June 19, 2012
MARIA HARRISON, PLAINTIFF-RESPONDENT/ CROSS-APPELLANT,
ESTATE OF CARL J. MASSARO, DEFENDANT-APPELLANT/ CROSS-RESPONDENT.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Hunterdon County, Docket No. FM-10-272-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued January 31, 2012 -
Before Judges Payne, Reisner and Hayden.
Defendant, the Estate of Carl J. Massaro, appeals that part of an order of judgment awarding plaintiff, Maria Harrison, palimony in the amount of $2,273,031, payable within thirty days of the entry of the judgment; the trial court's determination not to impute income to Harrison; and the trial court's refusal to retroactively apply, as a bar to the palimony award, N.J.S.A. 25:1-5(h), a statute requiring palimony agreements to be in writing and created with the advice of counsel. The Estate also appeals the denial of its post-trial motions seeking, on the basis of alleged evidence of plaintiff's unclean hands, a dismissal of her suit and an award of attorney's fees, as well as motions for reconsideration of the court's requirement that the palimony judgment be paid within thirty days of its entry and its determination not to impute income to Harrison. In her cross-appeal, plaintiff claims that the trial court erred in failing to order an escrow of funds for payment of potential taxes on the palimony award.
We affirm on the issues raised by the Estate and require a formal motion in the trial court and hearing with respect to the escrow issue, if Harrison wishes to maintain that claim.
A fourteen-day trial was held in this matter before Judge Ann Bartlett in the Family Part. The trial disclosed the following evidence: In 1992, Harrison, a Peruvian attorney who practiced business and governmental relations law in that country, married an Oklahoma rancher named Harrison and moved to the United States. The marriage was not a success, and after several months, Harrison left her husband and moved to New Jersey, where she had friends.*fn1 She enrolled in vocational classes and obtained employment preparing tax returns. Additionally, she worked at a travel agency. In 1993, Harrison met Carl Massaro, a man thirty years older than she was. The relationship flourished and, at Massaro's request, in September 2004, Harrison moved into Massaro's Belle Mead home. In early 1995, Harrison left her employment to be at home with Massaro. At the time, Massaro, who was very conservative, did not want Harrison to work. He called Harrison his "queen" and promised to provide for her.
At the time that Harrison and Massaro met, Massaro, a self-made successful businessman, owned Ajax, a profitable company that manufactured truck trailers. However, in approximately 1996, Massaro determined to sell Ajax to a company known as Standard Automotive for approximately $24,000,000. During that time period, Harrison assisted him with the legal considerations involved in the sale.
Shortly after the sale took place, Massaro and Harrison moved to Punta Gorda, Florida, where Massaro purchased a home on the inland waterway with a pool. At Massaro's request, Harrison took accounting courses at a local college so she could assist him in his business interests. At the time, Massaro was providing consulting services to Standard Automotive's Ajax business, which was opening a plant in Mexico. Massaro thought that Harrison could be of assistance in that endeavor as the result of her fluency in Spanish and legal background. In February 1999, Standard Automotive offered Harrison a position as an import-export specialist at a salary of $60,000 per year, and the couple returned to New Jersey so she could take that job. She maintained a salaried position, working in Standard Automotive's Ajax operations from 1999 to 2002, and thereafter, worked solely for Massaro without taking a salary.
Especially during the early years of their relationship, Massaro and Harrison lived a lavish lifestyle. They traveled extensively in Europe, Canada and the United States, and Harrison frequently visited Peru. In 1996, Massaro purchased an apartment in Cannes, France that the two used, particularly during the Cannes film festival. When home, Harrison would cook during the week. However, on the weekends, they would eat at fine restaurants. Harrison testified that, as a matter of custom, Massaro would give her a check in the amount of $16,000 per month for household expenses, which she paid. Harrison kept the couple's accounts. However, the two filed separate income tax returns.
