SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4221-15T4

BARBARA TERRANOVA,

Plaintiff-Appellant,

v.

ESTATE OF STUART PAER

and BENEFICIARIES,

Defendants-Respondents.

_________________________

Argued August 30, 2017 – Decided

Before Judges Alvarez and Gooden Brown.

On appeal from the Superior Court of New 

Jersey, Chancery Division, Family Part, 

Monmouth County, Docket No. FM-13-1049-16.

Angelo Sarno argued the cause for appellant 

(Snyder Sarno D'Aniello Maceri & da Costa,

LLC, attorneys; Mr. Sarno, of counsel and on 

the briefs; Lydia S. LaTona, on the briefs).

Matthew N. Fiorovanti argued the cause for 

respondent (Giordano, Halleran & Ciesla, PC,

attorneys; Michael J. Canning, of counsel and 

on the brief; Mr. Fiorovanti, on the brief).

PER CURIAM

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." 

Although it is posted on the internet, this opinion is binding only on the 

parties in the case and its use in other cases is limited. R. 1:36-3.

November 17, 2017
2 A-4221-15T4

Plaintiff appeals from the April 22, 2016 Family Part order 

dismissing her complaint for palimony for failure to state a claim. 

We affirm.

Because this appeal arises from a motion to dismiss a 

complaint, "we accept as true the facts alleged in the 

complaint[,]" Craig v. Suburban Cablevision, Inc., 140 N.J. 623, 

625 (1995), and summarize the pertinent background from the 

pleadings. Plaintiff and Stuart Paer, a retail mattress tycoon,

were not married but were in a long-term committed relationship 

for fifteen years from 1996 until Paer's untimely passing on April 

5, 2011. Over the course of the couple's fifteen-year 

relationship, they worked together, lived together, traveled 

together, and existed as a family unit. They held themselves out 

to the world as husband and wife and maintained a marital-type 

lifestyle, particularly after 1997 when Paer proposed marriage and 

gave plaintiff an engagement ring.

According to plaintiff, Paer supported her financially in a

lavish lifestyle throughout the fifteen-year relationship, and 

promised on numerous occasions that he would always take care of 

her and support her for life. In reliance on Paer's promises, 

plaintiff abandoned her career opportunities. Instead, she 

supported his business ventures, maintained their various homes, 

helped raise his two daughters from adolescence to adulthood, 
3 A-4221-15T4

cared for him after his 2008 stage four liver cirrhosis diagnosis, 

and devoted herself to his emotional and physical needs. 

Despite the promises of lifetime support, plaintiff was not 

a beneficiary in Paer's will, and she received none of the 

considerable assets or property accumulated during their fifteenyear relationship, but held solely in Paer's name. Instead, Paer's 

two daughters, Natasha and Alyssa,1 were named residuary

beneficiaries in Paer's 2004 will. After his death, Paer's estate 

refused to honor his purported promise of lifetime support to 

plaintiff.2 As a result, on November 16, 2011, plaintiff filed in 

the Family Part a complaint for palimony and other equitable relief 

against the estate and its beneficiaries, Natasha and Alyssa.

3 

On January 23, 2012, a Family Part judge dismissed the 

palimony count of plaintiff's complaint. The judge determined 

that plaintiff's palimony claim was barred under the Statute of 

Frauds, N.J.S.A. 25:1-5(h), as amended on January 18, 2010, 

requiring palimony agreements to be in writing. On March 6, 2012, 

 

1 Because the parties share common surnames, we refer to them 

by their first names in this opinion for clarity and ease of 

reference, and intend no disrespect.

2 Plaintiff was named as a beneficiary on a life insurance 

policy, which provided her with $60,000 in death benefits.

3 A palimony obligation has been held enforceable against the 

estate of the promisor. In re Estate of Roccamonte, 174 N.J. 381, 

395-97 (2002).
4 A-4221-15T4

we denied plaintiff's motion for leave to file an interlocutory 

appeal from the dismissal of her palimony claim. In the absence 

of a palimony count, the Family Part judge transferred the case 

to the General Equity Part pursuant to Rule 4:3-1, where a June 

20, 2013 order granting defendants' motion for summary judgment 

resulted in the dismissal of the remaining counts of plaintiff's 

complaint with prejudice. Plaintiff did not appeal the dismissal.

Thereafter, the applicability of the amended Statute of 

Frauds to oral palimony agreements that predated the statute's 

amendment was challenged. In Maeker v. Ross (Maeker I), 430 N.J. 

