Devaney v. L'ESPERANCE

Justice WALLACE, JR.,

delivered the opinion of the Court.

In this appeal, we determine whether cohabitation is an indispensable element of a cause of action for palimony. Plaintiff and defendant were involved in an intimate relationship. During the course of their twenty-year relationship, defendant, who was married, continued to live with his wife and never cohabited with plaintiff. However, he promised to divorce his wife, marry plaintiff, and have, a child with her. Defendant’s promises were not fulfilled and his relationship with plaintiff eventually ended.

Plaintiff filed a palimony complaint against defendant, asserting a breach of a promise to support her for life. The trial court denied relief because the parties essentially had a dating relationship rather than a marital-type relationship that was needed to support a palimony claim. The Appellate Division affirmed solely because the parties never cohabited. We granted certification to address whether a party may prove a cause of action for palimony absent cohabitation.

We hold that cohabitation is not an essential requirement for a cause of action for palimony, but a marital-type relationship is required. Because there was sufficient evidence for the trial court *249to conclude that the parties’ relationship was not a marital-type relationship to support a palimony action, we affirm the judgment.

I.

The following evidence was presented at trial. In 1983, plaintiff, Helen Devaney, then twenty-three years old, began working for defendant, Francis L’Esperance, Jr., as a receptionist for his ophthalmology medical practice. At that time, defendant was fifty-one years old and had been married to his current wife for approximately twenty years. Plaintiff and defendant embarked on a romantic relationship. Although plaintiff was aware that defendant was married, she believed that he would divorce his wife.

In the beginning of their relationship, plaintiff lived in a variety of places, all of which were rented in her own name and mostly self-financed. At some point, defendant began paying plaintiffs telephone bill and gave her money for various other things. Plaintiff, however, remained largely self-sufficient during this period of their relationship. She continued working for defendant in various capacities, at first full-time, and then part-time.

For about ten years, plaintiff and defendant saw each other regularly and would spend vacations together. However, when the parties were not traveling, they rarely stayed overnight together. Defendant frequently had dinner at plaintiffs house, but he invariably returned home to his wife.

Plaintiff testified that defendant repeatedly told her that he would divorce his wife and marry her. In 1993, plaintiff terminated her employment with defendant and pursued educational opportunities. Shortly thereafter, plaintiff moved to Connecticut. A year later, she moved to Seattle, Washington, where she remained for approximately three years. Plaintiff testified that her decision to move was based primarily on defendant’s unfulfilled promise to divorce his wife. During her stay in Seattle, plaintiff frequently spoke by telephone with defendant and requested money from him. Defendant would send her approximately four hundred *250dollars a month to cover her incidental expenses. During the time that plaintiff lived in Seattle, defendant visited her six or seven times.

In 1997, defendant asked plaintiff to return to the East Coast. Plaintiff testified that defendant promised that he would “make things right” by divorcing his wife, marrying plaintiff, and having a baby with her. She testified that she agreed to move back after defendant showed her a separation agreement that was signed by both defendant and his wife. Plaintiff also testified that defendant promised to buy her a home.

Plaintiff returned to New Jersey in 1997, and moved into a North Bergen condominium that defendant leased for her. In 1999, defendant purchased the condominium unit and plaintiff continued to reside there. Defendant also purchased a car that plaintiff used; gave her money for various expenses; and paid for her undergraduate and graduate education. Plaintiff ultimately received a Master’s degree.

Despite the increased support that defendant provided to plaintiff, the parties saw each other no more than two or three evenings at the condominium for dinner each week and sometimes one day on the weekend. During the seven years that plaintiff lived in the condominium, defendant spent only six or seven nights there.

In 2003, the parties considered having a child together. However, at some point, plaintiff learned that she would have difficulty conceiving a child. Defendant also changed his mind about wanting to have another child in August 2003 and conveyed that to plaintiff.

Finally, defendant told plaintiff that he wanted to discontinue the relationship. Plaintiff continued to live in the North Bergen condominium, and in December 2003, she began a relationship with another man. In February 2004, defendant attempted to visit the condominium when plaintiff’s new boyfriend was present, but defendant was denied entrance by plaintiff.