In July 1999, Massaro bought a four-bedroom house for Harrison at a purchase price of $330,000. Following the purchase, both Harrison and Massaro resided in that house, although Massaro retained ties to Florida for tax purposes. In 2000, he purchased two horse farms in Florida.
Additionally, in 2000, Massaro purchased a struggling truck trailer manufacturing company called Vanco, located in South Jersey, that he thought he could turn around and sell at a profit. Thereafter, much of his and Harrison's time was spent in an effort to revive Vanco's business. In later years, Harrison testified, she worked up to sixty hours per week for Vanco. Although Massaro had previously assured Harrison that he would buy her a business or commercial property that would generate $20,000 monthly in income, after the purchase of Vanco, those plans were placed on hold. The purchase of Vanco also led to Massaro's estrangement from his daughter Lisa when, in assembling money for that purchase, he requested the repayment of money he had loaned her, and she refused.
In 2002, Automotive Standard filed for bankruptcy. Following the bankruptcy, Massaro repurchased Ajax and changed its name to Hercules Enterprises, Inc. Many members of Massaro's family worked at Hercules, including Massaro's son Kurt (K.M.), who managed the business; K.M.'s son Carl Mark; and Massaro's brother, Frank. Ill feelings arose between Massaro and K.M. after Massaro became convinced that his son was padding Hercules' payroll with unnecessary employees and stealing from it to pay personal expenses.
Harrison testified that, after the bankruptcy, she considered obtaining an outside job. However, at Massaro's urging, she declined an offer by one of Ajax's clients so that she could continue to work with Massaro in his businesses. In 2004, to make her services more valuable, at Massaro's urging, she entered an L.L.M. program at Dickinson School of Law in Carlyle, Pennsylvania, living near there during the week and returning home only on weekends. However, she later learned that she would have to complete a three-year J.D. program in order to sit for the bar. Although Harrison completed her L.L.M. in May 2005, she did not enroll in Dickinson's J.D. program, because decedent didn't want to be separated from her or lose her assistance for that length of time. Massaro paid the $25,000 in tuition costs for the L.L.M.
At the end of 2006, Massaro's health declined. He was hospitalized after a fall on January 14, 2007, and shortly thereafter, he suffered a severe stroke that significantly impaired his ability to communicate. He died on February 15, 2007.
Throughout their relationship, Harrison sought marriage with Massaro. But despite the fact that they lived in a marital-type relationship from 1994 to Massaro's death, he declined marriage, stating that it would be opposed by his children, K.M. and Lisa, who sought to protect their inheritances.*fn2 Nonetheless, plaintiff testified, with significant corroboration from other witnesses, that Massaro assured her that he would take care of her for life. Initially, Massaro took the position that he would not include Harrison in his will and would leave his estate to his children, K.M. and Lisa. As we stated, he proposed that, instead, he would buy her a business or commercial property that would generate her an income of $20,000 per month, and thus would permit her to live comfortably without working. Assurances that she would not have to work continued to the time of Massaro's death.
In 2004, Massaro announced at Easter dinner in the presence of Harrison's sister Diana Liberatore that he had changed his will to include Harrison. In later conversations with Harrison, Massaro stated that he had removed K.M. and Lisa from his will as heirs, having become estranged from both, and had arranged to bequeath his estate, with the exception of some minor bequests, solely to Harrison - a statement that Massaro repeated over the years in front of multiple relatives and others who testified at trial, including Harrison's sister Diana, Diana's husband Richard, friend Rikki Nelson, advisor and friend Father Zorza, niece Edith Ligouri, relative Marie Fiorentino, and family friend Susan LaMorte. However, Massaro refused to show Harrison the revised will, despite her frequent requests to see it.