Super. 79 (App. Div. 2013), rev'd, 219 N.J. 565 (2014), we held 

that because palimony actions are based upon principles of contract 

law, a palimony plaintiff's cause of action accrued at the time 

the defendant is alleged to have breached the agreement, not at 

the time the promise of lifetime support was purportedly made. 

Here, the Family Part judge's dismissal of plaintiff's palimony 

count was consonant with our interpretation in Maeker I, supra, 

because plaintiff's cause of action accrued in 2011 when the breach 

occurred, and was therefore governed and barred by the 2010 

amendment to the Statute of Frauds. 

In 2014, however, the Supreme Court reversed our ruling and 

held that the 2010 amendment to the Statute of Frauds did not 

apply retroactively to void oral palimony agreements that predated 
5 A-4221-15T4

its enactment. Maeker v. Ross (Maeker II), 219 N.J. 565, 580-82

(2014). The Court explained that the date the oral contract was 

formed, rather than the date the cause of action accrued, was the 

controlling date "for retroactivity purposes." Id. at 582. Under 

the Supreme Court's holding in Maeker II, supra, plaintiff's 

palimony count, predicated on promises made during their fifteenyear relationship, pre-dated the 2010 amendment to the Statute of 

Frauds and was therefore enforceable.

Relying on the Supreme Court's decision in Maeker II, supra, 

on January 8, 2016, plaintiff filed a second complaint for 

palimony. Defendants moved to dismiss the complaint for failure 

to state a claim. In support, Natasha certified that her father's 

2004 will, for which she and her sister were appointed 

administrators, "made several specific bequests of his property," 

but "did not specifically bequest any property to [p]laintiff, or 

otherwise provide for any lifetime support for [p]laintiff[.]" 

According to Natasha, after plaintiff's first palimony complaint 

was dismissed with prejudice in 2013 and plaintiff never appealed 

the dismissal, she and her sister distributed "a significant 

portion of the Estate's assets" for living expenses. Natasha 

averred that "[i]f the court permits [p]laintiff to pursue a claim 

against the Estate," they would be prejudiced because "[their] 
6 A-4221-15T4

lives would be severely disrupted, and [their] long-term financial 

condition placed in serious jeopardy." 

After oral argument, in an April 22, 2016 order, the court 

granted defendants' motion and dismissed the complaint with 

prejudice. In an accompanying statement of reasons, the court 

stated that "rather than file a motion seeking to vacate the final 

order entered in this case under [Rule] 4:50-1, [plaintiff] filed 

a new [c]omplaint seeking the same relief which was previously 

denied by the court." The court determined that because it was 

"procedurally improper" and "in direct contravention with the 

entire controversy doctrine[,]" dismissal of the complaint was 

warranted. The court explained that "even if [plaintiff] had 

filed a motion for vacation of the final judgment . . . under 

[Rule] 4:50-1, her application would likewise be unsuccessful as 

the final judgment in this case was entered on June 20, 2013, 

nearly three (3) years ago." According to the court, 

"[plaintiff's] application would not be considered to have been 

made within a reasonable time[,] and her circumstances are not so 

extreme as to warrant vacation of the final judgment entered in 

this matter." 

The court acknowledged that the facts in Maeker II, supra, 

were not unlike the facts surrounding plaintiff and Paer's 

relationship. However, the court noted that under applicable law, 
7 A-4221-15T4

the "jurisdiction of the court . . . cannot be invoked merely 

because a party wishes to argue new or developing case law." A.B. 

v. S.E.W., 175 N.J. 588, 595 (2003). Rather, the court analyzed 

plaintiff's argument under State v. Burstein, 85 N.J. 394, 402-03 

(1981), to determine whether "the Maeker [II] rule should be given 

complete retroactive effect[.]" The court concluded that 

"[plaintiff's] circumstances [were] not so extreme as to warrant 

providing the Maeker rule with complete retroactive effect[,]" 

when "[plaintiff] filed her new [c]omplaint for [p]alimony . . . 

approximately [sixteen] months" after the "Supreme Court issued 

its decision in Maeker [II,]" and "the final judgment . . . [was]

more than [two and a half] years old." This appeal followed.

On appeal, plaintiff argues she should not be barred from 

pursuing her palimony claim "because of an erroneous 

interpretation of law by the Appellate Division . . . or as a 

result of a potential procedural defect made in attempting to 

revive [her] palimony claim." Plaintiff argues the court 

misapplied Burstein, supra, because Maeker II, supra, did not 

announce a new rule of law to which a retroactivity analysis 

applied. Plaintiff also argues she was entitled to relief under 

Rule 4:50-1(f), and the court erred in dismissing her complaint 

with prejudice rather than "deny the filing without prejudice and 
8 A-4221-15T4

direct [p]laintiff to file a motion" under Rule 4:50-1. We 

disagree. 

