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Beverly Maeker v. William S. Ross

February 4, 2013


On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Somerset County, Docket No. FM-18-126-12.

The opinion of the court was delivered by: Sapp-peterson, J.A.D.



Argued September 12, 2012

Before Judges Axelrad, Sapp-Peterson and Haas.

The opinion of the court was delivered by SAPP-PETERSON, J.A.D.

In this appeal, we granted defendant, William Ross, a stay and leave to appeal the January 13, 2012 interlocutory order of the Family Part judge denying his motion to dismiss plaintiff, Beverly Maeker's palimony complaint and granting her cross-motion for pendente lite support, which the motion judge fixed at $6000 per month. The motion judge found that plaintiff's complaint was not barred by the 2010 amendment to the Statute of Frauds, N.J.S.A. 25:1-5(h) (Amendment), requiring a writing memorializing palimony agreements and independent advice of counsel for each party in advance of executing any such agreement. We reverse and hold that the Amendment is enforcement legislation that addresses under what circumstances a claimed breach of a palimony agreement may be enforced irrespective of when the purported agreement was entered.


According to plaintiff's complaint, she and Ross met in Brooklyn and began dating in 1998. Shortly thereafter, as the relationship progressed, they started living together. They moved from Brooklyn to Bedminster, where they rented a home. From there, they moved to a home they jointly leased with the option to purchase. Their relationship ended when defendant moved out of their home on July 1, 2011.

Plaintiff alleges that from the time they commenced living together, she, for the most part, did not work outside of the home. Defendant supported her financially, paid all of her living expenses, and paid the expenses associated with a property she maintained in Brooklyn. Defendant also purchased four horses for her. He additionally paid most of her son's college education expenses. Plaintiff contends that throughout the entirety of their relationship, defendant made repeated promises to take care of her and promised her lifetime support.

Plaintiff also claims that in December 2010, defendant executed a power of attorney (POA) appointing her as his attorney-in-fact, permitting her to "manage and conduct all of [his] affairs." Plaintiff further alleges that simultaneously, defendant executed a will in which he appointed plaintiff as both executrix and trustee, and devised the entirety of his residuary estate to her.

Plaintiff filed her initial complaint on July 8, 2011, seeking relief based upon palimony, partnership/joint venture, resulting trust, fraud and unjust enrichment. On November 10, 2011, she filed an amended complaint alleging the parties had entered into an oral contract and there had been partial performance, which removed her claim from the requirements under the Amendment. She also reasserted the claims set forth in her original complaint.

On December 2, 2011, in lieu of filing an answer, defendant filed a motion to dismiss plaintiff's complaint for failure to state a claim upon which relief may be granted pursuant to Rule 4:6-2(e). Defendant contended that under the Amendment, plaintiff could not maintain the underlying action because, assuming there was a promise to support her for the rest of her life, such a promise would only be enforceable had it been memorialized in a writing and both he and plaintiff, prior to executing any such agreement, had the benefit of independent advice of counsel.

The motion judge, in a written opinion, initially stated he was satisfied the allegations in plaintiff's complaint "[pled] a cause of action and sufficient[ly] place[d] Defendant on notice that her cause of action is based upon a palimony claim along with other legal and equitable bas[es] to support her claim." Noting that plaintiff's complaint was filed after the effective date of the Amendment, the judge found the Amendment "does not specifically indicate or provide guidance as to situations as the present case where it is alleged that a contractual relationship existed before the effective date of the law." He reasoned that the "[L]egislature did not clearly provide that its intent was to extinguish those causes of action that potentially existed at the time of the [Amendment's] effective date."

The judge additionally noted that when the Amendment was enacted, "[n]o grace period was provided . . . to allow Plaintiff to file an action[,] as the law became effective on the same date that it was signed" into law. The judge concluded "[i]t was unreasonable to assume that the intent of the Legislature was to eliminate legitimate palimony claims that may have accrued over the last thirty years by creating a legal mechanism that did not provide affected parties any opportunity to file an action to protect their interest." He explained:

When the Legislature indicated that "no action shall be brought," the [c]court interprets that phrase to mean that no action may be brought on oral agreements or promises made prospectively, that is after the effective date of the [Amendment]. . . .

[S]uch an interpretation comports with the law and equity and the probable intent of the Legislature.

The judge next considered plaintiff's cross-motion for pendente lite relief and found the motion satisfied the standards articulated in Crowe v. DeGoia, 90 N.J. 126, 132-34 (1982). In ordering pendente lite support, he noted that plaintiff was fifty-four years old, had not worked in ten years and that although she may be capable of becoming employed or that employment could be imputed to her at some point, "it is inequitable for the [c]court to make those findings at this point when determining if interim, temporary support is warranted, pendente lite."

The judge also permitted plaintiff to maintain her equitable claims, specifically, her claim for support based upon partial performance, without prejudice, as well as her claims for unjust enrichment and quantum meruit, quasi-contract, estoppel, specific performance, fraud/misrepresentation, and joint venture. Finally, the judge granted plaintiff's request that defendant advance her $25,000 for pendente lite counsel fees and additional counsel fees incurred in connection with the pending applications.

The judge denied defendant's request for a stay pending appeal. Defendant filed a motion for interlocutory review and a stay of the motion judge's order. We granted both applications by order dated February 27, 2012.

On appeal, defendant raises the following points for our consideration:



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