NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4221-15T4
BARBARA TERRANOVA,
Plaintiff-Appellant,
v.
ESTATE OF STUART PAER
and BENEFICIARIES,
Defendants-Respondents.
_________________________
Argued August 30, 2017 – Decided November 17, 2017
Before Judges Alvarez and Gooden Brown.
On appeal from the Superior Court of New
Jersey, Chancery Division, Family Part,
Monmouth County, Docket No. FM-13-1049-16.
Angelo Sarno argued the cause for appellant
(Snyder Sarno D'Aniello Maceri & da Costa,
LLC, attorneys; Mr. Sarno, of counsel and on
the briefs; Lydia S. LaTona, on the briefs).
Matthew N. Fiorovanti argued the cause for
respondent (Giordano, Halleran & Ciesla, PC,
attorneys; Michael J. Canning, of counsel and
on the brief; Mr. Fiorovanti, on the brief).
PER CURIAM
Plaintiff appeals from the April 22, 2016 Family Part order
dismissing her complaint for palimony for failure to state a claim.
We affirm.
Because this appeal arises from a motion to dismiss a
complaint, "we accept as true the facts alleged in the
complaint[,]" Craig v. Suburban Cablevision, Inc., 140 N.J. 623,
625 (1995), and summarize the pertinent background from the
pleadings. Plaintiff and Stuart Paer, a retail mattress tycoon,
were not married but were in a long-term committed relationship
for fifteen years from 1996 until Paer's untimely passing on April
5, 2011. Over the course of the couple's fifteen-year
relationship, they worked together, lived together, traveled
together, and existed as a family unit. They held themselves out
to the world as husband and wife and maintained a marital-type
lifestyle, particularly after 1997 when Paer proposed marriage and
gave plaintiff an engagement ring.
According to plaintiff, Paer supported her financially in a
lavish lifestyle throughout the fifteen-year relationship, and
promised on numerous occasions that he would always take care of
her and support her for life. In reliance on Paer's promises,
plaintiff abandoned her career opportunities. Instead, she
supported his business ventures, maintained their various homes,
helped raise his two daughters from adolescence to adulthood,
2 A-4221-15T4
cared for him after his 2008 stage four liver cirrhosis diagnosis,
and devoted herself to his emotional and physical needs.
Despite the promises of lifetime support, plaintiff was not
a beneficiary in Paer's will, and she received none of the
considerable assets or property accumulated during their fifteen-
year relationship, but held solely in Paer's name. Instead, Paer's
two daughters, Natasha and Alyssa,1 were named residuary
beneficiaries in Paer's 2004 will. After his death, Paer's estate
refused to honor his purported promise of lifetime support to
plaintiff.2 As a result, on November 16, 2011, plaintiff filed in
the Family Part a complaint for palimony and other equitable relief
against the estate and its beneficiaries, Natasha and Alyssa.3
On January 23, 2012, a Family Part judge dismissed the
palimony count of plaintiff's complaint. The judge determined
that plaintiff's palimony claim was barred under the Statute of
Frauds, N.J.S.A. 25:1-5(h), as amended on January 18, 2010,
requiring palimony agreements to be in writing. On March 6, 2012,
1
Because the parties share common surnames, we refer to them
by their first names in this opinion for clarity and ease of
reference, and intend no disrespect.
2
Plaintiff was named as a beneficiary on a life insurance
policy, which provided her with $60,000 in death benefits.
3
A palimony obligation has been held enforceable against the
estate of the promisor. In re Estate of Roccamonte, 174 N.J. 381,
395-97 (2002).
3 A-4221-15T4
we denied plaintiff's motion for leave to file an interlocutory
appeal from the dismissal of her palimony claim. In the absence
of a palimony count, the Family Part judge transferred the case
to the General Equity Part pursuant to Rule 4:3-1, where a June
20, 2013 order granting defendants' motion for summary judgment
resulted in the dismissal of the remaining counts of plaintiff's
complaint with prejudice. Plaintiff did not appeal the dismissal.
Thereafter, the applicability of the amended Statute of
Frauds to oral palimony agreements that predated the statute's
amendment was challenged. In Maeker v. Ross (Maeker I), 430 N.J.
Super. 79 (App. Div. 2013), rev'd, 219 N.J. 565 (2014), we held
that because palimony actions are based upon principles of contract
law, a palimony plaintiff's cause of action accrued at the time
the defendant is alleged to have breached the agreement, not at
the time the promise of lifetime support was purportedly made.
