On appeal from the Superior Court of New Jersey, Chancery Division, Probate Part, Union County, L-1648.
Before Judges Kestin, Steinberg and Alley.
The opinion of the court was delivered by: Kestin, J.A.D.
As amended January 9, 2002.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: October 1, 2001
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); see also Crowe 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 also Crowe 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 judgment disposition:
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 administration.
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 for Mary.
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 New York.
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.*fn1
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 life.
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 passing comments.
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, ...