On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Cape May County, Docket No. FM-05-199-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 21, 2009
Before Judges Stern, J.N. Harris, and Newman.
This appeal arises out of a palimony action commenced against defendant Martin D. Fritz by his former paramour, plaintiff Joanne Dukes. Dukes claimed that for over a decade she and Fritz resided together and held themselves out as a married couple, with Fritz assuring plaintiff that eventually they would be legally married. Indeed, Fritz and Duke are the parents of two minor children, K.V.F. and J.D.F., and share ownership of residential real property in Lower Township,*fn1 where Dukes and the children currently reside.
After the parties separated in 2006, Dukes filed a verified complaint for palimony and other equitable relief. In nine counts, she sought remedies for palimony (count one), partition (count two), unjust enrichment (count three), joint ventureship (count four), quantum meruit (count five), quasi-contract (count six), implied contract (count seven), constructive trust (count eight), and custody (count nine). The matter proceeded to trial on all counts except those pertaining to partition and custody. On February 15, 2008, the trial judge entered an order dismissing all claims, rejecting Dukes' claim of palimony and other equitable remedies.*fn2
Immediately following the palimony trial and court's decision, the parties commenced a second theatre of conflict: motion practice. First, Dukes moved for reconsideration. Then, Fritz moved for joint custody, a change in parenting time of the children, and immediate payment of his interest in the property. Finally, in this first burst of post-trial activity, Dukes moved for the appointment of a custody expert. The motions were combined and resolved in a written opinion dated May 1, 2008.
The judge ultimately denied the motion for reconsideration on the ground that Dukes had still not satisfactorily demonstrated that her relationship with Fritz included a promise of lifetime support. As the judge put it, "[t]he promise is the sine qua non of a palimony claim." The judge denied Fritz's motion for a change in parenting time, finding that the parties' mediation agreement from October 2006 controlled in the absence of a change in circumstances, a change that had not been demonstrated. Accordingly, the judge denied Dukes' correlative motion that sought the appointment of a custody expert.
After making several determinations regarding child support, tax issues, and other economic issues relating to credits and debits,*fn3 the court turned to the disposition of the real property. The judge concluded that it was appropriate to postpone a partition sale because to do so would "render the plaintiff and the parties' children homeless." Relying on what the court viewed as the equitable discretionary authority flowing from Newman v. Chase, 70 N.J. 254 (1976), he ordered a delay in the partition sale until the parties' youngest child reaches the age of eighteen. During Dukes' occupancy of the dwelling with the parties' minor children, she was made responsible for all costs associated with the house, and she was relieved of any obligation to pay rent to Fritz.
The court considered the economic consequences of its determination. The judge recognized that although the rent that Fritz was arguably due was more than Dukes' obligation to cover the cost to maintain the property, any excess would be deemed child support, supplemental to the child support provided for in the Child Support Guidelines. The judge made findings, explaining why he deviated from the Guidelines in order to "allow his [Fritz's] children to remain in the home that they have grown up in." Lastly, the judge provided that at the time of the partition sale, Fritz would be compensated for the excess child support payments calculated, plus interest. An order (denominated a "corrected order") was filed on May 1, 2008, but logically must have been actually filed several days thereafter.*fn4
Thereupon, Fritz filed a motion for reconsideration. He challenged the court's several conclusions: 1) that there was no change in circumstances to warrant a modification in custody or parenting time, 2) that a deferred partition sale was appropriate, and 3) that the child support credit was only $3,010. Dukes responded in kind with her own motion seeking several tweaks in child support and to enforce previously imposed restraints between the parties. An order was entered on July 1, 2008, denying Fritz's motion in its entirety and granting Dukes limited relief.
Fritz followed up by filing a notice of appeal on August 15, 2008. His brief raises six arguments on appeal. He seeks:
1) equal custodial and visitation rights and parenting time,
2) recalculation of the amount of his child support overpayment from $3,010 to $7,310, 3) an accounting of the rents Dukes owes him, 4) ...