Here, the Family Part judge's dismissal of plaintiff's palimony
count was consonant with our interpretation in Maeker I, supra,
because plaintiff's cause of action accrued in 2011 when the breach
occurred, and was therefore governed and barred by the 2010
amendment to the Statute of Frauds.
In 2014, however, the Supreme Court reversed our ruling and
held that the 2010 amendment to the Statute of Frauds did not
apply retroactively to void oral palimony agreements that predated
4 A-4221-15T4
its enactment. Maeker v. Ross (Maeker II), 219 N.J. 565, 580-82
(2014). The Court explained that the date the oral contract was
formed, rather than the date the cause of action accrued, was the
controlling date "for retroactivity purposes." Id. at 582. Under
the Supreme Court's holding in Maeker II, supra, plaintiff's
palimony count, predicated on promises made during their fifteen-
year relationship, pre-dated the 2010 amendment to the Statute of
Frauds and was therefore enforceable.
Relying on the Supreme Court's decision in Maeker II, supra,
on January 8, 2016, plaintiff filed a second complaint for
palimony. Defendants moved to dismiss the complaint for failure
to state a claim. In support, Natasha certified that her father's
2004 will, for which she and her sister were appointed
administrators, "made several specific bequests of his property,"
but "did not specifically bequest any property to [p]laintiff, or
otherwise provide for any lifetime support for [p]laintiff[.]"
According to Natasha, after plaintiff's first palimony complaint
was dismissed with prejudice in 2013 and plaintiff never appealed
the dismissal, she and her sister distributed "a significant
portion of the Estate's assets" for living expenses. Natasha
averred that "[i]f the court permits [p]laintiff to pursue a claim
against the Estate," they would be prejudiced because "[their]
5 A-4221-15T4
lives would be severely disrupted, and [their] long-term financial
condition placed in serious jeopardy."
After oral argument, in an April 22, 2016 order, the court
granted defendants' motion and dismissed the complaint with
prejudice. In an accompanying statement of reasons, the court
stated that "rather than file a motion seeking to vacate the final
order entered in this case under [Rule] 4:50-1, [plaintiff] filed
a new [c]omplaint seeking the same relief which was previously
denied by the court." The court determined that because it was
"procedurally improper" and "in direct contravention with the
entire controversy doctrine[,]" dismissal of the complaint was
warranted. The court explained that "even if [plaintiff] had
filed a motion for vacation of the final judgment . . . under
[Rule] 4:50-1, her application would likewise be unsuccessful as
the final judgment in this case was entered on June 20, 2013,
nearly three (3) years ago." According to the court,
"[plaintiff's] application would not be considered to have been
made within a reasonable time[,] and her circumstances are not so
extreme as to warrant vacation of the final judgment entered in
this matter."
The court acknowledged that the facts in Maeker II, supra,
were not unlike the facts surrounding plaintiff and Paer's
relationship. However, the court noted that under applicable law,
6 A-4221-15T4
the "jurisdiction of the court . . . cannot be invoked merely
because a party wishes to argue new or developing case law." A.B.
v. S.E.W., 175 N.J. 588, 595 (2003). Rather, the court analyzed
plaintiff's argument under State v. Burstein, 85 N.J. 394, 402-03
(1981), to determine whether "the Maeker [II] rule should be given
complete retroactive effect[.]" The court concluded that
"[plaintiff's] circumstances [were] not so extreme as to warrant
providing the Maeker rule with complete retroactive effect[,]"
when "[plaintiff] filed her new [c]omplaint for [p]alimony . . .
approximately [sixteen] months" after the "Supreme Court issued
its decision in Maeker [II,]" and "the final judgment . . . [was]
more than [two and a half] years old." This appeal followed.
On appeal, plaintiff argues she should not be barred from
pursuing her palimony claim "because of an erroneous
interpretation of law by the Appellate Division . . . or as a
result of a potential procedural defect made in attempting to
revive [her] palimony claim." Plaintiff argues the court
misapplied Burstein, supra, because Maeker II, supra, did not
announce a new rule of law to which a retroactivity analysis
applied. Plaintiff also argues she was entitled to relief under
Rule 4:50-1(f), and the court erred in dismissing her complaint
with prejudice rather than "deny the filing without prejudice and
7 A-4221-15T4
direct [p]laintiff to file a motion" under Rule 4:50-1. We
disagree.
