On appeal from the Superior Court, Appellate Division, whose opinion is reported at 179 N.J. Super. 36 (1981).
For reversal and remandment -- Justices Pashman, Clifford, Handler, Pollock and O'Hern. For affirmance -- Justice Schreiber. The opinion of the Court was delivered by Pollock, J. Schreiber, J., dissenting.
The basic issue on this appeal is whether temporary relief can be awarded in a suit to enforce an agreement between unmarried cohabitants. The Chancery Division awarded interim support and other relief to plaintiff, Rose K. Crowe. With one judge dissenting, the Appellate Division vacated the support order and remanded the case for trial in the Law Division. Crowe v. De Gioia, 179 N.J. Super. 36 (1981). We granted leave to appeal from that interlocutory order and reinstated temporary relief during the pendency of this appeal. 87 N.J. 412 (1981). We now reverse the Appellate Division, thereby continuing the temporary relief pending the outcome of the underlying action, which we remand to the Chancery Division.
In a verified complaint filed in the Chancery Division, plaintiff, Rose K. Crowe (who states she is also known as Rose K. De Gioia), claimed that defendant, Sergio De Gioia, breached his non-marital agreement to support her for life. Her complaint alleged the following facts pertaining to their twenty-year relationship. She met De Gioia in February 1960 when she was 38 and separated from her husband, whom she has since divorced. She was the mother of seven children ranging in age from five to seventeen years. He was 26 and single. Starting in 1960, she and her children lived with and were supported by him. From 1967 to 1980, when De Gioia left, they lived in his house in Perth Amboy. Most significantly, he declared 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."
In return for his support, she acted like his wife: cooking, cleaning, caring for him when he was ill, helping in his various business ventures, and accompanying him socially. Their relationship was akin to a marriage. Even at the end of their relationship, when De Gioia told her he was leaving to marry a woman 22 years his junior, he promised to give her a "good
settlement" so that she would not have to be concerned with her own support. That settlement, however, did not materialize. Crowe asked the court to enforce her alleged agreement with De Gioia for support, to compensate her for her services, and to award her a share of his assets, costs and counsel fees.
In support of her request for interim relief, Crowe certified the following further facts. She was unskilled, unemployable, and completely dependent on De Gioia for support. She owned no assets except her clothes, personal effects, an inoperable automobile, and jewelry De Gioia had given her. De Gioia, by contrast, had become a wealthy man over the years, acquiring substantial property and business interests, including the Perth Amboy home.
Crowe asked for $385 per week in support and payment of medical, dental and related costs. Furthermore, she requested the right to remain in the Perth Amboy home, protection from removal by De Gioia of any property from the house, and payment of all expenses pertaining to the maintenance of the house, such as the mortgage, insurance and utilities. She also wanted the use of an operable automobile at De Gioia's expense. Finally, she sought an order restraining De Gioia from transferring or otherwise disposing of any of his assets.
In his answer, De Gioia denied most of the allegations of the complaint, but admitted that he had met Crowe in 1960 and had allowed her and her children to live in the Perth Amboy house since 1967. Nonetheless, he denied ever having lived with Crowe or having supported her and her children. He described their relationship as one of friendship and stated that any services she provided to him were meretricious. Furthermore, he denied her allegation that he had promised to support her for the rest of her life or to share his assets with her.
The Chancery Division denied a motion by De Gioia for transfer of the action to the Law Division and granted Crowe's motion for temporary relief. Fearing the infliction of a grave injustice on Crowe if temporary relief were denied, the Chancery
Division awarded her "minimal support, enough to keep her alive . . . ." While recognizing that De Gioia denied the underlying support agreement, that court found "some evidence" to infer "there was some type of arrangement between the parties." Accordingly, the Chancery judge awarded Crowe $125 per week in support, permitted her to remain in the house, restrained De Gioia from transferring any of his assets, but denied Crowe's request for an automobile.
The Appellate Division granted De Gioia's motion for leave to appeal. On appeal, the majority concluded that matrimonial precedents were of no value to Crowe in seeking pendente lite relief because she was not married to De Gioia. Moreover, the majority found that the trial court had no authority to order any interim relief under Kozlowski v. Kozlowski, 80 N.J. 378 (1979), where we recognized that a woman had a cause of action in contract against a man with whom she had cohabited for 15 years in exchange for his agreement to support her for the rest of her life ("palimony"). Because the only relief granted in Kozlowski was money damages, the majority of the Appellate Division here concluded that preliminary relief was not available. 179 N.J. Super. at 40. Thus, the Appellate Division vacated the order granting support and restraining De Gioia from transferring his assets. Id. at 48. Additionally, the majority held that the action is "of a traditionally legal character . . . and the relief can and should be obtained in the Law Division." Id. at 41.
The dissenting judge agreed that matrimonial laws offered no foundation for pendente lite relief. Instead, he found a basis for temporary relief in "settled equitable principles relating to preliminary relief in emergent situations requiring the preservation of the status quo and the prevention of irreparable harm, after balancing conveniences and the interests of the parties, until the final determination of the litigation involved." Id. at 45. The dissent concluded that jurisdiction in the Chancery Division was proper because the claim was basically for "specific performance of a unique type of agreement to support and the
enforcement of newly judicially created rights impliedly recognized in Kozlowski as basically equitable in nature." Id. at 47.
We begin by affirming that plaintiff is not entitled to alimony. Kozlowski v. Kozlowski, supra, 80 N.J. at 383. The power of a court to award alimony is purely statutory, and alimony may be awarded only in a matrimonial action for divorce or nullity. O'Loughlin v. O'Loughlin, 12 N.J. 222, 229, cert. den., 346 U.S. 824 (1953). Under the relevant statute, alimony may be ordered on an interim basis only in a "matrimonial action," N.J.S.A. 2A:34-23 (Supp.1981-1982), which does not embrace an action on a contract between unmarried cohabitants. See R. 4:75. The Legislature has proscribed common law marriages. N.J.S.A. 37:1-10. We continue to decline to view non-marital relationships as if they were lawful marriages. Kozlowski v. Kozlowski, supra, 80 N.J. at 387. Consequently, we conclude that plaintiff is not entitled to alimony, either permanent or temporary. Kozlowski v. Kozlowski, supra, 80 N.J. at 383.
The unavailability of statutory alimony pendente lite, however, does not foreclose all temporary relief. To the contrary, New Jersey has long recognized, in a wide variety of contexts, the power of the judiciary to "prevent some threatening, irreparable mischief, which should be averted until opportunity is afforded for a full and deliberate investigation of the case." Thompson, Attorney General v. Paterson, 9 N.J. Eq. 624, 625 (E. & A. 1854). We recognize that the determination to authorize preliminary relief summons the most sensitive exercise of judicial discretion. In exercising that discretion, courts have been guided traditionally by certain fundamental principles.
One principle is that a preliminary injunction should not issue except when necessary to prevent irreparable harm. Citizens Coach Co. v. Camden Horse R.R. Co., 29 N.J. Eq. 299, 303 (E. & A. ...