R.P. v. B.Y.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1481-11T1

R.P.,

Plaintiff-Appellant,

v.

B.Y.,

Defendant-Respondent.

________________________________

October 12, 2012

Argued: September 27, 2012 - Decided:

Before Judges Axelrad and Nugent.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-5214-11.

Michael A. Rabasca argued the cause for appellant (The Epstein Law Firm, P.A., attorneys; Barry D. Epstein, of counsel and on the brief; Mr. Rabasca, on the brief).

Richard J. Mirra argued the cause for respondent (Hoagland, Longo, Moran, Dunst & Doukas, LLP, attorneys; Mr. Mirra, of counsel and on the brief; John C. Simons, on the brief).

PER CURIAM

The primary issue in this appeal is whether a complaint alleging a defendant fraudulently induced a plaintiff to terminate a pregnancy by making false promises to her, which he did not keep, states a cause of action upon which relief can be granted. The motion judge answered that question in the negative, and dismissed plaintiff's complaint for damages in response to a Rule 4:6-2(e) motion by defendant. We affirm.

Plaintiff filed a complaint against defendant, with whom she had an intimate relationship, alleging he fraudulently and maliciously induced her to terminate her pregnancy by making false promises to her specifically that he would take her on a vacation afterwards and would remain in the relationship. Defendant filed a motion to dismiss the complaint for failure to state a claim upon which relief can be granted, R. 4:6-2(e). Following oral argument, Judge Alexander H. Carver III rendered a decision, supplemented with a written opinion, granting defendant's motion and dismissing the complaint with prejudice. The ruling was memorialized in an order of October 14, 2011. Plaintiff appealed.

The facts are presented here, and were considered by the court, in the light most favorable to plaintiff. See Printing Mart-Morristown v. Sharp Elec. Corp., 116 N.J. 739, 746 (1989) (holding that at the preliminary stage of a Rule 4:6-2(e) dismissal motion, the plaintiff is entitled to every reasonable inference of fact). The parties, both single, began dating in October 2010. Plaintiff subsequently became pregnant and told defendant she wanted to have the child. According to plaintiff, defendant threatened to terminate their relationship unless she terminated the pregnancy. He also told her "he would remain in the relationship and would take her on a vacation to recover following the abortion." Based on these promises, plaintiff terminated her pregnancy on February 24, 2011. Defendant ended their relationship shortly afterwards.

Plaintiff set forth the above facts in a six-count complaint alleging: defendant's actions were misrepresentations and fraudulent (count one); defendant's actions were malicious as a matter of law (count two); defendant's actions constituted fraud (count three); defendant's actions equated to promissory and equitable estoppel (count four); defendant's actions caused intentional and/or negligent infliction of emotional distress (count five); and defendant's actions were sufficiently malicious to justify punitive damages (count six).

During oral argument, Judge Carver offered to permit discovery and decide the matter as a motion for summary judgment. Plaintiff's counsel was satisfied to proceed based on the judge's assurance he would accept plaintiff's allegation that defendant's conduct was "outrageous." The judge also sua sponte raised the statute of frauds defense, after which plaintiff's counsel made additional arguments. In granting defendant's motion to dismiss plaintiff's complaint for failure to state a claim, Judge Carver concluded that plaintiff's complaint was barred by the New Jersey Statute of Frauds amendment, N.J.S.A. 25:1-5(h), the public policy of the Heart Balm Act, N.J.S.A. 2A:23-1 to -7, and overall public policy prohibiting a contract requiring an abortion.

It was undisputed defendant's alleged promise was both oral and made without independent advice of counsel for both parties. Citing N.J.S.A. 25:1-5(h),1 which became effective on January 18, 2010, prior to the parties' relationship, the judge found plaintiff's claims were akin to 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." Accordingly, they were unenforceable as a matter of law.

The judge found the public policy of this State supplied an additional legal bar to plaintiff's complaint. Citing Segal v. Lynch, 413 N.J. Super. 171, 182 (App. Div.), certif. denied, 203 N.J. 96 (2010), he noted the Heart Balm Act was "adopted to abolish causes of action to recover money for the alienation of affections, criminal conversation, seduction, or breach of a contract to marry," N.J.S.A. 2A:23-1, and "was passed to prevent 'suits as devices for extracting large sums of money without proper justification.'" The judge acknowledged the Heart Balm Act "was intended to apply only to causes of action arising out of marriage," but determined "public policy requires that claims be barred when the facts are analogous to a heart balm case." Judge Carver reasoned, "if we allowed these types of lawsuits . . . [w]e'd be flying in the face of the Legislature that adopted [these statutes]," and "[w]ithout a ban on [plaintiff's] complaint, the Heart Balm Act effectively will be eradicated since [] plaintiffs such as the one at bar seeking to maintain heart balm claims will allege a promise to maintain a relationship rather than a promise to marry."

