Submitted: October 1, 2001 - Decided: November 28, 2001
Before Judges Kestin, Steinberg and Alley.
On appeal from the Superior Court of New Jersey,
Chancery Division, Probate Part, Union County,
Michael J. Breslin, Jr. and John M. Breslin,
attorneys for appellant (Michael J. Breslin, Jr.,
of counsel and, with Diana Ferriero, on the brief).
Joel C. Seltzer, attorney for respondent.
The opinion of the court was delivered by
In a prior opinion in this matter, In re Estate of Roccamonte,
324 N.J. Super. 357 (App. Div. 1999) (Roccamonte I), we determined
that the trial court erred in granting summary judgment to the
Estate of Arthur A. Roccamonte (defendant) and dismissing Mary
Sopko's (plaintiff's) contract-based cause of action for lifetime
support. We held that plaintiff was entitled to a plenary proof
opportunity on her various contract claims, "most
significantly . . . an independent ground for the relief
sought . . . . that, on the basis of principles established in
Kozlowski v. Kozlowski, 80 N.J. 378 (1979); seealsoCrowe v. De
Gioia, 90 N.J. 126 (1982) [Crowe I], she had a valid and
enforceable contract claim with independent vitality, assertable
against the decedent's estate as his successor in interest[.]"
Roccamonte I, supra, 324 N.J. Super. at 365. See alsoCrowe v.
DeGioia, 203 N.J. Super. 22 (App. Div. 1985), aff'd o.b., 102 N.J.
50 (1986) (Crowe II).
We remanded in accordance with a venue determination we also
made. The matter was tried in the Probate Part of the Chancery
Division, as directed. The trial court held that plaintiff had not
satisfied the legal standards for prevailing and dismissed the
complaint. Our review discloses that determination to have been
erroneous. Accordingly, we vacate the judgment of dismissal and
remand for the entry of judgment in favor of plaintiff on the
contract claim with such damages as the trial court may calculate
as appropriate based upon the record already made.
In Roccamonte I, id. at 361-62, we set out the motion judge's
earlier recitation of undisputed facts in making his summary
Arthur A. Roccamonte, (Decedent) was a
sophisticated business person. Decedent was
married to Elise Roccamonte (Elise) until his
death on March 14, 1995. Decedent was
survived by Elise and his two children, Doreen
Stackman (Doreen) and Arthur Roccamonte, Jr.
(Arthur Jr.). Decedent died intestate and
Doreen was granted . . . letters of
The present issue arises from the fact
that although Decedent was married, he lived
and maintained a relationship with Mary
[Plaintiff] for approximately the last thirty
years of his life. Decedent lived with Mary
in a co-op apartment in Glen Ridge, New
Jersey[,] which Decedent purchased for $15,000
in 1973. At the start of their relationship,
Mary was also married but soon thereafter
obtained a divorce. Decedent, however,
remained married. Decedent told Mary that he
could not marry her because Elise would not
divorce him for reasons having to do with the
family business. Although Decedent remained
married, Mary states that Decedent repeatedly
told her personally and in the presence of
others that "I will take care of you" or "you
will be taken care of" for the rest of your
life. According to Mary, Decedent lavishly
supported her and her daughter, Sandra Sopko,
during the entire relationship. In return,
Mary states that she provided services
consistent with that of a housewife. Mary
states that the statements became more
frequent during the past ten years in which
Decedent suffered from throat cancer.
As proof of Decedent's intent to "take
care of" Mary, Mary states that Decedent
bought her a wedding band and an engagement
ring. Furthermore, Decedent published a
notice in the New York Times on March 28,
1968[,] stating that he will not be
responsible for Elise's debts. However, the
Estate offers documents that show that
Decedent filed his tax returns jointly with
Elise until his death. Furthermore, both
parties offer bits and pieces of the
transcript of Mr. Neil Peters, Decedent's
accountant (Peters), who testified that
Decedent was aware that he did not have a will
and when it was recommended several times by
Peters to make one, he would just avoid doing
anything about it.
At Decedent's death, he left Mary
the co-op apartment, an insurance policy worth
$10,000, a certificate of deposit worth
$18,000, jewelry approximately worth $25,000,
and other personal items bought by Decedent
The trial judge recited additional factual detail in his oral
opinion rendered after the trial:
[I]n or about the mid 1960s[,] Mary left
Arthur and went to California. Because even
though they had lived together from time to
time, Arthur had refused to get a divorce from
his wife, despite requests from Mary.
