FRANCIS A. L'ESPERANCE, JR. v. HELEN MARY DEVANEY

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0286-04T10286-04T1

FRANCIS A. L'ESPERANCE, JR.,

Plaintiff-Respondent,

v.

HELEN MARY DEVANEY,

Defendant-Appellant.

_______________________________

 

Submitted October 31, 2005 - Decided

Before Judges Alley and C. S. Fisher.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, L-0872-04.

Newman, McDonough, Schofel & Giger, attorneys for defendant (JoAnne Juliano Giger and Laurence Desind, on the brief).

William Goldberg, attorney for plaintiff.

PER CURIAM

The parties had a now-ended romantic relationship spanning two decades. Plaintiff, an ophthalmologist twenty-eight years defendant's senior, essentially supported her since 1983. Since the beginning of their relationship, plaintiff was married to another woman, a fact that defendant knew. Defendant worked in plaintiff's office as a receptionist and also attended various colleges. He repeatedly promised her he would divorce his wife, marry her, and they would have a baby together. The parties attempted to conceive a child but defendant was unable to get pregnant. After plaintiff changed his mind about fathering a child, the parties ended their intimate relationship in August 2003.

Around 1993, defendant left to live in Washington State for several years because she was upset with plaintiff. The parties still saw one another, and she returned when plaintiff promised her he would "make it right." Defendant first lived with her mother when she returned in 1997, then plaintiff leased the condominium at issue for her. In 1999, he gave her a check with which to purchase the condominium, in his name, at a public auction. The parties never lived together at this residence or anywhere else, and he only slept overnight at the condominium about six or seven times over a period of years. Plaintiff sought an order of ejectment from the Law Division, and defendant filed an action for palimony in the Family Part. Judge D'Italia granted plaintiff's motion for summary judgment in the ejectment proceeding and ordered defendant to vacate the premises.

The parties met in September 1983 when plaintiff, an ophthalmologist, interviewed defendant to work as a receptionist in his office. At that time, he was fifty-one years old and she was twenty-three. Plaintiff hired defendant as a receptionist, and by the fall of 1983 they were going out to dinner together. On February 14, 1984, they began an intimate sexual relationship that lasted for approximately twenty years until August 2003. During their entire relationship, defendant was aware that plaintiff was married to Ellen L'Esperance.

Defendant worked full-time for plaintiff until about 1989 or 1990, and then worked part-time while she attended school. She attended "like 17 different colleges," including Marymount College, Hunter College, and Long Island College, because she was not sure what she wanted to do but had "this very grandiose idea" she would go to medical school. But, her "only objective was to get married and have a family with [plaintiff]."

While defendant worked part-time, plaintiff supported her: "[h]e paid half the rent and the phone bills and the electric bills and that sort of thing." Also, she worked as a "domestic helper" on weekends in the homes of Alzheimer patients.

As early as 1985, defendant testified that plaintiff told her he was getting divorced and would marry her; defendant "genuinely believed him all along." Throughout all of those years, beginning around 1985, she testified "I believed him, and I believed him, and I believed him, and I believed him, and I believed him." Additionally, "from the very beginning" of their relationship, the parties always talked about having a baby.

Defendant was not romantically involved with any other men during the time she was with plaintiff because she was "very devoted to him." She testified that plaintiff would put off their marriage plans: "[i]t was never the present that we were talking about. It was always down the road, and I never had an exact statement from him. It was very, very difficult."

Defendant moved to Seattle, Washington for about two and a half to four years around 1993 or 1994, because she was upset with plaintiff. She did not believe the relationship was over at that point because he would come to visit her and they still loved each other very much. Even when she was in Seattle, the conversations about marriage and a baby continued, and defendant "believed him. I truly believed this man loved me and adored me and he was going to get a divorce . . . marry me, and we would have babies."

While in Seattle, defendant cared for her two ill aunts while she lived with her cousin. Plaintiff worked at a telephone company for at least two months. During her time in Washington, plaintiff sent her money for rent and to spend. While in Washington, she had "no other deep, meaningful relationships with any other man other than [plaintiff] ever." Defendant testified that plaintiff "supported me," and "always took care of me financially."

Also, in August 1996, they made arrangements to meet in Phoenix, Arizona for the weekend, "making plans for me to come back." "He said he was going to make it right." "He missed me, he loved me, he was - we were going to get married, he was going to get divorced, we were going to have a baby. It was always the same stuff."

Before she moved back from Washington, the parties vacationed in Pennsylvania, where plaintiff showed her

paperwork that had Ellen's signature on it, that they were legally separated and that they were going to be divorced very soon . . . and he showed me that this was their legal separation papers and they were going to be divorced ultimately and we would get married and we would have children together.

