On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Atlantic County, Docket No. FM-01-853-10.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 28, 2011
Before Judges Axelrad and Ostrer.
The trial court dismissed plaintiff's complaint, which asserted a claim for palimony, for failure to state a claim upon which relief could be granted. R. 4:6-2(e). We reverse. The court relied upon the recent amendment to the Statute of Frauds, L. 2009, c. 311, § 1 (codified at N.J.S.A. 25:1- 5(h)), which requires palimony agreements to be in writing.
Effective immediately upon enactment January 18, 2010, the amended statute provides, in relevant part:
No action shall be brought upon any of the following agreements or promises, unless the agreement or promise, upon which such action shall be brought or some memorandum or note thereof, shall be in writing, and signed by the party to be charged therewith, or by some other person thereunto by him lawfully authorized:
h. A promise by one party to a non-marital personal relationship to provide support or other consideration for the other party, either during the course of such relationship or after its termination. For the purposes of this subsection, no such written promise is binding unless it was made with the independent advice of counsel for both parties.
The court determined that the January 18, 2010 enactment applied retroactively to plaintiff's suit, which was filed January 13, 2010. Plaintiff claimed that in March 2007 Christopher Daul promised to support her for life. In reliance on that promise, she relocated to New Jersey with Daul, who then died tragically in July 2008.
In granting the motion to dismiss on May 17, 2010, the court did not have the benefit our decision in Botis v. Estate of Kudrick, 421 N.J. Super. 107 (App. Div. 2011), where we held the 2010 amendment did not apply to a palimony suit that was filed and pending before the date of enactment. The statute's inapplicability to pending suits is apparent from its plain language, which speaks prospectively that "[n]o action shall be brought" to enforce oral palimony agreements. N.J.S.A. 25:1- 5(h) (emphasis added). We agree with Botis, supra, that the language itself "does not purport to address pending actions." 420 N.J. Super. at 116. Botis also suggested more broadly that the statute should not apply to cases where the cause of action arose before the effective date, as compliance with the statute would be impossible if the promisor had died, or impracticable, if the promisor had already breached. Id. at 118 ("[D]ecedent [the promisor] was singularly unable to comply with the new requirements.").
As plaintiff here filed her suit before enactment of L. 2009, c. 311, the recent amendment to the Statute of Frauds does not apply. Accordingly, her complaint should not have been dismissed on procedural grounds.