KATHLEEN M. MOYNIHAN VS. EDWARD J. LYNCH (FM-03-0189-17, BURLINGTON COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4883-18T3
KATHLEEN M. MOYNIHAN,
Plaintiff-Respondent/
Cross-Appellant,
v.
EDWARD J. LYNCH,
Defendant-Appellant/
Cross-Respondent.
__________________________
Argued September 15, 2020 – Decided November 12, 2020
Before Judges Yannotti, Haas and Natali.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part Burlington County,
Docket No. FM-03-0189-17.
Allison M. Roberts argued the cause for
appellant/cross-respondent (The Deni Law Group,
LLC, attorneys; Allison M. Roberts, of counsel; Aleida
Rivera, on the briefs).
Angelo Sarno argued the cause for respondent/cross-
appellant (Snyder Sarno D'Aniello Maceri & Da Costa
LLC, attorneys; Angelo Sarno, of counsel and on the
briefs; Scott D. Danaher, on the briefs).
PER CURIAM
In this palimony action, defendant Edward J. Lynch appeals from a May
29, 2019 order that enforced a February 2014 written agreement (the Agreement)
he entered with plaintiff Kathleen Moynihan. The court ordered defendant to:
1) satisfy the mortgage on a home in which the parties were joint tenants; 2)
execute a general warranty deed to plaintiff upon satisfaction of the mortgage;
3) pay the property taxes on the property, and 4) make a $100,000 payment to
plaintiff. The court also dismissed defendant's counterclaim seeking partition
of the parties' former residence and enjoined plaintiff from dissipating assets
from one of his bank accounts. Plaintiff cross-appeals from paragraph one of
that same order in which the court dismissed her claim for palimony and
concluded after a six-day trial that the oral and written promises made by
defendant did not establish an entitlement to such relief.
After carefully reviewing the record and the applicable legal principles ,
we affirm in part, reverse and vacate in part, and remand for further proceedings.
In sum, we conclude that as the Agreement was 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
A-4883-18T3
2
termination," it was necessary that it not only be memorialized in a written
document but "made with the independent advice of counsel for both parties,"
as unambiguously required by the 2010 amendment to the Statute of Frauds,
N.J.S.A. 25:1-5(h) (Amendment). Neither party sought attorney review and the
Agreement is therefore unenforceable consistent with the clear and
unambiguous requirement of that statutory provision.
We also disagree with the court's conclusion that the parties' agreement
was nevertheless an enforceable contract akin to an agreement for orderly
removal under Rule 6:6-6(b), or on any other basis. Finally, we vacate that
portion of the order dismissing defendant's counterclaim sounding in partition
as the court failed to issue appropriate Rule 1:7-4 findings necessary for
appropriate appellate review and dissolve the court's restraint on defendant's
ability to spend the funds in one of his bank accounts.
I.
The trial record establishes that plaintiff and defendant began dating in
1997. At the beginning of the relationship, plaintiff testified she had been in the
process of an eight-year divorce proceeding with her then-husband and was
living with her three children, all of whom were under twelve years old.
A-4883-18T3
3
Defendant was divorced and lived in New Hampshire with his twelve-year-old
daughter.
In July 2000, plaintiff finalized her divorce. After plaintiff's ex-husband
failed to pay the mortgage on their former marital home, plaintiff lost the home
in the ensuing foreclosure proceedings. While plaintiff was initially awarded
$4255 in monthly alimony, it was reduced in 2003 to approximately $1000 per
month, and in 2011 plaintiff entered a consent order with her ex-husband to
terminate the alimony payments.
Shortly after plaintiff's divorce, defendant purchased residential property
in Bordentown at plaintiff's father's request where plaintiff subsequently lived
with her children. At the time of the purchase, defendant's name was the only
name on the deed. He subsequently acquired two mortgages on the property and
paid certain carrying charges for the property, including homeowner's insurance.
In connection with the purchase, plaintiff obtained a loan from her father to
provide an $8000 down payment and also paid the mortgage and property taxes.
While defendant maintained his primary residence in New Hampshire,
plaintiff claimed that beginning in approximately 2000 or 2001, he stayed at the
Bordentown property more than he stayed at his New Hampshire residence.
Although defendant would travel to New Hampshire once or twice a month and
A-4883-18T3
4
plaintiff would sometimes accompany him, plaintiff stated that "he was
primarily living with [her]" and that outside of his time in New Hampshire, he
would spend the remainder of his time "[w]ith [her] in New Jersey."
On January 26, 2007, defendant created a trust (the Trust) in which he
designated himself the trustee and plaintiff the successor trustee. The same day,
defendant conveyed ownership of the Bordentown property by deed from
himself to the Trust. Defendant also transferred his basic and optional life
insurance policies into the Trust and designated the Trust as the primary
beneficiary of his accidental death and dismemberment policy as well as his
401(k) account.
Defendant also designated plaintiff as the beneficiary of his bond account
in 2013, and she remained the beneficiary for the duration of the parties'
relationship. Finally, on April 10, 2013, defendant conveyed title of the
Bordentown property from the Trust to plaintiff and defendant as joint tenants
with rights of survivorship.