Then, she moved back to the East coast in August of 1997. First, she stayed at her mother's home in New York for a few weeks. Then, on October 1, 1997, she moved to the apartment in question, 7855 Kennedy Boulevard, Apt. 29-E, in North Bergen, New Jersey. Plaintiff rented the apartment and then in 1999 he gave defendant a check with which to purchase the apartment during public bidding, but he put the apartment in his own name. Defendant testified that "I asked him why he didn't put it in my name. He said he was going to - it would always be my home and he would provide it for me." Plaintiff told her this during the time in which the parties planned to marry. Although plaintiff did not specifically tell defendant they would live together in the subject apartment when they got married, she thought they would because "it's a much nicer apartment than the one that he was living in on Park Avenue . . . ."

Plaintiff's counsel questioned defendant: "[t]here would be no reason for Dr. L'Esperance to be telling you that that's your apartment if he intended to marry you and to move into the apartment, would there be?" She responded, "I can't tell you what was in his head. All I know is that he promised me that that apartment was mine, he was going to marry me, we were going to have a baby, everything was going to be fine."

In 2002 or 2003, defendant started to ask plaintiff why he had not put the apartment in both of their names, or her name, but "[she] trusted him." "He said he'd put it in trust, he'd call Fred Rogge [an estate planner], he'd set it up, blah, blah, blah, you know, but he never did it." She was unaware whether he ever put anything in writing regarding the apartment, and never asked him to "because I always believed him." Defendant asked plaintiff to put the apartment in a trust for her because "Fran's very into trusts."

Additionally, defendant did not stay over at the apartment but "would go back into Manhattan and stay at his home in Manhattan," although he visited defendant at the apartment three or four days a week. He stayed there overnight about six to seven times only. At no time did plaintiff declare the subject apartment as his domicile for tax purposes.

In August 2003, the parties returned from a trip to Tucson, Arizona where they visited plaintiff's youngest daughter at the Sierra facility. After the trip, defendant testified that "we had dinner and he said he had changed his mind, that he had no intention of participating in the IVF program with me, he told me I should go get myself another boyfriend to father a child, and that was the end of that." Prior to that conversation, the parties had tried to conceive a child, but

really got focused . . . last spring even to the point of where . . . you have to have sex a certain amount of times within the ovulatory period. It was easier if, you know, Fran booked a hotel in Manhattan because he had to see patients and then he'd have meetings afterwards, so several months in a row we checked into the Holiday Inn on West 57th Street for a period of days so it would be right around my cycle in order for me to conceive.

We didn't conceive. We did this for about three, four months straight. I went to go see Dr. Allen Berkeley, who he recommended to me . . . and it turns out my tubes are blocked . . . .

Defendant then informed plaintiff that she needed to go through an IVF program, and that plaintiff was fine with that, so she scheduled her first cycle of treatments for September. Defendant was in "tremendous shock" when she learned that plaintiff no longer wished to father her child; there were no arguments that gave her any indication that he changed his mind. After plaintiff informed defendant of his wishes, "[she] went looking for a new boyfriend right away" and met her current boyfriend on the internet by Christmas. Although they were broken up, the parties remained friendly and had dinner a few times, "but there was no intimate relationships after August of 2003. If I'm not getting pregnant, I'm not having sex with him. That was my attitude and I stuck to it."

During the course of their twenty-year relationship, defendant testified that plaintiff always told her they were going to get married and have a baby. When asked if plaintiff made any other promises to her, defendant answered, "that was a pretty significant promise." Further, when asked the following:

Number one, that you were going to get married, and number two, that you were going to have a baby, and I'm wondering, for example - well, I'm just thinking - I don't even have an example - I'm thinking of any other promise aside from those two promises which Dr. L'Esperance made to you?

Defendant simply responded that "[t]hose are pretty walloping promises." After their break-up, defendant did not expect plaintiff "to take my home away from me . . . . He had promised me all these things, you know, my life, my home, my children, marriage. He had promised all of this to me." When pressed with her previous answer that defendant promised her marriage and a baby only, she replied those things are "inclusive of everything."

Although defendant knew plaintiff no longer wished to marry her or to father her child, when asked, "But at the same time knowing you weren't marrying him and knowing that you weren't having a child with him, did you expect at that point that he was going to continue to support you?" she answered, "I expected him to, yes, to give me my apartment, yes."

In regard to the apartment, defendant testified that, "I asked him several times to, you know, quick deed the apartment over to me, you know, he didn't need to continue supporting me at that point. What he needed to do was to give me my apartment." She testified that she "expected that he would provide something for me financially, my apartment, yes I did."

Moreover, defendant testified that in September or during the fall, right after their breakup, plaintiff told her "on several occasions" that he would put the apartment in a trust for her. Specifically, defendant testified that "[h]e said he's going to. It's always he's going to. He never does." Defendant wanted her apartment, the car he provided for her, and "enough [money] to get on my feet. I thought that was very reasonable." "After 19 years of promises and after pulling that nonsense that he did about the baby in August, yes, he owed me." "Why should I leave my home? Because he's made a decision for his life?"

