Beverly Maeker v. William Ross (072185) , 219 N.J. 565 ( 2014 )

SYLLABUS
(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the
interest of brevity, portions of any opinion may not have been summarized).
Maeker v. Ross (A-1-13) (072185)
Argued March 4, 2014 -- Decided September 25, 2014
ALBIN, J., writing for a unanimous Court.
In this appeal, the Court considers whether the Legislature, in passing the 2010 Amendment to the Statute
of Frauds, N.J.S.A. 25:1-5(h), intended to render oral palimony agreements that predated the Amendment
unenforceable.
In 1998, Maeker and Ross began a romantic relationship. The next year, Maeker moved into Ross’s home.
From the time they began living together, until their separation in 2011, Ross financially supported Maeker, paying
for all of her living expenses. In return, Maeker performed all of the duties requested of her. They later moved into
a house they rented together and held themselves out to the world as a family unit. During their thirteen-year
relationship, Ross repeatedly promised that he would financially support Maeker over the course of her lifetime. In
2001, based on those promises, Maeker left her twenty-year career in the architectural glass industry. In December
2010, Ross executed a written power of attorney, authorizing Maeker to manage and conduct all of his financial
affairs and executed a written will naming Maeker the executor and trustee. On July 1, 2011, Ross ended their
relationship, moving out of their joint residence, cutting off all ties to Maeker, and terminating all financial support.
Maeker claims that she devoted a substantial amount of her adult life to sustaining Ross’s emotional and physical
needs and advancing his financial interests. She further claims that her efforts were made entirely on her reliance on
the representations and promises of Ross to provide her with lifetime financial support.
Maeker filed a complaint in the family court seeking enforcement of their oral palimony agreement. Ross
moved to dismiss Maeker’s complaint on the grounds that it failed to state a claim on which relief could be granted
because the 2010 Amendment to the Statute of Frauds, N.J.S.A. 25:1-5(h), bars enforcement of all oral palimony
agreements, even those predating the Amendment. The court denied Ross’s motion to dismiss, observing that the
Statute of Frauds is not retroactively applied to invalidate contracts entered into before its enactment. The court
found that the Amendment did not indicate that the Legislature intended to eliminate legitimate palimony claims that
may have accrued throughout the last thirty years. In the absence of that clear indication, the court concluded that
the Amendment should not be construed to invalidate a pre-existing palimony agreement and deprive Maeker of a
cause of action. Therefore, the court allowed Maeker to proceed on her claims.
In a published decision, the Appellate Division reversed, dismissing Maeker’s complaint with prejudice.
Maeker v. Ross, 430 N.J. Super. 79, 97 (App. Div. 2013). The panel was satisfied that the 2010 Amendment to the
Statute of Frauds clearly directed the enforcement of a palimony agreement only when the agreement is reduced to
writing and the parties have had the benefit of counsel, irrespective of when an agreement to provide lifetime
support may have been entered. The panel reasoned that the cause of action accrued at the time Ross is alleged to
have breached the agreement, which was when he abandoned her and broke his promise of lifetime support, a year
after passage of the Amendment. The panel further noted that Maeker and Ross had the timely ability, before their
relationship ended, to come into compliance with the Amendment by putting the palimony agreement in writing and
by securing counsel for that purpose. This Court granted Maeker’s petition for certification. Maeker v. Ross, 215
N.J. 485 (2013).
HELD: The 2010 Amendment to the Statute of Frauds, N.J.S.A. 25:1-5(h), does not render oral palimony agreements
that predate it unenforceable because the Legislature did not intend the Amendment to apply retroactively.
1
1. The Court’s charge is to determine whether the Legislature intended N.J.S.A. 25:1-5(h), the 2010 Amendment to
the Statute of Frauds, to apply to contracts formed before its enactment. Statutory language is generally the best
indicator of the Legislature’s intent. However, when the language of the statute is ambiguous or silent, and yields
more than one plausible interpretation, the Court may turn to extrinsic sources, such as legislative history. The
Legislature is presumed to be aware of judicial construction of its enactments and, when the Legislature adopts or
copies a law from another jurisdiction, the Court presumes that it was aware of the construction given to that law by
the courts of the other jurisdiction. (pp. 11-12)
2. The 2010 Amendment to the Statute of Frauds, which required that palimony agreements be in writing and that
both parties have the advice of counsel, marked a significant change in the existing law. Prior to that time, this
Court held that oral palimony agreements were enforceable because parties entering this type of relationship usually
do not record their understanding in specific language. Kozlowski v. Kozlowski, 80 N.J. 378, 384-85 (1979).