Although the preponderance of the witnesses testified that Massaro had told them that he had made provision for Harrison in his will so that she would never have to work, if she did not wish to do so, contrary testimony was provided at trial by Massaro's son, K.M., and Massaro's brother, Frank, who admitted that the couple lived in a marital-type relationship*fn3 but asserted that they understood that Massaro had fulfilled his obligations to Harrison by purchasing her a home and paying tuition for her to obtain her L.L.M. degree. Additionally, Richard Liberatore, Jr., the step-son of Harrison's sister Diana Liberatore, who had known Massaro since childhood and had been employed by Vanco since 2004, testified that Massaro had sent Harrison back to college to finish up so she could take her "lawyer's exam" and work. Similar testimony was elicited from defense witness Justin Sciarra, a person who had been performing services for Vanco since 2000. Sciarra also testified that Massaro had told him that his estate would pass to his children.
During Massaro's final hospitalization, Harrison called Massaro's attorney, Jeffrey Servin, who denied that Massaro had retained him to draft a will disinheriting his two younger children. However, when Harrison produced a 2003 check and note from Massaro stating that he wished to revise his will, Servin checked his files, and then acknowledged that he had drafted a will leaving everything to K.M., but that the will had never been executed. Servin maintained that the only executed will of which he was aware was a June 9, 1999 will leaving Massaro's entire estate to his daughter Lisa and son K.M.
Following Massaro's death, Harrison searched their home for an executed will in her favor. Shortly after Thanksgiving 2007, she claims to have located in a jacket pocket a typed or word processed letter to Servin, purportedly signed by Massaro, in which Massaro modified his will to bequeath small sums to three individuals and a charity and to make Harrison the beneficiary of the remainder of an estate that was disclosed at trial to be worth approximately $24,000,000 or more. Harrison disclosed the existence of the letter and the circumstances in which it had been found to her sister. Both testified at trial regarding the letter.
The Estate challenged the authenticity of the letter and, at trial, offered the testimony of an expert in forensic document examination, John Osborn. The expert concluded that the signature on the letter was created by use of Massaro's signature stamp or by a manipulation of a stamped signature. Harrison offered no contrary expert proofs. Servin testified at trial that he did not receive a copy of the disputed letter.
At trial, both parties presented expert testimony on the couple's lifestyle and the amount necessary to maintain it following Massaro's death. Harrison's expert, Ervin Schoenblum, calculated the couple's joint expenses for 2006, the last full year that they had lived together, to equal $223,000 or $18,600 per month. He then calculated the amount a single person would need to maintain that lifestyle as $10,359 per month. After figuring Harrison's life expectancy, and assuming a 3% inflation rate and a 4.4% discount rate, Schoenblum calculated that Harrison would need a $3,300,000 lump sum to maintain her 2006 lifestyle. Additionally, the expert presented calculations based on the couple's lifestyle before the purchase of Vanco. Throughout, Schoenblum assumed that Harrison would not work.
The Estate's expert, Leo Zatta offered four sets of calculations based upon the assumption (1) that Harrison had received all benefits to which she was entitled; (2) that she would downsize her residence and earn $60,000 per year, resulting in a palimony award of $568,000; (3) that she would remain in her house and earn $60,000 per year, resulting in an award of $1,048,000 and (4) that she would remain in her home, unemployed, resulting in a lump sum award of $1,970,000. In making his calculations, Zatta relied on the pendente lite award of $5,860 entered in Harrison's favor on June 1, 2007. The assumption that Harrison could earn $60,000 per year was based on the analysis of the Estate's vocational expert, Robert Wolf, who was of the opinion that Harrison was highly employable as a paralegal, legal assistant, translator, office manager, secretary, bookkeeper, or tax preparer.
Following trial, Judge Bartlett issued an extensive oral opinion. The court commenced by making detailed credibility determinations, finding Harrison and her sister, albeit interested parties, to be credible on all matters except the discovery of the letter allegedly from Massaro to Servin setting forth the terms of a new will. In finding the two to be credible, the court was particularly impressed by the level of corroboration presented by other witnesses. The court found Servin to have been credible in testifying that he had never received Massaro's letter changing his will, and Father Zorza, whose testimony corroborated that of Harrison, to have been "the most credible fact witness." In general, the court found the remainder of Harrison's witnesses to have been credible; the court found the Estate's witnesses, less so, particularly Richard Liberatore, Jr., Massaro's brother Frank, and Justin Sciarra, whose testimony "was so contrary to the well-established facts that the court found his version to be erroneous."