While she lived in California with her
sister, Mary testified that she received
constant calls from Arthur. He promised her
if she came back to New Jersey he would leave
his wife. Subsequent events will show that he
did not keep this promise, if it had been
made. She claims that he promised that if she
returned from California, he would take care
of her financially.
Still during this time, she was married
to Nicholas Sopko. Relying on his promise to
leave his wife, Mary stated that she came back
to New Jersey and lived in Glen Ridge. She
divorced Nicholas Sopko in 1967. In 1973[,]
Arthur purchased a co-op at the Parkway House
in Glen Ridge, No. 7A, and placed title in her
name. Arthur moved [in with] her and
continued to live with her until he died on
March 14th, 1995.
During their live-in relationship,
decedent bought Mary clothing, jewelry, furs,
paid for dinners in upscale restaurants in New
York City, and vacations to Atlantic City and
Palm Springs. He apparently enjoy[ed] the
sport of gambling. He also paid the monthly
maintenance fee for the co-op, which was
approximately $950 per month. He also gave
Mary cash on a weekly basis, usually, which at
times amounted to as much as $600.
She stated that when she lived with
Arthur, she considered herself to be his
"wife." She cleaned, cooked and accommodated
him sexually. She stated he was like her
husband. And all in all, the relationship was
very good until he died.
The consideration for the purchase of the
co-op was $15,000, which he paid in cash. He
also paid for improvements to the co-op, and
redid the entire kitchen. At any time the co-
op needed some refurbishing, such as painting
and papering, Arthur would also pay for that.
Again, all payments were made in cash.
Mary and Arthur did not have any joint
banking accounts. It was her contention that
it was because Arthur did not "believe in
them." During the time that they lived
together Arthur did not speak to her about his
business. However, it is evident that he was
a sophisticated businessman who operated a
trucking company in the garment district of
Mary also stated that she had numerous
conversations with Arthur about why he would
not divorce his wife. She said that his
replies were essentially that "I can't because
she could get me in a lot of trouble." When
she inquired as to the kind of trouble, Arthur
told her "-- well, because of the business
there could be a problem."
We also know that when Arthur died he
left Mary not only with the co-op and the
furnishings and contents therein, and such
personal items as jewelry valued at $25,000,
but a certificate of deposit in the amount of
$10,000, plus an $18,000 life insurance
policy.See footnote 11
It was her further testimony that Arthur
made promises to her that she would never have
to worry about money as long as he was around,
or even after he was gone, in that as long as
she lived she would be taken care of. She
believed that this meant that even if Arthur
died and she survived him, which occurred, she
would be taken care of for the rest of her
Mary's brother, John Treven, a witness at
trial, testified that when questioned about
whether he discussed with Arthur the subject
of Arthur making a Will providing for Mary in
the event of his death, Arthur would say in
passing comment, don't worry about Mary. I
will take care of her and that was it. There
were other witnesses who testified about these
Decedent knew the importance of making a
Last Will and Testament, as testified to by
his accountant. However, he never created
such a document and died intestate.
Throughout the many years together[,] Mary
knew the decedent was a very private man that
always paid for things in cash. She knew that
he did not have a bank account[,] and he was
secretive about his business dealings.
She also conceded that she knew that
Arthur did not make a Will, and obviously knew
that he had never divorced his wife Elise.
The trial judge then went on to note plaintiff's position that she
had "relied on decedent's verbal promise 'to take care of her' even
after Arthur's death."
The trial court's findings are supported by the evidence and
are binding on review. Rova Farms Resort, Inc. v. Investors Ins.
Co., 65 N.J. 474, 483-84 (1974). The judge did not find, however,
that the alleged promise to provide for plaintiff for the rest of
her life had not been made. Rather, the judge concluded "that this
verbal promise does not entitle Mary to support on a theory of
expressed or implied contract, unjust enrichment, a contract to
make a will, or even palimony." He went on to analyze the various
The judge, relying on Weichert Co. Realtors v. Ryan, 128 N.J.
427 (1992), explained that an express contract could not be found
because of a lack of adequate definiteness in the essential terms.
He found "[t]here was no writing manifesting an express intent to
provide for Mary's future[,]" and held "[t]he words 'I'll take care
of you' have no contractual effect. There must be an offer and
acceptance with definite terms so that performance can be rendered
by each party. If the terms are deficient, there is no enforceable
He went on to opine:
If the terms are indefinite or
incomplete, past dealings may be considered.
