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Wessel v. Burritt


October 14, 2008


On appeal from Superior Court of New Jersey, Law Division, Morris County, Docket No. L-2033-05.

Per curiam.


Argued September 10, 2008

Before Judges Stern, A. A. Rodríguez and Lyons.

This case arises out of a suit brought by plaintiff Gloria Wessel (Wessel) against defendant Harold Burritt, Jr. (Burritt), following an eighteen-year relationship between the parties. When the relationship terminated, plaintiff brought suit in the Law Division, alleging she was entitled to palimony; damages arising out of a joint venture or partnership between the parties; the imposition of a resulting trust on assets of defendant; damages for conversion by defendant; damages for fraud; and compensation for defendant's unjust enrichment. The trial court, sitting without a jury, entered a directed verdict in favor of defendant. As part of its findings and conclusions of law, the trial court found that the parties did not cohabitate. Plaintiff appeals, arguing that she had established cohabitation; that the trial court erred when it found that defendant had not committed fraud when he professed his love for plaintiff and promised to care for her; and that the trial court erred when it found that defendant had not been unjustly enriched during the course of the parties' relationship.

The following factual and procedural history is relevant to our consideration of the issues advanced on appeal. Wessel and Burritt met on March 11, 1985, at a church support group for single people. Not long after their initial meeting, Wessel and Burritt began an exclusive romantic relationship that lasted approximately seventeen years. Their relationship finally ended on June 23, 2003,*fn1 when Burritt informed Wessel that their relationship was over.

When Wessel and Burritt met in 1985, Wessel was living with her two young children in Morris Plains in the home she had shared with her husband prior to their separation. Burritt was living in one-half of a duplex that he had owned with his ex-wife and received as part of their property settlement agreement. The duplex is located in Wharton. Burritt rented the other half of his duplex to third parties.

Wessel contends that between 1985 and 1993, Burritt spent an increasing number of nights with her at her home in Morris Plains. According to Wessel, by 1993, Burritt was living "full time" at her home, managing the household's finances, paying bills, making purchases for the home, and doing routine household maintenance, as well as major household repairs and upgrades. Wessel cared for Burritt when he was ill and brought him to her Morris Plains home after he had surgery on his knee.

In contrast, Burritt asserts that he maintained his own home in Wharton for the entire duration of the parties' relationship. Burritt had his mail delivered to the Wharton address, which he picked up daily, registered and insured his truck using his Wharton address, and kept his clothing and other personal items in Wharton. Although he admits to paying the cable bill regularly and making repairs to the Morris Plains house, Burritt claims that he never resided with Wessel and only spent between one and three nights per week at her home, bringing any necessary clothing from Wharton every time he spent the night with Wessel. According to Burritt, the only item he kept at Wessel's home was a toothbrush. Burritt specifically denies being the money manager or paying bills other than Wessel's cable bill.

Wessel claims, and Burritt does not deny, that Burritt had repeatedly professed his love for Wessel and promised to care for her. The parties even discussed combining their financial resources upon retirement and retiring together. Additionally, Wessel and Burritt spent almost all major holidays, birthdays, and significant events together during their relationship. Third parties testified that Wessel and Burritt appeared to be "living together," and seemed more married than some married couples. Burritt continued to profess his love for Wessel until he abruptly ended their relationship, despite his claims that he was dissatisfied for between two and three years.

Unbeknownst to Wessel, Burritt reconnected with his current wife, Jeanne Burritt (Jeanne), his grammar school sweetheart, at his high school reunion while Wessel and Burritt were still in an exclusive relationship. The romance between Burritt and Jeanne was rekindled. Sometime after the reunion, Burritt assured Jeanne that he would end his relationship with Wessel so that they could be together. On June 23, 2003, Burritt asked Wessel to pick him up at the airport following a trip he had taken to Florida. Wessel took Burritt to his Wharton home, where he told her that their relationship was over. Burritt married his current wife Jeanne in October 2003.

Burritt and Wessel remained in contact after the June 23, 2003, breakup and after Burritt's marriage to Jeanne. Burritt continued to give Wessel money. Burritt's monetary contribution to Wessel totaled between $13,000 and $14,000. Initially, Burritt paid Wessel $1,500 by check, but made subsequent payments in cash, putting the cash in an envelope and hiding it on Wessel's front porch during the day while she was at work.