The judge additionally concluded that an agreement requiring plaintiff to terminate her pregnancy in exchange for support and a continued relationship would be unenforceable as contrary to New Jersey public policy. He explained that such an agreement would be unconscionable and unenforceable as a matter of law pursuant to N.J.S.A. 12A:2-302. The judge further analogized plaintiff's fundamental right to terminate her pregnancy before viability, Roe v. Wade, 410 U.S. 113, 153-54, 93 S. Ct. 705, 727, 35 L. Ed. 2d 147, 177-78 (1973), with her right not to procreate through in vitro fertilization following her divorce, which the Court enforced in J.B. v. M.B., 170 N.J. 9, 26 (2001), holding "a contract to procreate is contrary to New Jersey public policy and is unenforceable" (internal quotation marks and citation omitted).

On appeal, plaintiff argues the court: (1) misapplied Rule 4:6-2(e); (2) made inappropriate comments during oral argument suggesting bias against plaintiff's claims; (3) erred in relying on the Statute of Frauds in dismissing her complaint and, alternatively, her allegations of partial performance and fraud precluded the application of this statute; and (4) erred in relying on the Heart Balm Act. Plaintiff further argues her complaint alleged facts sufficient to establish the prima facie elements of her tort claims and, alternatively, the fact that her claims are novel does not warrant a dismissal of her complaint.

We apply a plenary standard of review to a trial court's decision to grant a motion to dismiss pursuant to Rule 4:6-2(e). Rezem Family Assocs., LP v. Borough of Millstone, 423 N.J. Super. 103, 114 (App. Div.), certif. denied, 208 N.J. 368 (2011). Based on our review of the record and applicable law, we are not persuaded by any of plaintiff's arguments and affirm substantially for the reasons expressed by Judge Carver. We add the following comments.

A motion to dismiss for failure to state a claim under Rule 4:6-2(e) should be approached with great caution. Printing Mart, supra, 116 N.J. at 771-72. It should be "granted in only the rarest of instances." Id. at 772. In reviewing a complaint dismissed under Rule 4:6-2(e), the "inquiry is limited to examining the legal sufficiency of the facts alleged on the face of the complaint." Id. at 746. The reviewing court "'searches the complaint in depth and with liberality to ascertain whether the fundament of a cause of action may be gleaned even from an obscure statement of claim, opportunity being given to amend if necessary.'" Ibid.

Judge Carver properly applied the Rule 4:6-2(e) standard when he evaluated plaintiff's claims. As the judge expressly noted, he did view all facts, reasonable inferences, and implications in a light most favorable to plaintiff. No facts outside of the pleadings were relied upon by the judge in his decision. See Cnty. of Warren v. State, 409 N.J. Super. 495, 504 (App. Div. 2009), certif. denied, 201 N.J. 153 (2010) (concluding if facts outside the pleadings are contested, the motion is treated as a motion for summary judgment). The judge then appropriately examined the legal sufficiency of the facts alleged on the face of the complaint. He offered plaintiff the opportunity to delay the motion hearing to conduct depositions, but she declined, clearly recognizing that all the facts pertinent to her claim were before the court.

Although the judge made some extraneous comments questioning paternity and plaintiff's decisions, it is clear from the record he impartially evaluated plaintiff's claims, and these statements played no part in his assessment of the legal issues raised by defendant's motion.

We discern no error by the judge in sua sponte raising the Statute of Frauds as a defense during oral argument on defendant's motion. See Trautwein v. Bozzo, 39 N.J. Super. 267, 268 (App. Div. 1956) ("[W]e do not doubt the right of the trial or appellate court to recognize, sua sponte, the [doctrine of unclean hands] in the interests of justice and public policy where justified by the circumstances)." In fact, plaintiff's counsel conceded that right. Plaintiff also sustained no prejudice, as her attorney presented additional arguments in response, and did not request more time to research the issue or submit a supplemental brief.

It is undisputed that defendant's alleged promises were verbal, and never committed to writing. Thus, the Statute of Frauds is triggered. Contrary to plaintiff's assertion, the amendment is applicable here because the parties were in a non-marital personal relationship, a verbal promise was made for "other consideration," the promise was made after January 18, 2010, and the promise was breached.

Plaintiff urges that the court "misunderstood the nature" of her claims. She explains that the lawsuit was not about enforcing defendant's promise to remain in the relationship but instead about defendant intentionally interfering with her "recognized reproductive liberties by maliciously and fraudulently commandeering and corrupting [her] protected right to wield control over her body and to make her own reproductive choices." In other words, her having the abortion triggered her cause of action, not defendant ending their relationship. This is a distinction without a difference. As Judge Carver correctly determined, all of plaintiff's claims were based on defendant's promise to stay in her life, which is unenforceable.