However, in family type relationships, when
one member of a family renders a form of
service to another member of the family, it
will not imply a promise to pay for such
service. Dolby v. Williams, 53 N.J. Super.
548 (Law Div. 1959), Litner v. Braen, 51 N.J.
Super. 31 (App. Div. 1958).
The question of contract frequently comes
up in palimony matters where it has been held
that no contract will be implied from the
rendition of services by two individuals who
are cohabiting, unless express contract
exists. Rather, such services are inferred as
being rendered freely and without expectation
of pay or return. Morone v. Morone, 413 N.E.
2d 1154 (N.Y. 1980); accord Young v. Carruth,
455 N.Y.S. 2d 776 (App. Div. 1982), In re
Estate of Lasek, 545 N.Y.S. 2d 668 (Surr. Ct.
1989), Friedman v. Friedman, 24 Cal. Rptr. 2d
892, 898 (Ct. App. 1993).
The Lasek Court rejected the words "I'll
take care of her" ruling that it was too vague
to constitute any meaningful promise. An
implied contract was rejected, even though the
decedent and his partner had lived 40 years
together and wife services were supplied by
plaintiff to the decedent before he died.
In Friedman, supra, the Court again in
considering the words "I'll always support
you" held that such words were insufficient to
form either an expressed or implied, in fact,
contract. Because there is no expressed
agreement between the parties, and there was
no business relationship, past conduct or
external criterion to instruct us, the words
are not specific enough to create a contract
between the parties for future support. SeealsoTaylor v. Polackwich, 194 Cal. Rptr. 8
(Ct. App. 1983).
Based on this analysis in the light of the findings he had made,
the trial judge concluded "there was no express contract between
Mary and the decedent." He did not specifically reflect on the
theory of recovery based on implied contract as having any separate
The trial judge then turned to the "unjust enrichment/quasi-
contract" element of plaintiff's claim. He noted the applicable
rule of law:
The courts have held that "a defendant is
obligated to pay for services rendered for it
by plaintiff, if the circumstances are such
that plaintiff reasonably expected defendant
to compensate it, and if a reasonable person
in defendant's position would know that
plaintiff was performing the services in
confidence that the defendant would pay for
them." Wanaque Borough Sewage Auth. v.
Township of W. Milford, 281 N.J. Super. 22, 30
(App. Div. 1955) (citing Avery v. Sielcken-
Schwartz, 5 N.J. Super. 195, 200 (App. Div.
The judge then went on to analyze the facts in the light of that
In this case[,] Mary testified she did
perform household chores for decedent, such as
cooking and cleaning, but indicated that she
never felt like she was working for Arthur.
(Citation to record omitted.)
Plaintiff viewed the relationship as that
of husband and wife and not as one of
employer/employee. She further stated that
decedent took care of her during the years of
their relationship by giving her the
aforementioned weekly amounts of cash, dinner,
jewelry, clothing, furniture and vacations.
She never viewed the relationship as a service
contract. Under those circumstances it would
seem that she should not, therefore, be
awarded any damages under the theory of unjust
The facts reveal that Arthur did not take
advantage of the plaintiff or receive a
benefit with the understanding that he was
required to pay for that benefit. Mary
apparently, although unhappy with the fact
that Arthur had never divorced his wife,
decided that she would remain in that
situation. She knew he was not forthcoming in
discussing personal matters with her. He
never promised her that he would provide for
her in his Will.
She liked the fact that she was enjoying
a higher living standard than her job would
pay for. She liked going to Atlantic City.
She liked going to the fancy restaurants in
New York. They enjoyed each other's
companionship, and apparently had a loving
She knew that Arthur had two children by
his wife. She, therefore, had to have known
that there was a real risk that the wife and
children would benefit if he died without a
Will. She never insisted, nor did he promise
to sign any kind of a contract to reassure
what must have been in her mind constantly.
This was a man who kept to himself,
decided things on his own terms, and she, for
reasons best known to her, decided to go along
with it when she had the opportunity to have
terminated the relationship if she was not
satisfied with the status quo.
On the issue of "contract to make a will or implied oral
contract," the trial judge began by reciting the text of N.J.S.A.
