criminal conversation. The statute says
nothing about the law of conditional gifts. Dockendorf did
not file a civil action seeking damages based upon
McGrath's breach of a promise to marry. Instead, he filed
an action in detinue seeking the recovery of the ring or its
monetary value on a theory of conditional gift. See
Pavlicic v. Vogtsberger, 136 A.2d 127, 131 (Pa. 1957)
(in seeking to recover an engagement ring, the plaintiff is
"not asking for damages because of a broken heart or a
mortified spirit[; rather, h]e is asking for the return of
things which he bestowed with an attached condition
precedent, a condition which was never met").
differs from an action for breach of a promise to marry in
significant ways. Breach of promise to marry suits were
intended to broadly compensate a plaintiff for the loss and
humiliation of a broken engagement. Grubb, 73 Va. at
209. In contrast, "[t]he object of a detinue action is
to recover specific personal property and damages for its
detention." Broad Street Auto Sales, Inc.
v. Baxter, 230 Va. 1, 2, 334 S.E.2d 293, 294 (1985).
"The action is employed to recover a chattel from one in
possession who unlawfully detains it from either the true
owner or one lawfully entitled to its possession."
Id. To succeed in a detinue action, a plaintiff must
establish the following:
(1) The plaintiff must have property in the thing sought to
be recovered; (2) he must have the right to its immediate
(3) it must be capable of identification; (4) the property
must be of some value, and (5) the defendant must have had
possession at some time prior to the institution of the
Vicars v. Atlantic Discount Co., 205 Va. 934, 938,
140 S.E.2d 667, 670 (1965). Damages are limited. "If the
specific property cannot be returned, judgment is rendered
for its value." Broad Street Auto Sales,
Inc., 230 Va. at 2, 334 S.E.2d at 294. Simply put, due
to its limited scope and the limited relief afforded by it, a
detinue action rooted in a theory of conditional gift is not
and does not resemble an action for breach of a promise to
that a majority of other courts have, consistent with our
interpretation of Virginia's statute, rejected the
argument that their state's heart balm statute foreclosed
an action for recovery of a ring or other property. See
In re Marriage of Heinzman, 596 P.2d 61, 63 (Colo.
1979); Piccininni v. Hajus, 429 A.2d 886, 888 (Conn.
1980); Gill v. Shively, 320 So.2d 415, 416-17 (Fla.
Dist. Ct. App. 1975); De Cicco v. Barker, 159 N.E.2d
534, 535 (Mass. 1959); Gikas v. Nicholis,
71 A.2d 785, 786 (N.H. 1950); Beberman v. Segal, 69
A.2d 587, 587 ( N.J.Super. Ct. Law Div. 1949);
Pavlicic, 136 A.2d at 131; Bryan v.
Lincoln, 285 S.E.2d 152, 153-55 ( W.Va. 1981).
Albinger v. Harris, 48 P.3d 711 (Mont. 2002), upon
which McGrath relies, does not support her position. The
court in that case concluded that Montana's heart balm
statute did not foreclose an action for recovery of property
exchanged in contemplation of marriage and that such claims
"are still determined by existing law and common-law
principles." Id. at 716. That is the view we take.
additional consideration bolsters the conclusion we draw from
the plain language of the statute. The General Assembly is
presumed to be aware of the decisions of this Court when
enacting legislation. Dodson v. Potomac Mack Sales &
Serv., Inc., 241 Va. 89, 94, 400 S.E.2d 178, 180-81
(1991). The Pretlow case had been decided several
decades prior to the enactment of Code § 8.01-220.
Therefore, we presume the General Assembly was aware of this
separate avenue for recovery of property or its value. Had
the General Assembly wished to bar actions in detinue for the
recovery of engagement rings, it would have chosen a vehicle
that unequivocally does so.
cites Lee v. Spoden, 290 Va. 235, 248-49, 776 S.E.2d
798, 805 (2015) for the distinction we drew there between a
"right of action" and a "cause of action"
for purposes of res judicata. She argues that any cause of
action that includes in its "nucleus of operative
facts" the breach of a promise to marry is barred by
Code § 8.01-220(A). We disagree. The text of the heart
balm statute does not purport to bar all "causes of
action" that have some relation to a failed engagement.