*251Shortly thereafter, defendant sought to remove plaintiff from the condominium and filed an action for ejectment. Eventually, the trial court granted defendant possession of the condominium and the judgment was affirmed on appeal.

Plaintiff filed a complaint for palimony in October 2004, and defendant filed an answer. Following discovery, a bench trial was held. The Family Part judge issued an oral opinion in which she denied plaintiff’s complaint for palimony. The judge found that defendant had made “general promises” to plaintiff that he would take care of her and that “things would work out,” and that plaintiff used those promises to sustain her belief that they would eventually live together. Further, although over the years plaintiff became financially dependent on defendant, defendant never promised to provide plaintiff with lifetime financial support.

The trial judge rejected plaintiff’s contention that the parties entered into an implied agreement for support, and citing In re Estate of Roccamonte, 174 N.J. 381, 808 A.2d 838 (2002), found that such an agreement requires that the parties have entered into a “marital-type” relationship. The judge cited several factors that contributed to her conclusion that the parties’ relationship was not akin to a marriage. The judge considered that the parties had not cohabited, had not spent significant periods of time together, and had not demonstrated an intention to commingle property. The judge also found that although defendant did visit with plaintiffs family, the parties did not hold themselves out to the public as husband and wife and plaintiff did not attend social gatherings with defendant’s friends, family, or colleagues.

In addition, the judge found that plaintiff’s contributions to the relationship were not similar to those a wife would make in a marriage. Although plaintiff provided defendant with companionship and helped with some of his personal and business matters, the judge found no evidence that those actions were more than a typical dating relationship. Finally, the judge denied plaintiff’s request for counsel fees because the equities weighed against such an award.

*252Plaintiff appealed. The Appellate Division affirmed the trial court’s decision denying plaintiff palimony. Devaney v. L’Esperance, 391 N.J.Super. 448, 918 A.2d 684 (App.Div.2007). The panel held that under New Jersey law, cohabitation is an essential element to a cause of action for palimony and because the parties never lived together, plaintiff was not entitled to the requested relief. Id. at 451-52, 918 A.2d 684. The panel also affirmed the denial of plaintiff’s claim for counsel fees. Ibid.

We granted plaintiff’s petition for certification. Devaney v. L’Esperance, 192 N.J. 72, 926 A.2d 856 (2007).

II.

Plaintiff argues that the Appellate Division erroneously held that cohabitation is an indispensable element of a palimony cause of action. She contends that consistent with Roccamonte, supra, in which the Court defined a marital-type relationship as “the undertaking of a way of life in which two people commit to each other,” 174 at 392, 808 A.2d 838, cohabitation is a relevant, but not a necessary, factor. Plaintiff contends that the parties’ relationship satisfied Roccamonte because they committed to each other, provided companionship, and met each other’s financial, emotional, physical, and social needs. Plaintiff asserts that her entering into such a relationship and subsequently conducting herself in accordance with its unique character was consideration in full measure to make defendant’s promise of lifetime support enforceable. She also argues that the parties’ attempt to conceive a child was evidence of a marital-type relationship and that equity requires an award of palimony because she devoted herself to defendant for almost twenty years in reliance on defendant’s promises that he would divorce his wife, marry plaintiff, and have a child with her. Further, she contends that whether she is entitled to counsel fees should await the ultimate disposition of this matter.

In contrast, defendant argues that the Appellate Division’s holding is correct because the law is “settled” that cohabitation is *253a prerequisite to a claim for palimony, and the fact that he was married and living with his wife during the entire course of the parties’ relationship weighs against the finding of a marital-type relationship. He notes that under Roccamonte, a critical ingredient to a marital-type relationship is that two people commit to each other, foregoing other liaisons and opportunities and that did not happen in this case. Moreover, defendant argues that an attempt to have a child should not create an entitlement to palimony because there is no public interest in promoting childbearing in the context of an adulterous relationship. In addition, he contends that plaintiff was enriched by the fact that he paid for her education, and she is now capable of supporting herself. Defendant contends that soon after the parties broke up, she met another man, and became engaged to marry him, and therefore, there is no evidence of a “profound dependency” on defendant. Finally, defendant argues that the Appellate Division correctly upheld the trial judge’s determination that neither party should receive counsel fees as a reasonable exercise of discretion.