Kozlowski and its progeny remained the law until January 18, 2010, when the Amendment took effect. However,
an indeterminate number of couples may have entered palimony agreements before that date. Neither the plain
language of the statute, nor the legislative history to the Amendment, resolve the issue of whether the Legislature
intended to render unenforceable those oral palimony agreements formed before the effective date of the
Amendment. The reason for the Legislature’s silence may be inferred from its knowledge that courts generally will
enforce newly enacted substantive statutes prospectively, unless it clearly expresses a contrary intent, because,
although everyone is presumed to know the law, no one is expected to anticipate a law that has yet to be enacted.
(pp. 13-16)
3. The Statue of Frauds recognizes that certain agreements may be susceptible to fraudulent and unreliable methods
of proof and therefore insists that those agreements be reduced to writing and signed. Most courts have held that if
an oral contract is lawful when made, it is not rendered unenforceable by a later-passed statute requiring that the
contract be in writing. One reason for not retroactively applying the Statute of Frauds to nullify an earlier-made
contract is that rendering a previous valid contract unenforceable would impair the obligation of a contract. (pp. 17-
20)
4. N.J.S.A. 25:1-5(h) provides that, effective January 18, 2010, no action shall be brought to enforce a palimony
agreement unless the agreement is in writing and unless the parties made the agreement with the independent advice
of counsel. Nowhere in the text or legislative history of N.J.S.A. 25:1-5(h) has the Legislature given any signal that
it intended the new statute to extinguish previously formed, lawful oral palimony agreements. The long
jurisprudential history of the Statute of Frauds evidences the strong inclination of courts not to give retrospective
application to enactments that would annul prior legally authorized oral agreements, unless the Legislature expresses
a contrary intent. Accordingly, the Court determines that the Legislature, in passing N.J.S.A. 25:1-5(h), did not
intend to retroactively void the indeterminate number of oral palimony agreements that predated its enactment. (pp.
20-22)
5. Accepting the allegations in Maeker’s complaint as true, the Court determines that she has pled a lawful cause of
action. The Appellate Division erred in focusing on the date the cause of action accrued, instead of the date the oral
contract was formed, for retroactivity purposes. The Appellate Division suggested that Maeker and Ross were able
to memorialize their oral agreement in accordance with N.J.S.A. 25:1-5(h) between the date of its enactment and the
breakup of their relationship. That, of course, presupposes that Maeker had the burden to bring her long-existing
agreement with Ross into compliance with the new law and that Ross would have cooperated to put the agreement in
writing and retained independent lawyers for both of them to accomplish that goal. That reasoning is inconsistent
with the traditional retroactivity analysis that applies to the Statute of Frauds. (pp. 22-23)
6. In light of its holding, the Court does not decide whether equitable forms of relief would be available in the
absence of such an agreement. The Court returns the parties to the status quo before the Appellate Division reversed
the family court’s denial of Ross’s motion to dismiss, with one exception. The Court agrees with the Appellate
Division that Ross’s will, as a stand-alone written document, cannot serve as the basis to prove a palimony
agreement. A will, by its very nature, is revocable, and therefore, without more, cannot be the basis for a binding
palimony agreement. The Court does not address any issue concerning the applicability of N.J.S.A. 25:1-5(h) to
palimony agreements formed after its enactment. (pp. 23-24)
The judgment of the Appellate Division is REVERSED, the complaint is REINSTATED, and the matter
is REMANDED to the family court for proceedings consistent with this opinion.
2
CHIEF JUSTICE RABNER; JUSTICES LaVECCHIA, PATTERSON, and FERNANDEZ-VINA;
and JUDGES RODRÍGUEZ and CUFF (both temporarily assigned) join in JUSTICE ALBIN’S opinion.
3
SUPREME COURT OF NEW JERSEY
A-1 September Term 2013
072185
BEVERLY MAEKER,
Plaintiff-Appellant,
v.
WILLIAM S. ROSS,
Defendant-Respondent.
Argued May 5, 2014 – Decided September 25, 2014
On certification to the Superior Court,
Appellate Division, whose opinion is
reported at 430 N.J. Super. 79 (2013).
Angelo Sarno argued the cause for appellant
(Snyder & Sarno, attorneys; Mr. Sarno, Jill
D. Turkish, and Ashley R. Vallillo, on the
briefs).
Eric S. Solotoff argued the cause for
respondent (Fox Rothschild, attorneys; Mr.
Solotoff and Sandra C. Fava, on the briefs).
Richard F. Iglar argued the cause for amicus
curiae The New Jersey Chapter of the
American Academy of Matrimonial Lawyers (Mr.
Iglar, John P. Paone, and Dale E. Console,
on the brief).
Brian M. Schwartz argued the cause for
amicus curiae New Jersey State Bar
Association (Ralph J. Lamparello, President,
attorney; Mr. Lamparello, of counsel; Mr.
Schwartz, Brian G. Paul, and Elizabeth M.
Vinhal, on the brief).
JUSTICE ALBIN delivered the opinion of the Court.
