SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4883-18T3

KATHLEEN M. MOYNIHAN,

Plaintiff-Respondent/

Cross-Appellant,

v.

EDWARD J. LYNCH,

Defendant-Appellant/

Cross-Respondent.

__________________________

Argued September 15, 2020 – Decided 

Before Judges Yannotti, Haas and Natali.

On appeal from the Superior Court of New Jersey, 

Chancery Division, Family Part Burlington County, 

Docket No. FM-03-0189-17. 

Allison M. Roberts argued the cause for 

appellant/cross-respondent (The Deni Law Group, 

LLC, attorneys; Allison M. Roberts, of counsel; Aleida 

Rivera, on the briefs). 

Angelo Sarno argued the cause for respondent/crossappellant (Snyder Sarno D'Aniello Maceri & Da Costa 

NOT FOR PUBLICATION WITHOUT THE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 12, 2020
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LLC, attorneys; Angelo Sarno, of counsel and on the 

briefs; Scott D. Danaher, on the briefs). 

PER CURIAM

In this palimony action, defendant Edward J. Lynch appeals from a May 

29, 2019 order that enforced a February 2014 written agreement (the Agreement) 

he entered with plaintiff Kathleen Moynihan. The court ordered defendant to: 

1) satisfy the mortgage on a home in which the parties were joint tenants; 2)

execute a general warranty deed to plaintiff upon satisfaction of the mortgage;

3) pay the property taxes on the property, and 4) make a $100,000 payment to 

plaintiff. The court also dismissed defendant's counterclaim seeking partition 

of the parties' former residence and enjoined plaintiff from dissipating assets 

from one of his bank accounts. Plaintiff cross-appeals from paragraph one of 

that same order in which the court dismissed her claim for palimony and

concluded after a six-day trial that the oral and written promises made by 

defendant did not establish an entitlement to such relief. 

After carefully reviewing the record and the applicable legal principles, 

we affirm in part, reverse and vacate in part, and remand for further proceedings. 

In sum, we conclude that as the Agreement was 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 
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termination," it was necessary that it not only be memorialized in a written 

document but "made with the independent advice of counsel for both parties," 

as unambiguously required by the 2010 amendment to the Statute of Frauds, 

N.J.S.A. 25:1-5(h) (Amendment). Neither party sought attorney review and the 

Agreement is therefore unenforceable consistent with the clear and 

unambiguous requirement of that statutory provision. 

We also disagree with the court's conclusion that the parties' agreement 

was nevertheless an enforceable contract akin to an agreement for orderly 

removal under Rule 6:6-6(b), or on any other basis. Finally, we vacate that 

portion of the order dismissing defendant's counterclaim sounding in partition 

as the court failed to issue appropriate Rule 1:7-4 findings necessary for 

appropriate appellate review and dissolve the court's restraint on defendant's 

ability to spend the funds in one of his bank accounts. 

I.

The trial record establishes that plaintiff and defendant began dating in 

1997. At the beginning of the relationship, plaintiff testified she had been in the 

process of an eight-year divorce proceeding with her then-husband and was 

living with her three children, all of whom were under twelve years old.
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Defendant was divorced and lived in New Hampshire with his twelve-year-old 

daughter. 

In July 2000, plaintiff finalized her divorce. After plaintiff's ex-husband 

failed to pay the mortgage on their former marital home, plaintiff lost the home 

in the ensuing foreclosure proceedings. While plaintiff was initially awarded 

$4255 in monthly alimony, it was reduced in 2003 to approximately $1000 per 

month, and in 2011 plaintiff entered a consent order with her ex-husband to 

terminate the alimony payments. 

Shortly after plaintiff's divorce, defendant purchased residential property 

in Bordentown at plaintiff's father's request where plaintiff subsequently lived 

with her children. At the time of the purchase, defendant's name was the only 

name on the deed. He subsequently acquired two mortgages on the property and 

paid certain carrying charges for the property, including homeowner's insurance. 

In connection with the purchase, plaintiff obtained a loan from her father to 

provide an $8000 down payment and also paid the mortgage and property taxes. 

While defendant maintained his primary residence in New Hampshire, 

plaintiff claimed that beginning in approximately 2000 or 2001, he stayed at the 

Bordentown property more than he stayed at his New Hampshire residence. 

Although defendant would travel to New Hampshire once or twice a month and 
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plaintiff would sometimes accompany him, plaintiff stated that "he was 

primarily living with [her]" and that outside of his time in New Hampshire, he 

would spend the remainder of his time "[w]ith [her] in New Jersey."

On January 26, 2007, defendant created a trust (the Trust) in which he

designated himself the trustee and plaintiff the successor trustee. The same day, 

defendant conveyed ownership of the Bordentown property by deed from 

himself to the Trust. Defendant also transferred his basic and optional life 

insurance policies into the Trust and designated the Trust as the primary 

beneficiary of his accidental death and dismemberment policy as well as his 

401(k) account. 

Defendant also designated plaintiff as the beneficiary of his bond account 

in 2013, and she remained the beneficiary for the duration of the parties' 

relationship. Finally, on April 10, 2013, defendant conveyed title of the 

Bordentown property from the Trust to plaintiff and defendant as joint tenants 

with rights of survivorship. 