Characterizing Massaro, the court found that he "enjoyed being perceived as being important." Additionally he "avoided controversy from others; that is, controversy foisted upon him by others, by telling others what they wanted to hear." Thus, "[h]e told plaintiff, and Diana Liberatore, and others of his family members, that he was taking care of plaintiff and would for the rest of her life to avoid the insistence and further inquiry by plaintiff or her sister Diana." The court concluded that Massaro "died without making up his mind about what to do and still in avoidance about his will, his promises to plaintiff. He ran out of time to do anything" and, "most likely, had not decided what to do at the time of his death."
The court then turned to the legal issues presented, commencing first with the issue of whether the letter purportedly from Massaro to Servin constituted a contract to make a will. Relying on our decision in the Matter of the Estate of Carmen Cosman, 193 N.J. Super. 664 (App. Div. 1984), a case construing the identically-worded predecessor to the present statute governing a contract to make a will, N.J.S.A. 3B:1-4,*fn4 the court held that such a contract could be found to exist only if one of the statutory conditions were met. Addressing the evidence before the court, it found that the first two conditions were factually inapposite and had not been satisfied. With respect to the third, that evidence was presented of "a writing signed by the decedent evidencing the contract," the court relied on the unrebutted testimony of handwriting expert Osborne to conclude that the signature on the letter was either the product of a stamp or a tracing of a stamp. Further, the court found it significant that no evidence had been presented that would suggest who had typed the letter for Massaro, who lacked word processing skills. And finally, the court found that awkward grammatical constructions in the body of the letter suggested that it had been written by someone who was not a native English-speaker. Thus, it was likely that the letter had been composed by either Harrison or her sister Diana, but the court could not determine who the author actually was. As a result, the court concluded that the letter "was not written by decedent and it was not signed by decedent," and that Harrison's cause of action based on a contract to make a will failed.
The court next turned to the issue of palimony, finding guidance in the Supreme Court's opinion in In re Estate of Roccamonte, 174 N.J. 381 (2002), a decision recognizing the right to palimony of a woman who had returned to decedent, following his oral promise to support her in comfort for the rest of her life, and remained with him in a marital-like relationship until his death - a case that the court found had close factual parallels to the present one. In relying on that case, the court noted that "new legislation has been passed by one house of our legislature but not the other house, so this [Roccamonte] is still the law."
Characterizing Massaro's promise to Harrison, the court found:
He said that he was going to take care of her, that she would never have to work again, that . . . if she would stop working he will take care of her . . . she will never have to worry, and he was going to buy a business which gave her $20,000 a month to live on, and then he'd put her in his will. And those were, with a few variations, pretty much the utterances that he made most commonly, not only to plaintiff, but also in front of others, and to her he said that he would take care of her for her life, she would never have to worry, and that was also corroborated by others.
The court found further that Massaro and Harrison had enjoyed an affluent lifestyle together, and that she remained throughout the relationship economically dependent on him.
In fixing the amount of palimony to be awarded, the court rejected the argument that it should reflect a subsistence standard, but determined that "the case law demands that a lifestyle for the plaintiff in this context also be reasonable." The court then referred to Harrison's case information statements, eliminating items from them that the court considered to be unsubstantiated, excessive, duplicative, or otherwise unsustainable. The court thereby reduced Harrison's estimated monthly expenses from $11,717 to $8,383 per month or $100,596 per year. The court further found that there was "no basis for [it] to infer that [Massaro] intended plaintiff to sell or lose her home and be at the mercy of a job market she had not been exposed to for 15 years, upon his death." And it rejected the Estate's position that Massaro had given Harrison everything to which she was entitled prior to his death.
Accordingly, the court adopted the $100,596 per year figure as an appropriate palimony award, and directed that the parties' experts determine a total figure and calculate its present value. In reaching its conclusion, the court rejected the contrary conclusions of the parties' experts as based on erroneous premises.