Plaintiff testified that throughout the relationship, she and defendant had
a number of conversations about their future together in which defendant
promised to support her financially. For example, plaintiff stated that defendant
repeatedly promised that he was "going to take care of [plaintiff] for the rest of
A-4883-18T3
5
[her] life," that he loved her, that they were "a family," and that they would have
"a great retirement," although she noted she was frustrated by defendant's
equivocations regarding shopping for an engagement ring. She also stated that
defendant paid for her attorney during her divorce and influenced her to enter
into the consent order terminating alimony because "he said he would take care
of [her] for the rest of [her] life" and that the parties "would be together" because
they "were a family and . . . didn't need" the alimony.
Plaintiff testified that when defendant placed the Bordentown property in
the Trust, defendant promised that he would "take care of [plaintiff]" so she
would never "have to worry if something happens to [him]." Plaintiff stated that
defendant promised to support her for the rest of her life "a lot," including when
she moved into the Bordentown property and when he named her a beneficiary
on his life insurance policy and retirement account. On March 27, 2014,
defendant sent plaintiff a text message stating: "I do love you and all I do is
plan[] for your future[,] but you don't seem to realize that."
Plaintiff's daughters likewise testified that defendant, who each
considered their stepfather, stated he would support plaintiff for the rest of her
life. Plaintiff's older daughter Megan stated that when plaintiff would express
concern about not having retirement savings, defendant "would say things like,
A-4883-18T3
6
well, I don't know what you're worried about. I told you I would take care of
you." Megan also described a conversation with defendant in which defendant
did not understand "why [plaintiff was] so concerned about money because he
has enough to take care of both of them" and that defendant "told her that he
will take care of both of them." Plaintiff's younger daughter, Caitlyn, similarly
testified that defendant told her that "he's a millionaire a couple of times over
. . . [a]nd he said that [plaintiff] was already taken care of, that she should know
that, that his retirement is her retirement," and that plaintiff "could retire today
and she wouldn't have to worry."
In February 2014 plaintiff and defendant entered into the Agreement,
handwritten by defendant, which was signed by both parties, and notarized. The
Agreement provided that "[i]n the event that [plaintiff] and [defendant]
terminate their relationship [defendant] agree[s]" that:
1. The home . . . in Bordentown[,] NJ will be paid off
within five years after [defendant] vacates the property.
2. After paying off the mortgage note [defendant] will
sign the Deed over to [plaintiff] thereby giving her sole
ownership of said property.
3. Until the mortgage is satisfied [defendant] will pay the
monthly mortgage payment.
A-4883-18T3
7
4. [Defendant] will pay the property tax at . . . [the]
Bordentown[, NJ property] for two years after his
departure.
5. [Defendant] will pay [plaintiff] a sum of $100,000
dollars by the end of a five[-]year[] period starting
when [defendant] vacate[s] the [Bordentown] property.
This agreement finalizes all obligations of [defendant]
to [plaintiff].
Although the Agreement was not dated, the court accepted defendant's testimony
that it was executed in February 2014.
Plaintiff testified that she did not request that defendant draft the
Agreement and "didn't even know he was doing it." When plaintiff requested
that an attorney review the Agreement, defendant purportedly replied that "he
didn't want to pay a lawyer" because "if I tell you I'm going to do something,
I'm going to do it. I'm a man of my word." Defendant also informed plaintiff
that "getting it notarized is as good as going to an attorney. It makes it legal."
Defendant, on the other hand, testified that he did not intend to be bound
by the Agreement at the time he signed it. He acknowledged that his actions
were "dishonest" because he never informed plaintiff that he did not intend to
be bound, and that he didn't "know what she was thinking" regarding the
enforceability of the Agreement. Plaintiff and defendant ultimately signed the
A-4883-18T3
8
Agreement before a notary without either engaging an attorney to conduct an
independent review.
The parties' relationship deteriorated throughout 2013 and 2014 and ended
in April 2015 when defendant vacated the Bordentown residence. Initially,
defendant continued to pay the mortgage and property taxes. On July 6, 2015,
however, in response to a text message in which plaintiff sent defendant a tax
bill due on August 1, 2015, defendant stated "I'm not paying it[.] [A]s far as I'm
concerned[,] we don't have an agreement anymore[.] I'll pay the mortgage you
live there you pay the taxes."
On August 11, 2015, plaintiff filed a complaint seeking enforcement of
the Agreement and attorneys' fees. On November 18, 2016, the trial court
granted plaintiff's requests to file an amended complaint and to restrain
defendant from dissipating certain of the parties' joint assets. It denied,
however, defendant's requests to dismiss the complaint and to force a sale of the
Bordentown property because such relief lacked "a sufficient factual or legal
basis."
In her eleven-count amended complaint, plaintiff sought relief based on
the following causes of action: 1) palimony, 2) enforcement of a written
contract, 3) enforcement of an oral contract, 4) partial performance as a bar to
A-4883-18T3
9
the Statute of Frauds, N.J.S.A. 25:1-5, 5) unjust enrichment, 6) quantum meruit,
7) quasi-contract, 8) equitable estoppel, 9) specific performance of an implied
contract, 10) fraud or misrepresentation, and 11) joint venture. Defendant filed
an amended answer and a counterclaim for partition of the Bordentown property.
A trial took place over six nonconsecutive days. Plaintiff and her
daughters Megan and Caitlyn testified on her behalf, and she also called
defendant in her direct case. Contrary to plaintiff's testimony and that of her
daughters, defendant testified that the relationship was "exclusive" but that it
was "not marriage-like." He similarly stated that he did not consider his
relationship with plaintiff as "family" or a "family unit."