Plaintiff testified that throughout the relationship, she and defendant had 

a number of conversations about their future together in which defendant 

promised to support her financially. For example, plaintiff stated that defendant 

repeatedly promised that he was "going to take care of [plaintiff] for the rest of 
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[her] life," that he loved her, that they were "a family," and that they would have 

"a great retirement," although she noted she was frustrated by defendant's 

equivocations regarding shopping for an engagement ring. She also stated that 

defendant paid for her attorney during her divorce and influenced her to enter 

into the consent order terminating alimony because "he said he would take care 

of [her] for the rest of [her] life" and that the parties "would be together" because

they "were a family and . . . didn't need" the alimony. 

Plaintiff testified that when defendant placed the Bordentown property in 

the Trust, defendant promised that he would "take care of [plaintiff]" so she 

would never "have to worry if something happens to [him]." Plaintiff stated that 

defendant promised to support her for the rest of her life "a lot," including when 

she moved into the Bordentown property and when he named her a beneficiary 

on his life insurance policy and retirement account. On March 27, 2014, 

defendant sent plaintiff a text message stating: "I do love you and all I do is 

plan[] for your future[,] but you don't seem to realize that." 

Plaintiff's daughters likewise testified that defendant, who each 

considered their stepfather, stated he would support plaintiff for the rest of her 

life. Plaintiff's older daughter Megan stated that when plaintiff would express 

concern about not having retirement savings, defendant "would say things like, 
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well, I don't know what you're worried about. I told you I would take care of 

you." Megan also described a conversation with defendant in which defendant 

did not understand "why [plaintiff was] so concerned about money because he 

has enough to take care of both of them" and that defendant "told her that he 

will take care of both of them." Plaintiff's younger daughter, Caitlyn, similarly 

testified that defendant told her that "he's a millionaire a couple of times over 

. . . [a]nd he said that [plaintiff] was already taken care of, that she should know 

that, that his retirement is her retirement," and that plaintiff "could retire today 

and she wouldn't have to worry." 

In February 2014 plaintiff and defendant entered into the Agreement, 

handwritten by defendant, which was signed by both parties, and notarized. The 

Agreement provided that "[i]n the event that [plaintiff] and [defendant] 

terminate their relationship [defendant] agree[s]" that: 

1. The home . . . in Bordentown[,] NJ will be paid off 

within five years after [defendant] vacates the property.

2. After paying off the mortgage note [defendant] will 

sign the Deed over to [plaintiff] thereby giving her sole 

ownership of said property.

3. Until the mortgage is satisfied [defendant] will pay the 

monthly mortgage payment.
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4. [Defendant] will pay the property tax at . . . [the]

Bordentown[, NJ property] for two years after his 

departure. 

5. [Defendant] will pay [plaintiff] a sum of $100,000 

dollars by the end of a five[-]year[] period starting 

when [defendant] vacate[s] the [Bordentown] property. 

This agreement finalizes all obligations of [defendant] 

to [plaintiff]. 

Although the Agreement was not dated, the court accepted defendant's testimony 

that it was executed in February 2014. 

Plaintiff testified that she did not request that defendant draft the 

Agreement and "didn't even know he was doing it." When plaintiff requested 

that an attorney review the Agreement, defendant purportedly replied that "he 

didn't want to pay a lawyer" because "if I tell you I'm going to do something, 

I'm going to do it. I'm a man of my word." Defendant also informed plaintiff 

that "getting it notarized is as good as going to an attorney. It makes it legal."

Defendant, on the other hand, testified that he did not intend to be bound 

by the Agreement at the time he signed it. He acknowledged that his actions 

were "dishonest" because he never informed plaintiff that he did not intend to 

be bound, and that he didn't "know what she was thinking" regarding the 

enforceability of the Agreement. Plaintiff and defendant ultimately signed the 
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Agreement before a notary without either engaging an attorney to conduct an 

independent review. 

The parties' relationship deteriorated throughout 2013 and 2014 and ended 

in April 2015 when defendant vacated the Bordentown residence. Initially, 

defendant continued to pay the mortgage and property taxes. On July 6, 2015, 

however, in response to a text message in which plaintiff sent defendant a tax 

bill due on August 1, 2015, defendant stated "I'm not paying it[.] [A]s far as I'm 

concerned[,] we don't have an agreement anymore[.] I'll pay the mortgage you 

live there you pay the taxes." 

On August 11, 2015, plaintiff filed a complaint seeking enforcement of 

the Agreement and attorneys' fees. On November 18, 2016, the trial court 

granted plaintiff's requests to file an amended complaint and to restrain 

defendant from dissipating certain of the parties' joint assets. It denied, 

however, defendant's requests to dismiss the complaint and to force a sale of the 

Bordentown property because such relief lacked "a sufficient factual or legal 

basis." 

In her eleven-count amended complaint, plaintiff sought relief based on 

the following causes of action: 1) palimony, 2) enforcement of a written 

contract, 3) enforcement of an oral contract, 4) partial performance as a bar to 
10 A-4883-18T3

the Statute of Frauds, N.J.S.A. 25:1-5, 5) unjust enrichment, 6) quantum meruit, 

7) quasi-contract, 8) equitable estoppel, 9) specific performance of an implied 

contract, 10) fraud or misrepresentation, and 11) joint venture. Defendant filed 

an amended answer and a counterclaim for partition of the Bordentown property. 

A trial took place over six nonconsecutive days. Plaintiff and her 

daughters Megan and Caitlyn testified on her behalf, and she also called 

defendant in her direct case. Contrary to plaintiff's testimony and that of her 

daughters, defendant testified that the relationship was "exclusive" but that it 

was "not marriage-like." He similarly stated that he did not consider his 

relationship with plaintiff as "family" or a "family unit." 