1
In Kozlowski v. Kozlowski, this Court for the first time
recognized the enforceability of a palimony agreement against a
person who promised to provide future support to a partner with
whom he shared a marital-type relationship. 80 N.J. 378, 384-85
(1979). A palimony agreement is a contract, and as we
explained, palimony agreements are usually oral because
“‘parties entering this type of relationship usually do not
record their understanding in specific legalese.’” In re Estate
of Roccamonte, 174 N.J. 381, 389 (2002) (alterations omitted)
(quoting Kozlowski, supra, 80 N.J. at 384). Accordingly, since
1979, the public has had a right to rely on our jurisprudence
that oral palimony agreements would be enforced.
The Statute of Frauds requires that certain agreements
must be reduced to writing to be enforceable. N.J.S.A. 25:1-5.
Palimony agreements did not fall within the sweep of the Statute
of Frauds until 2010 when the Legislature amended that statute
to prohibit oral palimony agreements. N.J.S.A. 25:1-5(h).
In this case, Beverly Maeker and William Ross, although
unmarried to each other, lived together and shared a marital-
like relationship from 1999 to 2011. In the course of that
relationship, Maeker alleges that she gave up a career and
devoted herself to Ross, who promised to support her in the
future. In short, Maeker claims that the two entered into a
palimony agreement. In 2011, their relationship dissolved, and
2
Maeker filed an action to enforce Ross’s promise to provide
financial support. Ross argued that the alleged agreement was
not reduced to writing and could not be enforced under the 2010
Amendment to the Statute of Frauds.
The trial court rejected Ross’s argument, concluding that
the Legislature intended the 2010 Amendment to be prospectively
applied. The Appellate Division reversed and dismissed Maeker’s
complaint, holding that the Legislature intended that any
palimony agreement as of 2010 had to be in writing and that oral
agreements predating the Amendment were no longer enforceable.
We disagree with the Appellate Division. We find that the
Legislature did not intend the 2010 Amendment to apply
retroactively to oral agreements that predated the Amendment.
In amending the Statute of Frauds, the Legislature was aware
that historically the Statute has been construed -- absent a
legislative expression to the contrary -- not to reach back to
rescind preexisting, lawfully enforceable oral agreements. The
Legislature has given no indication that it intended to depart
from the traditional prospective application of a change to the
Statute.
Accordingly, we reverse the Appellate Division and
reinstate Maeker’s complaint.
I.
A.
3
This appeal arises from a motion to dismiss a complaint.
In reviewing whether Maeker has stated a legally sufficient
cause of action, “we accept as true the facts alleged in the
complaint.” Craig v. Suburban Cablevision, Inc., 140 N.J. 623,
625 (1995). From this perspective, we review Maeker’s claims.
In 1998, Maeker and Ross met in Brooklyn, New York, where
both lived, and the two began a romantic relationship. The next
year, Maeker moved into Ross’s home while maintaining ownership
of her condominium where her son from a former marriage
continued to reside. From the time they began living together
until their separation in 2011, Ross financially supported
Maeker, paying for all her living expenses, for the mortgage and
upkeep of her condominium, and for her son’s college education.
In return, Maeker “performed all of the duties requested of her,
including cooking, cleaning, companionship, homemaker and
confidant.” When Ross was ill, she cared for him. They
traveled together, attended family events together, and moved to
Bedminster, New Jersey, where they rented a house together.
Ross and Maeker “held themselves out to the world as a family
unit.”
During the course of their thirteen-year relationship, Ross
repeatedly promised that he would financially support Maeker
over the course of her lifetime. In the latter part of 2001,
based on those promises, Maeker abandoned her twenty-year career
4
in the architectural glass industry. In December 2010, Ross
executed a written power of attorney, authorizing Maeker to
manage and conduct all of his financial affairs. That same
month, Ross executed a written will, naming Maeker the executor
and trustee and leaving sufficient funds “for her comfortable
support and maintenance to live in the lifestyle that she and
[he] have enjoyed during [their] years together.”
On July 1, 2011, Ross ended their relationship, moving out
of their joint residence. In addition to cutting off all ties
to Maeker, Ross terminated all financial support to her. Maeker
claims that she “devoted a substantial amount of her adult life”
to sustaining Ross’s emotional and physical needs and advancing
his pecuniary interests. She further claims that her efforts
“were made entirely [on] her reliance of the representations and
promises of [Ross]” to provide her with lifetime financial
support.
B.
Maeker filed a complaint in the Chancery Division, Family
Part, Somerset County, seeking enforcement of the oral palimony
agreement. She also asserted a number of other legal and
equitable theories of relief, including partial performance as a
bar to the Statute of Frauds, unjust enrichment, quantum meruit,
quasi-contract, equitable estoppel, and fraud.
Ross moved to dismiss Maeker’s complaint on the ground that
5
it did not state a claim on which relief could be granted,
pursuant to Rule 4:6-2(e). Ross claimed that the 2010 Amendment
to the Statute of Frauds, N.J.S.A. 25:1-5(h), bars enforcement
of any oral palimony agreements, even those predating the
Amendment.