Additionally, the court found to have been properly negotiated two checks, challenged by the Estate, that were signed by Massaro, but cashed after his death: a check to Harrison for "services rendered" in the amount of $40,000 and a check to Richard Liberatore, Sr., the husband of Harrison's sister, in the amount of $78,000, $72,000 of which, although designated for "services rendered" was intended to fund the college education of Diana's daughter. The court found that Massaro was lucid at the time he signed the checks on January 11, 2007, and that the Estate had offered no precedent to suggest that his subsequent death affected their negotiability.
In accordance with the court's directive, the parties filed affidavits of services, with the Estate seeking fees on the additional grounds that Harrison's reliance on the Massaro letter, after being served with Osborne's report prior to trial, was frivolous, that Harrison's conduct was fraudulent, and that she proceeded with unclean hands. Additionally, the Estate filed a motion for reconsideration or clarification of the court's directive that the lump sum palimony award be paid within thirty days of entry of judgment, and its failure to mitigate damages by imputing income to Harrison. It also moved to dismiss all of Harrison's claims on the ground of unclean hands.
On March 3, 2010, the court issued a written decision ordering payment of a palimony award of $2,273,031 within the specified time frame, denying counsel fees, and denying the Estate's motions for reconsideration and for dismissal of plaintiff's suit. In a written opinion, the court held that, although Harrison's determination to pursue at trial her theory of the formation of a contract to make a will was "highly questionable," she had a right to do so. Moreover, the court found that the Estate had never perfected its frivolous litigation claim by literal compliance with Rule 1:4-8. The court declined to find Harrison's conduct fraudulent, reiterating its conclusion that there was no clear demonstration by the Estate that Harrison knew the letter was a forgery. The Estate's claim of unclean hands failed for the same reason.
Addressing the timing of payment of the judgment, the court found that the right to palimony was derived from contract, not from the marital-like relationship. Nonetheless, the Supreme Court in Roccamonte had referred the determination of the amount of palimony to the Family Part and, the court observed, an integral aspect of fixing support in family-type matters was the establishment of a time frame for payment. Accordingly, the court had the authority to establish the thirty-day framework, which had not been demonstrated to be either onerous or prejudicial to the Estate.
The court affirmed its decision not to impute income to Harrison, relying in that regard on evidence of Massaro's promise to her that she would never have to work again. Additionally, the court found that mitigation of damages would not be fair in the circumstances of the case, distinguishing Cornell v. Diehl, 397 N.J. Super. 477 (App. Div.), certif. denied, 195 N.J. 518 (2008), a decision that recognized a deduction for social security benefits. The court found such benefits, unlike wages, to be a known quantity, and that the Cornell decision was silent as to the treatment of real or theoretical future income. The fact that Harrison had been induced to leave the workforce and the opportunity to accrue benefits from continued employment was also significant, since there was no evidence that Harrison would be able to recapture such benefits if she were to return to a job such as those envisioned by the Estate's vocational expert.
The court also declined to recognize as a credit against palimony the purchase price of Harrison's house or the cost of her L.L.M., finding that Massaro recognized that they were insufficient to make Harrison economically independent and recognized that the L.L.M. was, in essence, useless but nonetheless, refused to permit Harrison to obtain her J.D. The court found: "Nothing in the evidence supports the theory that the L.L.M. or the home that decedent bought and paid for were intended to be part of the promise of financial self-sufficiency for plaintiff after decedent was gone."
Addressing counsel fees under Rule 4:42-9 and Rule 5:3-5, the court noted that it had already determined that Harrison was not entitled to such fees insofar as they related to her action premised on a contract to make a will. The court additionally denied counsel fees on the remainder of Harrison's counsel's work, noting that counsel had entered into a contingency fee agreement with Harrison, and that contingency fees were barred by Rule 5:3-5 in family actions except for tort claims. The court denied counsel fees to the Estate on the ground that the position it had taken against Harrison was unreasonable, in light of the evidence corroborating her view of events adduced in discovery. Additionally, the court found that, given the size of the estate, there would be no difficulty in paying the fees incurred.