Defendant contended that the Agreement was unenforceable "[b]ecause 

there were other agreements. This was a work in progress." He admitted, 

however, that no other such agreements were provided in discovery. He also 

stated that "[n]o promise of anyone has ever passed my lips, not my daughter, 

not my parents, that I'd take care of them for the rest of their lives," though he 

testified that he drafted the Agreement and added plaintiff as a life insurance 

beneficiary to "shut her up." 

During trial, plaintiff moved for temporary restraints freezing a bank

account defendant owned. The court granted plaintiff's request and entered a 
11 A-4883-18T3

corresponding order concluding that plaintiff satisfied each factor of the Crowe 

v. De Gioia, 90 N.J. 126 (1982), test. The court specifically determined that 

plaintiff would suffer irreparable harm if the account was not frozen because 

defendant might have been "trying to hide [h]is assets and dodge his obligation." 

The court further reasoned that plaintiff presented an issue on which she was 

likely to succeed in that she presented "a prima facie case of merit." Finally, it 

concluded that no hardship would result to defendant and that there was potential 

hardship to plaintiff because any potential judgment may be rendered 

uncollectible without those assets. 

At the conclusion of plaintiff's case, defendant moved for judgment under 

Rule 4:40-1 on the palimony and written contract counts. Defendant argued that 

pursuant to the Amendment, a written contract for palimony is not "binding 

unless it was made with the independent advice of counsel . . . to both parties," 

and that neither party in this case consulted an attorney prior to signing the 

Agreement. In response, plaintiff argued that the Amendment was 

unconstitutional because it impaired the "right of his client and people situated 

similarly to his client to enter into contracts." Plaintiff further maintained that 

there was no reason "for people who are in a . . . marital type relationship who 
12 A-4883-18T3

want to enter into a contract to resolve their relationship should have to have an 

attorney when nobody else has to have an attorney." 

The court concluded that there was no factual dispute as both parties were 

"very clear[] that they did not talk to an attorney with regard to [signing the 

Agreement]." The court declined to conclude that the Amendment was 

unconstitutional because: 1) there was "no notice to the Attorney General of the 

attack on the validity of the statute" as required by Rule 4:28-4(a)(1); 2) the 

Supreme Court declined to address the constitutionality of the Amendment in 

Maeker v. Ross, 219 N.J. 565 (2014); and 3) there was "no evidence . . . of any 

kind of undue burden . . . [or] evidence that it impairs [plaintiff's] right to 

contract . . . [or to] afford an attorney." While the trial court found the policy 

discussions around palimony "smacks a . . . bit of paternalism and patriarchy," 

the court noted it was bound by the plain language of the statute and granted 

defendant's motion with regard to count one for palimony and dismissed that 

claim with prejudice. 

Turning to defendant's request for judgment on the enforceability of the 

Agreement, the court found that it is "simply a contract between the[] parties" 

requiring only an offer, acceptance, and consideration. The court noted that the 

parties negotiated at length the provisions of the Agreement and that there was 
13 A-4883-18T3

a "meeting of the minds." The court found consideration existed based on "the

love and affection between the parties, the years that they were together" and 

denied defendant's motion. After the court dismissed count one, the trial 

proceeded on counts two through eleven and defendant's counterclaim for 

partition. 

At the conclusion of trial, the court issued a May 29, 2019 order 

dismissing all the remaining counts in the amended complaint except for count 

two, enforcement of the Agreement. It ordered defendant to "completely 

satisfy" the mortgage at the Bordentown property, issue a general warranty deed 

to plaintiff upon satisfaction, pay plaintiff $100,000, and pay all property taxes 

on the property between May 1, 2015, and April 30, 2017. The court denied 

plaintiff's requests for "an equitable legal share of the assets accumulated by the 

[d]efendant during the relationship" and "that the [d]efendant provide proper 

support for her." Further, it continued the previously entered restraint on 

defendant's bank account and ordered the parties to pay their own attorneys' fees 

and costs. Finally, the court dismissed defendant's counterclaim. 

In its corresponding May 29, 2019 oral opinion, the court found that 

"between 1997 and 2000, [the parties] were engaged in . . . a dating relationship. 

And it wasn't until the property in Bordentown was purchased that it became 
14 A-4883-18T3

more frequent, more formalized, and could more accurately be called 

cohabit[at]ing, or at least living together." It also found that the parties did not 

commingle funds in the form of a joint bank account or joint credit cards, which 

was undisputed. 

The court noted the discrepancies between the parties' view of the 

relationship. The court concluded that defendant's testimony was not 

"particularly credible" and that plaintiff's testimony was "much more credible 

than the [defendant's] . . . in all respects." The court noted that his testimony in 

which he stated he "never intended to be bound by" the Agreement and that "[h]e 

did it to keep the peace" was detrimental to his credibility, as well as his evasive 

responses to questioning about "the use of the money from the sale of the bonds." 

The court found that the relationship "[c]learly . . . was a cohabitation and 

certainly had all of the earmarks of a marital style relationship and a family style 

relationship." 

The court then described the promises that plaintiff alleged were made to 

her by defendant "to support her for the rest of her life." It concluded that despite 

its finding that plaintiff was "generally more credible than the defendant," the 

court found the defendant did not tell plaintiff that he would "take care of [her] 

for the rest of [her] life" in 2000. The court also found that when defendant 
15 A-4883-18T3

agreed to pay the mortgage and taxes on the Bordentown property, "it [wa]s not 

a situation in which he was agreeing to support or take care of her for any period 

of time. He was simply acting as a means for her to live in a townhouse instead 

of an apartment."