During the course of their twenty-year relationship, the parties "were involved with one another's lives"; "[w]e were very involved with one another in every aspect of our lives." Defendant testified that she researched rehabilitation facilities for plaintiff's daughter, she helped his grandchild get into a particular school, and he is her mother's surgeon. Additionally, defendant testified that she knows a lot about his taxes because "[h]e had me go and do all of his taxes over the summer . . . ." Defendant explained that "[a]ny time he asked me to help him with finances, I always helped. Any time he asked me to help him with office correspondence, I always helped. Any time he asked me information about his family, I always helped."

Defendant stated that plaintiff "always took me to very lovely restaurants and we traveled all over the world together . . . he was a very generous man." In return, defendant responded that plaintiff "asked me to be a decent partner to him . . . there's a give-and-take in relationships . . . ." Overall, she testified that

Fran supported me. Fran loved me, Fran promised me we were getting married, promised me we were having a baby, promised me that that was my home, promised me a future together. As a couple, there was no need for me to go out and get a job working elsewhere . . . I was Fran's girlfriend, I would eventually be his wife. There was no reason for me to [be self-sufficient].

Lastly, defendant testified that she is not going to use any money obtained from this lawsuit to purchase a house with her new boyfriend. "Any money that I earn from this - and I have to say earn because this is very hard work sitting here answering your question . . . is my money, and that's what prenuptial agreements are for and that's what trust funds are for. My money is my money." Defendant and her current boyfriend decided on February 29, 2004, to get married, but they have not set a date. She "would like all of this behind [her] before [she] move[s] forward into another life."

Proceedings in this matter began on February 13, 2004, when plaintiff filed a verified complaint against defendant for ejectment, N.J.S.A. 2A:35-1, in the Superior Court of New Jersey, Law Division, Hudson County. On February 19, 2004, he obtained an order to show cause to award him possession of the condominium and to compel defendant to vacate the premises. On March 11, 2004, she filed an answer to the verified complaint, and defendant filed a simultaneous order to show cause.

On June 10, 2004, defendant filed a complaint for palimony in the Superior Court of New Jersey, Chancery Division, Family Part, Hudson County. Plaintiff responded to that complaint on or about July 26, 2004.

On August 2, 2004, Judge D'Italia granted plaintiff's application for summary judgment in the ejectment matter, ordering defendant to vacate the premises by September 30, 2004. He also denied defendant's request to transfer the matter to the Family Part. Defendant appeals from the grant of summary judgment and denial of transfer.

Lastly, on September 29, 2004, the Honorable Maurice J. Gallipoli, J.S.C., heard defendant's order to show cause to maintain the status quo pending appeal so she could remain in possession of the condominium after September 30, 2005. Judge Gallipoli denied the application for an entry of an order to show cause with the interim relief.

First, defendant contends that there is sufficient evidence to support a showing that plaintiff promised defendant ownership of the apartment, and that an enforceable contract existed, therefore there are genuine issues of material fact that preclude summary judgment in favor of plaintiff. We disagree.

We note briefly that an opposing party who offers no substantial or material facts in opposition to the motion cannot complain if the court takes as true the uncontradicted facts in the movant's papers. Judson v. Peoples Bank & Trust Co. of Westfield, 17 N.J. 67, 75 (1954); R. 4:46-5. Disputed issues that are "of an insubstantial nature" cannot overcome a motion for summary judgment. Brill v. Guardian Life Ins. Co., 142 N.J. 520, 530 (1995).

Nevertheless, even without submitting supporting affidavits, "a party may defeat a motion for summary judgment by demonstrating that the evidential materials relied upon by the moving party, considered in light of the applicable burden of proof, raise sufficient credibility issues 'to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party.'" D'Amato v. D'Amato, 305 N.J. Super. 109, 114 (App. Div. 1997) (quoting Brill, supra, 142 N.J. at 523). "A case may present credibility issues requiring resolution by a trier of fact even though a party's allegations are uncontradicted." D'Amato, supra, 305 N.J. Super. at 115.

Under Brill, "when the evidence 'is so one-sided that one party must prevail as a matter of law,' the trial court should not hesitate to grant summary judgment." Brill, supra, (citation omitted), 142 N.J. at 540.

In fact, after Brill was decided, R. 4:46-2(c) was amended in 1996 to add the following sentence: "An issue of fact is genuine only if, considering the burden of persuasion at trial, the evidence submitted by the parties on the motion, together with all legitimate inferences therefrom favoring the non-moving party, would require submission of the issue to the trier of fact."

On appeal, we use these same standards: we decide first whether there was a genuine issue of fact. If there was not, we then decide whether the lower court's ruling on the law was correct. Prudential Property Ins. v. Boylan, 307 N.J. Super. 162, 167 (App. Div. 1998).

We here consider defendant's assertion that the trial court misinterpreted the law, namely Crowe v. De Gioia, 90 N.J. 126 (1982), and that the court failed to review the record properly.

Before examining Crowe in light of its application to the present case, it is first important to discuss Kozlowski v. Kozlowski, 80 N.J. 378 (1979) because in that case, "the enforceability of a support agreement between unmarried cohabitants[] was settled as a matter of law." Crowe, supra, 90 N.J. at 133. Also, it is important to address In re Estate of Roccamonte, 174 N.J. 381 (2002), which applied the principles of Kozlowski and Crowe.

