On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-5214-11.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued: September 27, 2012
Before Judges Axelrad and Nugent.
The primary issue in this appeal is whether a complaint alleging a defendant fraudulently induced a plaintiff to terminate a pregnancy by making false promises to her, which he did not keep, states a cause of action upon which relief can be granted. The motion judge answered that question in the negative, and dismissed plaintiff's complaint for damages in response to a Rule 4:6-2(e) motion by defendant. We affirm.
Plaintiff filed a complaint against defendant, with whom she had an intimate relationship, alleging he fraudulently and maliciously induced her to terminate her pregnancy by making false promises to her -- specifically that he would take her on a vacation afterwards and would remain in the relationship. Defendant filed a motion to dismiss the complaint for failure to state a claim upon which relief can be granted, R. 4:6-2(e). Following oral argument, Judge Alexander H. Carver III rendered a decision, supplemented with a written opinion, granting defendant's motion and dismissing the complaint with prejudice. The ruling was memorialized in an order of October 14, 2011. Plaintiff appealed.
The facts are presented here, and were considered by the court, in the light most favorable to plaintiff. See Printing Mart-Morristown v. Sharp Elec. Corp., 116 N.J. 739, 746 (1989) (holding that at the preliminary stage of a Rule 4:6-2(e) dismissal motion, the plaintiff is entitled to every reasonable inference of fact). The parties, both single, began dating in October 2010. Plaintiff subsequently became pregnant and told defendant she wanted to have the child. According to plaintiff, defendant threatened to terminate their relationship unless she terminated the pregnancy. He also told her "he would remain in the relationship and would take her on a vacation to recover following the abortion." Based on these promises, plaintiff terminated her pregnancy on February 24, 2011. Defendant ended their relationship shortly afterwards.
Plaintiff set forth the above facts in a six-count complaint alleging: defendant's actions were misrepresentations and fraudulent (count one); defendant's actions were malicious as a matter of law (count two); defendant's actions constituted fraud (count three); defendant's actions equated to promissory and equitable estoppel (count four); defendant's actions caused intentional and/or negligent infliction of emotional distress (count five); and defendant's actions were sufficiently malicious to justify punitive damages (count six).
During oral argument, Judge Carver offered to permit discovery and decide the matter as a motion for summary judgment. Plaintiff's counsel was satisfied to proceed based on the judge's assurance he would accept plaintiff's allegation that defendant's conduct was "outrageous." The judge also sua sponte raised the statute of frauds defense, after which plaintiff's counsel made additional arguments. In granting defendant's motion to dismiss plaintiff's complaint for failure to state a claim, Judge Carver concluded that plaintiff's complaint was barred by the New Jersey Statute of Frauds amendment, N.J.S.A. 25:1-5(h), the public policy of the Heart Balm Act, N.J.S.A. 2A:23-1 to -7, and overall public policy prohibiting a contract requiring an abortion.
It was undisputed defendant's alleged promise was both oral and made without independent advice of counsel for both parties. Citing N.J.S.A. 25:1-5(h),*fn1 which became effective on January 18, 2010, prior to the parties' relationship, the judge found plaintiff's claims were akin to 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." Accordingly, they were unenforceable as a matter of law.
The judge found the public policy of this State supplied an additional legal bar to plaintiff's complaint. Citing Segal v. Lynch, 413 N.J. Super. 171, 182 (App. Div.), certif. denied, 203 N.J. 96 (2010), he noted the Heart Balm Act was "adopted to abolish causes of action to recover money for the alienation of affections, criminal conversation, seduction, or breach of a contract to marry," N.J.S.A. 2A:23-1, and "was passed to prevent 'suits as devices for extracting large sums of money without proper justification.'" The judge acknowledged the Heart Balm Act "was intended to apply only to causes of action arising out of marriage," but determined "public policy requires that claims be barred when the facts are analogous to a heart balm case." Judge Carver reasoned, "if we allowed these types of lawsuits [w]e'd be flying in the face of the Legislature that adopted [these statutes]," and "[w]ithout a ban on [plaintiff's] complaint, the Heart Balm Act effectively will be eradicated since  plaintiffs such as the one at bar seeking to maintain heart balm claims will allege a promise to maintain a relationship rather than a promise to marry."
The judge additionally concluded that an agreement requiring plaintiff to terminate her pregnancy in exchange for support and a continued relationship would be unenforceable as contrary to New Jersey public policy. He explained that such an agreement would be unconscionable and unenforceable as a matter of law pursuant to N.J.S.A. 12A:2-302. The judge further analogized plaintiff's fundamental right to terminate her pregnancy before viability, Roe v. Wade, 410 U.S. 113, 153-54, 93 S. Ct. 705, 727, 35 L. Ed. 2d 147, 177-78 (1973), with her right not to procreate through in vitro fertilization following her divorce, which the Court enforced in J.B. v. M.B., 170 N.J. 9, 26 (2001), holding "a contract to procreate is contrary to New Jersey public policy and is unenforceable" (internal quotation marks and citation omitted).
On appeal, plaintiff argues the court: (1) misapplied Rule 4:6-2(e); (2) made inappropriate comments during oral argument suggesting bias against plaintiff's claims; (3) erred in relying on the Statute of Frauds in dismissing her complaint and, alternatively, her allegations of partial performance and fraud precluded the application of this statute; and (4) erred in relying on the Heart Balm Act. Plaintiff further argues her complaint alleged facts sufficient to establish the prima facie elements of her tort claims and, alternatively, the fact that her claims are novel does not warrant a dismissal of her complaint.
We apply a plenary standard of review to a trial court's decision to grant a motion to dismiss pursuant to Rule 4:6-2(e). Rezem Family Assocs., LP v. Borough of Millstone, 423 N.J. Super. 103, 114 (App. Div.), certif. denied, 208 N.J. 368 (2011). Based on our review of the record and applicable law, we are not persuaded by any of plaintiff's arguments and ...