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Thursday, January 3, 2008

Palimony Law in New Jersey

Palimony Law in New Jersey

The New Jersey Supreme Court expanded palimony- the ability of unmarried couples to file a suit for payment of money or support from the ex-boyfriend/girlfriend. This decision is called "In the Matter of the Estate of Arthur J. Roccamonte, Sr." (A-75-01)
In the Roccamonte case, Plaintiff was born in 1925. She married in 1941 and worked in New York City's garment center. Plaintiff and her husband gave birth to a daughter. In the 1950's, plaintiff met Arthur Roccamonte, who owned a trucking business. He was also married and had two children. Roccamonte and plaintiff began an affair. They lived together intermittently until the mid-1960s when plaintiff moved to California for the purpose of ending her relationship with Roccamonte. Roccamonte promised plaintiff that if she came back to him, he would divorce his wife. He also promised that he would provide for her financially for the rest of her life. Relying on those promises, plaintiff returned and divorced her husband. In 1970 Roccamonte leased an apartment in New Jersey where he and plaintiff lived together. Plaintiff's daughter lived with them. In 1973 the building was converted to cooperative ownership and Roccamonte purchased an interest which he titled in plaintiff's name. They lived together in the apartment as husband and wife until his death in 1995. Roccamonte never divorced his wife, and continued throughout his life to support his wife and children generously.

Roccamonte was a man of considerable wealth and the lifestyle he afforded plaintiff and the financial support he provided her was consistent with his affluence. In addition to improvements to the apartment, a weekly cash allowance of $600, clothes, jewelry and vacations, Roccamonte paid the college tuition and medical expenses of plaintiff's daughter. Meanwhile, plaintiff continued to work in the garment industry until 1990, earning a take-home pay averaging about $250 weekly. During their years together, plaintiff committed herself to her relationship with Roccamonte, conducting herself in private and in public as a loyal and devoted wife.

As plaintiff grew older, she expressed her concerns about her financial future in the event she survived Roccamonte. She testified that he repeatedly assured her that he would see to it she was provided for during her life, and he repeated these promises in the presence of other witnesses, who also testified. Roccamonte, however, died intestate. On Roccamonte's death, plaintiff received the proceeds of an insurance policy on his life in the amount of $18,000 and a certificate of deposit in her name in the amount of $10,000. She also had title to the apartment, the maintenance cost of which was then approximately $950 per month, and her jewelry. Finally, she received two weekly payments of $1,000 immediately after Roccamonte's death from his son, who was managing the trucking business. Plaintiff became 77 years old and is entirely dependent on social security payments and food stamps. She is living with her disabled daughter, who is in receipt only of social security disability payments.

Seven months after Roccamonte's death, plaintiff commenced a lawsuit against the estate, seeking a lump-sum support award. The Superior Court, Probate Part, dismissed plaintiff's complaint on the basis that she failed to make a prima facie showing of a valid contract to make a testamentary disposition. The Appellate Division reversed, finding that the trial court had failed to consider plaintiff's claim that she was entitled to support on a palimony theory. The Appellate Division remanded to the Probate Part for a hearing to determine, in part, whether plaintiff had an enforceable contract claim assertable against the decedent's estate as his successor in interest, apart from any testamentary qualities decedent's representations might have had. A plenary trial was held and the trial judge rendered his oral opinion dismissing the complaint. On appeal, the majority of the Appellate Division panel concluded that a fair reading of the record in the trial court compelled the finding that Roccamonte had made an enforceable oral promise of support for life to plaintiff, and that the promise was enforceable against his estate. The dissenting judge was of the view that the trial court failed to make a finding of that promise and, even if the promise had been made, it would not be enforceable against the estate. 346 N.J. Super. 107 (App. Div. 2001).

On Appeal, the NJ Supreme Court held: A palimony contract was entered into by the decedent and plaintiff in which plaintiff was promised support for her life, and that contract is enforceable against the decedent's estate.

1. The Court decided that unmarried heterosexual adults, even those who are married to others, have the right to choose to cohabit together in a marital-like relationship, and if one of those partners is induced to do so by a promise of support, the promise will be enforced. A palimony contract may be oral, express or implied. The contract's existence and its terms are ordinarily determinable from the parties' conduct and the surrounding circumstances. Thus, 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. If such a promise of support for the promisee's lifetime is found to have been made, without further specification of its terms, and that promise is broken, the court will enforce it by awarding the promisee a one-time lump sum in an amount predicated upon the present value of the reasonable future support defendant promised to provide, to be computed by reference to the promisee's life expectancy.

