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When Palimony's at Stake, Three's a Crowd
Appeals court reverses damages award for woman who cohabited with a man and his wife, finding no promise of support was made
New Jersey Law Journal
October 28, 2008
If any practical legal principle can be extracted from the gnarled facts of Bayne v. Johnson v. Johnson, it is probably this: You can't get palimony if you cohabit with a married man and his wealthy, elderly wife and then leave him because he won't leave her.
A New Jersey appeals court on Monday, though finding this arrangement a marriage-type relationship, reversed a trial judge's grant of palimony damages, concluding there was no express or implied promise of lifetime support.
"Palimony is the enforcement of a broken promise made for future support," Appellate Division Judge Donald Collester wrote. "It is not recompense for years spent in a failed relationship" nor "an economic substitute for opportunities that may have been lost or expectations that were unfulfilled."
The ruling cost Fiona Bayne the $384,000 awarded her at the trial level, leaving her only with an equity share in a condominium in which she had invested.
The court gave no quarter to Bayne's argument that she gave up her romantic commitment to Earl Johnson because he refused to divorce his wife, on whom he was economically dependent.
Throughout Bayne's relationship with Johnson, he was married to Carolyn Johnson, a woman 20 years his senior, who was the beneficiary of a spendthrift trust, valued at $11 million, that pays her $200,000 to $300,000 a year.
Carolyn Johnson bankrolled Earl's businesses and financed his freewheeling lifestyle but their marriage was one of convenience. Before meeting Earl in 1976, Carolyn had been married six times and had three children from whom she was estranged. Fearful that one of them was plotting to have her declared incompetent so as to take control of the trust fund, she decided to marry to thwart the scheme. In 1978, Carolyn, 61, married Johnson, then 41 with three prior marriages. They agreed the marriage would be platonic and each would could pursue their personal lives.
In 1981, Johnson, then living in the Bahamas, began a romantic relationship with Bayne, then a 25-year-old British Airways flight attendant. He showered her with gifts, meals and travel and didn't reveal he was married. Bayne eventually moved to the Bahamas to be with him. He rented a separate apartment for her, telling her he cared for an elderly, sick aunt who did not want anyone else living with them. When Johnson changed businesses, they all moved to Florida, with Bayne again living in an apartment paid for by Johnson, using his wife's money.
By the mid-1980s, Bayne was pressuring Johnson about marriage. He put it off, citing excessive overseas business travel. When she discovered he was already married, he insisted it was not a true marriage and that he would take "the next step" after he could ensure his wife would be taken care of financially.
There began a long, tortured existence, with Johnson and the two women frequently moving to new localities to start new businesses and the businesses failing, leaving him dependent on his wife's support. The three lived together, with Bayne and Johnson occupying the same bedroom and Carolyn a smaller room, and with Bayne assisting Carolyn with day-to-day living. Despite economic setbacks, Bayne and Johnson carried on a lavish lifestyle, spending freely on cars, vacations and dining out.
Eventually, the threesome ended up in New Jersey, where Johnson started two new businesses, using Carolyn's money. In 1996, they bought a $317,800, three-bedroom condo in North Bergen, into which Bayne contributed $10,000 she had borrowed from her mother. But as the businesses again faltered, the relationship between Johnson and Bayne deteriorated rapidly, and in 2000, Bayne moved out.
In 2002, Bayne moved back to England, and in 2004 she sued for breach of a palimony agreement, unjust enrichment, fraud and conversion of monies she contributed to the down payment of the condo. Bayne said that she has been unable to maintain the lifestyle she had while living with Johnson and his wife. She earns the equivalent of $60,000 a year, lives in a small apartment with her boyfriend and rarely eats out or travels.
After an eight-day trial in Hudson County, N.J., Superior Court Judge Maureen Sogluizzo found an enforceable agreement of support. She found Johnson promised to marry Bayne just as soon as he could ensure that Carolyn would be cared for financially and after his business had succeeded. "[Earl] and Fiona Bayne clung together as a couple for the better part of 20 years," she said. "Based on mutual affection, based on need, based on love."
Sogluizzo found Bayne would need $4,000 a month to supplement her income until age 65, totaling $768,000. But the judge halved that amount, since most of Johnson's income came from his wife.
Collester, joined by Judges Christine Miniman and Ariel Rodriguez, disagreed that there was an implied promise by Johnson to take care of Bayne for life. He noted that Bayne admitted that she knew he could never take care of her by himself, given his history of failed businesses and his need for access to his wife's trust fund.
Collester also noted that it was Bayne who ended the relationship. "She did not as a result of a breach of promise of support or Earl abandoned her in favor of another," he wrote. "Rather it was because she finally recognized that her relationship with Earl was not going to work out to her satisfaction and that he would always be economically dependent on Carolyn.
"Certainly her decision was understandable, but it our view it did not result in a valid palimony claim due to the absence of any promise of lifetime support," he added.
The judges did agree, though, that Bayne is entitled to a $48,660 share of the North Bergen condo, based upon her contribution to the down payment.
Bayne's attorney, Michael Martino, of Livingston, N.J.'s Stein, McGuire, Pantages & Gigl, says he cannot comment on the ruling since he and his client have not discussed whether to appeal.
The Johnsons' attorney, Gal Mitchell, of Union, N.J.'s Schwartz, Barkin & Mitchell, did not return a call seeking comment.