After the parties ended their relationship, Wessel refinanced her home and invested the proceeds in a computer software venture. She eventually sold her home, using the proceeds from the sale to pay bills, including significant therapy bills. Wessel also stopped working after her relationship with Burritt ended. Wessel claims to suffer from severe migraines that make it impossible for her to work. She is currently living in a rented room.

Burritt also sold his home after ending his relationship with Wessel and marrying Jeanne. Burritt used the proceeds of the sale to buy a forty-nine percent interest in a lighting store owned and operated by his current wife, and a fifty percent ownership interest in his current wife's home. Burritt has since retired and resides with his current wife.

On or about July 7, 2005, Wessel filed a six count complaint*fn2 against Burritt, seeking palimony; damages arising from a partnership-joint venture; the imposition of a resulting trust; damages for conversion; damages for fraud; and compensation for defendant's unjust enrichment. On or about August 19, 2005, Burritt filed an answer and separate defenses to Wessel's complaint.

A bench trial was held in the Law Division on May 22, 23, and 24, 2007. At the conclusion of the trial, the trial judge ordered the parties to submit proposed findings of fact and conclusions of law in lieu of oral summation. The parties submitted the proposed findings of fact and conclusions of law pursuant to the trial judge's order.

On June 22, 2007, the trial judge entered a directed verdict*fn3 in favor of Burritt and dismissed Wessel's complaint with prejudice. A written decision containing findings of fact and conclusions of law accompanied the judge's order.

On July 27, 2007, Wessel filed a timely notice of appeal. The last of the briefs in this matter was filed on or before March 4, 2008. On June 17, 2008, our Supreme Court decided Devaney v. L'Esperance, 195 N.J. 247 (2008). In Devaney, the Court determined that cohabitation is not an indispensable element of a cause of action for palimony.

On appeal, plaintiff presents the following arguments for our consideration:







The trial judge entered judgment for defendant on all six counts pled by plaintiff in her complaint, including palimony, joint venture/partnership, resulting trust, conversion, fraud, and unjust enrichment. The only issues briefed on appeal, however, are those relating to plaintiff's claim for palimony, damages for fraud, and compensation for defendant's unjust enrichment. Accordingly, we deem the claims for damages arising from a joint venture/partnership, the imposition of a resulting trust, and damages for conversion waived. See Sciarrota v. Global Spectrum, 392 N.J. Super. 403, 405 (App. Div. 2007), rev'd on other grounds, 194 N.J. 345 (2008).

Defendant argues that the trial court's decision was amply supported by the evidence in the record and that plaintiff's brief should not be considered because it fails to conform to the Rules of Court in several aspects.

As a preliminary matter, we must determine if the trial judge properly entered a directed verdict in defendant's favor at the close of the evidence and after written submission of summations. In his written opinion, the trial judge acknowledged that when deciding a motion for a directed verdict, a court must view all evidence in the light most favorable to the non-moving party. See R. 4:40-1 comment 1. However, in his written opinion, the judge stated that "the court accepts in part and rejects in part plaintiff's and defendant's factual accounts." Obviously, it was error for the judge to make credibility determinations if he decided the case under Rule 4:40-1 and entered a directed verdict. However, because the judge was sitting as the fact finder without a jury, we ascribe no error to this.

We, therefore, reviewed the trial court's decision as one made on the merits. In so evaluating a trial judge's determination of the facts, we give due regard to the ability of the fact finder to judge credibility. State v. Locurto, 157 N.J. 463, 470-71 (1999); In re Taylor, 158 N.J. 644, 656 (1999); Close v. Kordulak Bros., 44 N.J. 589, 599 (1965). This is because a trial judge's findings are "substantially influenced by his opportunity to hear and see the witnesses and to have the 'feel' of a case, which a reviewing court cannot enjoy." Locurto, supra, 157 N.J. at 471 (quoting State v. Johnson, 42 N.J. 146, 199 (1964)). Indeed, it is "improper for the Appellate Division to engage in an independent assessment of the evidence as if it were the court of first instance." Ibid. The role of the reviewing court then is a limited one: we are "not [to] disturb the factual findings and legal conclusions of the trial judge unless we are convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonable credible evidence as to offend the interest of justice. . . ." Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974) (quoting Fagliarone v. Twp. of No. Bergen, 78 N.J. Super. 154-55 (App. Div.), certif. denied, 470 N.J. 221 (1963)). Further, "[w]hen the reviewing court is satisfied that the findings and results are supported by sufficient credible evidence present in the record, its task is complete and it should not disturb the result." Locurto, supra, 157 N.J. at 471 (quoting Johnson, supra, 42 N.J. at 199).