Plaintiff's palimony complaint is barred by principles of res
judicata. Because the application of res judicata is a question
of law, we review this issue de novo. See Walker v. Choudhary,
425 N.J. Super. 135, 151 (App. Div.), certif. denied, 211 N.J. 274
(2012). Under the doctrine of res judicata, "a cause of action
between parties that has been finally determined on the merits by
a tribunal having jurisdiction cannot be relitigated by those
parties or their privies in a new proceeding." Velasquez v. Franz,
123 N.J. 498, 505 (1991). "The rationale underlying res judicata
recognizes that fairness to the defendant and sound judicial
administration require a definite end to litigation." Ibid.
(citing Restatement (Second) of Judgments, § 19 comment a (1982)).
New Jersey law requires three basic elements for res judicata
to apply:
(1) [T]he judgment in the prior action must
be valid, final, and on the merits; (2) the
parties in the later action must be identical
to or in privity with those in the prior
action; and (3) the claim in the later action
must grow out of the same transaction or
occurrence as the claim in the earlier one.
[Watkins v. Resorts Int'l Hotel & Casino, 124
N.J. 398, 412 (1991).]
8 A-4221-15T4
It is well settled that "a dismissal with prejudice constitutes
an adjudication on the merits 'as fully and completely as if the
order had been entered after trial.'" Velasquez, supra, 123 N.J.
at 507 (quoting Gambocz v. Yelencsics, 468 F.2d 837, 840 (3d Cir.
1972)).
Here, plaintiff's first palimony complaint was dismissed with
prejudice, constituting an adjudication on the merits. The parties
and the palimony claim in the second action are identical to those
in the prior action. Therefore, the dismissal of plaintiff's
first complaint with prejudice bars her subsequent suit against
the same parties on the same issue, where the operative facts of
the subsequent suit are identical to the first. We agree with the
trial court that plaintiff's only possible recourse to revive her
palimony claim was to move pursuant to Rule 4:50-1(f) to vacate
the final judgment and persuade the court that Maeker II, supra,
should be applied retroactively to all cases, including those like
hers, where final judgment had been entered and the time for appeal
long expired. However, because the court also conducted a Rule
4:50-1(f) analysis in rejecting plaintiff's attempt to reinstate
her palimony claim, we next consider the propriety of the court's
decision in that regard.
The amended Statute of Frauds was a new rule of law, but was
silent as to retroactivity. Maeker II, supra, decided whether the
9 A-4221-15T4
statute applied to oral palimony agreements that predated the
statute's amendment. In so doing, Maeker II, supra, may be viewed
as announcing a new rule of law by virtue of its interpretation
of the amended statute. To determine whether we should apply
Maeker II, supra, to this case despite the longstanding final
judgment, we must analyze how the new rule should be applied.
A court confronted with that inquiry has four options:
(1) [M]ake the new rule of law purely
prospective, applying it only to cases whose
operative facts arise after the new rule is
announced; (2) apply the new rule to future
cases and to the parties in the case
announcing the new rule, while applying the
old rule to all other pending and past
litigation; (3) grant the new rule limited
retroactivity, applying it to cases in (1) and
(2) as well as to pending cases where the
parties have not yet exhausted all avenues of
direct review; and, finally, (4) give the new
rule complete retroactive effect, applying it
to all cases, even those where final judgments
have been entered and all avenues of direct
review exhausted.
[Burstein, supra, 85 N.J. at 402-03.]
To determine which option to adopt, the court should consider the
following factors: "(1) the purpose of the rule and whether it
would be furthered by a retroactive application, (2) the degree
of reliance placed on the old rule by those who administered it,
and (3) the effect a retroactive application would have on the
10 A-4221-15T4
administration of justice." State v. Feal, 194 N.J. 293, 308
(2008).