Defendant contended that the Agreement was unenforceable "[b]ecause
there were other agreements. This was a work in progress." He admitted,
however, that no other such agreements were provided in discovery. He also
stated that "[n]o promise of anyone has ever passed my lips, not my daughter,
not my parents, that I'd take care of them for the rest of their lives," though he
testified that he drafted the Agreement and added plaintiff as a life insurance
beneficiary to "shut her up."
During trial, plaintiff moved for temporary restraints freezing a bank
account defendant owned. The court granted plaintiff's request and entered a
A-4883-18T3
10
corresponding order concluding that plaintiff satisfied each factor of the Crowe
v. De Gioia, 90 N.J. 126 (1982), test. The court specifically determined that
plaintiff would suffer irreparable harm if the account was not frozen because
defendant might have been "trying to hide [h]is assets and dodge his obligation."
The court further reasoned that plaintiff presented an issue on which she was
likely to succeed in that she presented "a prima facie case of merit." Finally, it
concluded that no hardship would result to defendant and that there was potential
hardship to plaintiff because any potential judgment may be rendered
uncollectible without those assets.
At the conclusion of plaintiff's case, defendant moved for judgment under
Rule 4:40-1 on the palimony and written contract counts. Defendant argued that
pursuant to the Amendment, a written contract for palimony is not "binding
unless it was made with the independent advice of counsel . . . to both parties,"
and that neither party in this case consulted an attorney prior to signing the
Agreement. In response, plaintiff argued that the Amendment was
unconstitutional because it impaired the "right of his client and people situated
similarly to his client to enter into contracts." Plaintiff further maintained that
there was no reason "for people who are in a . . . marital type relationship who
A-4883-18T3
11
want to enter into a contract to resolve their relationship should have to have an
attorney when nobody else has to have an attorney."
The court concluded that there was no factual dispute as both parties were
"very clear[] that they did not talk to an attorney with regard to [signing the
Agreement]." The court declined to conclude that the Amendment was
unconstitutional because: 1) there was "no notice to the Attorney General of the
attack on the validity of the statute" as required by Rule 4:28-4(a)(1); 2) the
Supreme Court declined to address the constitutionality of the Amendment in
Maeker v. Ross, 219 N.J. 565 (2014); and 3) there was "no evidence . . . of any
kind of undue burden . . . [or] evidence that it impairs [plaintiff's] right to
contract . . . [or to] afford an attorney." While the trial court found the policy
discussions around palimony "smacks a . . . bit of paternalism and patriarchy,"
the court noted it was bound by the plain language of the statute and granted
defendant's motion with regard to count one for palimony and dismissed that
claim with prejudice.
Turning to defendant's request for judgment on the enforceability of the
Agreement, the court found that it is "simply a contract between the[] parties"
requiring only an offer, acceptance, and consideration. The court noted that the
parties negotiated at length the provisions of the Agreement and that there was
A-4883-18T3
12
a "meeting of the minds." The court found consideration existed based on "the
love and affection between the parties, the years that they were together" and
denied defendant's motion. After the court dismissed count one, the trial
proceeded on counts two through eleven and defendant's counterclaim for
partition.
At the conclusion of trial, the court issued a May 29, 2019 order
dismissing all the remaining counts in the amended complaint except for count
two, enforcement of the Agreement. It ordered defendant to "completely
satisfy" the mortgage at the Bordentown property, issue a general warranty deed
to plaintiff upon satisfaction, pay plaintiff $100,000, and pay all property taxes
on the property between May 1, 2015, and April 30, 2017. The court denied
plaintiff's requests for "an equitable legal share of the assets accumulated by the
[d]efendant during the relationship" and "that the [d]efendant provide proper
support for her." Further, it continued the previously entered restraint on
defendant's bank account and ordered the parties to pay their own attorneys' fees
and costs. Finally, the court dismissed defendant's counterclaim.
In its corresponding May 29, 2019 oral opinion, the court found that
"between 1997 and 2000, [the parties] were engaged in . . . a dating relationship.
And it wasn't until the property in Bordentown was purchased that it became
A-4883-18T3
13
more frequent, more formalized, and could more accurately be called
cohabit[at]ing, or at least living together." It also found that the parties did not
commingle funds in the form of a joint bank account or joint credit cards, which
was undisputed.
The court noted the discrepancies between the parties' view of the
relationship. The court concluded that defendant's testimony was not
"particularly credible" and that plaintiff's testimony was "much more credible
than the [defendant's] . . . in all respects." The court noted that his testimony in
which he stated he "never intended to be bound by" the Agreement and that "[h]e
did it to keep the peace" was detrimental to his credibility, as well as his evasive
responses to questioning about "the use of the money from the sale of the bonds."
The court found that the relationship "[c]learly . . . was a cohabitation and
certainly had all of the earmarks of a marital style relationship and a family style
relationship."
The court then described the promises that plaintiff alleged were made to
her by defendant "to support her for the rest of her life." It concluded that despite
its finding that plaintiff was "generally more credible than the defendant," the
court found the defendant did not tell plaintiff that he would "take care of [her]
for the rest of [her] life" in 2000. The court also found that when defendant
A-4883-18T3
14
agreed to pay the mortgage and taxes on the Bordentown property, "it [wa]s not
a situation in which he was agreeing to support or take care of her for any period
of time. He was simply acting as a means for her to live in a townhouse instead
of an apartment."