3B:1-4. In pertinent part, the statute provides:
A contract to make a will or devise, or
not to revoke a will or devise, or to die
intestate, if executed after September 1,
1978, can be established only by (1)
provisions of a will stating material
provisions of the contract; (2) an express
reference in a will to a contract and
extrinsic evidence proving the terms of the
contract; or (3) a writing signed by the
decedent evidencing the contract.
The judge went on to analyze the evidence in this regard:
The only statement or statements
allegedly made by decedent were "I'll take
care of you" or "don't worry, you'll be taken
care of." These oral statements do not comply
with the statute and do not constitute a
contract to make a Will.
Additionally, Mary has produced no
written instrument that purports to be a
contract to support a claim under this
statute. However, because the parties had a
relationship and were living together prior to
1978, the Court must also look at the law
regarding oral agreements at that time.
In Young v. Sabol, 4 N.J. 309, 312
(1950), the Court held that "the plaintiff was
to prove by clear, cogent and convincing
evidence an oral agreement on the part of the
decedent, supported by a valuable
consideration, and to prove that the agreement
was mutual, definite and certain as to its
terms and subject matter."
In this matter Mary does not meet the
above standard. There were no definite terms
discussed between the parties and the words
"I'll take care of you" do not comply with the
clear and convincing requirement. Further,
Mary does not offer any evidence of valuable
consideration given to the decedent.
The words "I'll take care of you" means
what? Does it mean that you will be taken
care of in the same standard of living as
before or some lesser standard? Does it mean
a certain prescribed amount of money? Does it
mean that you will continue to go to fancy
restaurants in New York or gamble in Atlantic
City or Palm Springs? Does it mean that cash
that was given from time to time, sometimes on
a weekly basis, as much as $600, would also be
I think it is clear that these words are
not capable of any definite or calculable
meaning. Thus, the time frame of the
statements made by the decedent does not
affect the outcome and the Court's decision
that there was no contract to make a Will.
The trial judge concluded his analysis by addressing
plaintiff's "palimony" theory. He recalled "certain statements
made by [plaintiff's counsel] which expressly stated or implied
that she was no longer seeking recovery under this theory."
Plaintiff, on appeal, disputes this characterization and asserts
that she never abandoned her "palimony" claim. Our review of the
record discloses that plaintiff is correct.
In considering the "palimony" theory, the judge observed:
The New Jersey courts have viewed the
issue of palimony as a valid cause of action,
but one that is limited and only to be applied
in situations containing express agreements
between the parties. Plaintiff refers to
Kozlowski v. Kozlowski, 80 N.J. 378 (1979) and
Crowe v. De Gioia, 90 N.J. 126 (1982) to
support her claim, if any, for palimony.
This Court finds that these cases only
support claims for palimony when there is an
express contract between the parties, and
therefore, do not support Mary's case.
In Kozlowski[,] the court found that the
parties entered into an express contract for
support and that the nature of the
relationship was one of employer/employee.
The trial court stated 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 them in the
past." Kozlowski v. Kozlowski, 164 N.J.
Super. 162, 168-69 (Ch. Div. 1978).
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.
In Crowe the court found that there was
also an express agreement between the parties
that supported the request for palimony.
Crowe, 203 N.J. Super. 22, 28 (App. Div.
Again, for the reasons stated earlier,
there is no evidence of any express agreement
between the parties. It should be remembered
that Mrs. Sopko had her own job, even though
it may have been arranged through Arthur. She
had her own money and accounts. The business
that Arthur had he ran without any help from
her. And he did not leave the plaintiff
destitute, as is evidenced in Kozlowski and
It would seem that in New Jersey to allow
palimony it must be limited and must be
narrowly applied and to be utilized only where
there is an express agreement between the
parties, almost complete dependency by one
cohabitant on the other and the equitable
element that one party has "tossed aside" the
other unfairly. Here Arthur lived with Mary
until his death.
Finally, the Court finds that the present
matter can also be distinguished from
Kozlowski and Crowe based on the fact that Mr.
Roccamonte is deceased. As the trial court
commented in Kozlowski, the oral agreement
"would be terminated upon the death of either
party". Kozlowski, 164 N.J. Super. at 178.
More recently, the trial court in
Hendricks v. Richie, affirmed by the Appellate
Court on February 15th, 2000, Docket No. A-
1903-98T2,See footnote 22 agreed with the Kozlowski theory,
stating that any agreement would terminate
upon the death of the obligor. Consequently,
if the plaintiff is still seeking recovery
under the theory of palimony, such an action
cannot be enforced.