Plaintiff's palimony complaint is barred by principles of res 

judicata. Because the application of res judicata is a question 

of law, we review this issue de novo. See Walker v. Choudhary, 

425 N.J. Super. 135, 151 (App. Div.), certif. denied, 211 N.J. 274 

(2012). Under the doctrine of res judicata, "a cause of action 

between parties that has been finally determined on the merits by 

a tribunal having jurisdiction cannot be relitigated by those 

parties or their privies in a new proceeding." Velasquez v. Franz, 

123 N.J. 498, 505 (1991). "The rationale underlying res judicata 

recognizes that fairness to the defendant and sound judicial 

administration require a definite end to litigation." Ibid. 

(citing Restatement (Second) of Judgments, § 19 comment a (1982)).

New Jersey law requires three basic elements for res judicata 

to apply:

(1) [T]he judgment in the prior action must 

be valid, final, and on the merits; (2) the 

parties in the later action must be identical 

to or in privity with those in the prior 

action; and (3) the claim in the later action 

must grow out of the same transaction or 

occurrence as the claim in the earlier one.

[Watkins v. Resorts Int'l Hotel & Casino, 124 

N.J. 398, 412 (1991).]
9 A-4221-15T4

It is well settled that "a dismissal with prejudice constitutes 

an adjudication on the merits 'as fully and completely as if the 

order had been entered after trial.'" Velasquez, supra, 123 N.J.

at 507 (quoting Gambocz v. Yelencsics, 468 F.2d 837, 840 (3d Cir.

1972)). 

Here, plaintiff's first palimony complaint was dismissed with 

prejudice, constituting an adjudication on the merits. The parties 

and the palimony claim in the second action are identical to those 

in the prior action. Therefore, the dismissal of plaintiff's 

first complaint with prejudice bars her subsequent suit against 

the same parties on the same issue, where the operative facts of 

the subsequent suit are identical to the first. We agree with the 

trial court that plaintiff's only possible recourse to revive her 

palimony claim was to move pursuant to Rule 4:50-1(f) to vacate 

the final judgment and persuade the court that Maeker II, supra, 

should be applied retroactively to all cases, including those like 

hers, where final judgment had been entered and the time for appeal 

long expired. However, because the court also conducted a Rule

4:50-1(f) analysis in rejecting plaintiff's attempt to reinstate 

her palimony claim, we next consider the propriety of the court's 

decision in that regard. 

The amended Statute of Frauds was a new rule of law, but was 

silent as to retroactivity. Maeker II, supra, decided whether the
10 A-4221-15T4

statute applied to oral palimony agreements that predated the 

statute's amendment. In so doing, Maeker II, supra, may be viewed 

as announcing a new rule of law by virtue of its interpretation 

of the amended statute. To determine whether we should apply 

Maeker II, supra, to this case despite the longstanding final 

judgment, we must analyze how the new rule should be applied. 

A court confronted with that inquiry has four options:

(1) [M]ake the new rule of law purely 

prospective, applying it only to cases whose 

operative facts arise after the new rule is 

announced; (2) apply the new rule to future 

cases and to the parties in the case 

announcing the new rule, while applying the 

old rule to all other pending and past 

litigation; (3) grant the new rule limited 

retroactivity, applying it to cases in (1) and 

(2) as well as to pending cases where the 

parties have not yet exhausted all avenues of 

direct review; and, finally, (4) give the new 

rule complete retroactive effect, applying it 

to all cases, even those where final judgments 

have been entered and all avenues of direct 

review exhausted.

[Burstein, supra, 85 N.J. at 402-03.]

To determine which option to adopt, the court should consider the 

following factors: "(1) the purpose of the rule and whether it 

would be furthered by a retroactive application, (2) the degree 

of reliance placed on the old rule by those who administered it, 

and (3) the effect a retroactive application would have on the 
11 A-4221-15T4

administration of justice." State v. Feal, 194 N.J. 293, 308 

(2008). 