III.

Preliminarily, we trace our history of a cause of action for palimony, which in general terms is a claim for support between unmarried persons. We first recognized such a cause of action in Kozlowski v. Kozlowski, 80 N.J. 378, 403 A.2d 902 (1979). Prior to that decision, our courts would not enforce support agreements between unmarried individuals or married persons who lived together with someone other than their spouses because they were considered meretricious.

In Kozlowski, both the defendant and the plaintiff were married to other persons when the defendant induced the plaintiff to leave her husband and come live with him. Id. at 381, 403 A.2d 902. The parties lived as a normal family unit for approximately six years. During that time, three of the four children of the two families came to live with the couple in their new home. Ibid. Although a serious disagreement caused them to separate for a *254week, the defendant wanted to resume the relationship and promised to take care of and provide for the plaintiff for the rest of her life if she would return. Id. at 382, 403 A.2d 902. The plaintiff agreed and the parties resumed their relationship for about nine more years before the defendant broke it off for another woman. Ibid.

The plaintiff filed suit against the defendant, seeking, among other things, future support for life. The trial court found that the defendant expressly agreed to support the plaintiff for the rest of her life and that such a promise was enforceable; Id. at 384-85, 403 A.2d 902. While the appeal was pending in the Appellate Division, this Court certified the appeal. Id. at 381, 403 A.2d 902. The Court acknowledged the changing mores that resulted in many unmarried persons living together and adopted the view expressed by the California Supreme Court, which declared: .

In summary, we believe that the prevalence of nonmarital relationships in modern society and the social acceptance of them, marks this as a time when our courts should by no means apply the doctrine of the unlawfulness of the so-called meretricious relationship to the instant ease. As we have explained, the nonen-forceability of agreements expressly providing for meretricious conduct rested upon the fact that such conduct, as the word suggests, pertained to and encompassed prostitution. To equate the nonmarital relationship of today to such a subject matter, is to do violence to an accepted and wholly different practice.
We are aware that many young couples live together without the solemnization of marriage, in order to make sure that they can successfully later undertake marriage. This trial period, preliminary to marriage, serves as some assurance that the marriage will not subsequently end in dissolution to the harm of both parties. We are aware, as we have stated, of the pervasiveness of nonmarital relationships in other situations.
The mores of the society have indeed changed so radically in regard to cohabitation that we cannot impose a standard based on alleged moral considerations that have apparently been so widely abandoned by so many.
We conclude that the judicial barriers that may stand in the way of a policy based upon the fulfillment of the reasonable expectations of the parties to a nonmarital relationship should be removed. As we have explained, the courts now hold that express agreements will be enforced unless they rest on an unlawful meretricious consideration.
[Id. at 385-86, 403 A.2d 902 (quoting Marvin v. Marvin, 18 Cal.3d 660, 134 Cal.Rptr. 815, 557 P.2d 106, 122 (1976)).]

*255The Court recognized that such an agreement may be expressed or implied because the “[pjarties entering this type of relationship usually do not record their understanding in specific legalese.” Id. at 384, 403 A.2d 902. The Court concluded 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, 403 A.2d 902.

Three years later, the Court applied the Kozlowski principles in Crowe v. DeGioia, 90 N.J. 126, 447 A.2d 173 (1982). There, the plaintiff met the defendant in 1960 when she was separated from her husband. The defendant was single and agreed that the plaintiff and her seven children could live with him. Id. at 129, 447 A.2d 173. The plaintiff alleged that the two lived together for twenty years in a relationship that was akin to a marriage and that the defendant told her that “he would take care of her and support her for the rest of her life.” Ibid. When the defendant broke off the relationship, he promised to give her a good settlement, but never did. Id. at 129-30, 447 A.2d 173. The plaintiff filed a complaint seeking support and temporary relief. Ibid. The trial court granted temporary relief, but the Appellate Division reversed. Id. at 131, 447 A.2d 173. After reaffirming that the plaintiff was not entitled to alimony because the parties were not married, this Court applied traditional equitable principles to authorize preliminary relief. Id. at 132-36, 447 A.2d 173. The Court explained that

[t]he inability to fit [the] plaintiffs 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. Increasing numbers of unmarried couples live [the] plaintiff need not be rewarded for cohabitating with [the] 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.
[Id. at 135, 447 A.2d 173 (internal citations omitted).]