A motion to stay payment of the palimony award was denied by the trial court. Following further motion practice and an application to us, we stayed payment for sixty days to allow the Estate to post bond or, upon successful application to the trial court, an alternative form of security. The present appeal and cross-appeal followed.
On appeal, the Estate argues that (1) the evidence presented at trial did not support the court's recognition of Harrison's right to palimony in addition to the benefits that Massaro conferred upon her during his lifetime; (2) the court erred in failing to apply N.J.S.A. 25:15(h) retroactively to bar Harrison's palimony claim based on an oral promise of lifetime support; (3) the court erred in awarding palimony in excess of that necessary to meet Harrison's "minimal needs and prevent the necessity of her seeking public welfare"; (4) the court incorrectly applied the law when it ordered that the palimony award be paid within thirty days of judgment; (5) the court should have imputed income to Harrison when determining the amount of the palimony award; (6) the court erred in failing to dismiss Harrison's claims on the basis of unclean hands; and (7) the court erred in failing to award the Estate its counsel fees. We affirm substantially on the basis of Judge Bartlett's comprehensive oral and written opinions. We add only the following:
As the court recognized, Harrison bore the burden of proving Massaro's oral promise to provide for her for the remainder of her life by clear and convincing evidence.
N.J.S.A. 2A:81-2; McDonald v. Estate of Mavety, 383 N.J. Super. 347, 362 (App. Div.), certif. denied, 187 N.J. 79 (2006). On Harrison's palimony claim, the court found that burden to have been met, and it rejected the Estate's position that Massaro had fulfilled his obligations to Harrison at the time of his death. We find no reason to disturb that conclusion, determining that the court's factual and legal conclusions were amply supported. Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974); Manalapan Realty v. Manalapan Twp. Comm., 140 N.J. 366, 378 (1995). In reaching that conclusion, we place great weight on the court's extraordinarily detailed credibility determinations because of its ability to observe the witnesses and to hear them testify and because of its expertise in family matters. Mavety, supra, 383 N.J. Super. at 359; Cesare v. Cesare, 154 N.J. 394, 412-13 (1998).
We reject the Estate's claim that N.J.S.A. 25:15(h) should have been retroactively applied by the court to bar Harrison's claim of an oral promise of palimony. After briefing was complete in this matter, we issued our decision in Botis v. Estate of Kudrick, 421 N.J. Super. 107 (App. Div. 2011), determining there that the statute should be applied prospectively, only. Id. at 114-19. In doing so, we found in the absence of any clear indication of legislative intent as to prospectivity or retroactivity, the general rule was that statutes should be applied prospectively. Id. at 116. We further found that the parties could not have reasonably expected that the statute would be applied retroactively. Id. at 116-18. Specifically, we held:
In this case, (1) decedent, the putative palimony promisor, died almost oneand-a-half years before the effective date of the statutory amendment, and (2) plaintiff filed her complaint shortly after his death and about more than a year before the statute was amended. As the trial judge noted, and to restate the obvious, decedent was singularly unable to comply with the new requirements. More importantly, prior to this amendment and at the time of their agreement, case law supported a mutual expectation that their agreement was enforceable without regard to a writing executed after consultation with an attorney. Neither plaintiff nor decedent could reasonably have anticipated the prerequisites to enforcement of a palimony promise during the time when they were in a position to create such a document. [Id. at 117-18.]
Additionally, we found that the statute was neither "curative or ameliorative," thus entitling it to retrospective application. Id. at 118-19. We held it was passed "not to rectify or clarify statutory law but to overturn case law." Id. at 118. Our unchallenged decision in Botis disposes of the Estate's statutory claim.