After considering the parties' discussions of marriage, the Trust, and 

defendant's bill payments, the court was "unable to conclude" that those 

discussions "amount[ed] to an express agreement of support for life" and that 

"[i]t was simply the various financial machinations that went on between 

[defendant] and [plaintiff] during the course of their relationship." As such, the 

court denied plaintiff's request for palimony based on any purported oral 

agreement. The court also reaffirmed its earlier decision denying palimony 

based on the Agreement as contrary to the Statute of Frauds. 

The court next addressed plaintiff's claims in count two of the amended 

complaint for enforcement of the Agreement. Specifically, the court determined

that "it is more likely" that the Agreement was signed in 2014 as defendant 

testified. It concluded that the Agreement's terms were "clear and 

understandable, and they were understood by the parties." It further found that 

the Agreement was in defendant's handwriting and was "the culmination of 

various discussions that the parties had about their relationship, what they were 
16 A-4883-18T3

doing, where they were going, [and] what they wanted in the future." The court

found not credible defendant's "testimony that there were other agreements in 

writing" because he produced no other prior agreements, and it accordingly

determined that the Agreement was "the only written agreement that exist[ed] 

between the plaintiff and the defendant." 

The court further concluded that "[w]hile the proofs do not support a 

finding of a promise by the defendant to support the plaintiff for life, . . . [they] 

do support the conclusion that . . . the defendant wanted the plaintiff to have the 

house." Further, it determined that "[t]he conclusion is inescapable that [the 

Agreement] is a contract between the plaintiff and the defendant" which was 

legally enforceable. Noting that consideration was the only element of contract 

formation in dispute, the court found that "plaintiff gave up her alimony in 2011, 

upon the representation by the defendant that [he] would take care of her" and 

also induced her "to remain in the relationship." The court concluded that 

despite defendant's motive "to shut [plaintiff] up" and "to make her feel secure," 

he clearly acknowledged that "he knew there was an agreement" because of his 

text message stating "[w]e don't have an agreement anymore."

The court reasoned that the Agreement "clear[ly]" was not a palimony 

agreement because "there is no promise in it of support for the rest of [plaintiff]'s 
17 A-4883-18T3

life." Rather, the court found the Agreement was "very akin to an order for 

orderly removal that we see in landlord/tenant court all of the time." Because it 

was unaware "of any prohibition in the law on the rights of parties who are 

cohabiting to enter into these types of agreements," it granted plaintiff's request 

for relief in count two, enforcement of the written agreement. Finally, it 

dismissed all remaining counts of the complaint "as they are actually alternative 

theories of liability in the event the oral and/or written agreements [were] not 

enforced" as well as defendant's counterclaim for partition.1 This appeal 

followed. 

On appeal, defendant argues that the trial court should have dismissed

count two, as the parties did not consult attorneys pursuant to the Amendment. 

1

 As noted, plaintiff's amended complaint also included claims for: unjust 

enrichment (count five), quantum meruit (count six), quasi-contract (count 

seven), equitable estoppel (count eight), specific performance of an implied 

contract (count nine), fraud or misrepresentation (count ten), and joint venture 

(count eleven). Significantly, plaintiff's notice of cross-appeal clearly states she 

seeks review of only paragraph one of the order, which dismissed count one of 

the amended complaint. It is well settled that a party's appeal is limited to those 

judgments or orders, or parts thereof, designated in the notice of appeal. Pressler 

& Verniero, Current N.J. Court Rules, cmt. 6.1 on R. 2:5-1 (2020). Further, 

plaintiff failed to brief the propriety of the trial court's dismissal of these claims. 

The failure to brief an issue constitutes waiver of that issue. See Gormley v. 

Wood-El, 218 N.J. 72, 95 n.8 (2014); Pressler & Verniero, Current N.J. Court 

Rules, cmt. 5 on R. 2:6-2 (2020). We therefore decline to consider any challenge 

to the portion of the court's May 29, 2019 order that dismisses counts five 

through eleven. 
18 A-4883-18T3

Further, he contends that the court erred by concluding that the Agreement was 

legally enforceable as similar to an agreement for orderly removal. Moreover, 

defendant claims the court erred by dismissing his counterclaim for partition and 

in continuing the freeze on his bank account. 

In her cross-appeal, plaintiff argues that the trial court committed error

when it concluded that defendant did not make oral promises of palimony. 

Alternatively, she contends the court erred by failing to conclude that partial 

performance nullified the Amendment's attorney review requirement. Finally, 

plaintiff argues the court erred when it determined the Amendment was not an 

unconstitutional infringement on her contractual rights. 

II.

Our scope of review of Family Part orders is limited. Cesare v. Cesare, 

154 N.J. 394, 411 (1998). We generally defer to factual findings made by a trial 

court when such findings are supported by adequate, substantial, and credible 

evidence. Gnall v. Gnall, 222 N.J. 414, 428 (2015). "We review the Family 

Part judge's findings in accordance with a deferential standard of review, 

recognizing the court's 'special jurisdiction and expertise in family matters.'" 

Thieme v. Aucoin-Thieme, 227 N.J. 269, 282-83 (2016) (quoting Cesare, 154 

N.J. at 413). "A more exacting standard governs our review of the trial court's 
19 A-4883-18T3

legal conclusions[,] . . . [which] we review . . . de novo." Ibid. (citing D.W. v. 

R.W., 212 N.J. 232, 245-46 (2012)). 

III.

Defendant initially argues that the court committed error when it

concluded that because the Agreement had "no promise in it of support for the 

rest of [plaintiff's] life," it was "beyond the reach of the Amendment." We agree. 

