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(NOTE: The status of this decision is Unpublished.)
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5997-09T4
LORIBETH PIERSON,
Plaintiff-Appellant,
v.
THE ESTATE OF CHRISTOPHER DAUL,
Defendant-Respondent.
October 24, 2011
Argued September 28, 2011 - Decided
Before Judges Axelrad and Ostrer.
On appeal from the Superior Court of New Jersey, Chancery Division, Family
Part, Atlantic County, Docket No. FM-01-853-10.
Philip A. Davolos, III, argued the cause for appellant (Chance & McCann, LLC,
attorneys; Mr. Davolos, on the brief).
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a5997-09.opn.html
Michael A. Gill argued the cause for respondent (Goldenberg, Mackler, Sayegh,
Mintz, Pfeffer, Bonchi & Gill, attorneys; Mr. Gill, on the brief).
PER CURIAM
The trial court dismissed plaintiff's complaint, which asserted a claim for palimony, for failure to state
a claim upon which relief could be granted. R. 4:6-2(e). We reverse.
The court relied upon the recent amendment to the Statute of Frauds, L. 2009, c. 311, § 1 (codified
at N.J.S.A. 25:1-5(h)), which requires palimony agreements to be in writing. Effective immediately upon
enactment January 18, 2010, the amended statute provides, in relevant part:
No action shall be brought upon any of the following agreements or
promises, unless the agreement or promise, upon which such action shall be
brought or some memorandum or note thereof, shall be in writing, and signed
by the party to be charged therewith, or by some other person thereunto by him
lawfully authorized:
h. 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. 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.
[Ibid.]
The court determined that the January 18, 2010 enactment applied retroactively to plaintiff's suit,
which was filed January 13, 2010. Plaintiff claimed that in March 2007 Christopher Daul promised to support
her for life. In reliance on that promise, she relocated to New Jersey with Daul, who then died tragically in
July 2008.
In granting the motion to dismiss on May 17, 2010, the court did not have the benefit our decision in
Botis v. Estate of Kudrick, 421 N.J. Super. 107 (App. Div. 2011), where we held the 2010 amendment did
not apply to a palimony suit that was filed and pending before the date of enactment. The statute's
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a5997-09.opn.html
inapplicability to pending suits is apparent from its plain language, which speaks prospectively that "[n]o
action shall be brought" to enforce oral palimony agreements. N.J.S.A. 25:1-5(h) (emphasis added). We
agree with Botis, supra, that the language itself "does not purport to address pending actions." 420 N.J.
Super. at 116. Botis also suggested more broadly that the statute should not apply to cases where the
cause of action arose before the effective date, as compliance with the statute would be impossible if the
promisor had died, or impracticable, if the promisor had already breached. Id. at 118 ("[D]ecedent [the
promisor] was singularly unable to comply with the new requirements.").
As plaintiff here filed her suit before enactment of L. 2009, c. 311, the recent amendment to the
Statute of Frauds does not apply. Accordingly, her complaint should not have been dismissed on procedural
grounds.
Reversed and remanded.
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