In Kozlowski, the Supreme Court considered "whether a man and a woman who are not married to each other, and who live together without a promise of marriage, may enter into a contract which, if otherwise valid, is enforceable by our courts." Kozlowski, supra, 80 N.J. at 380. In that case, the plaintiff and the defendant were both married to other people when they met. Id. at 381. In little time, the defendant told her he loved her and "insisted that they leave their families and set up a new household together." Ibid. The parties moved in together and cohabited for fifteen continuous years, except for two brief separations. Ibid.

The defendant became affluent and the plaintiff provided "substantial services" to him, such as housekeeping, shopping, tending to his children, and accompanying him on social outings. Ibid. The plaintiff asked the defendant about marriage, but in the early stages of their relationship his answers were evasive, which resulted in one of their brief separations. Id. at 382. But, the defendant sought out the plaintiff, pleading with her to return and insisting "that they would be happy together for the rest of their lives, that he needed her, that he would take care of her and provide for her if she would only come back and resume her functions in the household as she had performed in the past." Ibid.

At this time, the plaintiff then asked the defendant about the prospect of their marriage. Ibid. He was no longer evasive but clearly told her he did not intend to marry her or to divorce his first wife; he said what counted was what was in the heart. Ibid. The plaintiff did move back into their home, but the defendant then divorced his wife and married another woman. Ibid.

The Supreme Court found that the parties entered into a contract, and whether it was express or implied was "of no legal consequence." Kozlowski, supra, 80 N.J. at 384. Notably, "[p]arties entering this type of relationship usually do not record their understanding in specific legalese." Ibid. Instead, the agreement terms are found by discerning their conduct. Ibid. New Jersey courts will enforce agreements between adult nonmarital partners as long as they are not inseparably founded upon sexual services. Id. at 385.

In Kozlowski, the Supreme Court found that the defendant promised to take care of the plaintiff for the rest of her life, and that those promises formed a "sufficient basis" for finding the formation of a contract. Ibid.; In re Estate of Roccamonte, supra, 174 N.J. at 390-91.

Next, in Crowe, supra, the Supreme Court considered "whether temporary relief can be awarded in a suit to enforce an agreement between unmarried cohabitants." Crowe, supra, 90 N.J. at 129. There, the plaintiff was in a twenty-year nonmarital relationship with the defendant, who supported her and her seven children from a previous marriage. Id. at 129. The parties lived together in his house, and he told her he would take care of her, support her for the rest of her life, and share his assets with her. Ibid.

The plaintiff cooked, cleaned, accompanied the defendant socially, helped in his business ventures, and cared for him when he was sick. Ibid. "Their relationship was akin to a marriage." Ibid. The defendant left the plaintiff to marry another woman, but promised the plaintiff he would give her a "'good settlement'" so she would not have to worry about supporting herself. Id. at 129-30. The defendant, however, did not provide the plaintiff with this settlement. Id. at 130.

There, the Supreme Court examined Kozlowski and determined that the plaintiff was not entitled to alimony since the parties were unmarried. Crowe, supra, 90 N.J. at 132 (citing Kozlowski, supra, 80 N.J. at 383). Instead, the court applied traditional equitable principles to authorize preliminary relief. Crowe, supra, 90 N.J. at 135.

Next, in In re Estate of Roccamonte, supra, the Supreme Court considered "whether an enforceable contract was made, in the context of what are now well-settled principles in this jurisdiction respecting the right of an unmarried person to enforce her cohabitant's promise to support her for life." In re Estate of Roccamonte, supra, 174 N.J. at 389.

In that case, the facts were similar to Kozlowski: the parties were married when they met, and after the defendant pursued the plaintiff, she left her husband and they began an affair that lasted the rest of the defendant's life. Id. at 386. The parties lived together "intermittently" until she moved to California "for the purpose of ending her relationship with Roccamonte, who had refused her requests that he divorce his wife and marry her." Ibid. But, the defendant called the plaintiff repeatedly, promising that if she returned he would divorce his wife and support her for the rest of her life. The plaintiff returned and divorced her husband. Ibid.

The parties lived together as man and wife in an apartment he leased; the defendant then purchased an interest in the apartment in the plaintiff's name, and they lived there together until his death. Ibid. The defendant never divorced his wife, and told the plaintiff it was because a divorce would jeopardize his business. Ibid. During their relationship, he "repeatedly assured her . . . that she had no cause for worry as he would see to it that she was provided for during her life." Id. at 387.

The Supreme Court applied the principles established in Kozlowski, with further explanation:

The principle we recognized and accepted is that the formation of a marital-type relationship between unmarried persons may, legitimately and enforceably, rest upon a promise by one to support the other. A marital-type relationship is no more exclusively dependent upon one partner's providing maid services than it is upon sexual accommodation. It is, rather, 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 as they are able. And each couple defines its way of life and each partner's expected contribution to it in its own way. Whatever other consideration may be involved, the entry into such a relationship and then conducting oneself in accordance with its unique character is consideration to full measure. There is no doubt that plaintiff provided that consideration here until her obligation was discharged by Roccamonte's death.