On the basis of the foregoing approaches, the trial judge
It, therefore, appears that count one in
which Mary sought permanent support for
valuable services to Arthur during his
lifetime, is dismissed. The second count
alleging relief by way of unjust enrichment
and quantum meruit theories [is] likewise
Judgment was entered for defendant.
We concur in substantial part with the trial judge's
determination that the evidence did not support a holding that the
statutory or common law requirements for a contract to make a will
or devise had been satisfied. And, we have no basis for
questioning the judge's discretionary evaluation based upon the
facts as he had found them that the tests for unjust
enrichment/quasi-contract had not been met. We differ, however,
with the trial judge's analysis regarding the legal tests for
plaintiff's "palimony" claim, i.e., her theories of express or
The trial judge erred in analyzing the matter as if the
theories of express or implied contract were mutually exclusive or
on the basis that either of them could be considered separately
from the "palimony" claim. A "palimony" claim is, by definition,
based upon theories of express or implied oral contract. In
Kozlowski, supra, 80 N.J. at 384, the Supreme Court observed:
Whether we designate the agreement
reached by the parties in 1968 to be express,
as we do here, or implied is of no legal
consequence. The only difference is in the
nature of the proof of the agreement. Parties
entering this type of relationship usually do
not record their understanding in specific
legalese. Rather, as here, the terms of their
agreement are to be found in their respective
versions of the agreement, and their acts and
conduct in the light of the subject matter and
the surrounding circumstances.
Thus, the trial judge erred in relying on the cited out-of-
state cases as support for a proposition at variance with the
expressed rule and general purport of both Kozlowski and Crowe.
Moreover, the underlying rationale employed by the trial judge is
contrary to general rules of law. Professor Corbin's treatise
states the generally accepted approach:
Contractual duty is imposed by reason of
a promissory expression. As to this, there is
no difference between an express contract and
an implied contract. All contracts are
express contracts, subject to the rules of
contract law. * * * There are different modes
of expressing assent. Expression may be by
the tongue, the eye, the hand or by all of
them at once. It may be by language, by words
in any language, by words written or spoken.
Yet there is also "sign language" which may
consist of signs that are mere translations
from a language of words, or of signs that
convey ideas independently of any word
language. A contract made by sign language is
an express contract.
The language used to express assent,
whether of words or of other signs and
symbols, may be one invented by the parties
themselves for their own private
communications, or indeed for one
communication only. They may use code words
instead of English words or their own code, or
the Morse code, or the Western Union
telegraphic code. They may twist ordinary
English words into code words, so that man
signifies dog and tree signifies a thousand
bushels of wheat. A contract made by a code
communication is an express contract.
Throwing up one's hat is usually an expression
of joy; but it may be made to express assent
to an agreement to sell land for ten thousand
From the above, it appears that, not only
are all contracts express contracts, but also
that all contracts are implied contracts.
AccordRestatement (Second) of Contracts § 4 (1981); see alsoTroy
v. Rutgers, 168 N.J. 354, 365-66 (2001); Wanaque Borough Sewerage
Auth. v. Township of West Milford, 144 N.J. 564, 574 (1996)
("Contracts are traditionally classified as express, implied-in-
fact or implied-in-law. The contract is express if the agreement
is manifested by written or spoken words, and implied-in-fact if
the agreement is manifested by other conduct." (quoting Robert A.
Long, Jr., Note, A Theory of Hypothetical Contract, 94 Yale L.J.
415, 415 n. 3 (1984)) (citation omitted).
Although the trial judge here decided that the facts he had
found did not lead to a determination that an express or implied
contract existed, those facts are remarkably similar to the facts
found in Kozlowski and Crowe. We conclude, based upon the rules
and approaches applied in those cases, in the light of the facts
found therein, that a contract of the same quality was created
here, with terms no less express than the contracts in Kozlowski
and Crowe. In each of those cases, the plaintiff's claim was based
upon oral promises made during a relationship of long duration in
which the parties lived together and functioned in every way,
except for the existence of a marriage, as a family unit. In those
cases, as here, the parties raised the claimants' children
together. In Kozlowski and here, both parties were married to
others when they began cohabiting, the plaintiff divorced her
spouse, but the defendant never did while their relationship
continued. The only significant difference between the parties'
relationship here and in Crowe was that the defendant there was not
married at the time the parties' relationship commenced. Here, as
in Kozlowski and Crowe, the parties' relationship terminated before
plaintiff made her "palimony" claim. It is of no special
consequence that, in Kozlowski and Crowe, the end of the
relationships came when the defendants left the plaintiffs; and
that, here, the relationship ended with the death of the party to
be charged. In both types of situation, the plaintiff sought to
give legal effect to a promise to provide for her for the rest of
her life, an undertaking which, if found to have occurred, gave
rise to an "enforceable contract claim with independent vitality,
assertable against the decedent's estate as his successor in
interest[.]" Roccamonte I, supra, 324 N.J. Super. at 365.