We also reject plaintiff's alternative argument that if the Statute of Frauds is implicated, terminating her pregnancy constituted partial performance of her agreement with defendant, bringing the case outside of the ambit of that statute. As recognized by Judge Carver, a promise conditioned on the other party having an abortion is unenforceable as a matter of both law and public policy. Thus, to permit the termination of plaintiff's pregnancy to defeat a statute of frauds defense would misinterpret the goal of the partial performance exception and contravene public policy.

Contrary to plaintiff's assertion, the court did not conclude that the Heart Balm Act per se precluded her claim. Rather, Judge Carver acknowledged that statute "was intended to apply only to causes of action arising out of marriage," but reasoned that "public policy requires that claims be barred when the facts are analogous to a heart balm case." As the judge correctly pointed out, plaintiff's complaint "differs from a traditional heart balm case only in that the alleged promise required remaining in a relationship instead of marriage." He also astutely concluded that to permit such a claim as asserted here would encourage litigants to frame their allegations in terms of breach of a "promise to maintain a relationship rather than a promise to marry" in an attempt to circumvent the Heart Balm Act.

Plaintiff's reliance on Morris v. MacNab, 25 N.J. 271 (1957) is misplaced. There the plaintiff received compensatory and punitive damages for "the shame, humiliation, and mental anguish which had been caused by the defendant's action in fraudulently inducing her to enter into a marriage which he knew would be bigamous." Id. at 274. Additionally, the defendant admitted he received money from the plaintiff based on fraudulent representations. Ibid. The Court determined the Heart Balm Act was not implicated because the plaintiff was seeking to recover damages for money which was independent of the promise to marry.

In contrast, plaintiff's complaint for damages is premised on defendant's breach of a promise to continue their relationship. The rationale of the Heart Balm Act, i.e., the abolition of "[m]anufactured suits, with their always present threat of publicity," that "were a fruitful source of coercion, extortion and blackmail" and "used as devices for extracting large sums of money without proper justification" to "force a settlement " against "a reputable or wealthy or important member of the community for an alleged act of seduction," see Magierowski v. Buckley, 39 N.J. Super. 534, 547 (App. Div. l956), is equally applicable to the type of claim asserted by plaintiff in this case. Judge Carver's analogy and rationale is also consistent with the Legislature's express mandate that the Heart Balm Act be construed liberally, N.J.S.A. 2A:23-6.

Plaintiff makes the disingenuous argument that she has a cause of action for intentional and/or negligence infliction of emotional distress, fraud, and promissory estoppel, and if that fails, her claim is novel. Plaintiff also contends she should be given the opportunity to "pursue her claims under a cause of action similar to prima facie tort." Plaintiff's claims may be creative and novel but they are, nonetheless, without legal basis. Thus she did not establish the prima facie elements of the causes of action asserted in her complaint. The mere refusal to perform a promise does not constitute fraud. See Kooba v. Jacobitti, 59 N.J. Super. 496, 501 (App. Div. 1960) (holding that the fraud "complained of must be . . . more than mere refusal of a party to perform his agreement, since either party has the right to refuse . . . and the exercise of that right is no more a fraud than a breach of any other contract") (internal quotation marks and citations omitted) (first alternation in original). Nor can there be promissory estoppel if the promise the plaintiff is seeking to enforce is unenforceable in the first place.

A "prima facie tort should not become a 'catch-all' alternative for every cause of action which cannot stand on its own legs." Richard A. Pulaski Constr. Co. v. Air Frame Hangars, Inc., 195 N.J. 457, 470 (2008). Plaintiff's decision to have an abortion may have been influenced by defendant, but she made the ultimate decision to terminate her pregnancy. Under the law and public policy, there is no cause of action for terminating one's pregnancy and then regretting the decision due to subsequent events. In other words, plaintiff's claim is damnum absque injuria a wrong for which there is no remedy. See, e.g., Daidone v. Buterick Bulkheading, 191 N.J. 557, 565 (2007); Cyktor v. Aspen Manor Condo. Ass'n, 359 N.J. Super. 459, 473 (App. Div. 2003).

Affirmed.

1 N.J.S.A. 25:1-5, the Statute of Frauds, provides:

No action shall be brought upon any of the following agreements or promises, unless the agreement or promise, upon which such action shall be brought or some memorandum or note thereof, shall be in writing, and signed by the party to be charged therewith, or by some other person thereunto by him lawfully authorized:

. . . .

(h) 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. For the purpose of this subsection, no such written promise is binding unless it was made with the independent advice of counsel for both parties.