[Id. at 392-93.]

Next, the Supreme Court determined that the defendant promised to support the plaintiff for life, as implied by his "successful efforts to induce plaintiff's return" when she moved to California. Id. at 395. The court found it was unlikely that the defendant intended to leave behind the plaintiff in an impoverished state. Ibid. Furthermore, when the defendant died the plaintiff was seventy years old and relied upon him exclusively for support. Id. at 394.

Here, defendant asserts that the trial court missed the import of Crowe entirely when it stated that the case dealt with promises of support, not promises of an interest in real estate. Also, she argues that the court "effectively made the existence of a 'marital-type relationship' the sine qua non of an enforceable promise to transfer the property in this case," and that the trial court's rationale was "legally infirm and cannot be internally reconciled." Specifically, she claims that

the court acknowledged that the palimony law addressed in Crowe and related cases, might be changing and that this was a matter for the Family Part, but then disregarded any impact that such changes might have on this case because it mistakenly believed that Crowe had nothing to do with the promise of a transfer of real property.

Judge D'Italia explained that all of the previously discussed cases dealt with cohabitation and promises of support, not "the promise of an interest in real estate." Instead, the Judge stated that "the only issue projected by the complaint is whether defendant has any interest in a condominium unit purchased by plaintiff with his own funds with title taken in his own name."

Moreover, Judge D'Italia declined to characterize the parties' relationship due to the palimony action pending in the Family Part, but noted that the parties did not live together. Furthermore, he found that no reasonable fact-finder could conclude that the parties' relationship was akin to marriage. The Judge concluded that

[a]bsent a marital-type relationship, there is nothing in their circumstances which remotely suggests the existence of an implied contract to grant defendant an interest in the subject condominium. There is not a scintilla of evidence that plaintiff ever promised to purchase the condominium for her, to convey it to her at any time or to hold it in trust for her. No reasonable trier of fact could conclude that there was either an expressed or an implied promise made with respect to this specific property.

We agree with and affirm Judge D'Italia's disposition on the merits but emphasize that we do so on the basis of the narrow question of whether plaintiff promised defendant the particular condominium in suit. Our references to other issues concerning palimony claims are for background purposes only and we leave the merits of such issues to be resolved in the palimony dispute.

We thus substantially further agree with the judge's following reasoning:

Note, although repeatedly asked, she never said he promised to buy me an interest in real estate. He promised to buy me a condominium. He promised to give me a condominium. It was those same promises for future divorce and future marriage that continued throughout this relationship until August, 2003.

Devaney was asked again, "And were there any other promises made to you outside of those promises that he was going to get married and have a baby." Her answer was, "Like what." "Like I'm going to buy you an apartment." The questioning could not have been clearer, in terms of giving - giving Devaney an opportunity to say specifically that there was an oral promise for an interest in this particular property.

It is also significant that in Crowe, the Court applied traditional equitable principles to affirm the trial court's authorization of preliminary relief to the plaintiff. Crowe, supra, 90 N.J. at 135. Here, by way of contrast, defendant appeals from a grant of summary judgment to plaintiff that orders her eviction from his apartment. Thus, the facts are readily distinguishable and the discussion of an interest of real estate in Crowe does not establish that defendant here had such an intent.

We further reject defendant's contention that questions of fact existed, insofar as the narrow question we decide is concerned, regarding "the circumstances surrounding the acquisition and retention of the apartment, the general conduct of the parties, the nature of their relationship, the promises made by Dr. L'Esperance regarding the apartment and the promises made by him in general."

She contends that she both certified and testified that plaintiff promised to hold the apartment in trust for her. For example, defendant certified in her pleadings that plaintiff

purchased the apartment for me as my home. Plaintiff admitted as much many times during the past 7 years. Furthermore, plaintiff promised me on many occasions that he would place the apartment into a trust for me in order to protect me in the event anything ever happened to him.

She relies upon her deposition testimony as well. When questioned, "I said aside from the apartment, did you expect the doctor after he had . . . to support you?" defendant responded,

Yes, I did, I did . . . I expected him to be a gentleman about this . . . I said 'Just do this, put the apartment' and at the time, you know, we had a 12 year old Mercedes Benz that he needs like a hole in the head - he hadn't driven it in years, 'Just put the car, some money and the Benz in a trust fund. I'll be okay. You go on with your life and I can go on with mine.' Yes, I did expect him to do that and he always said, you know, he'd go back to talk to Rogge, he'd put it in a trust, he'd do it. He never did.