The trial court's view of the standards governing "palimony"
were overly narrow. The right to recover may be established by
proof of an express or an implied agreement, made orally or in
writing. We discern no requirement in either Kozlowski and Crowe
that the claimant must prove, in the trial judge's terms, "almost
complete dependency by one cohabitant on the other and the
equitable element that one party has 'tossed aside' the other
unfairly." The cause of action discussed in Kozlowski and Crowe
contains no such elements as a matter of definition. That those
factual circumstances may have existed in both cases connotes only
their qualities as equitable considerations to be assessed; they do
not preclude the application of other legal or equitable
considerations to reach the same result. We stress, particularly,
that the "complete dependency" element articulated by the trial
judge bespeaks reliance on the sufficiency of consideration, a
factor expressly preluded in Crowe II, supra, 203 N.J. Super. at
Furthermore, we discern nothing in Kozlowski and Crowe to
suggest, as the trial judge held, that the contractually-based
right cannot survive the death of the promisor. As with any other
contract right not involving personal services, seeRosenbaum v.
United States Credit Sys. Co., 60 N.J.L. 294, 304 (Sup. Ct. 1897),
rev'd on other grounds, 61 N.J.L. 543 (E. & A. 1898); Cazares v.
Saenz, 256 Cal. Reptr. 209, 212 (Ct. App. 1989); Restatement
(Second) of Contracts, § 262 cmt. b (1981), the claim for damages
may be asserted against the promisor's estate as his successor in
interest. SeeRoccamonte I, supra, 324 N.J. Super. at 365-66. A
contract promisee's common law right to damages has no parallel in
the statutory right to alimony.
In Kozlowski, the Supreme Court, as well as the trial judge,
expressly determined there to be a sufficient basis in the facts
established to conclude that a contract to provide for the
promisee's life existed. "Such agreements by adult nonmarital
partners . . . are enforceable." Kozlowski, supra, 80 N.J. at 385.
We . . . recognize that . . . an agreement
between adult parties living together is
enforceable to the extent it is not based on a
relationship proscribed by law, or on a
promise to marry. Id. at 387.
In Crowe II, we were, of course, controlled by this rule, and
we held further that, in such contracts, as in all others, "the
amount and sufficiency of consideration is not significant, so long
as it is the bargained for detriment actually intended as such
between the parties." Crowe II, supra, 203 N.J. Super. at 31. We
observed further that in both Kozlowski and Crowe "'the illicit
equivalent of marital bliss' was part and parcel of the
relationship between the parties." Ibid. (quoting trial court in
Kozlowski, supra, 164 N.J. Super. at 167) (citation omitted). Our
view in Crowe II was affirmed by the Supreme Court. SeeCrowe II,
supra, 102 N.J. 50. Kozlowski and Crowe declare a "promise to take care of
[another] for the rest of her life" to be a valid basis for
recovery on a contract claim. Crowe II, supra, 203 N.J. Super. at
32. We note again that the trial court here made no finding that
no such promise had been made. Moreover, the record discloses no
evidence countervailing plaintiff's proofs on the issue; nor did
the trial judge make a credibility determination unfavorable to
plaintiff. Rather, the judge held, contrary to Kozlowski and
Crowe, that the promise made here was not actionable. This was
incorrect. "So long as neither of the prohibitions [that the
agreement is not based on a relationship proscribed by law, or on
a promise to marry] is violated, it is clear that the court [in
Kozlowski] intended to enforce agreements between unmarried
As in Kozlowski and Crowe, the agreement plaintiff seeks to
enforce is that embodying the promise to provide for her support
for life. Unlike the claimant in Crowe, this plaintiff does not
seek to enforce any other promise, such as that which led the court
in Crowe II to order specific performance of a promise to convey
the real property the parties had occupied together despite the
contention that the oral agreement violated the Statute of Frauds,
seeid. at 33-34, or that which led to a denial of the plaintiff's
claim for "equitable distribution." Seeid. at 36-37. As in
Kozlowski and Crowe, this promisor, i.e., his estate, apparently
remained capable of fulfilling the monetary obligation the contract
entailed. In both of the seminal cases, the courts ordered a
discharge of the obligation by a lump sum payment. SeeKozlowski,
supra, 80 N.J. at 388-89; Crowe II, supra, 203 N.J. Super. at 34-
35. The trial court on remand should consider the appropriateness
of such relief here.