We turn then to plaintiff's argument that the trial court erred when it found that plaintiff failed to establish cohabitation. A right to palimony support is created by contract. McDonald v. Estate of Mavety, 383 N.J. Super. 347, 359 (App. Div.), certif. denied, 187 N.J. 79 (2006) (quoting In re Estate of Roccamonte, 174 N.J. 381, 389 (2002)). The contract may be oral or written, expressed or implied. Ibid. The existence and terms of the contract in a palimony action are not determined by the parties' words, but "by the parties' 'acts and conduct in the light of . . . [their] subject matter and the surrounding circumstances.'" Ibid. (quoting Kozlowski v. Kozlowski, 80 N.J. 378, 384 (1979)). A general promise of support for life in exchange for some consideration is sufficient to form a contract. Ibid. When the court determines that such a promise was made and later broken, it will award the promisee a lump sum payment representing the present value of reasonable future support over the expected life of the promisee. Id. at 360.

We have in the past interpreted our Supreme Court's decisions regarding palimony as requiring plaintiff to establish the following elements before a court may award palimony support: "(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." Levine v. Konvitz, 383 N.J. Super. 1, 2-3 (App. Div.), certif. denied, 186 N.J. 607 (2006).

We had then interpreted our jurisprudence to require cohabitation as an indispensable element of a palimony action. Devaney, supra, 195 N.J. at 258 (2008). However, in Devaney, the Supreme Court clarified this issue and held that:

We do not read our jurisprudence as being so confining to make cohabitation a necessary requirement to a successful claim for palimony. Rather, we opt 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. [Ibid.]

The trial judge found that plaintiff "has not proven the cohabitation requirement." The judge concluded "[w]ithout a finding of cohabitation, even though Wessel has shown reliance on promises made during the course of their relationship, she is not entitled to palimony from Burritt." Given our scope of review and after a careful review of the record, we are satisfied that the trial judge's findings regarding cohabitation were supported by sufficient credible evidence and we will not, therefore, disturb that factual finding. Because the Devaney decision was rendered after the trial judge's decision and the appellate briefs were filed, however, it is appropriate to apply the holding in Devaney, which does not require cohabitation as an essential element for palimony, and to remand to the trial court the palimony claim for a determination on the merits. See Riggs v. Twp. of Long Beach, 101 N.J. 515, 523 (1986). We foresee that the resolution of the palimony claim in light of Devaney may require the submission of additional evidence or the reconsideration of the legal significance of established facts, recognizing that palimony cases present highly personalized arrangements and that it is the facts surrounding the relationship which will determine whether there was a marital-type relationship so as to support a cause of action for palimony. See Devaney, supra, 195 N.J. at 259.*fn4 Further, the trial judge did not make findings as to the nature or existence of a marital-type relationship. Therefore, a remand to the trial court for an application of the Devaney holding to the relevant facts as may be supplemented by the parties with the trial court's approval is appropriate with respect to the palimony claim. Ibid.

We next turn to plaintiff's argument that her common law fraud claim should have been recognized. There are five elements to common law fraud: "a material misrepresentation by the defendant of a presently existing fact or past fact; knowledge or belief by the defendant of its falsity; an intent that the plaintiff rely on the statement; reasonable reliance by the plaintiff; and resulting damages to the plaintiff." Liberty Mut. Ins. Co. v. Land, 186 N.J. 163, 175 (2006). Each element of fraud must be proven by clear and convincing evidence. Stochastic Decisions, Inc. v. DiDomenico, 236 N.J. Super. 388, 395 (App. Div. 1989), certif. denied, 121 N.J. 607 (1990).