Defendant testified that after their break-up, in September or during the fall, plaintiff told her on several occasions he would put the apartment in a trust for her. Later in her deposition, she testified that in 1999, "I can't tell you what was in his head. All I know is that he promised me that that apartment was mine, he was going to marry me, we were going to have a baby, everything was going to be fine." Then, she testified that "Fran supported me. Fran loved me, Fran promised me we were getting married, promised me we were having a baby, promised me that that was my home, promised me a future together." Later, she reiterated, "I believed him. He told me that was my home. He told me we were going to get married, that we were going to have a family together . . . . "

Thus, defendant submits that Judge D'Italia should not have found that there was not a scintilla of evidence to support her contention that plaintiff promised to buy the condominium for her, to put it in trust for her, or to convey it to her.

Plaintiff, on the other hand, contends that the conversations between the parties in regard to putting the apartment in a trust did not occur until after the parties ended their romantic relationship. Judge D'Italia noted that the alleged promises to put the apartment in a trust occurred after the parties separated so the promises were not consideration for defendant to return to the New York area.

Defendant also contends that it is a "myth" that no consideration existed to convey the apartment to her. She argues that plaintiff induced her to return to the area with promises of "the security of a home and a family with him." She contends that these promises were "ample consideration," relying on In re Estate of Roccamonte, supra, 174 N.J. at 386. In that case, the plaintiff left New Jersey to live in California in order to end her relationship with the defendant. Ibid. The defendant phoned the plaintiff repeatedly, promising her that if she returned he would divorce his wife and "provide for her financially for the rest of her life." Ibid. The plaintiff did return to New Jersey and divorce her husband. Ibid. The plaintiff, however, did not move in with the defendant for a few years until he leased an apartment for them to live in together. Ibid.

In the present case, plaintiff contends that such a promise was never made and is unsupported in the record. For example, plaintiff asserts that the "security of a home" promise was made in 1996 before defendant returned, and when she did she lived at her mother's house. Consequently, he questions how an interest in a particular parcel in real estate could have induced her to return in 1996.

Here, again, the trial court was substantially correct. Nowhere in defendant's deposition does she testify he made promises to her that this particular apartment was hers over a course of seven years; defendant does not even cite to such testimony in her brief. Also, the contention that the apartment was to be put into a trust was at defendant's request after the parties' intimate relationship ended. Consequently, Judge D'Italia was correct to conclude that there was no consideration for a promise to convey real estate.

Moreover, Roccamonte, supra, is readily distinguishable. In that case, the defendant induced the plaintiff to return to New Jersey with promises of a divorce from his wife and a lifetime of support. Roccamonte, supra, 174 N.J. at 386. Here, however, a promise of an interest in this particular real estate was not made to induce defendant to return to New York. Instead, plaintiff said he would "make it right" and that they would have a baby together. Immediately after referring to defendant as an apartment "baby-sitter," plaintiff thus describes their relationship to the court:

I should point out at this time that there was, for a time, a romantic element to our relationship, which began in 1984 and was basically an on and off again situation. However, the romance had ended about 18 months ago and we basically did nothing physically since this summer.

We conclude that there is no genuine issue as to any material fact that would preclude a grant of summary judgment in favor of plaintiff. We essentially agree with Judge D'Italia's conclusion that there is not a scintilla of evidence to support defendant's contention that plaintiff promised to purchase the condominium for her or to convey it or trust it to her. Defendant did not return from Washington due to the promise of a condominium, but allegedly because of more promises of marriage and family. Her monogamy does not constitute sufficient forbearance to create a quasi-contract that somehow entitles her to the subject real estate. Lastly, plaintiff's alleged mischaracterization of his relationship with defendant is irrelevant to his promise to purchase, convey, or entrust the condominium to her and raises issues that, if they belong anywhere, pertain to the broader palimony claims rather than to the narrow issues in this case.

Defendant further argues that the trial court viewed the parties' relationship as the dispositive factor in its analysis and failed to appreciate their relationship. She asserts that "[t]here is more to the determination of whether there exists a family-type relationship than the joining of toothbrushes in the same receptacle." She argues that an examination of their conduct reveals the true nature of their relationship.

Once again, plaintiff properly relies on Judge D'Italia's oral opinion to refute defendant's contentions:

Defendant's palimony case is properly pending in the Family Court. There is no need for the Court to characterize the relationship between the plaintiff and defendant in this case, except to note that cohabitation was not part of the relationship. Nor could any reasonable fact finder conclude that this relationship was one akin to marriage.

Not only did the parties retain separate residences, plaintiff remained overnight at the condominium only six or seven times over a period of many years. He kept no personal items at the condominium. The fact that the parties dined and vacationed together and socialized with others, as well as enjoying a sexual relationship, does not equate to marriage. By defendant's own admission, marriage was always a promise for the future and never a present reality.

Absent a marital-type relationship, there is nothing in their circumstances which remotely suggests the existence of an implied contract to grant defendant an interest in the subject condominium. There is not a scintilla of evidence that plaintiff ever promised to purchase the condominium for her, to convey it to her at any time or to hold it in trust for her. No reasonable trier of fact could conclude that there was either an express or an implied promise made with respect to this specific property.