Since Kozlowski, the principle at the basis of plaintiff's
claim for relief has been firmly established in this State.
[T]he inability to fit plaintiff's claim for
temporary relief into the conventional
category of a matrimonial action is not a bar
to relief. To achieve substantial justice in
other cases, we have adjusted the rights and
duties of parties in light of the realities of
their relationship. See, e.g., McGlynn v.
Newark Parking Authority, 86 N.J. 551, 559
(1981); State v. Shack, 58 N.J. 297, 307
(1971). Increasing numbers of unmarried
couples live together. * * * Although
plaintiff need not be rewarded for cohabiting
with defendant, she should not be penalized
simply because she lived with him in
consideration of a promise for support. Our
endeavor is to shape a remedy that will
protect the legally cognizable interests of
the parties and serve the needs of justice.
See generallyRestatement (Second) of
Contracts, § 359 at 169 (1981).
[Crowe I, supra, 90 N.J. at 135.]
Reversed and remanded for the entry of judgment in favor of
plaintiff with damages to be determined by the trial court based
upon the trial record already made.
STEINBERG, J.A.D., dissenting.
While I concur in the conclusion of the majority that the
record did not support a holding that the requirements for a
contract to make a will or devise had been satisfied, and that the
judge did not mistakenly exercise his discretion in determining
that the test for unjust enrichment/quasi-contract had not been
met, I am constrained to respectfully dissent from that portion of
the opinion regarding plaintiff's "palimony" claim. I agree with
the majority that a "palimony" claim is, by definition, based upon
theories of express or implied oral contract. For the following
reasons, I also agree that the judge erred in concluding that a
vague, illusory promise, such as the alleged promise made here, was
insufficient to constitute a contract.
Ordinarily, a contract arises from an offer and acceptance
which, in turn, "must be sufficiently definite 'that the
performance to be rendered by each party can be ascertained with
reasonable certainty.'" Weichert Co. Realtors v. Ryan, 128 N.J.
427, 435 (1992) (citation omitted). However, in the context of a
"palimony" suit, a vague promise is sufficient to create a
"palimony" obligation. Kozlowski v. Kozlowski, 80 N.J. 378, 387-88
(1979). Indeed, the promise made in Kozlowski was very similar to
the promise allegedly made in this case. Mere uncertainty as to
the amount of damages will not preclude recovery if there has been
a wrong committed and there is certainty that some damages have
resulted. Id. at 388. Thus, in the context of a "palimony" claim,
a vague promise such as the one alleged to have been made here, "is
enforceable to the extent it is not based on a relationship
proscribed by law, or on a promise to marry." Id. at 387.
While I agree with the general proposition set forth by the
majority that a contractual claim against a decedent may survive
his death, I would not treat a "palimony" claim as a strict
contract claim in considering whether the promise should survive
the death of the obligor. Simply put, we run into difficulty when
we attempt to place artificial labels on the facts before us. This
is not an alimony claim. Nor is it a traditional contract claim.
It is a "palimony" claim. However, I see no reason why a person
entitled to "palimony" should be placed in a greater position than
a person entitled to alimony. Just as an obligation to pay alimony
terminates upon the death of the husband, Macfadden v. Macfadden,
46 N.J. Super. 242, 247 (Ch. Div. 1957), aff'd, 49N.J. Super.356
(App. Div.), certif. denied, 27 N.J. 155 (1958), I would hold that
the obligation to pay "palimony", although not technically alimony,
likewise terminates upon the death of the obligor. Thus, I would
affirm the judgment dismissing the complaint.