We also reject the argument that Harrison was only entitled to an award that would meet her minimal needs and that income should have been imputed to her. The Estate argues that courts generally have awarded palimony only when needed to prevent economic destitution. It derives its principal support for that position from Crowe v. De Gioia, 90 N.J. 126 (1982) (Crowe I), a case in which the Supreme Court, on interlocutory review, found the plaintiff, who had been promised lifetime support by De Gioia, was entitled to equitable pendente lite relief sufficient to "provide her with her minimal needs and prevent the necessity of her seeking public welfare." Id. at 136. However, when following trial, the plaintiff was found to be entitled to palimony and the amount of her award was challenged, we held, in accordance with decisions in Kozlowski v. Kozlowski, 164 N.J. Super. 162, 178 (Ch. Div. 1978), aff'd 80 N.J. 378, 388 (1979), that she was entitled to "the reasonable future support defendant promised to provide." Crowe v. De Gioia, 203 N.J. Super. 22, 35 (App. Div. 1985) (Crowe II), aff'd, 102 N.J. 40 (1986); accord Roccamonte, supra, 174 N.J. at 390.
We held in Crowe II, "The determination of [the promisee's] financial needs in order to maintain her lifestyle is within the sound discretion of the trial judge and should only be reversed if it constitutes an abuse of that discretion." 203 N.J. Super. at 35. We find no abuse of discretion by the court here.
Further, we find no error in the court's failure to attribute to Harrison the income she was projected to earn if she had resumed employment. The court found that Harrison's return to work was not contemplated by Massaro, and that determination is amply supported by the record. See Kozlowski, supra, 80 N.J. at 388 (premising award on "the present value of the reasonable future support defendant promised to provide"); Rova Farms Resort, Inc., supra, 65 N.J. at 484. We also find that the court possessed the authority to determine the timing for payout of the award. See Roccamonte, supra, 174 N.J. at 399; Kozlowski, supra, 80 N.J. at 388-89.
The Estate claims additionally that the court erred in failing to dismiss Harrison's suit in its entirety following its determination that the letter by Massaro designating Harrison as his primary heir was a forgery. However, as the court observed, the evidence presented at trial was insufficient to establish that Harrison was the author of the letter or that she conspired in its drafting. Indeed, the court found it equally likely that the letter had been drafted by Harrison's sister, Diana, who was interested in her sister's welfare and who, like Harrison, was not a native English-speaker.
The doctrine of unclean hands is based on the "equitable principle that a court should not grant relief to one who is a wrongdoer with respect to the subject matter in suit." Faustin v. Lewis, 85 N.J. 507, 511 (1981). The doctrine does not repel all sinners from courts of equity, nor does it apply to every unconscientious act or inequitable conduct on the part of the complainants. The inequity which deprives a suitor of a right to justice in a court of equity is not general iniquitous conduct unconnected with the act of the defendant which the complaining party states as his ground or cause of action; but it must be evil practice or wrong conduct in the particular matter or transaction in respect to which judicial protection or redress is sought. [Heuer v. Heuer, 152 N.J. 226, 238 (1998) (quoting Neubeck v. Neubeck, 94 N.J. Eq. 167, 170 (E. & A. 1922)).]
The doctrine "should not be used as punishment but to further the advancement of right and justice." Pellitteri v. Pellitteri, 266 N.J. Super. 56, 65 (App. Div. 1993).
Here, because the court found itself unable to determine who committed the forgery, it would have been inequitable to apply the doctrine of unclean hands to dismiss Harrison's entire suit, which was premised not only on the document at issue, but also on an independent and virtually unassailable right to palimony. That her contractual claim was dismissed for lack of admissible proof was appropriate; no further relief to the Estate was warranted. We find no further comment on the denial of counsel fees to be necessary. R. 2:11-3(e)(1)(A) and (E).
With respect to Harrison's cross-appeal, we find no evidence in the record that a motion requesting a tax escrow was filed in the trial court. We thus decline to address Harrison's arguments until such time as a motion is filed and a ruling is made. R. 2:10-2; Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973).
The orders entered by the trial court are affirmed. Jurisdiction is not retained.