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Patricia Mcfarland v. Michael Harvey

April 6, 2011

PATRICIA MCFARLAND, PLAINTIFF-APPELLANT,
v.
MICHAEL HARVEY, DEFENDANT-RESPONDENT.



On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Cumberland County, Docket No. FM-06-469-09.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted March 16, 2011

Before Judges R. B. Coleman, Lihotz, and J. N. Harris.

This matter arises out of a disputed oral promise by defendant Michael Harvey to convey an interest in (or the proceeds from the sale of) real property to plaintiff Patricia McFarland, his paramour and cohabitant of eight years. McFarland appeals from the Family Part's final order granting summary judgment in favor of Harvey and dismissing her complaint in its entirety. We reverse and remand for further proceedings.

I.

Because summary judgment was granted in favor of Harvey, we consider the factual record in a light most favorable to McFarland as the non-moving party. Estate of Hanges v. Metro. Prop. & Cas. Ins. Co., 202 N.J. 369, 374 (2010); Estate of Komninos v. Bancroft Neurohealth, Inc., 417 N.J. Super. 309, 313 (App. Div. 2010).

In September 1995, Harvey leased a parcel of real property in Millville and purchased a mobile home in his sole name. The parties were romantically involved at the time, and had been for several months. McFarland alleges that the mobile home was intended as a joint purchase, but because her credit rating was "mediocre," title was taken in Harvey's name. McFarland expected Harvey to eventually convey a fifty percent interest in the mobile home to her. After various renovations, which McFarland asserts were largely completed by her brother free of charge, and the joint purchase of home appliances, the parties moved in together in July 1996.

According to McFarland, the couple intended to marry, but that did not occur. However, in December 1997, McFarland gave birth to the parties' daughter. In February 2000, Harvey sold the mobile home and some of its contents for $15,000. He immediately acquired title to a different parcel of real property containing a dwelling located in Millville for $63,500.00, which he financed through a loan secured by a purchase money mortgage in his name alone.

McFarland asserts that the real property was acquired "with the understanding that the property was purchased jointly," and that the mortgage and deed were again placed in Harvey's sole name for credit reasons, "with the intention that [McFarland's] name be added to the property after the sale was consummated." The mortgage was incrementally paid from a joint checking account maintained in the parties' names at a credit union. McFarland's brother -- a contractor -- was credited with making major remedial improvements to the real property, and her sister -- the parties' realtor on the purchase -- returned the real estate commission to the parties so that they could put the money towards the down payment.

In March 2000, Harvey authorized, in a signed writing, an attorney to prepare a deed and affidavit of title that would have transferred one-half ownership in the real property to McFarland. Harvey repudiated the authorization, but did not deny signing the document. Ultimately, Harvey refused to sign either the deed or affidavit of title when they were presented to him.

In 2003, the parties separated.*fn1 Harvey had yet to convey legal title in the real property to McFarland. However, Harvey gave McFarland close to $5,000, which he claims was to enable her to find an alternate residence; McFarland contends that the funds represented "a partial payment from the house." Due to the ongoing litigation in the Family Part, the parties remained in contact and repeatedly bickered over their several disputes, including McFarland's purported share of the real property.

In 2006, Harvey's attorney sent McFarland's attorney a letter acknowledging that Harvey had "gratuitously" made payment to McFarland in 2003, while denying that she had any interest in the real property. However, Harvey acknowledged, both before and after the letter, that "[he] had told her that [he] would give her some money when the sale [of the real property] was done." In his ...


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