The family court denied Ross’s motion to dismiss. The
court observed that, as a rule, the Statute of Frauds is not
retroactively applied to invalidate a contract entered into
before its enactment. That approach is taken, the court
reasoned, to avoid a conflict with “constitutional protections
against impairment of contracts,” (citing 73 Am. Jur. 2d Statute
of Frauds § 429 (2010)), and therefore a substantive statute
will not be given retroactive effect unless the Legislature
expressly states otherwise. The court found that the 2010
Amendment did not provide a clear indication that the
Legislature intended “to eliminate legitimate palimony claims
that may have accrued over the last thirty years.” In the
absence of that clear indication, the court concluded that the
2010 Amendment should not be construed to invalidate a pre-
existing palimony agreement and deprive Maeker of a cause of
action. The court permitted Maeker to proceed on all her claims
and awarded Maeker pendente lite relief and attorney’s fees.
The Appellate Division granted Ross’s motions for leave to
appeal and to stay the trial court’s decision.
6
II.
The Appellate Division reversed, dismissing Maeker’s
complaint with prejudice. Maeker v. Ross, 430 N.J. Super. 79,
97 (App. Div. 2013). The appellate panel was satisfied that the
words of the 2010 Amendment to the Statute of Frauds clearly and
unambiguously directed the enforcement of a palimony agreement
only when “the agreement has been reduced to writing and the
parties have each had the benefit of independent counsel” -- and
“irrespective of when an agreement to provide lifetime support
may have been entered.” Id. at 89. The panel disagreed with
the family court’s view that “the cause of action for palimony
accrues at the time the agreement is entered,” which in Maeker’s
case was before the Amendment went into effect. Ibid.
According to the panel, “plaintiff’s cause of action accrued at
the time defendant is alleged to have breached the agreement,
not at the time the promise of lifetime support was purportedly
made.” Id. at 90. By that reasoning, Maeker’s cause of action
accrued when Ross “‘abandoned’ her and broke his promise of
lifetime support” -- a year after passage of the Amendment.
Ibid. The panel also rejected the family court’s presumption
that Maeker relied on the palimony jurisprudence existing before
the 2010 Amendment. Id. at 92.
The panel’s position was that Maeker and Ross had the
“timely ability, before their relationship ended, to have come
7
into compliance with the Amendment” by putting the palimony
agreement in writing and by securing counsel for that purpose.
Id. at 91. The panel rejected Maeker’s argument that Ross’s
execution of a power of attorney and a will memorialized a
written palimony agreement, finding that the documents did not
evidence a promise of lifetime support. Id. at 91-92. The
panel also rejected Maeker’s equitable claims, considering them
“merely different versions of her underlying palimony claim.”
Id. at 97. The panel declined to address Maeker’s argument,
raised for the first time on appeal, that the retroactive
application of the Amendment is unconstitutional. Id. at 92.
We granted Maeker’s petition for certification. Maeker v.
Ross, 215 N.J. 485 (2013). We also granted the motions of the
New Jersey Chapter of the American Academy of Matrimonial
Lawyers and the New Jersey State Bar Association to participate
as amici curiae in the case.
III.
A.
Maeker presented a number of issues in her petition:
whether the Appellate Division erred (1) in applying the 2010
Amendment to the Statute of Frauds retroactively; (2) in
concluding that the will, standing alone, did not constitute a
written palimony agreement consonant with the Statute of Frauds;
(3) in not addressing the Amendment’s constitutionality; and (4)
8
in barring her equitable claims, including her claim of partial
performance. On issues one, two, and four, Maeker essentially
urges the Court to reverse for the reasons expressed by the
family court. Additionally, Maeker urges the Court to find that
the retroactive application of the 2010 Amendment would
unconstitutionally impair her preexisting contractual rights
under her palimony agreement and, alternatively, would violate
notions of fundamental fairness articulated in our case law.
Neither of those issues was raised before the family court.
B.
Ross advances mostly the points made by the Appellate
Division as reasons for rejecting Maeker’s arguments. Ross,
however, buttresses the Appellate Division’s conclusion that the
will did not constitute an enforceable written palimony
agreement. Ross submits that a will, by its very nature, is not
a contract requiring consideration but rather is a revocable
instrument and, therefore, it is not legally binding by a
testator who changes his mind. Ross also asks this Court to
decline to address the constitutional impairment-of-contract
argument, because it was not raised before the family court, and
to bar Maeker’s equitable claims because they are based on the
same facts as her palimony claim. More particularly, he argues
that the partial-performance claim must be denied because it
would nullify the Statute of Frauds.
9
C.