In this case, the trial judge apparently found Burritt had not made a material misrepresentation of a present or past fact, nor did Burritt intend to mislead Wessel, as required by Liberty Mut. Ins. Co., supra, 186 N.J. at 175. The trial judge found that Burritt had made promises to Wessel that he failed to keep, i.e. that he loved her and would care for her, and that Wessel did in fact rely upon those promises. However, "[Burritt] did not intend to mislead Wessel, but instead . . . his feelings changed over the course of the seventeen (17) year relationship." The trial court noted that when a statement is made honestly at the time it is made, it is not actionable even if a party relies upon the statement to his or her detriment (citing Restatement (Second) of Torts, § 530 comment b (1977)).

This court will not disturb the factual findings of a trial judge sitting without a jury unless this court is "'convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice.'" Rova Farms, supra, 65 N.J. at 484 (quoting Fagliarone, supra, 78 N.J. Super. at 155). If there is "substantial evidence in support of the trial judge's findings and conclusions" in the record, a trial judge's findings should stand. Ibid.

Here, the trial judge concluded that although Burritt had promised to love and care for Wessel, that Burritt did not make those statements falsely or with a fraudulent intent at the time made. A review of the record indicates there is substantial credible evidence to support the judge's conclusion. Therefore, accepting the trial judge's finding, the first element of the test for common law fraud, that defendant misrepresented a present or past fact at the time the statement was made, was not met and Wessel's fraud claim must fail. Liberty Mut. Ins. Co., supra, 186 N.J. at 175.

This conclusion is also supported by the Restatement (Second) of Torts, § 530 comment b, which provides in pertinent part that:

[i]f the statement is honestly made and the intention in fact exists, one who acts in justifiable reliance upon it cannot maintain an action of deceit if the maker for any reason changes his mind and fails or refuses to carry his expressed intention into effect. If the recipient wishes to have legal assurance that the intention honestly entertained will be carried out, he must see that it is expressed in the form of an enforceable contract, and his action must be on the contract.

In this case, the trial court correctly followed the law after concluding that at the time the statements were made by defendant, they were true. Plaintiff's claims, therefore, given the factual findings of the trial court, do not sound in fraud, either legal or equitable, but rather, if they are to succeed, must proceed under a contractual theory for palimony.

With respect to plaintiff's unjust enrichment claim, unjust enrichment, or quantum meruit, is an equitable doctrine which is intended to compensate a plaintiff where the plaintiff performed services in good faith, those services were accepted by the defendant, and there was a reasonable expectation of compensation. Carney v. Hansell, 363 N.J. Super. 111, 123 (Ch. Div. 2003) (citing Starkey v. Estate of Nicolaysen, 172 N.J. 60 (2002); Weichert Co. Realtors v. Ryan, 128 N.J. 427, 437 (1992)).

In the current case, the trial judge found that Burritt had not been unjustly enriched by his relationship with Wessel. The judge stated that Wessel had not met her burden of proof and noted that the parties had similar incomes, something which Wessel disputes but that is supported by the record,*fn5 had separate homes, and that Wessel did not contribute more to the relationship than Burritt. The trial judge's decision is founded on substantial and credible evidence in the record. Burritt and Wessel did not cohabitate, and they did not work together in a common business. There is nothing in the record which indicates that Wessel provided services to Burritt for which she reasonably expected compensation. In fact, there was testimony that Burritt maintained his own home in part because Wessel kept her home in a state that was unacceptable to him. Because there is no evidence of unjust enrichment, and the trial judge's decision was based upon substantial credible evidence, the trial court's judgment concerning unjust enrichment is affirmed.

Lastly, with respect to defendant's argument that we should not have considered plaintiff's brief because of several alleged violations of our Court Rules, we find defendant's contention to be without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E) and R. 1:1-2.

In summary, we reverse the trial court's entry of judgment on the palimony count and remand it for reconsideration and further proceedings in light of Devaney. With respect to the other issues raised on appeal, the judgment is affirmed. The judgment is, therefore, reversed and remanded in part, and affirmed in part.

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