After considering the parties' discussions of marriage, the Trust, and
defendant's bill payments, the court was "unable to conclude" that thos e
discussions "amount[ed] to an express agreement of support for life" and that
"[i]t was simply the various financial machinations that went on between
[defendant] and [plaintiff] during the course of their relationship." As such, the
court denied plaintiff's request for palimony based on any purported oral
agreement. The court also reaffirmed its earlier decision denying palimony
based on the Agreement as contrary to the Statute of Frauds.
The court next addressed plaintiff's claims in count two of the amended
complaint for enforcement of the Agreement. Specifically, the court determined
that "it is more likely" that the Agreement was signed in 2014 as defendant
testified. It concluded that the Agreement's terms were "clear and
understandable, and they were understood by the parties." It further found that
the Agreement was in defendant's handwriting and was "the culmination of
various discussions that the parties had about their relationship, what they were
A-4883-18T3
15
doing, where they were going, [and] what they wanted in the future." The court
found not credible defendant's "testimony that there were other agreements in
writing" because he produced no other prior agreements, and it accordingly
determined that the Agreement was "the only written agreement that exist[ed]
between the plaintiff and the defendant."
The court further concluded that "[w]hile the proofs do not support a
finding of a promise by the defendant to support the plaintiff for life, . . . [they]
do support the conclusion that . . . the defendant wanted the plaintiff to have the
house." Further, it determined that "[t]he conclusion is inescapable that [the
Agreement] is a contract between the plaintiff and the defendant" which was
legally enforceable. Noting that consideration was the only element of contract
formation in dispute, the court found that "plaintiff gave up her alimony in 2011,
upon the representation by the defendant that [he] would take care of her" and
also induced her "to remain in the relationship." The court concluded t hat
despite defendant's motive "to shut [plaintiff] up" and "to make her feel secure,"
he clearly acknowledged that "he knew there was an agreement" because of his
text message stating "[w]e don't have an agreement anymore."
The court reasoned that the Agreement "clear[ly]" was not a palimony
agreement because "there is no promise in it of support for the rest of [plaintiff]'s
A-4883-18T3
16
life." Rather, the court found the Agreement was "very akin to an order for
orderly removal that we see in landlord/tenant court all of the time." Because it
was unaware "of any prohibition in the law on the rights of parties who are
cohabiting to enter into these types of agreements," it granted plaintiff's request
for relief in count two, enforcement of the written agreement. Finally, it
dismissed all remaining counts of the complaint "as they are actually alternative
theories of liability in the event the oral and/or written agreements [were] not
enforced" as well as defendant's counterclaim for partition. 1 This appeal
followed.
On appeal, defendant argues that the trial court should have dismissed
count two, as the parties did not consult attorneys pursuant to the Amendment.
1
As noted, plaintiff's amended complaint also included claims for: unjust
enrichment (count five), quantum meruit (count six), quasi-contract (count
seven), equitable estoppel (count eight), specific performance of an implied
contract (count nine), fraud or misrepresentation (count ten), and joint venture
(count eleven). Significantly, plaintiff's notice of cross-appeal clearly states she
seeks review of only paragraph one of the order, which dismissed count one of
the amended complaint. It is well settled that a party's appeal is limited to those
judgments or orders, or parts thereof, designated in the notice of appeal. Pressler
& Verniero, Current N.J. Court Rules, cmt. 6.1 on R. 2:5-1 (2020). Further,
plaintiff failed to brief the propriety of the trial court's dismissal of these claims.
The failure to brief an issue constitutes waiver of that issue. See Gormley v.
Wood-El, 218 N.J. 72, 95 n.8 (2014); Pressler & Verniero, Current N.J. Court
Rules, cmt. 5 on R. 2:6-2 (2020). We therefore decline to consider any challenge
to the portion of the court's May 29, 2019 order that dismisses counts five
through eleven.
A-4883-18T3
17
Further, he contends that the court erred by concluding that the Agreement was
legally enforceable as similar to an agreement for orderly removal. Moreover,
defendant claims the court erred by dismissing his counterclaim for partition and
in continuing the freeze on his bank account.
In her cross-appeal, plaintiff argues that the trial court committed error
when it concluded that defendant did not make oral promises of palimony.
Alternatively, she contends the court erred by failing to conclude that partial
performance nullified the Amendment's attorney review requirement. Finally,
plaintiff argues the court erred when it determined the Amendment was not an
unconstitutional infringement on her contractual rights.
II.
Our scope of review of Family Part orders is limited. Cesare v. Cesare,
154 N.J. 394, 411 (1998). We generally defer to factual findings made by a trial
court when such findings are supported by adequate, substantial, and credible
evidence. Gnall v. Gnall, 222 N.J. 414, 428 (2015). "We review the Family
Part judge's findings in accordance with a deferential standard of revie w,
recognizing the court's 'special jurisdiction and expertise in family matters.'"
Thieme v. Aucoin-Thieme, 227 N.J. 269, 282-83 (2016) (quoting Cesare, 154
N.J. at 413). "A more exacting standard governs our review of the trial court's
A-4883-18T3
18
legal conclusions[,] . . . [which] we review . . . de novo." Ibid. (citing D.W. v.
R.W., 212 N.J. 232, 245-46 (2012)).
III.