Amicus New Jersey Chapter of the American Academy of
Matrimonial Lawyers urges this Court to reverse the Appellate
Division. The Academy states that courts generally follow the
rule that “favor[s] prospective application of statutes” unless
there is a clear legislative expression to the contrary,
(quoting Gibbons v. Gibbons, 86 N.J. 515, 522 (1981)). From
that perspective, the Academy contends that the Legislature has
given no indication that the 2010 Amendment should be
retroactively applied to the palimony agreements of unmarried
cohabitants whose relationships predate the new law. To apply
the law retroactively, the Academy suggests, would deny support
to a party who is abandoned after decades of living with a
partner, raising children together, and intertwining their
finances and other affairs. The Academy also submits that the
Statute of Frauds should not be construed to invalidate
equitable claims, including partial performance.
D.
Amicus New Jersey State Bar Association also argues that
the 2010 Amendment should be applied prospectively because the
Legislature did not express an intent for the law to operate
retrospectively and because to do otherwise would trench on
vested rights or result in manifest injustice. Specifically,
the State Bar contends that the retroactive application of the
10
statute would violate the express language of Article IV,
Section 7, Paragraph 3 of the New Jersey Constitution, which
provides: “The Legislature shall not pass any . . . law
impairing the obligation of contracts, or depriving a party of
any remedy for enforcing a contract which existed when the
contract was made.” Additionally, assuming application of the
Statute of Frauds, the State Bar maintains that equitable
doctrines, such as partial performance and promissory estoppel,
should be available as exceptions to prevent inequitable results
or injustice.
IV.
A.
The primary issue on appeal is whether the Legislature, in
passing the 2010 Amendment to the Statute of Frauds, L. 2009, c.
311 (codified at N.J.S.A. 25:1-5(h)), intended to render
unenforceable oral palimony agreements that predated the
Amendment.
Our charge here is to interpret a statute. In performing
that task, “[w]e review the law de novo and owe no deference to
the interpretative conclusions reached by the trial court and
Appellate Division.” Aronberg v. Tolbert, 207 N.J. 587, 597
(2011) (citing Zabilowicz v. Kelsey, 200 N.J. 507, 512-13
(2009)). The question is whether the Legislature intended
11
N.J.S.A. 25:1-5(h) to apply to contracts formed before its
enactment.
The goal of all statutory interpretation “is to give effect
to the intent of the Legislature.” Aronberg, supra, 207 N.J. at
597. We first look to the statutory language, which generally
is the “best indicator” of the Legislature’s intent. DiProspero
v. Penn, 183 N.J. 477, 492 (2005). Only if the language of the
statute is shrouded in ambiguity or silence, and yields more
than one plausible interpretation, do we turn to extrinsic
sources, such as legislative history. Id. at 492-93.
Important to our analysis are two other interpretative
guides. The first is that “‘the Legislature is presumed to be
aware of judicial construction of its enactments.’” Id. at 494
(quoting N.J. Democratic Party, Inc. v. Samson, 175 N.J. 178,
195 n.6 (2002)). The second is that when the Legislature adopts
or copies a law from another jurisdiction, we presume that it
was aware of the construction given to that law by the courts of
the other jurisdiction. See Todd Shipyards Corp. v. Twp. of
Weehawken, 45 N.J. 336, 343 (1965); see also Bollinger v.
Wagaraw Bldg. Supply Co., 122 N.J.L. 512, 519 (E. & A. 1939)
(“The English Workmen’s Compensation act is identical with our
own . . . . The construction given by the court of last resort
of that jurisdiction to this statute is helpful, and our
12
legislature, we may assume, had such construction in mind . . .
.”).
In light of those principles, we now turn to the statute at
issue.
B.
In 2010, the Legislature amended the Statute of Frauds,
rendering oral palimony agreements unenforceable. N.J.S.A.
25:1-5 provides that
[n]o action shall be brought upon any of the
following agreements or promises, unless the
agreement or promise, upon which such action
shall be brought or some memorandum or note
thereof, shall be in writing, and signed by
the party to be charged therewith, or by some
other person thereunto by him lawfully
authorized:
. . . .
h. A promise by one party to a non-marital
personal relationship to provide support or
other consideration for the other party,
either during the course of such relationship
or after its termination. For the purposes of
this subsection, no such written promise is
binding unless it was made with the
independent advice of counsel for both
parties.
The Amendment states that “[t]his act shall take effect
immediately.” L. 2009, c. 311, § 2. The bill was signed into
law on January 18, 2010, and took effect that same day. See L.
2009, c. 311. The Amendment made two significant alterations to
the law. It requires that a palimony agreement be in writing
13
and signed and that the parties have “the independent advice of
counsel” before making the agreement. N.J.S.A. 25:1-5(h).
The Amendment represents a sea change in the law. To
understand the extent of that change, we next give an overview
of the law predating the Amendment.
C.