2. The formation of a marital-type relationship between unmarried persons is not exclusively dependent upon one partner providing maid service. Rather, it is the undertaking of a way of life in which two people commit to each other, foregoing other liaisons and opportunities, doing for each other whatever each is capable of doing, providing companionship and fulfilling each other's needs, financial, emotional, physical, and social, as best they are able. Each couple defines its way of life and each partner's expected contribution to it in its own way. The entry into such a relationship and then conducting oneself in accordance with its unique character is consideration in full measure. Here, plaintiff provided that consideration until her obligation was discharged by Roccamonte's death.

3. Complete dependency by the promisee on the promisor is not a sine qua non of a valid palimony agreement. The issue is one of economic inequality and the relevant question is whether the promisee is self-sufficient enough to provide for herself with a reasonable degree of economic comfort appropriate in the circumstances. Here, the fact that plaintiff chose to be employed cannot result in her forfeiture of the support promise in view of her modest salary, the gross disproportion between her economic means and Roccamonte's, and the gross disproportion between her earnings and the standard of living provided by Roccamonte. Moreover, plaintiff was no longer working when Roccamonte died and was relying exclusively on him for her support.

The Court finds that the promise of support for life was made, if not expressly as it appears to have been, then by implication. Roccamonte's break from his family and his marital-like relationship with plaintiff resulted from his successful efforts to induce plaintiff's return to him from California by representing that her future would be neither prejudiced nor compromised. Roccamonte's concern for plaintiff's economic well-being was also evident in his lavish provisions for her during their twenty-five years together. It appears highly unlikely that he intended to leave her to an impoverished old age or that she accepted that risk when she reunited with him. The promise that he would see to it that she was adequately provided for during her lifetime was both the corollary for and the condition of their relationship.

Roccamonte's duty to support plaintiff for her life was not discharged by his death and must, consequently, be discharged by his estate. It is not Roccamonte's death, however, that triggered plaintiff's entitlement, but rather his failure, during his lifetime, to have made adequate provision for the plaintiff, an obligation whose fulfillment does not depend solely or exclusively on testamentary disposition. The promise is a contractual undertaking binding the estate like any other contractual commitment the decedent may have made in his lifetime.

6. Because palimony claims typically are unique to a family-type relationship, this matter is remanded to the Family Part for the fixing of a lump-sum payment. That amount must be based on plaintiff's life expectancy at the time of Roccamonte's death. In the event of any prospect of delay in the remand proceedings, plaintiff may seek temporary periodic support from the Estate.





In Kozlowski v. Kozlowski, 80 N.J. 378 (1979), the Court recognized that unmarried adult partners, even those who may be married to others, have the right to choose to cohabit together in a marital-like relationship, and that if one of those partners is induced to do so by a promise of support given her by the other, that promise will be enforced by the court.

The Court made clear in Kozlowski that the right to support in that situation does not derive from the relationship itself but rather is a right created by contract. Because, however, the subject of that contract is intensely personal rather than transactional in the customary business sense, special considerations must be taken into account by a court obliged to determine whether such a contract has been entered into and what its terms are. To begin with, as the Court held in Kozlowski, 80 N.J. at 384, the palimony contract may be oral and usually is because "[p]arties entering this type of relationship usually do not record their understanding in specific legalese...." Ibid. The contract may also be express or implied. Consequently the existence of the contract and its terms are ordinarily determinable not merely by what was said but primarily by the parties' "acts and conduct in the light of ... [their] subject matter and the surrounding circumstances." Ibid. The Court thus concluded that 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 384. And if such a promise of support for the promisee's lifetime is found to have been made, without any further specification or elaboration of its terms, and that promise is broken, the court will construe and enforce it by awarding the promisee "a one-time lump sum ... in an amount predicated upon the present value of the reasonable future support defendant promised to provide, to be computed by reference to ... [the promisee's] life expectancy...." Id. at 385.