We agree substantially with the trial court on this point as well. Defendant misses the mark again by discussing the nature of her relationship with plaintiff when that issue is properly pending in a separate action in the Family Part.

The fact is, then, as Judge D'Italia correctly concluded, that there was not a scintilla of evidence that plaintiff promised this particular condominium to defendant. Therefore, there is no genuine issue as to any material fact and the judgment should be left undisturbed.

Next, we view as entirely without merit defendant's reliance on N.J.S.A. 25:1-13 to argue that questions of fact exist precluding summary judgment.

N.J.S.A. 25:1-13 states:

An agreement to transfer an interest in real estate or to hold an interest in real estate for the benefit of another shall not be enforceable unless:

a. a description of the real estate sufficient to identify it, the nature of the interest to be transferred, the existence of the agreement, and the identity of the transferor and transferee are established in a writing signed by or on behalf of the party against whom enforcement is sought; or

b. a description of the real estate sufficient to identify it, the nature of the interest to be transferred, the existence of the agreement and the identity of the transferor and the transferee are proved by clear and convincing evidence.

Defendant also refers to Prant v. Sterling, 332 N.J. Super. 292 (App. Div. 2000), certif. denied, 166 N.J. 606 (2000), a brief affirmation of Judge Herr's oral opinion, formalized at 332 N.J. Super. 369 (1999), in which we stated, "[b]y reason of [N.J.S.A. 25:1-13], the acquisition of an interest in land may be established by parol evidence for the first time in modern history." Prant, 332 N.J. Super. at 293. Due to this statement, defendant argues that questions of fact exist.

Moreover, she refers to Judge Herr's opinion for this court to bolster her contention that the parties' conduct created a contractual relationship: "[t]he circumstances surrounding a transaction, the nature of the transaction, the relationship between the parties, their contemporaneous statements and prior dealings, if any, are all relevant to a determination of whether the parties made an agreement by which they intended to be bound." Prant, 332 N.J. Super. at 378.

This quotation is instructive because it has been presented out of context. It is actually derived from the report and recommendations of the New Jersey Law Revision Commission in 1991. Notably, the rest of the quotation following the last sentence cited reads:

Thus, if the parties in question have been negotiating the sale of a multi-million dollar office building over many months through the exchange of a series of redrafted written contracts, it is unlikely that the parties intended to be bound other than in writing. Conversely, if the parties in question have engaged in a series of 'handshake' agreements, for the purchase and sale of individual building lots in the past and have honored them in the absence of any writing, their prior conduct could tend to show that they intended to enter into a binding oral contract.

Clearly, the situations contemplated by the committee are dissimilar to the instant matter. Defendant and plaintiff never negotiated about the sale or transfer of the condominium, nor do they have a prior course of dealings this court can look to as providing a source of parol evidence. Briefly, in Prant, supra, we determined whether an oral agreement to purchase real estate should be enforced. Prant, 332 N.J. Super. at 370.

Here, defendant contends that plaintiff admitted, over a course of seven years, that the apartment was hers and he would put it into a trust for her. Earlier in the certification, she states that plaintiff bought the condominium for her so she would not be displaced. Nowhere in defendant's deposition does she testify he made promises to her that the apartment was hers over a course of seven years; defendant does not even cite to such testimony in her brief. Defendant only requested that plaintiff put the condominium into a trust for her after the parties' intimate relationship ended. Consequently, Judge D'Italia was correct in concluding that there was no consideration for a promise to convey real estate.

Additionally, defendant cannot meet the requirements set forth in N.J.S.A. 25:1-13. First, there was no agreement between the parties to transfer the condominium to plaintiff. Second, there was no set description of the real estate to be conveyed. Even if one can assume the property was obviously the condominium in question, third, the nature of the interest to be transferred was never agreed upon. Defendant argues that after the end of the romantic relationship, she requested the property be held in trust for her. Plainly, defendant cannot meet the requirements of the statute; there is no agreement established that can be enforced without a writing.

There are no genuine issues as to any material fact. Defendant attempts to create factual issues to preclude summary judgment, yet her cited authority is out of context. Her contention that sufficient evidence exists to warrant reversal is without merit.

Defendant cross-moved to transfer this matter to the Family Part pursuant to R. 4:3-1, R. 5:1-2, and Roccamonte, supra. Defendant currently has a palimony action pending before the Family Part. Now, she contends that the matters should be consolidated.

At the hearing before Judge Gallipoli, defendant argued that Judge D'Italia should never have decided this matter at all, but rather should have transferred it to the Family Part to be consolidated with the palimony action.

Plaintiff argues that the Family Part "has no jurisdiction to hear a case between two unmarried adults who have no children and never lived together."

Judge D'Italia concluded that defendant's "palimony case is properly pending in the Family Court. There is no need for the Court to characterize the relationship between the plaintiff and defendant in this case, except to note that cohabitation was not part of the relationship."

R. 4:3-1, states:

(a) Where Instituted.