Thus, the Court affirmed the trial court’s grant of preliminary relief and remanded for a plenary hearing to resolve the factual dispute. Ibid.

*256The most recent case in which this Court addressed palimony is Roccamonte, supra, 174 N.J. at 381, 808 A.2d 838. In that case, the issue was whether the promise of support for life was enforceable against the decedent’s estate. Each party was married to another person when they met in the 1950’s. Id. at 385-86, 808 A.2d 838. The parties began a relationship and eventually lived together off and on until the plaintiff sought to end the relationship because the defendant refused to divorce his wife and marry her. Ibid. The plaintiff moved to California in mid-1960, but returned when the defendant promised that he would financially support her for the rest of her life if she would come back to him. Ibid. The plaintiff agreed. Ibid. She divorced her husband and the parties lived together as if they were husband and wife until the defendant’s death. Id. at 387, 808 A.2d 838. However, the defendant never divorced his wife. Id. at 386, 808 A.2d 838. Although the defendant promised the plaintiff that if he were to die first he would provide for her during her lifetime, he died intestate. Id. at 387, 808 A.2d 838. The plaintiff received the proceeds of a life insurance policy on the defendant’s life and some other assets, but she believed that the defendant failed to keep his promise to support her for life. Ibid. The plaintiff commenced a palimony action in October 1995 against the defendant’s estate seeking a “lump-sum support award.” Ibid. The trial court ultimately granted the estate’s motion for summary judgment, and dismissed the complaint. Ibid. The Appellate Division reversed, and remanded for a hearing on the plaintiffs entitlement to support on a contract theory. Id. at 388, 808 A.2d 838. A bench trial was held, and the trial court rejected the plaintiffs theories and dismissed the complaint. The Appellate Division affirmed. Ibid.

This Court reviewed its prior palimony cases and explained that such highly personal contracts require that the Court take special care to “determine whether such a contract has been entered into and what its terms are.” at 389, 808 A.2d 838. The Court made clear that the fundamental principle of New Jersey’s palimony cases is that “the formation of a marital-type relationship *257between unmarried persons may, legitimately and enforceably, rest upon a promise by one to support the other.” Id. at 392, 808 A.2d 838. The Court expressly declared that “the entry into [a marital-type relationship] and then conducting oneself in accordance with its unique character is [sufficient] consideration” to enforce a promise for support. Id at 393, 808 A.2d 838. Importantly, the Court defined a marital-type relationship as one

in which 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 in full measure.
[Id. at 392-93, 808 A.2d 838.]

The Court noted that because the trial court had not properly applied the palimony principles of Kozlowski and Crowe, it would exercise original jurisdiction and determine if the defendant made an express or implied contract to support the plaintiff. Id. at 394, 808 A.2d 838. The Court scrutinized the record and found that the evidence supported the conclusion that the defendant promised to support the plaintiff for life. Id. at 395, 808 A.2d 838. The Court explained that

[i]t is not disputed that [the defendant’s] final break from his family and his marital-like relationship with [the] plaintiff resulted from his successful efforts to induce [the] plaintiffs return to him after she had moved to California to make a new life for herself because she had despaired of [the defendant’s] willingness ever to divorce his wife and marry her. There is no reasonable inference that can be drawn from her abandonment of that plan at his insistence and the resulting reunion other than that she relied on his representations, express or implied, that her future would be neither prejudiced nor compromised. It is also beyond dispute that [the defendant] was concerned for [the] plaintiffs economic well-being and provided for her lavishly during their twenty-five years together as well as during the first extended period of their relationship_The promise, clearly implied, if not express, that he would see to it that she was adequately provided for during her lifetime ... seems to us to have been both the corollary for and the condition of their relationship for the last quarter century of [the defendant’s] life.
[iWd]

*258The Court remanded the matter to the trial court for a determination of the level of support to be awarded to the plaintiff. Id. at 399, 808 A.2d 838.