Defendant initially argues that the court committed error when it
concluded that because the Agreement had "no promise in it of support fo r the
rest of [plaintiff's] life," it was "beyond the reach of the Amendment." We agree.
Palimony is "a claim for support between unmarried persons." Devaney
v. L'Esperance, 195 N.J. 247, 253 (2008). "A valid cause of action for palimony
requires an agreement to pay future support made during a marital-type
relationship between unmarried persons." Bayne v. Johnson, 403 N.J. Super.
125, 139 (App. Div. 2008). The common law elements of a palimony cause of
action are that: 1) the parties cohabited; 2) in a marriage-type relationship; 3)
during which defendant promised plaintiff support for life; and 4) there was
valid consideration for the promise. Levine v. Konvitz, 383 N.J. Super. 1, 3
(App. Div. 2006).
Prior to the enactment of the Amendment, palimony agreements could be
express or implied. Kozlowski v. Kozlowski, 80 N.J. 378, 384 (1979). Further,
in In re Estate of Roccamonte, 174 N.J. 381, 393 (2002), our Supreme Court
concluded that "the entry into [a marital-type] relationship and then conducting
A-4883-18T3
19
oneself in accordance with its unique character is consideration" to enforce a
promise for support.
The existence and terms of the contract in a palimony action are not
determined by the parties' words, but "by the parties' 'acts and conduct in the
light of . . . [their] subject matter and the surrounding circumstances.'"
McDonald v. Estate of Mayety, 383 N.J. Super. 347, 359 (App. Div. 2006)
(quoting Kozlowski, 80 N.J. at 384). A general promise of support for life in
exchange for some consideration is sufficient to form a contract. Ibid. When
the court determines that such a promise was made and later broken, it will
award the promisee a lump sum payment representing the present value of
reasonable future support over the expected life of the promisee. Id. at 360.
The Statute of Frauds requires that certain "agreements or promises . . .
be in writing and signed by the party to be charged therewith." N.J.S.A. 25:1-
5. On January 18, 2010, the Statute of Frauds was amended to include the
Amendment, which as noted, required that palimony agreements be in writing
and entered with the advice of counsel. L. 2009, c. 311, § 1, eff. Jan. 18, 2020.
Specifically, the Amendment provides that an agreement must be in writing
where there is a:
promise by one party to a non-marital personal
relationship to provide support or other consideration
A-4883-18T3
20
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.
[N.J.S.A. 25:1-5(h) (emphasis added).]
The legislative history of the Amendment makes clear that the Legislature
"intended to overturn recent 'palimony' decisions by New Jersey courts,"
specifically referencing Devaney, 195 N.J. at 248 (holding "cohabitation is not
an essential requirement for a cause of action for palimony, but a marital-type
relationship is required"); Roccamonte, 174 N.J. at 381 (holding that a promise
of support between unmarried persons may be enforced against a decedent's
estate); and Kozlowski, 80 N.J. at 378 (recognizing that a promise between
unmarried persons for support, whether express or implied, may be enforceable).
Senate Judiciary Committee, Statement to S.2091 (Feb. 9, 2009). 2
2
Then Governor Jon S. Corzine issued the following statement when he signed
the legislation.
I approve Senate Bill No. 2091 . . . in light of the
representation by legislative leadership and the bill
sponsors that this law will be improved to recognize
agreements or promises in a non-marital relationship as
binding when they are mutual, in writing, and notarized
as opposed to mandating the involvement or services of
an attorney. Legislative leadership and the sponsors
A-4883-18T3
21
Here, the trial judge incorrectly concluded that because the Agreement
lacked an essential element of a palimony agreement, a promise of support for
life, it fell outside of the Statute of Frauds. The Amendment, however, requires
only that such an agreement contain 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."
N.J.S.A. 25:1-5(h). The Amendment does not limit the attorney review
requirement to promises of support for the promisee's life or any other duration
of time. As such, the trial court erred when it concluded that because the
Agreement lacked a promise of support for life, it stood outside the clear
requirements of the Amendment.
share my goal of providing greater clarity in the
enforcement of palimony agreements but ensuring that
this law does not have an adverse impact on parties who
may not be able to afford the services of an attorney. I
take this action in light of the time constraints that
result at the end of a legislative session, which do not
afford time for a [c]onditional [v]eto to recommend
removal of this provision.
Despite Governor Corzine's intention that the law be amended to require only a
notarized agreement, no such modifying amendment was ever enacted by the
Legislature.
A-4883-18T3
22
By way of the Agreement, defendant clearly promised "to provide support
or other consideration" to plaintiff. In this regard, defendant stated, despite any
unexpressed intentions he may have had, that he would agree to the terms of
Agreement in the event the relationship terminated. And, he agreed that should
such an event occur, he would pay the entirety of the mortgage at the
Bordentown property within five years, sign the deed over to plaintiff, pay the
monthly mortgage, pay the property taxes for two years, and pay plaintiff a lump
sum of $100,000 within five years after he vacated the property. The Agreement
is precisely the type of written contract encompassed by the Amendment and for
which attorney review is required. Absent compliance with the Amendment, the
Agreement is not an enforceable contract.
IV.
We also agree with defendant that the court erred when it enforced the
Agreement as a non-palimony contract. The court equated the Agreement to a
landlord/tenant order for orderly removal specifically stating that the Agreement
was "very akin to an order for orderly removal" and that "that's exactly what this
is."