Palimony is "a claim for support between unmarried persons." Devaney 

v. L'Esperance, 195 N.J. 247, 253 (2008). "A valid cause of action for palimony 

requires an agreement to pay future support made during a marital-type 

relationship between unmarried persons." Bayne v. Johnson, 403 N.J. Super. 

125, 139 (App. Div. 2008). The common law elements of a palimony cause of 

action are that: 1) the parties cohabited; 2) in a marriage-type relationship; 3) 

during which defendant promised plaintiff support for life; and 4) there was 

valid consideration for the promise. Levine v. Konvitz, 383 N.J. Super. 1, 3 

(App. Div. 2006). 

Prior to the enactment of the Amendment, palimony agreements could be 

express or implied. Kozlowski v. Kozlowski, 80 N.J. 378, 384 (1979). Further,

in In re Estate of Roccamonte, 174 N.J. 381, 393 (2002), our Supreme Court 

concluded that "the entry into [a marital-type] relationship and then conducting 
20 A-4883-18T3

oneself in accordance with its unique character is consideration" to enforce a 

promise for support. 

The existence and terms of the contract in a palimony action are not 

determined by the parties' words, but "by the parties' 'acts and conduct in the 

light of . . . [their] subject matter and the surrounding circumstances.'" 

McDonald v. Estate of Mayety, 383 N.J. Super. 347, 359 (App. Div. 2006) 

(quoting Kozlowski, 80 N.J. at 384). A general promise of support for life in 

exchange for some consideration is sufficient to form a contract. Ibid. When 

the court determines that such a promise was made and later broken, it will 

award the promisee a lump sum payment representing the present value of 

reasonable future support over the expected life of the promisee. Id. at 360. 

The Statute of Frauds requires that certain "agreements or promises . . . 

be in writing and signed by the party to be charged therewith." N.J.S.A. 25:1-

5. On January 18, 2010, the Statute of Frauds was amended to include the 

Amendment, which as noted, required that palimony agreements be in writing 

and entered with the advice of counsel. L. 2009, c. 311, § 1, eff. Jan. 18, 2020. 

Specifically, the Amendment provides that an agreement must be in writing 

where there is a:

promise by one party to a non-marital personal 

relationship to provide support or other consideration 
21 A-4883-18T3

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. 

[N.J.S.A. 25:1-5(h) (emphasis added).]

The legislative history of the Amendment makes clear that the Legislature 

"intended to overturn recent 'palimony' decisions by New Jersey courts," 

specifically referencing Devaney, 195 N.J. at 248 (holding "cohabitation is not 

an essential requirement for a cause of action for palimony, but a marital-type 

relationship is required"); Roccamonte, 174 N.J. at 381 (holding that a promise 

of support between unmarried persons may be enforced against a decedent's 

estate); and Kozlowski, 80 N.J. at 378 (recognizing that a promise between 

unmarried persons for support, whether express or implied, may be enforceable). 

Senate Judiciary Committee, Statement to S.2091 (Feb. 9, 2009).2 

2 Then Governor Jon S. Corzine issued the following statement when he signed 

the legislation. 

I approve Senate Bill No. 2091 . . . in light of the 

representation by legislative leadership and the bill 

sponsors that this law will be improved to recognize 

agreements or promises in a non-marital relationship as 

binding when they are mutual, in writing, and notarized 

as opposed to mandating the involvement or services of 

an attorney. Legislative leadership and the sponsors 
22 A-4883-18T3

Here, the trial judge incorrectly concluded that because the Agreement 

lacked an essential element of a palimony agreement, a promise of support for 

life, it fell outside of the Statute of Frauds. The Amendment, however, requires

only that such an agreement contain 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." 

N.J.S.A. 25:1-5(h). The Amendment does not limit the attorney review 

requirement to promises of support for the promisee's life or any other duration 

of time. As such, the trial court erred when it concluded that because the 

Agreement lacked a promise of support for life, it stood outside the clear 

requirements of the Amendment.

share my goal of providing greater clarity in the 

enforcement of palimony agreements but ensuring that 

this law does not have an adverse impact on parties who 

may not be able to afford the services of an attorney. I 

take this action in light of the time constraints that 

result at the end of a legislative session, which do not 

afford time for a [c]onditional [v]eto to recommend 

removal of this provision. 

Despite Governor Corzine's intention that the law be amended to require only a 

notarized agreement, no such modifying amendment was ever enacted by the 

Legislature. 
23 A-4883-18T3

By way of the Agreement, defendant clearly promised "to provide support 

or other consideration" to plaintiff. In this regard, defendant stated, despite any 

unexpressed intentions he may have had, that he would agree to the terms of 

Agreement in the event the relationship terminated. And, he agreed that should 

such an event occur, he would pay the entirety of the mortgage at the 

Bordentown property within five years, sign the deed over to plaintiff, pay the 

monthly mortgage, pay the property taxes for two years, and pay plaintiff a lump 

sum of $100,000 within five years after he vacated the property. The Agreement 

is precisely the type of written contract encompassed by the Amendment and for 

which attorney review is required. Absent compliance with the Amendment, the 

Agreement is not an enforceable contract. 

IV.

We also agree with defendant that the court erred when it enforced the 

Agreement as a non-palimony contract. The court equated the Agreement to a 

landlord/tenant order for orderly removal specifically stating that the Agreement 

was "very akin to an order for orderly removal" and that "that's exactly what this 

is." 