However, because "this is not a criminal case involving
constitutional issues or implicating the trustworthiness of the
fact-finding process[,] . . . there is no basis for granting"
retroactive application. Ross v. Rupert, 384 N.J. Super. 1, 7
(App. Div. 2006). "Instead, we deal with principles of finality
under [Rule] 4:50-1[] and the possibility of prejudice[.]" Ross,
supra, 384 N.J. Super. at 9. "[Rule] 4:50-1 permits a court to
relieve a party from a final judgment after the time for filing a
motion for reconsideration or an appeal has expired[,]" Ross,
supra, 384 N.J. Super. at 7-8, for the following reasons:
(a) mistake, inadvertence, surprise, or
excusable neglect; (b) newly discovered
evidence which would probably alter the
judgment or order and which by due diligence
could not have been discovered in time to move
for a new trial under [Rule] 4:49; . . . (e)
the judgment or order has been satisfied,
released or discharged, or a prior judgment
or order upon which it is based has been
reversed or otherwise vacated, or it is no
longer equitable that the judgment or order
should have prospective application; or (f)
any other reason justifying relief from the
operation of the judgment or order.
[R. 4:50-1.]
A motion for relief on any of these grounds "shall be made
within a reasonable time, and for reasons (a), (b) and (c) of
11 A-4221-15T4
[Rule] 4:50-1[,] not more than one year after the judgment, order
or proceeding was entered or taken." R. 4:50-2. "Rule 4:50-1
provides for extraordinary relief and may be invoked only upon a
showing of exceptional circumstances." Baumann v. Marinaro, 95
N.J. 380, 393 (1984). However,
[A] "change in the law or in the judicial view
of an established rule of law is not such an
extraordinary circumstance" as to justify
relief from a final judgment where the time
to appeal has expired. This is unquestionably
the general rule and rests principally upon
the important policy that litigation must have
an end.
[Hartford Ins. Co. v. Allstate Ins. Co., 68
N.J. 430, 434 (1975) (quoting Collins v.
Whichita, 254 F.2d 837, 839 (10th Cir.
1958)).]
The court determines whether exceptional circumstances
warranting relief from a judgment exist by analyzing the particular
facts of each case, while remaining mindful of the well-settled
principle that finality should attach to judgments. Hous. Auth.
of Morristown v. Little, 135 N.J. 274, 294 (1994); see also A.B.,
supra, 175 N.J. at 593-94 (holding order denying parental
visitation not subject to reconsideration based on new rule of law
concerning visitation rights of domestic partners); Zuccarelli v.
N.J. Dept. of Envtl. Prot., 326 N.J. Super. 372, 379-81 (App. Div.
1999) (rejecting motion to vacate settlement based on subsequent
change of law), certif. denied, 163 N.J. 394 (2000); Wausau Ins.
12 A-4221-15T4
Co. v. Prudential Prop. & Cas. Ins. Co., 312 N.J. Super. 516, 518-
19 (App. Div. 1998) (denying reconsideration based on
clarification of law concerning uninsured motorist coverage); Smid
v. N.J. Highway Auth., 268 N.J. Super. 306, 308-09 (App. Div.
1993) (denying reconsideration based on new Supreme Court decision
rendered following denial of certification), certif. denied, 135
N.J. 467 (1994). But see Lee v. W.S. Steel Warehousing, 205 N.J.
Super. 153, 156-58 (App. Div. 1985) (permitting reopening of
administrative order in workers' compensation action to
recalculate disability award based on intervening Supreme Court
decision); Hyjack v. Nolan, 144 N.J. Super. 545, 554-55 (Law Div.
1976) (granting reconsideration of administrative order
terminating plaintiffs' disability pension benefits following
successful appeal of other similarly situated pensioners,
"[b]ecause of the factual relationship involved"), aff'd o.b., 154
N.J. Super. 173 (App. Div. 1977).
We conclude that Rule 4:50-1 and the principle of finality
preclude granting plaintiff relief from the final judgment in this
case. We acknowledge that under Maeker II, plaintiff's palimony
claim would have been cognizable. However, the salutary purpose
behind the rule of finality is not overcome in this case, where
plaintiff failed to file a timely appeal of her 2013 final
judgment, sat on her rights from 2013 to 2014 while Maeker II was
13 A-4221-15T4
litigated in the Supreme Court, and commenced an action two years
after the Supreme Court rendered its decision. To rule otherwise
would severely and unfairly prejudice defendants. We recognize
that there are equities on both sides; however, in the final
analysis, we simply find it inappropriate to circumvent the
jurisprudence so clearly developed under Rule 4:50-1. Thus, the
motion judge properly concluded plaintiff was not entitled to
relief under Rule 4:50-1(f).
Affirmed.
14 A-4221-15T4