The Court next applied the Kozlowski principles in Crowe v. De Gioia, 90 N.J. 126 (1982), in which the Court granted leave to appeal from the Appellate Division's reversal of the trial court's grant of temporary relief pending trial to the plaintiff, who had lived with the defendant in a marital-type relationship for some twenty years before he left her for a younger woman. As in Kozlowski, she and her children were entirely dependent upon him, and she had relied on his promise to "take care of her and support her for the rest of her life...." Id. at 129. We also noted that the relationship was "akin to a marriage," and that "[i]n return for his support, she acted like his wife: cooking, cleaning, caring for him when he was ill, helping in his various business ventures, and accompanying him socially." Ibid. The Court reaffirmed the principles the Court articulated in Kozlowski, held that temporary relief was available on a proper showing, and remanded for trial. The ensuing trial resulted in a judgment for the plaintiff awarding her a lump-sum payment predicated on the present value of reasonable support for her life based on tables of life expectancy. The Appellate Division, by an opinion authored by Justice Long, then a judge of that court, affirmed. Crowe v. De Gioia, 203 N.J. Super. 22 (App. Div. 1985), aff'd o.b., 102 N.J. 50 (1986). The Appellate Division found adequate support in the record for the trial judge's finding that defendant had expressly promised to support the plaintiff for life, a finding the trial judge articulated as follows: Do I find that there was an express promise rather than an implied promise, or no promise at all? I believe there was an express promise. I so find. I think that it's quite clear that this woman did not spend twenty years of her life socializing with this man, cooking for him, being his sex partner, without some type of express promise being given to her. [203 N.J. Super. at 28.]

The Appellate Division also rejected the defendant's argument that there was insufficient consideration for the asserted promise. Noting that the amount and sufficiency of consideration is not significant as long as it is the bargained-for detriment and that the detriment incurred need not be equal to the benefit received < fundamental contract principles with which we are in full accord < Justice Long opined that the consideration found by the trial judge, including the plaintiff's making a home for the defendant, cooking for him, and acting as his social companion, was ample. 203 N.J. Super. at 31.

The novel issue that the Court has not heretofore addressed is whether the promise of support for life is enforceable against the promisor's estate. As a conceptual matter, it is no different from enforcement of any other contract, other than a contract for personal services, made by a decedent during his lifetime, Restatement (Second) of Contracts § 262 comment b (l981), and the Court was in agreement with Judge Kestin's cogent analysis in this regard. 346 N.J. Super. at 120-122. The Court was satisfied that the personal-service exception does not apply in the circumstances here. In sum, the rule articulated by the Restatement formulation is that "[i]f the existence of a particular person is necessary for the performance of a duty, his death or such incapacity as makes performance impracticable is an event the non-occurrence of which was a basic assumption on which the contract was made." Id. § 262. Our courts have adopted that rule. Thus, in Siesel v. Mandeville, 140 N.J. Eq. 490, 492 (Ch. 1947), Judge Jayne explained that: "So, also, a contract may be of such a nature as to admit only of a personal performance or as to project the implication that it is to be operative only during the continuance of personal relations, although not so expressed in terms, and it will be deemed dissolved by death or other disability which renders its performance impossible according to the evident intention."

See also Salvemini v. Giblin, 42 N.J. Super. 1, 5 (App. Div. 1956), aff'd, 24 N.J. 123 (1957); Seitz v. Mark-O-Lite Sign Contractors, Inc., 210 N.J. Super. 646, 652 (Law Div. 1986). Had plaintiff died first, the duty of Roccamonte to support her for life would have been fulfilled and discharged. Just as clearly, the obligations she assumed were discharged upon his death because her continued performance was thereby rendered impossible. Of course, the discharge of obligation in either case was within the parties' contemplation. But the obligation undertaken by Roccamonte to support plaintiff for life if she were the survivor is another matter altogether. It obviously cannot be said that termination of his obligation in the event of his death and her survival was within the parties' contemplation. Indeed, the intention of the parties appears to have been exactly to the contrary. Moreover, Roccamonte's promise of support was not a promise to perform personal services. It was a promise intended to provide financial compensation to plaintiff for keeping to her bargain until the discharge of her obligations. She did so, and is therefore entitled to the monetary benefit of that bargain. Roccamonte's duty to provide that benefit was, therefore, not discharged by his death and must, consequently, be discharged by his estate.