Instead, it targets for elimination three discrete torts,
including the common law "civil action" for breach
of promise to marry. Code § 8.01-220(A) does not, for
example, bar a suit for breach of contract from a caterer or
a wedding venue that arose in the wake of a breached promise
also seeks to analogize the present cause of action to
McDermott v. Reynolds, 260 Va. 98, 530 S.E.2d 902
(2000). In McDermott, the plaintiff relied on a
theory of intentional infliction of emotional distress to
recover damages stemming from an adulterous relationship the
defendant maintained with the plaintiff's wife. We held
that Code § 8.01-220 barred this action. We reasoned
that "when the General Assembly enacted Code §
8.01-220, it manifested its intent to abolish common law
actions seeking damages for a particular type of conduct,
regardless of the name that a plaintiff assigns to that
conduct." Id. at 101, 530 S.E.2d at 903.
Because the plaintiff's complaint was based on conduct
that would have supported a civil action for alienation of
affection, Code § 8.01-220 barred the suit. Our stated
objective was to "effectuate [legislative] intent and
foreclose a revival of the abolished tort of alienation of
affection asserted in the guise of an action for intentional
infliction of emotional distress." Id. at 103,
530 S.E.2d at 904. Unlike the plaintiff in
McDermott, Dockendorf is not trying to pour old wine
into new wineskins. Dockendorf simply seeks to recover
property given as a conditional gift when the condition that
formed the basis for the gift did not occur.
McGrath argues that "if the condition to a gift (or a
contract) is illegal, the condition fails as a matter of
law." She maintains that because the General Assembly
has prohibited a cause of action for breach of a promise to
marry, the basis for the condition of the gift is void as
against public policy. We find this argument unpersuasive.
For one thing, it appears to rest on the same mistaken
premise about the scope of the heart balm statute. For
another, there is a difference between a promise to
marry, which, even though it is unenforceable, is hardly
illegal or against public policy, and an action for
recovery of damages for breach of a promise to marry,
which is barred by Code § 8.01-220. The gift of the ring
was not conditioned on the ability to maintain an action for
breach of promise to marry. That would have been
impermissible. Instead, the gift of the ring, under settled
Virginia law, was a conditional gift. See Pretlow,
177 Va. at 555, 14 S.E.2d at 388. When the condition upon
which the gift was made did not occur, Dockendorf could
institute an action in detinue to recover the ring or its
heart balm statute, Code § 8.01-220, does not bar a
detinue action to recover conditional gifts, such as an
engagement ring, that were given in contemplation of
marriage. The trial court found as fact that the ring was
given as a conditional gift in contemplation of marriage. The
marriage did not occur. Consequently, we will affirm the
judgment of the trial court.
 1968 Acts ch. 716.
 Originally, the tort of criminal
conversation allowed a husband to sue a person who had
engaged in sexual relations with his wife. Zedd v.
Jenkins, 194 Va. 704, 705, 74 S.E.2d 791, 792 (1953).
The tort was later extended to permit wives to also file
suit. Newsom v. Fleming, 165 Va. 89, 95, 181 S.E.
393, 396 (1935).
 We acknowledge the existence of a
split of authority with respect to whether fault is a
relevant consideration in actions to recover an engagement
ring. Compare Fowler v. Perry, 830 N.E.2d 97, 105-06
(Ind.Ct.App. 2005) (noting split and citing cases) with
Clippard v. Pfefferkorn, 168 S.W.3d 616, 619-20
(Mo.Ct.App. 2005) (employing a fault based approach). We need
not resolve the question in this case, however, because the
sole assignment of error before us is whether "the Trial
Court erred in failing to apply the Heart Balm Statute to an
action for the return of an engagement ring when the wedding
never occurs." The question of fault may (or may not)
bear upon the viability of a detinue action, but it is not
relevant to our construction of the heart balm