(1) Chancery Division -- General Equity. Actions in which the plaintiff's primary right or the principal relief sought is equitable in nature, except as otherwise provided by subparagraphs (2) and (3), shall be brought in the Chancery Division, General Equity, even though legal relief is demanded in addition or alternative to equitable relief.

(2) Chancery Division -- Probate Part. All actions brought pursuant to R. 4:83 et seq.

(3) Chancery Division -- Family Part. All civil actions in which the principal claim is unique to and arises out of a family or family-type relationship shall be brought in the Chancery Division, Family Part. Civil family actions cognizable in the Family Part shall include all actions and proceedings provided for in of Part V of these rules; all civil actions and proceedings formerly cognizable in the juvenile and domestic relations court; and all other actions and proceedings unique to and arising out of a family or family-type relationship.

(4) Law Division. All actions in the Superior Court except those encompassed by subparagraphs (1), (2) and (3) hereof shall be brought in the Law Division or Law Division, Special Civil Part.

(b) Transfer Between Law and Chancery Division. A motion to transfer an action from one trial division of the Superior Court or part thereof to another, except those actions governed by Part VI of these rules, shall be made within 10 days after expiration of the time prescribed by R. 4:6-1 for the service of the last permissible responsive pleading or, if the action is brought pursuant to R. 4:67 (summary actions), on or before the return date if the action is pending in the Law Division. Unless so made, objections to the trial of the action in the division specified in the complaint are waived, but the court on its own motion may thereafter order such transfer. Actions transferred shall not be retransferred. The order of transfer shall be filed in triplicate.

Next, R. 5:1-2 states:

The following actions shall be cognizable in the Family Part:

(a) Civil Family Actions Generally. All civil actions in which the principal claim is unique to and arises out of a family or family-type relationship shall be brought in the Family Part. Such actions shall include all actions and proceedings provided for in Chapters II and III of Part V; all civil actions and proceedings formerly designated as matrimonial actions; all civil actions and proceedings formerly cognizable in the Juvenile and Domestic Relations Court; and all other civil actions and proceedings unique to and arising out of a family or a family-type relationship.

The issue of whether the Family Part is the proper division in which to hear a palimony case is not an issue of first impression. Importantly, however, the instant dispute is separate from the pending palimony action. In Crowe, supra, 90 N.J. at 136, the Court considered "whether an action of this nature should be brought in the Law or Chancery Division of the Superior Court." The court reasoned that since this state has a unified court system, all issues can be resolved in one proceeding in either division. But, the "orderly administration of justice" caused the court to evaluate the more appropriate court in which to hear a breach of contract action between unmarried couples. Ibid.

The plaintiff in Crowe filed in the Chancery Division, but this court remanded the matter to the Law Division, finding that the "essential nature" of the action was breach of contract for which money damages were the appropriate remedy. Id. at 137. We concluded a breach of contract action between unmarried cohabitants could be heard in either the Law or Chancery Division. Ibid. But, "where the principal relief is equitable in nature, the action should be brought in the Chancery Division." Ibid. See R. 4:3-1(a)(1).

The agreement at issue in that case was the defendant's promise to support the plaintiff for life. The plaintiff sought enforcement of that agreement and an order to compel the defendant to transfer to her "'a reasonable share of all property, both real and personal.'" Crowe, supra, 90 N.J. at 137. The court found similar issues and proofs existed in that matter to a matrimonial action, which is the "exclusive province of the Chancery Division under R. 4:75." Id. at 138.

Consequently, in this case, as we anticipate will be true in the majority of such cases, the Chancery Division is the appropriate forum. Selection of the Law or Chancery Division in future cases should reflect the responsible exercise of judgment by counsel, subject to the control of the court, to best achieve a just result in this evolving cause of action.

[Ibid.]

Additionally, defendant relies upon Roccamonte, supra, to argue that the matter should be transferred to the Family Part. In that case, two years were spent determining which division should hear the matter because the defendant passed away. Roccamonte, 174 N.J. at 387. In Roccamonte I, 324 N.J. Super. 357, 360-61, 363 (1999), we found that the Probate Part should hear the case, rather than the Family Part, because the defendant was deceased.

We conclude that the question of whether this action should remain in the Law Division is moot, that dispute now having been terminated. Thus we do not decide that position.

 
Affirmed.

At the time of her deposition, defendant testified that she had a bachelor's degree in art history and when her thesis was approved, she would have a master's degree in art history. Also, she testified she was a Teaching Assistant at the City College of New York, where she ran the art studio and earned about $8,000 a year.

During defendant's deposition, her time spent in Seattle was referred to as two-and-a-half years, and later, as four years. It appears, however, that she remained in Washington for closer to four years.

It appears this order was also filed on March 11, 2004. Appellant requested dismissal of respondent's complaint and respective order to show cause, and notably, it requested a transfer to the Family Part, and a stay to file an action for palimony in the Family Part.

We will address below the issue of whether this matter belongs in the Family Part, where a separate palimony action is pending.

(continued)

(continued)

37

A-0286-04T1

November 21, 2005