Under Rule 6:6-6(b),
[a]n application for orderly removal requesting more
time to move out, if there is a showing of good reason
A-4883-18T3
23
and applied for on notice to a landlord . . . need not have
a return date if the sole relief is a stay of execution of a
warrant of removal for seven calendar days or less, but
it shall provide that the landlord may move for the
dissolution or modification of the stay on two days'
notice to the tenant or such other notice as the court sets
in the order.
It is clear from a plain reading of Rule 6:6-6(b) that the Agreement bears
no similarity to an order for orderly removal. Rule 6:6-6(b) orders do not
distribute funds, compel payments based on alleged offers of support, or transfer
contested interests in real property. Furthermore, as we have already concluded
that the Agreement was clearly encompassed by the Amendment, it was error
for the court to enforce the Agreement under another name. Finally, there is no
evidence to support a finding that the parties entered into a landlord/tenant
relationship. In light of our decision, we need not address defendant's related
argument that the Agreement was unenforceable for a lack of consideration.
V.
Plaintiff further argues that her partial performance in accordance with the
purported oral promises warrants enforcement of the Agreement. We disagree
for the following reasons.
First, we find that plaintiff did not plead a proper cause of action for partial
performance. Indeed, count four of plaintiff's amended complaint states that it
A-4883-18T3
24
was defendant, not plaintiff, who partially performed. As the Supreme Court
noted in Klockner v. Green, a plaintiff alleging partial performance as an
exception to the Statute of Frauds must base their claim on their own
performance, not the defendant's. 54 N.J. 230, 236-37 (1969). We therefore
find that plaintiff's pleading does not support a basis for relief as it is based on
the performance of defendant and not on her own. Even if we considered the
amended complaint to conform to the proofs as permitted by Rule 4:9-2, we also
reject plaintiff's argument because her claim for partial performance is in direct
contradiction to the Amendment and the services performed are not exceptional
in character.
In Maeker, we questioned whether an oral palimony agreement can be
enforced based on a claim for partial performance. 430 N.J. Super. at 93. After
reviewing the legislative history to the bill enacting the Amendment, we noted
the Legislature expressed its intent that the bill was "intended to overturn recent
'palimony' decisions by New Jersey courts." Ibid. (quoting Senate Judiciary
Committee, Statement to S.2091 (Feb. 9, 2009)); see also Devaney, 54 N.J. at
248; Roccamonte, 174 N.J. at 381; Kozlowski, 80 N.J. at 378. 3
3
In Roccamonte, the Supreme Court upheld an oral promise for palimony for a
twenty-five-year relationship. 174 N.J. at 385. The Court held that although it
A-4883-18T3
25
Plaintiff's claim of partial performance is contrary to the clear terms of the
Amendment. Indeed, plaintiff's theory of relief is of the type that was
specifically intended to be barred by the Amendment. As noted, the Amendment
was enacted by the Legislature in direct response to recent decisions that found
implied in fact agreements. Roccamonte, 174 N.J. at 395; Kozlowski, 80 N.J.
at 384. A contract implied in fact is created by the conduct of the parties.
Weichert Co. Realtors v. Ryan, 128 N.J. 427, 436 (1992). Plaintiff's assertion
that the Agreement should be enforced based on her alleged partial performance
of an oral agreement between the parties, would essentially permit enforcement
of contract the Legislature has expressly prohibited.
Finally, in Maeker we noted that to grant the equitable remedy of specific
performance of an oral promise the "performance must be in some respects of
an exceptional character, and it must be obvious that . . . the services are of such
peculiar character that it is impossible to estimate their value by any standard."
430 N.J. Super. at 94 (quoting Klockner, 54 N.J. at 237). We rejected the
requested equitable relief in that case because "there was nothing exceptional or
believed an oral promise existed, the agreement would also have been
enforceable by implication. Id. 395. In Kozlowski, the Supreme Court upheld
an oral promise for palimony for a fifteen-year relationship. 80 N.J. at 384-87.
Moreover, similar to Roccamonte, the Court found that it was "of no legal
consequence" whether the promise was express or implied. Id. at 384.
A-4883-18T3
26
peculiar about the services performed by defendant, and plaintiff, as well as her
son, already received the full benefit of those services." Ibid. These services
included paying for joint property expenses, plaintiff's living expenses, and
plaintiff's son's living expenses. Id. at 93. Here, without minimizing plaintiff's
contributions to the parties' relationship, like in Maeker, the services were not
"exceptional or peculiar in character" and did not support enforcement of the
Agreement.
VI.
In addition, defendant asserts that the court erred by dismissing his
counterclaim for partition without placing its reasons for dismissal on the record.
He further contends that his partition claim was meritorious as his rights as a
joint tenant of the property would be violated without a partition because it is
the deed that governs, not the Agreement. We agree with defendant that he
asserted a viable partition claim. As the court dismissed that cause of action
without providing a statement of reasons as required by Rule 1:7-4, we vacate
that portion of the May 29, 2019 order and remand for further proceedings.
Partition is an equitable remedy by which property, held by at least two
people or entities as tenants in common or joint tenants, may be divided. See
N.J.S.A. 2A:56-1 to -44; R. 4:63-1. When property is subject to partition, a
A-4883-18T3
27
physical division of the property is one possible remedy. N.J.S.A. 2A:56-2
provides that a court "may, in an action for the partition of real estate, direct the
sale thereof if it appears that a partition thereof cannot be made without great
prejudice to the owners, or persons interested therein." The manner in which
property is partitioned is "within the discretion of the court." Greco v. Greco,
160 N.J. Super. 98, 102 (App. Div. 1978) (citing Newman v. Chase, 70 N.J. 254,
263 (1976)).
