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Levine v. Konvitz

February 6, 2006

JEANETTE LEVINE, PLAINTIFF-APPELLANT,
v.
PHILIP KONVITZ, NORMAN KONVITZ, AND HOWARD WALTER, DEFENDANTS-RESPONDENTS.



On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FD-07-4734-04M.

The opinion of the court was delivered by: Fuentes, J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Argued September 28, 2005

Before Judges Wefing, Wecker and Fuentes.

This appeal requires us to address whether cohabitation is an indispensable element of a cause of action seeking palimony support. The question arises in the context of the parties' extramarital romantic relationship, which spanned over seventy years. It is undisputed that they never cohabited during the entire period of their relationship.

As defendant was reaching the end of his life, plaintiff initiated this palimony suit, seeking to enforce an alleged promise that he would support her for the rest of her life. Defendant allegedly made this promise in consideration for the emotional and social support plaintiff had shown him, and the love and commitment she displayed throughout their long-term relationship. The trial court dismissed plaintiff's case, finding that any promise of support made by defendant was unenforceable, because the parties had never cohabitated in a marital-type relationship.

We now affirm the trial court's judgment and, in so doing, reaffirm what, in our view, has been implicitly and consistently held by the Supreme Court in In re Estate of Roccamonte, 174 N.J. 381 (2002); Crowe v. De Gioia, 90 N.J. 126 (1982); and Kozlowski v. Kozlowski, 80 N.J. 378 (1979), the three cases that have considered and analyzed the cognizability of palimony-support enforcement actions. In order to establish a prima facie case for palimony, a plaintiff must present competent evidence showing: (1) that the parties cohabitated; (2) in a marriage-type relationship; (3) that, during this period of cohabitation, defendant promised plaintiff that he/she would support him/her for life; and (4) that this promise was made in exchange for valid consideration.

We need not and, specifically do not address here, the question of how long a period of cohabitation is required in order to satisfy this element of the cause of action. It is sufficient to say, that a court confronted with this issue, should look to the length of the cohabitation as an indicator of the parties' commitment to the relationship, as that may bear on the question of valid consideration. In other words, a lengthy period of cohabitation provides a more reliable indication that the relationship involved:

[A] way of life in which two 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. [In re Estate of Roccamonte, supra, 174 N.J. at 392.]

I. Facts Contended by Plaintiff

For purposes of our discussion, we will adopt, in its entirety, plaintiff's version of the nature and characteristics of the parties' relationship. Plaintiff, Jeanette Levine, is now eighty-five years old. Defendant Philip Konvitz, who was approximately ninety-one years old at the time plaintiff filed this cause of action in 2004, is now deceased.

The parties both grew up in Newark. They began dating when plaintiff was in her mid-teens. Although, according to plaintiff, defendant wanted her to marry him, she considered herself too young to make such a commitment at the time. Defendant married another woman when he was in his early twenties. His romantic relationship with the plaintiff, however, continued, and they "saw each other" on a regular basis.

At the time, their relationship consisted of defendant visiting plaintiff at her place of work or when she was on vacation. According to plaintiff, she did not have a sexual relationship with defendant until she was thirty-five years old. Defendant was married at the time this sexual relationship began.

Defendant continued to reside with his wife until her death in 1999. Plaintiff did not marry until she was forty years old, at which time the parties temporarily suspended their sexual relationship, but continued as friends and acquaintances. According to plaintiff, her husband was frequently away from home on business. During these ...


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