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Barbara A. Botis v. Estate of Gary G. Kudrick

April 21, 2011

BARBARA A. BOTIS, PLAINTIFF-RESPONDENT,
v.
ESTATE OF GARY G. KUDRICK, DEFENDANT/THIRD-PARTY PLAINTIFF-APPELLANT,
v.
WELLS FARGO BANK, THIRD-PARTY DEFENDANT.



On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FM-13-371-09C.

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

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Argued December 13, 2010

Before Judges Rodriguez, Grall and LeWinn.

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

Effective January 18, 2010, the statute of frauds was amended to include palimony agreements among the types of agreements that must be in writing and signed by the parties in order to be enforceable. N.J.S.A. 25:1-5(h); L. 2009, c. 311, § 1. This case requires us to determine whether to accord that amendment retroactive effect in a case filed against the promisor's Estate prior to the effective date of the amendment on an alleged agreement enforceable when the complaint was filed. We conclude that the amendment applies prospectively and affirm the June 9, 2010 order denying the Estate's motion to dismiss the complaint, which is before us on leave granted.*fn1

The June 9, 2010 order also denied the Estate's motion to amend its counterclaim to include claims against plaintiff for fraud, perjury, attorneys fees and punitive damages. We affirm that ruling as well.

We summarize the pertinent background from the pleadings and motion papers. In her palimony complaint, plaintiff alleged that she and Gary G. Kudrick (hereinafter decedent) first met in high school in or about 1954. They subsequently married other people, but when their respective marriages ended - decedent's in 1972 by divorce and plaintiff's by the death of her husband in 1974 - they "commenced a permanent relationship." Decedent moved into plaintiff's Howell residence in 1976, but continued to maintain his residence in Holmdel.

Plaintiff further alleged that she and decedent lived together "in a marriage-like relationship" for the next eight years and in 1984 made a joint decision to sell her residence and move together into decedent's "newly expanded residence" in Holmdel; plaintiff asserted that she invested $17,000 from the proceeds of the sale of her residence into "furnishing the Holmdel . . . residence." Although they never married, plaintiff alleged that they "cohabited at the Holmdel address and shared a life as if they were husband and wife[,]" and "presented themselves as a couple to their family and friends, and . . . were dependent on each other for love, affection, and support."

In 1995, plaintiff asserted, the parties jointly purchased a residence in Waretown; plaintiff's name was originally on the deed but in 1996 title was transferred to decedent alone, for no consideration, "for income tax purposes beneficial to [decedent]." Decedent "assure[d] . . . plaintiff that this residence would always be hers."

Plaintiff also claimed that she became dependent upon decedent for support because of his "superior financial situation," and that he "promised [her] that he would always take care of her and that in the event of his death, she would be cared for consistent with the lifestyle that they shared together." After living together in this relationship "for approximately [thirty-two] years," decedent "became stricken with cancer," and plaintiff "cared for him and tended to his needs." Shortly before decedent's death, plaintiff first learned that no provision had been made for her in his will and that his entire estate had been left to his daughter and grandchildren, "contrary to [his] prior representations to [her]." Based on these allegations, plaintiff sought palimony, the transfer of title of both the Holmdel and Waretown residences to her, and other related relief.

The Estate filed an answer essentially denying all allegations in the complaint and asserting twelve affirmative defenses, including that "plaintiff was not in a marital-type relationship with the decedent." The Estate also filed a counterclaim, alleging that plaintiff (1) made unauthorized withdrawals from a home equity line on the Waretown residence;

(2) removed belongings and furnishings from the Holmdel residence, including decedent's financial documents; and (3) refused requests to return the financial documents.

Various pre-trial proceedings ensued between November 2008 and March 29, 2010, when the Estate moved to dismiss the complaint based upon the amendment to the statute of frauds and to amend its counterclaim. We need not discuss those intervening proceedings. Suffice it to say the parties' ...


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