Thirty-five years ago, in Kozlowski, supra, we observed
that many couples choose to cohabit and live in marital-type
relationships without marrying. 80 N.J. at 386-88. We
recognized that partners in those relationships are entitled to
enter into lawful agreements with one another. Id. at 387. We
held that if one party induces the other to enter or remain in
the relationship by a promise of support, made either orally or
in writing, the agreement -- commonly referred to as a palimony
agreement -- will be enforceable in court. Ibid.; see also
Devaney v. L’Esperance, 195 N.J. 247, 258 (2008) (holding that,
even in absence of cohabitation, “promise to support, expressed
or implied, coupled with a marital-type relationship” is
sufficient for palimony agreement).
We acknowledged that “[p]arties entering this type of
relationship usually do not record their understanding in
specific legalese,” and therefore a palimony agreement may be
express or implied. Kozlowski, supra, 80 N.J. at 384; see also
Roccamonte, supra, 174 N.J. at 389. As was made clear in
14
Kozlowski, “the right to support . . . does not derive from the
relationship itself but rather is a right created by contract.”
Roccamonte, supra, 174 N.J. at 389. A palimony agreement could
be established “not merely by what was said but primarily by the
parties’ ‘acts and conduct in the light of . . . the surrounding
circumstances.’” Ibid. (quoting Kozlowski, supra, 80 N.J. at
384). Additionally, “a general promise of support for life,
broadly expressed, made by one party to the other with some form
of consideration given by the other will suffice to form a
contract.” Id. at 389-90 (citing Kozlowski, supra, 80 N.J. at
384).
Kozlowski and its progeny were the law until January 18,
2010. An indeterminable number of unmarried couples may have
entered palimony agreements before that date, having the right
to rely on the law that recognized their personal contracts.
Whether the Legislature intended to render nugatory those oral
palimony agreements formed before January 18, 2010, in large
part, depends on the meaning of the words: “This act shall take
effect immediately.” L. 2009, c. 311, § 2. We must determine
whether those words mean that only newly formed palimony
agreements will have to comply with the Amendment or that all
palimony agreements, whenever formed, must be in writing and the
parties to the agreement counseled by attorneys.
15
The plain language of the statute does not resolve the
issue. Nor does the legislative history to the Amendment,
specifically the statements appended to the bill by the Senate
and Assembly Judiciary Committees. Those statements make clear
that the purpose of the Amendment is to “overturn recent
‘palimony’ decisions by New Jersey courts by requiring that any
such contract must be in writing and signed by the person making
the promise,” Assem. Judiciary Comm. Statement to S. No. 2091,
213th Leg., 2d Sess. 1 (Dec. 3, 2009); S. Judiciary Comm.
Statement to S. No. 2091, 213th Leg., 2d Sess. 1 (Feb. 9, 2009),
but the statements do not suggest that the Legislature intended
to render existing contracts, previously enforceable, null and
void.
The reason for the Legislature’s silence may be inferred
from its knowledge that courts generally will enforce newly
enacted substantive statutes prospectively, unless it clearly
expresses a contrary intent. See Gibbons, supra, 86 N.J. at
521-22. One rationale for the prospective application of
substantive statutes is that, although everyone is presumed to
know the law, no one is expected to anticipate a law that has
yet to be enacted. Ibid. (citing 2 Sutherland on Statutory
Construction § 41.02, at 247 (4th ed. 1973)).
Historically, the Statute of Frauds has been applied
prospectively to avoid interfering with vested rights. A review
16
of the development and treatment of the Statute of Frauds will
give insight into the Legislature’s intent concerning the 2010
Amendment.
V.
The Statute of Frauds recognizes that certain agreements
may be “susceptible to fraudulent and unreliable methods of
proof” and therefore insists that those agreements be reduced to
writing and signed. Lahue v. Pio Costa, 263 N.J. Super. 575,
599 (App. Div.), certif. denied, 134 N.J. 477 (1993); see Moses
v. Moses, 140 N.J. Eq. 575, 584 (E. & A. 1947) (Heher, J.) (“The
primary design of . . . the Statute of Frauds is to avoid the
hazards attending the use of uncertain, unreliable and perjured
oral testimony . . . .”). The New Jersey Statute of Frauds is
modeled after the English Act for Prevention of Frauds and
Perjuryes, 29 Car. 2, c. 3, reprinted in 5 The Statutes of the
Realm 839 (1819), which was enacted by Parliament in 1677. N.J.
Law Revision Comm’n, Report and Recommendations Relating to
Writing Requirements for Real Estate Transactions, Brokerage
Agreements, and Suretyship Agreements 1 (1991).
The original English statute provided, “That from and after
[June 24, 1677] noe action shall be brought” to enforce certain
agreements unless they are in writing. 29 Car. 2, c. 3, § 4.