Moreover, because of the enforcement methodology the Court devised in Kozlowski, namely a lump-sum payment to the promisee representing the present value of reasonable future support calculated from the date of its termination and on the basis of the promisee's life expectancy, it matters not when the calculation is made in terms of the promisor's life because it is the promisee's life that is, in effect, the measuring life. That is to say, the promise is enforceable against the promisor as a consequence of its being broken. It is broken when support ceases. From the point of view of the promisee, who has fully performed her obligations, the reason support ceases is of no significance provided the promisor, or his estate standing in his stead, retains the financial ability to provide support. Whether the promisor, during his lifetime, breaks the promise by "tossing aside" the promisee without making adequate provision for her or dies without having made adequate inter vivos provision for her, she is in the same position, namely, without the support she bargained for. The point is simply that it is not the promisor's death that triggers her entitlement but rather his failure, during his lifetime, to have made adequate provision for the promisee, an obligation whose fulfillment does not depend solely or exclusively on testamentary disposition. As such, the promise is neither a gratuitous promise nor a contract to make a will and is not subject to defeat on that basis. It is simply a contractual undertaking binding the estate like any other contractual commitment the decedent may have made in his lifetime. The dissenter in the Appellate Division acknowledged that palimony is not alimony, is not intrinsic to an extramarital cohabitation, and is based solely on contract principles. He took the view, however, that as a social, rather than as a legal, matter, a palimony promise should not survive the promisor's death because the palimony promisee would then be in a better position than that of a divorced wife whose right to receive alimony ceases upon the obligor's death. It is true that the right to alimony terminates with the obligor's death. That is expressly provided for by N.J.S.A. 2A:34-25. But N.J.S.A. 2A:34-25 also provides that notwithstanding that consequence, the court may, in entering the judgment of divorce, order a spouse to maintain life insurance "for the protection of the former spouse." Thus, the function of alimony can be maintained after the obligor's death by substituting insurance proceeds, and such a provision is commonly made in property settlement agreements as well. Moreover, if the obligor spouse is unable, by reason of age or ill health, to obtain insurance, we have held that the court may, in lieu of ordering insurance, direct the establishment of an inter vivos trust to accomplish the same purpose. Jacobitti v. Jacobitti, 135 N.J. 571 (1994). When the Court takes into account as well the equitable distribution to which a former spouse is entitled and a palimony promisee is not, the Court was persuaded that the premise of the dissent is flawed and that our disposition is proper. In Crowe v. De Gioia I, the Court concluded that because a palimony claim is essentially a contract claim, the Law Division would be the appropriate forum, where, as here, money damages alone are sought. The Court also opined, however, that where equitable relief is sought in addition to money damages, the Chancery Division would be the appropriate forum. 90 N.J. at 138. In 1983, subsequent to our decision in Crowe, Article VI, § 3, ¶ 3 of the New Jersey Constitution was amended to create the Family Part, and the court rules were extensively amended by the adoption, effective December 31, 1983, of a wholly revised Part V of the rules governing practice in that court. As part of that revision, the allocation of business to the Family Part was significantly broadened from that previously assigned to the matrimonial arm of the Chancery Division. That allocation included "[a]ll civil actions in which the principal claim is unique to and arises out of a family or family-type relationship...." R. 5:1-2(a). Because palimony claims typically are unique to a family-type relationship, the Family Part is where they should be brought, and the Appellate Division has indeed so held. Olson v. Stevens, 322 N.J. Super. 119, 123 (App. Div. 1999). Moreover, probate actions involving or arising out of a family or family-type action have been held to be within the cognizability of the Family Part as well. See, e.g., Kingsdorf v. Kingsdorf, 351 N.J. Super. 144, 159 (App. Div. 2002); Berlin v. Berlin, 200 N.J. Super. 275, 278-279 (Ch. Div. 1984). Accordingly, we are satisfied that plaintiff's initial choice of that forum was correct. The Court has recognized that Family Part judges have developed a special expertise in dealing with family and family-type matters, Cesare v. Cesare, 154 N.J. 394, 412-413 (1998), and, surely, fixing levels of support is an adjudicatory task well within that special expertise. Because proofs will be required, the Court remanded to the Family Part for the fixing of a lump-sum payment. With respect to the amount to be fixed, it is clear that it must be made on the basis of plaintiff's life expectancy at the time of Roccamonte's death. We leave to the trial judge the determination of an appropriate level of support in the circumstances and the resolution of such questions as whether the Estate is entitled to a credit on the lump-sum payment for the amount of the certificate of deposit in plaintiff's name, the life insurance proceeds, and her receipt of social security benefits.

------------------------------------------------------------------------ Footnote: 2 Although the absence of a jury in Chancery Division matters enables flexibility in scheduling, nevertheless sporadic, intermittent scheduling such as occurred here frustrates both the legitimate interests and expectations of the parties and the systemic goal of the orderly and expeditious conduct of litigation. We adopted R. 5:3-6 in 1999 to require, insofar as practical, continuous trials in the Family Part, and that same procedural rule should apply to all Chancery actions, but most particularly to family-type actions such as this one.

------------------------------------------------------------------------ Footnote: 3 The Estate was apparently relying on the trial judge's observation that: It should be remembered Mary never viewed her support by Mr. Roccamonte as being conditioned upon her performance of household duties or other wifely services for him. She indicated that he was like her husband and he took care of her, but offered no evidence of consideration on her part.

KENNETH VERCAMMEN & ASSOCIATES, PC ATTORNEY AT LAW 2053 Woodbridge Ave. Edison, NJ 08817 (Phone) 732-572-0500 (Fax) 732-572-0030


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