Maeker v. Ross, A-3034-11T4; Appellate Division; opinion by Sapp-Peterson, J.A.D.; decided and approved for publication February 4, 2013. Before Judges Axelrad, Sapp-Peterson and Haas. On appeal from the Chancery Division, Family Part, Somerset County, FM-18-126-12. [Sat below: Judge Miller.] DDS No. 20-2-8906 [24 pp.]

Plaintiff and defendant began dating in 1998. Shortly thereafter, they started living together. Their relationship ended when defendant moved out of their home on July 1, 2011. Plaintiff alleges that from the time they commenced living together, defendant supported her financially. He also paid her son’s college education expenses. Plaintiff contends that throughout their relationship, defendant made repeated promises to take care of her and promised her lifetime support.

Plaintiff also claims that in December 2010, defendant executed a power of attorney (POA) appointing her as his attorney-in-fact, permitting her to manage and conduct all of his affairs. Plaintiff alleges that simultaneously defendant executed a will in which he appointed plaintiff as both executrix and trustee, and devised the entirety of his residuary estate to her.

Plaintiff filed her initial complaint on July 8, 2011, seeking relief based on palimony, partnership/joint venture, resulting trust, fraud and unjust enrichment. Plaintiff’s amended complaint additionally alleged that the parties had entered into an oral contract and there had been partial performance, which removed her claim from the requirements under the 2010 amendment to the Statute of Frauds, N.J.S.A. 25:1-5(h), which requires a writing memorializing palimony agreements and independent advice of counsel for each party in advance of executing any such agreement.

Defendant filed a motion to dismiss, contending that under the amendment, plaintiff could not maintain this action. The motion judge found that plaintiff’s complaint was not barred by the amendment. The Appellate Division granted defendant a stay and leave to appeal the interlocutory order denying his motion to dismiss plaintiff’s palimony complaint and granting her cross-motion for pendente lite support.

The issue is whether the Legislature could only have intended courts to apply N.J.S.A. 25:1-5(h) to palimony agreements entered after the effective date of the amendment.

Held: The 2010 amendment to the Statute of Frauds, N.J.S.A. 25:1-5(h), is enforcement legislation, which addresses under what circumstances enforcement of palimony agreements may be enforced. The amendment does not apply only to palimony agreements entered after its effective date.

The appellate panel finds that the amendment is clear and unambiguous in directing that enforcement of palimony agreements may only occur in those instances where the agreement has been reduced to writing and the parties have each had the benefit of independent counsel. The amendment addresses under what circumstances a promise by one party of lifetime support for another party may be enforced, irrespective of when an agreement to provide lifetime support may have been entered.

The appellate panel disagrees with the motion judge’s determination that plaintiff’s cause of action arose before the effective date of the amendment, premised on the view that the cause of action for palimony accrues at the time the agreement is entered. Palimony is a claim for support between unmarried persons. Because palimony actions are based on principles of contract, 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. Plaintiff’s cause of action for palimony accrued on July 1, 2011 when defendant, as plaintiff contends, "abandoned" her and broke his promise of lifetime support.

Plaintiff’s reliance on Botis v. Estate of Kudrick is misplaced. The discussion of reasonable expectations in Botis does not suggest that a cause of action for palimony accrues at the time the agreement is formed. The discussion of reasonable expectations in Botis was aligned with the particular facts: (1) the plaintiff and decedent entered into the oral agreement while oral agreements, pursuant to case law, were still enforceable; (2) plaintiff filed her palimony complaint while the law still recognized the enforceability of such agreements; and (3) the decedent died one and one-half years before the effective date of the amendment. The panel in Botis concluded that "[n]either plaintiff nor decedent could reasonably have anticipated the prerequisites to enforcement of a palimony promise during the time when they were in a position to create such a document."

These are not the circumstances here. Plaintiff and defendant were still together in January 2010. An alleged oral promise of support was made prior to the Jan. 18, 2010, effective date of the amendment and, arguably, continued up through July 1, 2011, when defendant left plaintiff. During that period after the amendment went into effect and the parties remained together, they were in a position to execute a written palimony agreement and establish compliance with the amendment. Instead, defendant chose only to execute a POA and will, which were notarized at an attorney’s office.

Given the conclusion that the amendment is directed at enforcement and the parties’ timely ability, before their relationship ended, to have come into compliance with the amendment, it is unnecessary to address the reasonable expectations of the parties. In any event, plaintiff failed to state a claim on which relief may be granted, given the parties’ actions between the amendment’s effective date and their breakup. Their conduct would suggest no expectation, on the part of plaintiff, of promised lifetime support.

In view of the determination that plaintiff’s claim for palimony is barred by the amendment and her equitable claims lack merit, plaintiff is not entitled to pendente lite support or an award of counsel fees.

The appellate panel reverses and remands for entry of judgment dismissing plaintiff’s complaint with prejudice.

For appellant — Eric S. Solotoff (Fox Rothschild; Solotoff, Lisa Steirman Harvey and Sandra C. Fava on the briefs). For respondent — Angelo Sarno (Snyder & Sarno; Sarno, Jill D. Turkish and Ashley R. Vallillo on the brief).