Under Rule 6:6-6(b), 

[a]n application for orderly removal requesting more 

time to move out, if there is a showing of good reason 
24 A-4883-18T3

and applied for on notice to a landlord . . . need not have 

a return date if the sole relief is a stay of execution of a 

warrant of removal for seven calendar days or less, but 

it shall provide that the landlord may move for the 

dissolution or modification of the stay on two days' 

notice to the tenant or such other notice as the court sets 

in the order. 

It is clear from a plain reading of Rule 6:6-6(b) that the Agreement bears 

no similarity to an order for orderly removal. Rule 6:6-6(b) orders do not 

distribute funds, compel payments based on alleged offers of support, or transfer 

contested interests in real property. Furthermore, as we have already concluded 

that the Agreement was clearly encompassed by the Amendment, it was error 

for the court to enforce the Agreement under another name. Finally, there is no 

evidence to support a finding that the parties entered into a landlord/tenant 

relationship. In light of our decision, we need not address defendant's related 

argument that the Agreement was unenforceable for a lack of consideration. 

V.

Plaintiff further argues that her partial performance in accordance with the 

purported oral promises warrants enforcement of the Agreement. We disagree 

for the following reasons.

First, we find that plaintiff did not plead a proper cause of action for partial 

performance. Indeed, count four of plaintiff's amended complaint states that it 
25 A-4883-18T3

was defendant, not plaintiff, who partially performed. As the Supreme Court 

noted in Klockner v. Green, a plaintiff alleging partial performance as an 

exception to the Statute of Frauds must base their claim on their own 

performance, not the defendant's. 54 N.J. 230, 236-37 (1969). We therefore 

find that plaintiff's pleading does not support a basis for relief as it is based on 

the performance of defendant and not on her own. Even if we considered the 

amended complaint to conform to the proofs as permitted by Rule 4:9-2, we also 

reject plaintiff's argument because her claim for partial performance is in direct 

contradiction to the Amendment and the services performed are not exceptional 

in character. 

In Maeker, we questioned whether an oral palimony agreement can be 

enforced based on a claim for partial performance. 430 N.J. Super. at 93. After 

reviewing the legislative history to the bill enacting the Amendment, we noted 

the Legislature expressed its intent that the bill was "intended to overturn recent 

'palimony' decisions by New Jersey courts." Ibid. (quoting Senate Judiciary 

Committee, Statement to S.2091 (Feb. 9, 2009)); see also Devaney, 54 N.J. at 

248; Roccamonte, 174 N.J. at 381; Kozlowski, 80 N.J. at 378.3 

3

 In Roccamonte, the Supreme Court upheld an oral promise for palimony for a 

twenty-five-year relationship. 174 N.J. at 385. The Court held that although it 
26 A-4883-18T3

Plaintiff's claim of partial performance is contrary to the clear terms of the 

Amendment. Indeed, plaintiff's theory of relief is of the type that was 

specifically intended to be barred by the Amendment. As noted, the Amendment 

was enacted by the Legislature in direct response to recent decisions that found 

implied in fact agreements. Roccamonte, 174 N.J. at 395; Kozlowski, 80 N.J. 

at 384. A contract implied in fact is created by the conduct of the parties. 

Weichert Co. Realtors v. Ryan, 128 N.J. 427, 436 (1992). Plaintiff's assertion 

that the Agreement should be enforced based on her alleged partial performance 

of an oral agreement between the parties, would essentially permit enforcement 

of contract the Legislature has expressly prohibited. 

Finally, in Maeker we noted that to grant the equitable remedy of specific 

performance of an oral promise the "performance must be in some respects of 

an exceptional character, and it must be obvious that . . . the services are of such 

peculiar character that it is impossible to estimate their value by any standard." 

430 N.J. Super. at 94 (quoting Klockner, 54 N.J. at 237). We rejected the 

requested equitable relief in that case because "there was nothing exceptional or 

believed an oral promise existed, the agreement would also have been 

enforceable by implication. Id. 395. In Kozlowski, the Supreme Court upheld 

an oral promise for palimony for a fifteen-year relationship. 80 N.J. at 384-87. 

Moreover, similar to Roccamonte, the Court found that it was "of no legal 

consequence" whether the promise was express or implied. Id. at 384. 
27 A-4883-18T3

peculiar about the services performed by defendant, and plaintiff, as well as her 

son, already received the full benefit of those services." Ibid. These services 

included paying for joint property expenses, plaintiff's living expenses, and 

plaintiff's son's living expenses. Id. at 93. Here, without minimizing plaintiff's 

contributions to the parties' relationship, like in Maeker, the services were not 

"exceptional or peculiar in character" and did not support enforcement of the 

Agreement. 

VI.

In addition, defendant asserts that the court erred by dismissing his 

counterclaim for partition without placing its reasons for dismissal on the record. 

He further contends that his partition claim was meritorious as his rights as a 

joint tenant of the property would be violated without a partition because it is 

the deed that governs, not the Agreement. We agree with defendant that he 

asserted a viable partition claim. As the court dismissed that cause of action 

without providing a statement of reasons as required by Rule 1:7-4, we vacate 

that portion of the May 29, 2019 order and remand for further proceedings. 

