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Devaney v. L'Esperance

June 17, 2008

HELEN MARY DEVANEY, PLAINTIFF-APPELLANT,
v.
FRANCIS A. L'ESPERANCE, JR., DEFENDANT-RESPONDENT.



On certification to the Superior Court, Appellate Division, whose opinion is reported at 391 N.J. Super. 448 (2007).

SYLLABUS BY THE COURT

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).

In this appeal, the Court determines whether cohabitation is an indispensable element of a cause of action for palimony.

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, L'Esperance was fifty-one years old and had been married to his current wife for approximately twenty years. Devaney and L'Esperance began a twenty-year long intimate relationship. During that time, L'Esperance continued to live with his wife and never cohabited with Devaney, though for a time they had dinner together several time per week. L'Esperance, however, did promise to divorce his wife, marry Devaney, and have a child with her. Devaney, not happy with L'Esperance's failure to follow through, moved to Connecticut and then to Seattle, Washington. She moved back to New Jersey to a condominium leased by L'Esperance because, she testified, he again promised to leave his wife, marry her, and have a child with her. L'Esperance provided financial support to Devaney, including purchasing the condominium unit; paying for her undergraduate and graduate education (Devaney ultimately received a Master's degree); purchasing a car for her use; and money for various other expenses. However, L'Esperance's promise to divorce his wife and marry Devaney never materialized. Apparently, they decided to have the baby, but Devaney learned that she would have difficulty conceiving and, in any event, L'Esperance decided he did not want another child. The relationship eventually ended, Devaney began a relationship with another man, and L'Esperance evicted Devaney from the condominium.

Devaney filed a complaint for palimony in October 2004, and L'Esperance filed an answer. Following a bench trial, the Family Part judge issued an oral opinion in which she denied Devaney's complaint for palimony. The judge found that L'Esperance had made "general promises" to Devaney that he would take care of her and that "things would work out," and that eventually Devaney used those promises to sustain her belief that they would eventually live together. The trial judge, however, determined that the parties had not entered into a "marital-type" relationship. 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 L'Esperance did visit with Devaney's family, the parties did not hold themselves out to the public as husband and wife and Devaney did not attend social gatherings with L'Esperance's friends, family, or colleagues. In addition, the judge found that Devaney's contributions to the relationship were not similar to those a wife would make in a marriage. The judge found that the relationship was more akin to a "dating relationship." Finally, the judge denied Devaney's request for counsel fees because the equities weighed against such an award.

Devaney appealed. The Appellate Division affirmed the trial court's decision denying palimony. 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, Devaney was not entitled to the requested relief. The panel also affirmed the denial of Devaney's claim for counsel fees.

The Supreme Court granted Devaney's petition for certification.

Held: 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.

1. The Supreme Court first recognized a cause of action for palimony, which in general terms is a claim for support between unmarried persons, in Kozlowski v. Kozlowski, 80 N.J. 378 (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. The most recent case in which this Court addressed palimony is In re Estate of Roccamonte, 174 N.J. 381 (2002). In that case, this Court reviewed its prior palimony cases and made clear that the fundamental principle of New Jersey's palimony cases is that "the formation of a marital-type relationship between unmarried persons may, legitimately and enforceably, rest upon a promise by one to support the other." Id. at 392. 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. (Pp. 9-16)

2. The question the Court has 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. The Court does not read our jurisprudence as being so confining to make cohabitation a necessary requirement to a successful claim for palimony. Rather it opts 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. 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. The Family court is well-equipped to consider highly personal facts and to determine whether a plaintiff's claim for support based on a marital-type relationship has merit. The trial judge in the present case exemplified that expertise, concluding 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." (Pp. 16-19)

3. The Court finds no abuse of discretion in the trial judge's determination that neither party should receive an award for counsel fees. (Pp. 19-20)

As modified, the judgment of the Appellate Division affirming the trial court's rejections of plaintiff's claim for palimony is AFFIRMED.

Justice LONG filed a separate CONCURRING opinion, stating that although the Court's opinion is an entirely correct paradigm in an implied contract case like the one before the Court, it should not be read in the future as applicable to an express contract.

Justice RIVERA-SOTO filed a separate CONCURRING opinion, stating that nowhere -- save for those limited instances where a claim for palimony is based on a writing confirming an agreement of support -- can a palimony claim be sustained absent proof of cohabitation. Therefore, he concurs solely in the result.

CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN, and HOENS join in JUSTICE WALLACE's opinion. JUSTICE LONG filed a separate concurring opinion. JUSTICE RIVERA-SOTO filed a separate concurring opinion.

The opinion of the court was delivered by: Justice Wallace, Jr.

Argued January 22, 2008

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 to 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 plaintiff's 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 plaintiff's 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 dollars 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.

Shortly 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 (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 plaintiff's 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.

Plaintiff appealed. The Appellate Division affirmed the trial court's decision denying plaintiff palimony. Devaney v. L'Esperance, 391 N.J. Super. 448 (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 ...


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