Rule 1:7-4(a) provides that the court "shall . . . find the facts and state its
conclusions of law thereon . . . on every motion decided by a written order that
is appealable as of right." "Meaningful appellate review is inhibited unless the
judge sets forth the reasons for his or her opinion. In the absence of reasons, we
are left to conjecture as to what the judge may have had in mind." Salch v.
Salch, 240 N.J. Super. 441, 443 (App. Div. 1990); see also Estate of Doerfler v.
Fed. Ins. Co., 454 N.J. Super. 298, 301 (App. Div. 2018).
At trial, defendant established a colorable partition claim. For example,
on April 10, 2013, title of the Bordentown home was conveyed from the Trust
by deed to defendant and plaintiff as joint tenants with rights of survivorship.
Defendant was responsible for certain of the property's carrying costs. For her
A-4883-18T3
28
part, plaintiff contributed an $8000 loan from her father to be used as a down
payment.
Here, the court summarily stated that as a result of granting count two and
enforcing the Agreement, "the counterclaim is dismissed." We cannot discern
from this statement the court's reasoning to support the dismissal of defendant's
counterclaim. A remand is therefore necessary for the court to consider the trial
proofs and address the partition claim with appropriate Rule 1:7-4 factual
findings and legal conclusions.
VII.
Defendant also contends that the trial court erred by continuing the freeze
on his bank account until "all of the obligations under [the trial court's order]
are satisfied," and again stressed that the court failed to make necessary factual
findings and legal conclusions supporting the need for continuing restraints. As
we have reversed that portion of the May 29, 2019 order that enforced the
Agreement and remanded for further proceedings limited to the partition action,
we discern no further need for the restraints on defendant's bank account under
Crowe, 90 N.J. at 132-34. Accordingly, the portion of the trial court's order
freezing defendant's bank account is vacated.
A-4883-18T3
29
VIII.
On her cross-appeal, plaintiff contends that the trial court committed error
in dismissing her claim for palimony stated in count one because it "failed to
adequately consider [d]efendant's conduct when deciding whether any oral
promises existed." We disagree.
In Maeker v. Ross, we held that because palimony actions are based upon
principles of contract law, a palimony cause of action accrues at the time the
defendant is alleged to have breached the agreement, not at the time the promise
of lifetime support was purportedly made. 430 N.J. Super. 79, 97 (App. Div.
2013). In 2014, however, the Supreme Court reversed our ruling and held that
the Amendment did not apply retroactively to void oral palimony agreements
that predated its enactment. Maeker, 219 N.J. at 580-82. The Supreme Court
explained that the date the oral contract was formed, rather than the date the
cause of action accrued, was the controlling date "for retroactivity purposes."
Id. at 582. Under the Supreme Court's holding, count one of plaintiff's amended
complaint, predicated on alleged oral promises made during their eighteen-year
relationship, pre-dated the Amendment and was therefore enforceable so long
as oral promises of palimony existed.
A-4883-18T3
30
As noted, the common law elements of a palimony cause of action are
that: 1) the parties cohabited; 2) in a marriage-type relationship; 3) during which
defendant promised plaintiff support for life; and 4) there was valid
consideration for the promise. Levine, 383 N.J. Super. at 3. Plaintiff contends
that the only element at issue is whether defendant made oral or written promises
for support. In this regard, plaintiff relies on In re Estate of Quarg for the
proposition that a "promise will be enforced by the court whether it is oral or
written, implied or express, or inferable from the parties' acts and conduct rather
than by what they said." 397 N.J. Super. 559, 564 (App. Div. 2008) (citing
Roccamonte, 174 N.J. at 389).
In Quarg, this court remanded the matter "to the Chancery Division for a
plenary hearing, if necessary, to determine whether [the plaintiff] can establish
an enforceable implied promise as detailed in Roccamonte" regarding her
request for a constructive trust. Id. at 566. In reaching its decision, the court
concluded that an implied promise may have existed because "one of the
components of [plaintiff]'s complaint alleged that she would be unjustly
impoverished if she did not share in [defendant]'s estate" and because "after
more than forty years of living with [defendant] as married, [plaintiff] asserts
that the relationship was 'founded on mutual trust, dependency[,] and raised
A-4883-18T3
31
expectations.'" Ibid. In this regard, the court found that the plaintiff's
"allegations bespeak an implied promise by [defendant] not to leave [plaintiff]
impoverished, but rather, to see to it, as best he could, that she survived with
adequate provisions during the remainder of her life." Ibid.
Here, as noted, we typically afford substantial deference to Family Part
factual findings because of its "special jurisdiction and expertise," see Thieme,
227 N.J. at 283 (quoting Cesare, 154 N.J. at 413), and we find no reason to
deviate from that standard of review and disrupt that portion of the trial court's
credibility-based finding that defendant never made an "implied or express oral
promise that he would support the plaintiff either for her life or for any other
period of time." The court's conclusion was supported by substantial credible
evidence in the record.