Partition is an equitable remedy by which property, held by at least two 

people or entities as tenants in common or joint tenants, may be divided. See

N.J.S.A. 2A:56-1 to -44; R. 4:63-1. When property is subject to partition, a 
28 A-4883-18T3

physical division of the property is one possible remedy. N.J.S.A. 2A:56-2 

provides that a court "may, in an action for the partition of real estate, direct the 

sale thereof if it appears that a partition thereof cannot be made without great 

prejudice to the owners, or persons interested therein." The manner in which 

property is partitioned is "within the discretion of the court." Greco v. Greco, 

160 N.J. Super. 98, 102 (App. Div. 1978) (citing Newman v. Chase, 70 N.J. 254, 

263 (1976)). 

Rule 1:7-4(a) provides that the court "shall . . . find the facts and state its 

conclusions of law thereon . . . on every motion decided by a written order that 

is appealable as of right." "Meaningful appellate review is inhibited unless the 

judge sets forth the reasons for his or her opinion. In the absence of reasons, we 

are left to conjecture as to what the judge may have had in mind." Salch v. 

Salch, 240 N.J. Super. 441, 443 (App. Div. 1990); see also Estate of Doerfler v. 

Fed. Ins. Co., 454 N.J. Super. 298, 301 (App. Div. 2018). 

At trial, defendant established a colorable partition claim. For example, 

on April 10, 2013, title of the Bordentown home was conveyed from the Trust 

by deed to defendant and plaintiff as joint tenants with rights of survivorship. 

Defendant was responsible for certain of the property's carrying costs. For her 
29 A-4883-18T3

part, plaintiff contributed an $8000 loan from her father to be used as a down 

payment. 

Here, the court summarily stated that as a result of granting count two and 

enforcing the Agreement, "the counterclaim is dismissed." We cannot discern 

from this statement the court's reasoning to support the dismissal of defendant's 

counterclaim. A remand is therefore necessary for the court to consider the trial 

proofs and address the partition claim with appropriate Rule 1:7-4 factual 

findings and legal conclusions. 

VII.

Defendant also contends that the trial court erred by continuing the freeze 

on his bank account until "all of the obligations under [the trial court's order] 

are satisfied," and again stressed that the court failed to make necessary factual 

findings and legal conclusions supporting the need for continuing restraints. As 

we have reversed that portion of the May 29, 2019 order that enforced the 

Agreement and remanded for further proceedings limited to the partition action, 

we discern no further need for the restraints on defendant's bank account under 

Crowe, 90 N.J. at 132-34. Accordingly, the portion of the trial court's order 

freezing defendant's bank account is vacated. 
30 A-4883-18T3

VIII.

On her cross-appeal, plaintiff contends that the trial court committed error

in dismissing her claim for palimony stated in count one because it "failed to 

adequately consider [d]efendant's conduct when deciding whether any oral 

promises existed." We disagree. 

In Maeker v. Ross, we held that because palimony actions are based upon 

principles of contract law, a palimony cause of action accrues at the time the 

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

of lifetime support was purportedly made. 430 N.J. Super. 79, 97 (App. Div. 

2013). In 2014, however, the Supreme Court reversed our ruling and held that 

the Amendment did not apply retroactively to void oral palimony agreements 

that predated its enactment. Maeker, 219 N.J. at 580-82. The Supreme 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, count one of plaintiff's amended 

complaint, predicated on alleged oral promises made during their eighteen-year 

relationship, pre-dated the Amendment and was therefore enforceable so long 

as oral promises of palimony existed. 
31 A-4883-18T3

As noted, the common law elements of a palimony cause of action are 

that: 1) the parties cohabited; 2) in a marriage-type relationship; 3) during which 

defendant promised plaintiff support for life; and 4) there was valid 

consideration for the promise. Levine, 383 N.J. Super. at 3. Plaintiff contends 

that the only element at issue is whether defendant made oral or written promises 

for support. In this regard, plaintiff relies on In re Estate of Quarg for the 

proposition that a "promise will be enforced by the court whether it is oral or 

written, implied or express, or inferable from the parties' acts and conduct rather 

than by what they said." 397 N.J. Super. 559, 564 (App. Div. 2008) (citing 

Roccamonte, 174 N.J. at 389). 

In Quarg, this court remanded the matter "to the Chancery Division for a 

plenary hearing, if necessary, to determine whether [the plaintiff] can establish 

an enforceable implied promise as detailed in Roccamonte" regarding her 

request for a constructive trust. Id. at 566. In reaching its decision, the court 

concluded that an implied promise may have existed because "one of the 

components of [plaintiff]'s complaint alleged that she would be unjustly 

impoverished if she did not share in [defendant]'s estate" and because "after 

more than forty years of living with [defendant] as married, [plaintiff] asserts 

that the relationship was 'founded on mutual trust, dependency[,] and raised 
32 A-4883-18T3

expectations.'" Ibid. In this regard, the court found that the plaintiff's 

"allegations bespeak an implied promise by [defendant] not to leave [plaintiff] 

impoverished, but rather, to see to it, as best he could, that she survived with 

adequate provisions during the remainder of her life." Ibid. 

Here, as noted, we typically afford substantial deference to Family Part 

factual findings because of its "special jurisdiction and expertise," see Thieme, 

227 N.J. at 283 (quoting Cesare, 154 N.J. at 413), and we find no reason to 

deviate from that standard of review and disrupt that portion of the trial court's 

credibility-based finding that defendant never made an "implied or express oral 

promise that he would support the plaintiff either for her life or for any other 

period of time." The court's conclusion was supported by substantial credible 

evidence in the record. 