We turn now to the present case. The question we have not previously addressed- is whether the parties may have a marital-type relationship, which is the underpinning of the consideration needed to support a claim for palimony, when they have not cohabited. The panel below and several other published Appellate Division opinions have interpreted our jurisprudence to require cohabitation as an indispensable element of a palimony action. See Levine v. Konvitz, 383 1, 2, 890 A.2d 354 (App.Div.) (holding that plenary action based on extra-marital relationship over seventy years failed because parties never cohab-itated), certif. denied, 186 N.J. 607, 897 A.2d 1061 (2006); McDonald v. Estate of Mavety, 383 N.J.Super. 347, 360, 891 A.2d 1218 (App.Div.) (noting that “a critical element of a palimony claim is cohabitation for a significant period of time”), certif. denied, 187 N.J. 79, 899 A.2d 302 (2006); see also In re Estate of Sasson, 387 N.J.Super. 459, 467-68, 904 A.2d 769 (App.Div.) (noting that cohabitation required for prima facie case for palimony and affirming trial court’s determination that cohabitation period of less than three years was insufficient), certif. denied, 189 N.J. 103, 912 A.2d 1263 (2006).

We do not read our jurisprudence as being so confining to make cohabitation a necessary requirement to a successful claim for palimony. Rather we opt for a more flexible approach that seeks to achieve substantial justice in light of the realities of the relationship. It is the promise to support, expressed or implied, coupled with a marital-type relationship, that are the indispensable elements to support a valid claim for palimony.

Indeed, whether the parties cohabited is a relevant factor in the analysis of whether a marital-type relationship exists, and in most successful palimony cases, cohabitation will be present. We recognize, however, that palimony cases present highly personal ■arrangements and the facts surrounding the relationship will *259determine whether it is a marital-type relationship that is essential to support a cause of action for palimony. There may be circumstances where a couple may hold themselves out to others as if they were married and yet not cohabit (i.e., couples who are separated due to employment, military, or educational opportunities and who do not cohabit). The trier of fact must consider the realities of the relationship in the quest to achieve substantial justice. Therefore, in addressing a cause of action for palimony, the trial judge should consider the entirety of the relationship and, if a marital-type relationship is otherwise proven, it should not be rejected solely because cohabitation is not present.

Just as important, “[w]e have recognized that Family Part judges have developed a special expertise in dealing with family and family-type matters.” Roccamonte, supra, 174 N.J. at 399, 808 A.2d 838 (citing Cesare v. Cesare, 154 N.J. 394, 412-13, 713 A.2d 390 (1998)). That is, the Family court is well-equipped to consider highly personal facts and to determine whether a plaintiffs claim for support based on a marital-type relationship has merit.

The trial judge in the present case exemplified that expertise. In concluding that the parties did not enjoy a marital-type relationship, the judge found that the parties did not live together; they did not spend significant periods of time together; they did not commingle their property or share living expenses; and they did not hold themselves out to the public as husband and wife. The trial judge correctly considered the lack of cohabitation as a factor in reaching its determination and appropriately analyzed all of the factors of the highly personalized relationship between the parties, including the fact that defendant continued to live with his wife. Consequently, in rejecting plaintiffs argument of an implied contract to support her for life, the judge concluded that the marital-type relationship that informs the basis of a valid contract was lacking. As the trial judge so aptly phrased it, “the parties’ relationship was best characterized as a dating' relationship.”

*260In summary, we hold that cohabitation is one of the many factors a trial judge should consider in determining whether a plaintiff has proven a marital-type relationship to support a cause of action for palimony. In these highly personalized cases, it is conceivable that a plaintiff, even in the absence of cohabitation, may establish a marital-type relationship and prove a cause of action for palimony. In the present case, however, there was sufficient credible evidence for the trial judge to reject plaintiff’s palimony claim.

IV.

We find no need to engage in an elaborate discussion of the trial judge’s decision denying an award of counsel fees. In denying the parties’ request for counsel fees, the trial judge considered the parties financial resources; the amount of fees previously paid by the parties; the results obtained in the action; the reasonableness and good faith of the parties; and whether equity required an award of counsel fees. We find no abuse of discretion in the judge’s determination that neither party should receive an award for counsel fees.

V.

As modified, the judgment of the Appellate Division affirming the trial court’s rejection of plaintiffs claim for palimony is affirmed.