On appeal from the Superior Court of New Jersey, Chancery Division, Middlesex County.
Michels, Kole and Ard. Kole, J.A.D. (dissenting).
Plaintiff, an unmarried woman, instituted an action against defendant, with whom she had cohabited for a long period of time, alleging a breach of an express agreement that "he would take care of her and support her for the rest of her life, and that he would share with her his various assets." The gravamen of her complaint appears to be identical to the type of agreement which first came to public attention in Marvin v. Marvin , 18 Cal. 3d 660, 134 Cal.Rptr. 815, 557 P. 2d 106 (Sup.Ct.1976), and was declared enforceable by our Supreme Court in Kozlowski v. Kozlowski , 80 N.J. 378 (1979).
After issue was joined plaintiff moved for and secured an interlocutory order of the trial court which (1) provided $125 weekly support and maintenance to plaintiff pendente lite; (2) required defendant to pay plaintiff's outstanding and future medical, dental, drug and other bills; (3) permitted plaintiff to continue in exclusive use of defendant's dwelling house and required defendant to continue to pay all costs; (4) enjoined defendant from disposing of his assets; (5) awarded a $350 counsel fee and costs in the amount of $120 pendente lite , and (6) allowed for depositions of each party. We granted defendant's application for leave to appeal and stayed the aforementioned order pending our determination.
Defendant argues that the trial judge lacked jurisdiction to order pendente lite support or counsel fees. We agree. The order in question provides plaintiff with interim relief pending resolution of her cause of action against defendant. The cause of action is based on an express agreement for support. Kozlowski v. Kozlowski, supra , does not afford cohabiting parties the status and rights which would emanate from a marriage. The relief afforded parties in an action of this nature is strictly limited to damages resulting from a cause of action in contract.
Plaintiff is not entitled to alimony or equitable distribution. Alimony may be awarded only in actions for divorce or nullity, and equitable distribution is awarded only in actions for divorce. N.J.S.A. 2A:34-23, et seq. [ Kozlowski v. Kozlowski, supra , 80 N.J. at 383]
Moreover, the court went on to say:
To dispel any misunderstanding, we emphasize that our decision today has not judicially revived a form of common law marriage which has been proscribed in New Jersey since 1939) by N.J.S.A. 37:1-10. We do no more than recognize that society's mores have changed, and 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. [At 387].
Thus, since our Supreme Court has already categorically mandated that plaintiff, in this type of action, is not entitled to alimony, we see no basis to allow pendente lite "support and maintenance" which we deem another name for alimony. In addition, we find no basis for the other collateral relief which was made part of the interlocutory order.
As we have indicated, in the case before us plaintiff alleges an express agreement made by defendant to support her for life. The agreement, if one exists, is by adult nonmarital partners. Plaintiff seeks damages flowing from defendant's alleged breach of contract. Consequently, plaintiff's action on the contract is properly an action at law. R. 4:3-1(a)(1) provides, in pertinent part, that:
An action on a debt allegedly due under a contract is an action of a traditionally legal character. Dairy Queen v. Wood , 369 U.S. 469, 477 82 S. Ct. 894, 899, 8 L. Ed. 2d 44 (1962). "A construction of [a] contract and a determination of the rights of the parties thereunder is assuredly within the province of a court of law." Ewing Tp. v. Trenton , 137 N.J. Eq. 109, 111 (Ch.1945). Accord, Government Employees Ins. Co. v. Butler , 128 N.J. Super. 492, 496 (Ch.Div.1974). "Generally speaking, breach of contract gives rise to an action for damages. When, but only when, that remedy is inadequate, the injured party may sue in equity." Sullivan v. Margetts , 9 N.J. Super. 189, 193 (App.Div.1950). See, also, Regan v. Lenkowsky , 137 F. Supp. 133, 140 (D.N.J.1956). Our Supreme Court, in Kozlowski v. Kozlowski, supra , 80 N.J. at 388-389, found money damages to be entirely adequate in remedying a nonmatrimonial partner's breach of his contract to provide lifetime support to an aggrieved partner.
Here, the primary relief sought is legal and the relief can and should be obtained in the Law Division. The distinction between law and equity has been set out in Massari v. Einsiedler , 6 N.J. 303.
Under the accepted practice prior to the adoption of the 1947 Constitution a defendant who had unsuccessfully defended a contract action in a law court could then apply to the Chancery Court for reformation of the contract. The Commercial Union Assurance Co. v. N.J. Rubber Co. , 64 N.J. Eq. 338 (E. & A.1902). Likewise, a plaintiff who had prosecuted an action on a contract to judgment which was rendered for the defendant was not precluded from thereafter seeking reformation of the contract in the Chancery Court. Knight v. Electric Household Utilities Corp. , 133 N.J. Eq. 87 (Ch.1943); affirmed, 134 N.J. Eq. 542 (E. & A.1943). The reason for the intercession by the equity courts was to prevent the injustice which sometimes resulted from the invulnerability of written instruments in a law court when such instruments did not express the actual intent of the parties but were unassailable in the law court because of the parol evidence rule. The basis for the equitable relief of reformation was the inadequacy of the remedy at law. Knight v. Electric Household Utilities Corp., supra. Under our present court structure we have a Superior Court, which has original general jurisdiction throughout the State in all causes. It is divided into a Law Division and a Chancery Division for the trial of causes. Where adequate relief can be obtained in the Law Division, there is no need for intercession by the Chancery Division since the entire controversy can be determined in the Law Division in one and the same suit. The furnishing of complete relief in one court has the design of the unified court structure effectuated by the 1947 Constitution.
Our present judicial system is similar to that which is generally referred to as the "reformed procedure, wherein legal and equitable causes of action, legal and equitable defenses, and legal and equitable remedies may be united and determined by the same judgment. See Pomeroy's Equity Jurisprudence , (5th ed. 1941), vol. 1, § 84, p. 110; 45 Am.Jur., Reformation of Instruments , § 90, p. 639. [At 308-309]
Any contractual claim for equitable relief, for instance, quantum meruit , is an alternative request for relief subject to the determination of a legal right, i.e. , the express contract. See C.B. Snyder Realty Co. v. Nat. Newark, etc., Banking Co. , 14 N.J. 146, 162-163 (1953), and Moser v. Milner Hotels, Inc. , 6 N.J. 278, 280-281 (1951), holding that an express contract excludes an implied one. Likewise, the equitable remedy of specific performance requires a clear, definite and precise understanding of the terms of the contract before enforcement. Hollister v. Fiedler , 30 N.J. Super. 203, 210 (App.Div.1954), mod. and aff'd 17 N.J. 239 (1955). The claim in the instant case, based on allegations of an oral agreement, falls short of this standard. Moreover, it is available only when the remedy at law is inadequate. Fleischer v. James Drug Stores , 1 N.J. 138, 146-147 (1948); Centex Homes Corp. v. Boag , 128 N.J. Super. 385, 393 (Ch.Div.1974). Therefore, the case is properly brought in the Law Division. See Eckerd Drugs of N.J. v. S.R. 215, Rite-Aid , 170 N.J. Super. 37, 41-42 (Ch.Div.1979).
In accord with the foregoing conclusion is McHenry v. Smith , 45 Or.App. 813, 818, 609 P. 2d 855, 858 (Ct.App.1980). McHenry held that a contract action between two unmarried parties establishing economic arrangements for cohabitation is properly brought as an action at law. The court noted that:
The parties chose to regulate their lives and affairs by agreement. They had a right to do that, and the contract was enforceable. If the contract was breached by one of the parties, the other party was entitled to seek the relief obtainable at law. Plaintiff's ...