Further, unlike the parties in Quarg, plaintiff and defendant did not share 

a last name and had no joint bank account. And, as the trial court noted, "[w]hen 

the defendant set up the revocable trust, he told [plaintiff] what it meant. She 

understood that it was revocable, that he could change it at any time." Moreover, 

unlike Quarg, the court noted that "during all of this time, up to and including 

the present, the plaintiff is not totally dependent on the defendant," and that the 

case law indicates that "complete financial dependence . . . is one thing that we 
33 A-4883-18T3

can look at." Subsequently, the court found that "[plaintiff] [had] work[ed] and 

receiv[ed] for a period of time, child support, and receiv[ed] . . . alimony." Here, 

there is no indication that plaintiff would be "impoverished" absent the 

enforcement of an oral promise of palimony. See Quarg, 397 N.J. Super. at 566. 

In sum, the trial court did not err when it dismissed count one and concluded 

that defendant's conduct did not evince an implied oral promise to support 

plaintiff for life or other period of time.

IX.

Finally, plaintiff argues that the Amendment violates the Contract Clause 

of the New Jersey and United States Constitutions. She contends that "there can 

be no doubt that there is a contractual relationship between [p]laintiff and 

[d]efendant, and between individuals similarly situated," which has been 

impaired because it leaves plaintiff "without adequate recourse after dedicating 

a large part of her life to [d]efendant." She further maintains that the 

independent legal counsel requirement "lacks a significant and legitimate public 

purpose" because it "prohibits parties who cannot afford to retain counsel from 

entering into an enforceable agreement" and no other statute "requir[es] parties 

to consult with independent legal counsel, as opposed to affording parties the 

opportunity to consult with" same. Finally, she claims that "the requirement of 
34 A-4883-18T3

independent legal counsel is based upon unreasonable conditions and is 

unrelated to appropriate governmental objectives." We disagree with all of these 

arguments. 

The Contract Clause of the United States Constitution states: "No State 

shall . . . pass any . . . Law impairing the Obligation of Contracts." U.S. Const. 

art. 1, § 10, cl. 1. Similarly, New Jersey's Constitution guarantees: "The 

Legislature shall not pass any . . . law impairing the obligation of contracts, or 

depriving a party of any remedy for enforcing a contract which existed when the 

contract was made." N.J. Const. art. IV, § 7, para. 3; see, e.g., Berg v. Christie, 

225 N.J. 245, 258-59 (2016); Burgos v. State, 222 N.J. 175, 193 (2015). 

"Contract impairment claims brought under either constitutional provision 

entail an analysis that first examines whether a change in state law results in the 

substantial impairment of a contractual relationship and, if so, then reviews 

whether the impairment nevertheless is 'reasonable and necessary to serve an 

important public purpose.'" Berg, 225 N.J. at 259 (quoting U.S. Tr. Co. of N.Y. 

v. New Jersey, 431 U.S. 1, 25 (1977)). Our Supreme Court has advised this

analysis requires "three inquiries." Ibid. "Legislation unconstitutionally 

impairs a contract when it (1) 'substantially impair[s] a contractual relationship,' 

(2) 'lack[s] a significant and legitimate public purpose,' and (3) is 'based upon 
35 A-4883-18T3

unreasonable conditions and . . . unrelated to appropriate governmental 

objectives.'" Burgos, 222 N.J. at 193-94 (quoting Farmers Mut. Fire Ins. Co. of 

Salem v. N.J. Prop.-Liab. Ins. Guar. Ass'n, 215 N.J. 522, 546-47 (2013) 

(alterations in original)). 

Here, requiring a lawyer to review palimony agreements is not a 

substantial impairment. The Legislature routinely imposes additional costs on 

parties who seek to enter contractual relationships. For example, it has required

independent legal counsel if a lottery winner seeks to assign their winnings. See

N.J.S.A. 5:9-13(d)(15). Further, in the rare situations in which courts have 

found a substantial impairment, the law in question has completely altered terms 

of an existing, enforceable contract. See, e.g., Allied Structural Steel Co. v. 

Spannaus, 438 U.S. 234, 247 (1978) (finding a substantial impairment because 

the "statute in question . . . nullifie[d] express terms of [a party's] contractual 

obligations and impose[d] a completely unexpected liability in potentially 

disabling amounts"). Plaintiff and others similarly situated are free to enter 

enforceable palimony agreements so long as they satisfy the Statute of Frauds. 

Here, plaintiff conceded that she chose not to see a lawyer about the Agreement

and the trial court found there was "no evidence she c[ould not] afford an 

attorney." 
36 A-4883-18T3

Moreover, the Amendment's conditions reasonably relate to a significant

and legitimate public purpose. The Statute of Frauds exists because the 

Legislature has found agreements within its scope "susceptible to fraudulent and 

unreliable methods of proof." Lahue v. Pio Costa, 263 N.J. Super. 575, 599

(App. Div. 1993). With regard to the Amendment specifically, we noted that 

the Legislature was concerned with the burden of proof difficulties in 

establishing valid palimony agreements. While independent attorney review is 

not required in other provisions of the Statute of Frauds or other family law 

agreements, the Legislature has required so for palimony agreements with the 

very purpose of protecting the rights of contracting parties. The Amendment is 

one legitimate way of addressing this significant issue and is reasonably related 

to appropriate legislative objectives. After considering the aforementioned

three-part inquiry, we conclude plaintiff has failed to establish that the

Amendment violates the Contract Clauses of the State or Federal Constitutions. 

To the extent we have not addressed any of the parties' arguments it is 

because we find them without sufficient merit to warrant discussion in a written 

opinion. R. 2:11-3(e)(1)(E). 
37 A-4883-18T3

Affirmed in part, reversed and vacated in part, and remanded. We do not 

retain jurisdiction.