The King’s Bench in Helmore v. Shuter, (1678) 89 Eng. Rep. 764
(K.B.) 765; 2 Show. 16, ruled that the statute should be applied
17
prospectively. The Helmore case involved an attempt to enforce
an oral promise in consideration of marriage made prior to
enactment of the statute. Ibid. The King’s Bench concluded
that “the intention of the makers of that statute was only to
prevent for the future.” Ibid. That court stated that “it
would be a great mischief to explain it otherwise, to annul all
promises made by parol before that time, upon which men had
trusted and depended, reckoning them good and valid in law.”
Ibid.
Like its English prototype, the original New Jersey Statute
of Frauds provided that “no action shall be brought” on certain
types of promises and agreements unless they are in some form of
writing. An Act for the Prevention of Frauds and Perjuries § 14
(Nov. 26, 1794), reprinted in Laws of the State of New-Jersey
133, 136 (William Paterson ed., 1800). Shortly after the
passage of the original New Jersey Statute of Frauds, the then
New Jersey Supreme Court,1 like the Helmore court, stated that
“[a] parol promise, made before the statute of frauds, to be
performed afterwards, is not within it, though the statute says,
no suit shall be brought, after a certain day, on a parol
promise, and the suit was brought after that day.” Ford v.
1 Under the 1776 Constitution, the Supreme Court was an
intermediate appellate court. See N.J. Const. of 1776 arts. IX,
XII.
18
Potts, 6 N.J.L. 388, 394 (Sup. Ct. 1797). We are unaware of any
New Jersey case that contradicts that interpretation of the
Statute of Frauds, and indeed the nationwide approach is
consistent with the Helmore decision.
One well-respected treatise notes that most courts have
held that if an oral contract is lawful when made, it is not
rendered unenforceable by a later-passed statute requiring the
contract to be in writing. 4 Corbin on Contracts § 12.20 (rev.
ed. 1997); see, e.g., Zapuchlak v. Hucal, 262 N.W.2d 514, 517
(Wis. 1978) (“When a statute of frauds question arises, as here,
several years after the agreement in question was made, the
statute in effect at the time of the agreement controls.”);
Hutchings v. Slemons, 174 S.W.2d 487, 490 (Tex. 1943) (approving
earlier holding that “Statute of Frauds . . . had no application
to contracts made before its passage”); Ralph v. Cronk, 268
N.Y.S. 429, 430 (Sup. Ct.) (“It is plain that if the statute is
to be construed literally, it, by making the contract void from
the time of the enactment of the statute, impairs the obligation
of the contract, and it is, therefore, unconstitutional . . .
.”), aff’d, 271 N.Y.S. 1042 (App. Div.), aff’d, 195 N.E. 139
(N.Y. 1934); Staples v. Hawthorne, 283 P. 67, 70 (Cal. 1929)
(stating that “[t]he agreement involved in the present action
was claimed to have been made . . . long prior to the amendments
[requiring such agreements to be in writing], and, therefore,
19
its validity is not affected by them”); see also Von Hoffman v.
City of Quincy, 71 U.S. (4 Wall.) 535, 552, 18 L. Ed. 403, 409
(1867) (stating that “[a] Statute of Frauds embracing a pre-
existing parol contract not before required to be in writing . .
. . would impair the obligation of the contract,” and would
therefore be “forbidden”).
According to Corbin, various reasons have been given for
not retroactively applying the Statute of Frauds to nullify an
earlier-made oral contract, but one clear reason is that
rendering a previous valid contract unenforceable “would ‘impair
the obligation’ of a contract and run counter to the
constitutional provision.” 4 Corbin on Contracts, supra, §
12.20 (citing U.S. Const. art. I, § 10).
We now apply those principles to the case before us.
VI.
A.
N.J.S.A. 25:1-5(h) provides that, effective January 18,
2010, “[n]o action shall be brought” to enforce a palimony
agreement unless the agreement is in writing and unless the
parties “made” the agreement “with the independent advice of
counsel.” Nowhere in the text or legislative history of
N.J.S.A. 25:1-5(h) has the Legislature given any signal, express
or implied, that it intended the new statute to extinguish
previously formed lawful oral palimony agreements. The
20
Legislature knows how to write a statute that applies
retroactively, as when it amended the New Jersey estate-tax law
in July 2002 and explicitly made it retroactive to “‘every
resident decedent dying after December 31, 2001.’” Oberhand v.
Dir., Div. of Taxation, 193 N.J. 558, 565 (2008) (quoting
N.J.S.A. 54:38-1(a)(2)).
The long jurisprudential history of the Statute of Frauds
evidences the strong inclination of courts not to give
retrospective application to enactments that would annul prior
legally authorized oral agreements, unless the Legislature
expresses a contrary intent. That interpretative approach is
partly based on the view that the Legislature, presumably, would
not intend to pass a statute that might conflict with the
constitutional guarantee that forbids the passing of any “law
impairing the obligation of contracts,” U.S. Const. art. I, §
10; N.J. Const. art. IV, § 7, ¶ 3. See State v. Johnson, 166
N.J. 523, 540 (2001) (“‘Unless compelled to do otherwise, courts
seek to avoid a statutory interpretation that might give rise to
serious constitutional questions.’” (quoting Silverman v.