However, because "this is not a criminal case involving 

constitutional issues or implicating the trustworthiness of the 

fact-finding process[,] . . . there is no basis for granting"

retroactive application. Ross v. Rupert, 384 N.J. Super. 1, 7

(App. Div. 2006). "Instead, we deal with principles of finality 

under [Rule] 4:50-1[] and the possibility of prejudice[.]" Ross, 

supra, 384 N.J. Super. at 9. "[Rule] 4:50-1 permits a court to 

relieve a party from a final judgment after the time for filing a 

motion for reconsideration or an appeal has expired[,]" Ross, 

supra, 384 N.J. Super. at 7-8, for the following reasons:

(a) mistake, inadvertence, surprise, or 

excusable neglect; (b) newly discovered 

evidence which would probably alter the 

judgment or order and which by due diligence 

could not have been discovered in time to move 

for a new trial under [Rule] 4:49; . . . (e) 

the judgment or order has been satisfied, 

released or discharged, or a prior judgment 

or order upon which it is based has been 

reversed or otherwise vacated, or it is no 

longer equitable that the judgment or order 

should have prospective application; or (f) 

any other reason justifying relief from the 

operation of the judgment or order.

[R. 4:50-1.]

A motion for relief on any of these grounds "shall be made 

within a reasonable time, and for reasons (a), (b) and (c) of 
12 A-4221-15T4

[Rule] 4:50-1[,] not more than one year after the judgment, order 

or proceeding was entered or taken." R. 4:50-2. "Rule 4:50-1 

provides for extraordinary relief and may be invoked only upon a 

showing of exceptional circumstances." Baumann v. Marinaro, 95 

N.J. 380, 393 (1984). However,

[A] "change in the law or in the judicial view 

of an established rule of law is not such an 

extraordinary circumstance" as to justify 

relief from a final judgment where the time 

to appeal has expired. This is unquestionably 

the general rule and rests principally upon 

the important policy that litigation must have 

an end.

[Hartford Ins. Co. v. Allstate Ins. Co., 68 

N.J. 430, 434 (1975) (quoting Collins v. 

Whichita, 254 F.2d 837, 839 (10th Cir. 

1958)).]

The court determines whether exceptional circumstances 

warranting relief from a judgment exist by analyzing the particular 

facts of each case, while remaining mindful of the well-settled 

principle that finality should attach to judgments. Hous. Auth. 

of Morristown v. Little, 135 N.J. 274, 294 (1994); see also A.B.,

supra, 175 N.J. at 593-94 (holding order denying parental 

visitation not subject to reconsideration based on new rule of law 

concerning visitation rights of domestic partners); Zuccarelli v. 

N.J. Dept. of Envtl. Prot., 326 N.J. Super. 372, 379-81 (App. Div.

1999) (rejecting motion to vacate settlement based on subsequent 

change of law), certif. denied, 163 N.J. 394 (2000); Wausau Ins. 
13 A-4221-15T4

Co. v. Prudential Prop. & Cas. Ins. Co., 312 N.J. Super. 516, 518-

19 (App. Div. 1998) (denying reconsideration based on 

clarification of law concerning uninsured motorist coverage); Smid 

v. N.J. Highway Auth., 268 N.J. Super. 306, 308-09 (App. Div.

1993) (denying reconsideration based on new Supreme Court decision 

rendered following denial of certification), certif. denied, 135 

N.J. 467 (1994). But see Lee v. W.S. Steel Warehousing, 205 N.J. 

Super. 153, 156-58 (App. Div. 1985) (permitting reopening of 

administrative order in workers' compensation action to 

recalculate disability award based on intervening Supreme Court 

decision); Hyjack v. Nolan, 144 N.J. Super. 545, 554-55 (Law Div.

1976) (granting reconsideration of administrative order 

terminating plaintiffs' disability pension benefits following 

successful appeal of other similarly situated pensioners, 

"[b]ecause of the factual relationship involved"), aff'd o.b., 154 

N.J. Super. 173 (App. Div. 1977).

We conclude that Rule 4:50-1 and the principle of finality 

preclude granting plaintiff relief from the final judgment in this 

case. We acknowledge that under Maeker II, plaintiff's palimony 

claim would have been cognizable. However, the salutary purpose 

behind the rule of finality is not overcome in this case, where 

plaintiff failed to file a timely appeal of her 2013 final 

judgment, sat on her rights from 2013 to 2014 while Maeker II was 
14 A-4221-15T4

litigated in the Supreme Court, and commenced an action two years 

after the Supreme Court rendered its decision. To rule otherwise 

would severely and unfairly prejudice defendants. We recognize 

that there are equities on both sides; however, in the final 

analysis, we simply find it inappropriate to circumvent the 

jurisprudence so clearly developed under Rule 4:50-1. Thus, the 

motion judge properly concluded plaintiff was not entitled to 

relief under Rule 4:50-1(f).

Affirmed.