Further, unlike the parties in Quarg, plaintiff and defendant did not share
a last name and had no joint bank account. And, as the trial court noted, "[w]hen
the defendant set up the revocable trust, he told [plaintiff] what it meant. She
understood that it was revocable, that he could change it at any time." Moreover,
unlike Quarg, the court noted that "during all of this time, up to and including
the present, the plaintiff is not totally dependent on the defendant," and that the
case law indicates that "complete financial dependence . . . is one thing that we
A-4883-18T3
32
can look at." Subsequently, the court found that "[plaintiff] [had] work[ed] and
receiv[ed] for a period of time, child support, and receiv[ed] . . . alimony." Here,
there is no indication that plaintiff would be "impoverished" absent the
enforcement of an oral promise of palimony. See Quarg, 397 N.J. Super. at 566.
In sum, the trial court did not err when it dismissed count one and concluded
that defendant's conduct did not evince an implied oral promise to support
plaintiff for life or other period of time.
IX.
Finally, plaintiff argues that the Amendment violates the Contract Clause
of the New Jersey and United States Constitutions. She contends that "there can
be no doubt that there is a contractual relationship between [p]laintiff and
[d]efendant, and between individuals similarly situated," which has been
impaired because it leaves plaintiff "without adequate recourse after dedicating
a large part of her life to [d]efendant." She further maintains that the
independent legal counsel requirement "lacks a significant and legitimate public
purpose" because it "prohibits parties who cannot afford to retain counsel from
entering into an enforceable agreement" and no other statute "requir[es] parties
to consult with independent legal counsel, as opposed to affording parties the
opportunity to consult with" same. Finally, she claims that "the requirement of
A-4883-18T3
33
independent legal counsel is based upon unreasonable conditions and is
unrelated to appropriate governmental objectives." We disagree with all of these
arguments.
The Contract Clause of the United States Constitution states: "No State
shall . . . pass any . . . Law impairing the Obligation of Contracts." U.S. Const.
art. 1, § 10, cl. 1. Similarly, New Jersey's Constitution guarantees: "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." N.J. Const. art. IV, § 7, para. 3; see, e.g., Berg v. Christie,
225 N.J. 245, 258-59 (2016); Burgos v. State, 222 N.J. 175, 193 (2015).
"Contract impairment claims brought under either constitutional provision
entail an analysis that first examines whether a change in state law results in the
substantial impairment of a contractual relationship and, if so, then reviews
whether the impairment nevertheless is 'reasonable and necessary to serve an
important public purpose.'" Berg, 225 N.J. at 259 (quoting U.S. Tr. Co. of N.Y.
v. New Jersey, 431 U.S. 1, 25 (1977)). Our Supreme Court has advised this
analysis requires "three inquiries." Ibid. "Legislation unconstitutionally
impairs a contract when it (1) 'substantially impair[s] a contractual relationship,'
(2) 'lack[s] a significant and legitimate public purpose,' and (3) is 'based upon
A-4883-18T3
34
unreasonable conditions and . . . unrelated to appropriate governmental
objectives.'" Burgos, 222 N.J. at 193-94 (quoting Farmers Mut. Fire Ins. Co. of
Salem v. N.J. Prop.-Liab. Ins. Guar. Ass'n, 215 N.J. 522, 546-47 (2013)
(alterations in original)).
Here, requiring a lawyer to review palimony agreements is not a
substantial impairment. The Legislature routinely imposes additional costs on
parties who seek to enter contractual relationships. For example, it has required
independent legal counsel if a lottery winner seeks to assign their winnings. See
N.J.S.A. 5:9-13(d)(15). Further, in the rare situations in which courts have
found a substantial impairment, the law in question has completely altered terms
of an existing, enforceable contract. See, e.g., Allied Structural Steel Co. v.
Spannaus, 438 U.S. 234, 247 (1978) (finding a substantial impairment because
the "statute in question . . . nullifie[d] express terms of [a party's] contractual
obligations and impose[d] a completely unexpected liability in potentially
disabling amounts"). Plaintiff and others similarly situated are free to enter
enforceable palimony agreements so long as they satisfy the Statute of Frauds.
Here, plaintiff conceded that she chose not to see a lawyer about the Agreement
and the trial court found there was "no evidence she c[ould not] afford an
attorney."
A-4883-18T3
35
Moreover, the Amendment's conditions reasonably relate to a significant
and legitimate public purpose. The Statute of Frauds exists because the
Legislature has found agreements within its scope "susceptible to fraudulent and
unreliable methods of proof." Lahue v. Pio Costa, 263 N.J. Super. 575, 599
(App. Div. 1993). With regard to the Amendment specifically, we noted that
the Legislature was concerned with the burden of proof difficulties in
establishing valid palimony agreements. While independent attorney review is
not required in other provisions of the Statute of Frauds or other family law
agreements, the Legislature has required so for palimony agreements with the
very purpose of protecting the rights of contracting parties. The Amendment is
one legitimate way of addressing this significant issue and is reasonably related
to appropriate legislative objectives. After considering the aforementioned
three-part inquiry, we conclude plaintiff has failed to establish that the
Amendment violates the Contract Clauses of the State or Federal Constitutions.
To the extent we have not addressed any of the parties' arguments it is
because we find them without sufficient merit to warrant discussion in a written
opinion. R. 2:11-3(e)(1)(E).
A-4883-18T3
36
Affirmed in part, reversed and vacated in part, and remanded. We do not
retain jurisdiction.
A-4883-18T3
37