I also make the following observation. The majority
concludes, and I agree, that the judge did not find that the
alleged promise to provide for plaintiff for the rest of her life
had not been made. Indeed, the judge made no finding at all on
that issue. At the very least, if a claim for "palimony" survives
the death of the obligor, I would remand, pursuant to R. 1:7-4(a),
for a specific finding as to whether the promise had been made. In
addition, I would require the trial court, if it concluded that a
promise had been made, to make a further determination as to when
the promise was made, because I believe the claim is in the nature
of a contention that Roccamonte agreed to provide for plaintiff by
will. Consequently, if the alleged promise was made after
September 1, 1978, plaintiff would have to establish its existence
by (1) producing a will stating material provisions of the
contract; (2) establishing an express reference in the will to a
contract and extrinsic evidence proving the terms of the contract;
or (3) providing a writing signed by Roccamonte evidencing the
contract. SeeN.J.S.A. 3B:1-4. On the other hand, if the alleged
promise was made on or before September 1, 1978, the statute would
not apply. However, the alleged promise would still have to be
established by clear and convincing proof. Young v. Sabol, 4 N.J.
309, 312 (1950) ("The obligation of plaintiff was to prove by
clear, cogent and convincing evidence an oral agreement on the part
of the decedent, supported by a valuable consideration, and to
prove that the agreement was mutual, definite and certain as to its
terms and subject matter.").
Even if the alleged promise is not considered to be an
agreement to provide for plaintiff by will, the agreement would
still have to be established by clear and convincing proof. See
N.J.S.A. 2A:81-2 (requiring a party seeking to assert a claim
against an estate based upon an oral promise to "establish the same
by clear and convincing proof"). Because plaintiff is seeking to
assert a claim based upon an oral representation she alleges
decedent made, she must prove her contention by clear and
convincing proof. Here, because the judge concluded that the
promise was too vague to be enforced, he made no specific finding
on the question of whether the promise had, in fact, been made.
Thus, even if the alleged promise does survive Roccamonte's death,
I believe a remand is necessary for a determination of whether the
promise was made. At the remand proceedings, I would require
plaintiff to establish her contention by clear and convincing
In effect, the majority has exercised original jurisdiction,
presumably pursuant to R. 2:10-5, and assumed that the promise was
made. The rationale of the majority appears to be that the "record
discloses no evidence countervailing plaintiff's proofs on the
issue; nor did the trial judge make a credibility determination
unfavorable to plaintiff." That rationale ignores the fact that
the judge made no credibility finding at all and assumes that the
fact-finder must accept the testimony of plaintiff and her
witnesses simply because nothing was introduced to "countervail or
contradict" it. A fact-finder is not required to find testimony
credible simply because it is uncontradicted. Ferdinand v. Agric.
Ins. Co., 22 N.J. 482, 494 (1956); In re Perrone's Estate, 5 N.J.
514, 521 (1950); D'Amato by McPherson v. D'Amato, 305 N.J. Super.
109, 115 (App. Div. 1997); Langley v. Allstate Ins. Co., 206 N.J.
Super. 365, 369 (App. Div. 1985). Moreover, it is well-settled
that the testimony of a witness need not be believed where, as
here, the only person who could have refuted the evidence is dead.
In re Perrone, supra, 5 N.J. at 522; D'Amato, supra, 305 N.J.
Super. at 115; Gallo v. Gallo, 66 N.J. Super. 1, 5 (App. Div.
1961). Because resolution of the question of whether a promise was
made depends upon the credibility of the witnesses, I believe the
issue is ill-suited for the exercise of original jurisdiction,
particularly in light of the enhanced burden of proof I would
impose upon plaintiff, coupled with the fact that Roccamonte, the
only person who could contradict the testimony, is dead.
In sum, I would affirm the judgment of the trial court.
However, even if it is determined that a promise of the type
asserted in this case survives the death of Roccamonte, I would
remand for a determination of whether the promise was, in fact,
Footnote: 1 1 We note a discrepancy between the factual recitation on
the summary judgment motion and the findings after trial
regarding the amounts of the certificate of deposit and the
insurance policy. It is of no consequence for our present
purposes which was worth $10,000 and which $18,000.Footnote: 2 2 This is an unpublished opinion. "[N]o unpublished opinion
shall be cited by any court." R. 1:36-3. "[A]n unpublished
opinion does not have stare decisis effect." Pressler, Current
N.J. Court Rules, comment on R. 1:36-3 (2001).