Berkson, 141 N.J. 412, 416 (1995))); State v. Profaci, 56 N.J.
346, 349 (1970) (“[T]he presumption is that the legislature
acted with existing constitutional law in mind and intended the
act to function in a constitutional manner.”).
21
Here, the Legislature did not clearly, or otherwise,
express an intent for N.J.S.A. 25:1-5(h) to be applied
retroactively. The Legislature, we presume, is aware that our
courts will not retroactively apply a new provision of the
Statute of Frauds to void a previously formed lawful oral
contract in the absence of a clear legislative expression to the
contrary. Accordingly, we determine that the Legislature, in
passing N.J.S.A. 25:1-5(h), did not intend to retroactively void
the indeterminate number of oral palimony agreements that
predated its enactment. Couples entering into oral palimony
agreements in reliance on Kozlowski did not have to anticipate
that the Legislature might, in the indefinite future, impose
writing and counsel requirements that would invalidate their
agreements.
Accepting the allegations in Maeker’s complaint as true, as
we must on a motion to dismiss for failure to state a claim, she
has pled a lawful cause of action: that she and Ross were in a
marital-type relationship and cohabitating for a number of
years, that Ross induced her to remain in that relationship and
make sacrifices on a promise of support, and that he breached
that agreement.
The Appellate Division erred in focusing on the date the
cause of action accrued, Maeker, supra, 430 N.J. Super. at 90,
instead of the date the oral contract was formed, for
22
retroactivity purposes. The Appellate Division suggested that
Maeker and Ross were able to memorialize their oral agreement in
accordance with N.J.S.A. 25:1-5(h) between the date of its
enactment and the breakup of their relationship. Id. at 91.
That, of course, presupposes that Maeker had the burden to bring
her long-existing agreement with Ross into compliance with the
new law and that Ross would have cooperated to put the agreement
in writing and retained independent lawyers for both of them to
accomplish that goal. That reasoning is simply inconsistent
with the traditional retroactivity analysis that applies to the
Statute of Frauds.
B.
In light of our holding that oral palimony agreements
predating the 2010 Amendment to the Statute of Frauds are not
extinguished by the new law, we choose not to decide whether
equitable forms of relief would be available in the absence of
such an agreement. We return the parties to the status quo
before the Appellate Division reversed the family court’s denial
of Ross’s motion to dismiss, with one exception. We agree with
the Appellate Division that Ross’s will, as a stand-alone
written document, cannot serve as the basis to prove a palimony
agreement. This point does not merit much attention. A will,
by its very nature, is a revocable instrument, and therefore,
without more, cannot be the basis for a binding palimony
23
agreement. See Bendit v. Intarante, 70 N.J. Super. 116, 126
(App. Div. 1961) (“A contract operates immediately to create a
property interest[,] . . . while a will is revocable . . . . A
contract creates a present, enforceable and binding right over
which the promisor has no control without the consent of the
promisee, while a testamentary disposition operates
prospectively.” (citations and internal quotation marks
omitted)); 79 Am. Jur. 2d Wills § 35 (2002) (distinguishing
contracts from wills).
Last, to be clear, we decide only the issue before us. We
do not address any issue concerning the applicability of
N.J.S.A. 25:1-5(h) to palimony agreements formed after its
enactment.
VII.
For the reasons expressed, we reverse the judgment of the
Appellate Division and reinstate Maeker’s complaint, with the
one exception noted. We remand to the family court for
proceedings consistent with this opinion.
CHIEF JUSTICE RABNER; and JUSTICES LaVECCHIA, PATTERSON,
and FERNANDEZ-VINA; and JUDGES RODRÍGUEZ and CUFF (both
temporarily assigned) join in JUSTICE ALBIN’s opinion.
24
SUPREME COURT OF NEW JERSEY
NO. A-1 SEPTEMBER TERM 2013
ON CERTIFICATION TO Appellate Division, Superior Court
BEVERLY MAEKER,
Plaintiff-Appellant,
v.
WILLIAM S. ROSS,
Defendant-Respondent.
DECIDED September 25, 2014
Chief Justice Rabner PRESIDING
OPINION BY Justice Albin
CONCURRING/DISSENTING OPINIONS BY
DISSENTING OPINION BY
REVERSE/
CHECKLIST REINSTATE/
REMAND
CHIEF JUSTICE RABNER X
JUSTICE LaVECCHIA X
JUSTICE ALBIN X
JUSTICE PATTERSON X
JUSTICE FERNANDEZ-VINA X
JUDGE RODRÍGUEZ (t/a) X
JUDGE CUFF (t/a) X
TOTALS 7
1