The below is a commentary on the recent Maeker v. Ross Decision, and merely reflects my personal opinion regarding the holding of the Appellate Division regarding this case.
For years palimony law in New Jersey allowed for both oral and written agreements. In fact, New Jersey palimony law was largely unchanged from its inception (Kozlowski v. Kozlowski) in 1979.
That changed in 2010 when N.J.S.A. 25:1-5 amended the Statute of Frauds, requiring that palimony agreements be both formalized in writing and made with the “independent advice of counsel for both parties.”
The 2010 amendment was created during a period in time where a greater percentage of individuals were living together in romantic relationships outside the bonds of traditional marriage. Given that few non-lawyer individuals are familiar enough with the palimony law to note the existence of such requirements, I believe the Statute of Frauds Amendment sacrificed the rightful expectations of many individuals at the alter of judicial economy. The point of this blog post, however, is not to address the utility (or lack thereof) of the Statute of Frauds Amendment itself, but rather why I believe the Appellate Court erred in the recent related Decision of Maeker v. Ross. I will first outline the Maeker Decision and recent court decisions, then I will address why I believe Maeker erred when confronting the holding from either a public policy or a legalistic framework. Particularly as I am a young attorney, my ego is not such that I believe my opinion on this matter to be worth more than esteemed appellate judges, but as a family law practitioner I do believe that perhaps a “view from the trenches” and a contrarian view of the law might provide some insight, for whatever that may be worth.
Maeker v. Ross: Overview
Maeker v. Ross (A-3034-11T4) was decided by the Appellate Division on February 4, 2013. Maeker addressed the nebulous issue of whether the Statute of Frauds Amendment should be applied retroactively to palimony agreements. For instance, if an oral palimony promise was made in 2009—-prior to the Amendment—-should a Court bar that promise under N.J.S.A. 25:1-5? Trial courts were split when interpreting this issue.
The Appellate Division itself confronted a variation of this issue in Botis v. Estate of Gary G. Kudrick (et al). (App Div. 2011). At the time Botis was decided, I perhaps naively blogged that momentum existed for the statute of frauds palimony amendment to be applied prospectively. In Botis, the Appellate Court made reference that:
- The language in the Amendment may hint at a prospective legislative intent;
- Prospective applications of laws are generally favored by New Jersey Courts;
- The palimony rights were “well established rights.”
Now, less than a year later, the Appellate Division reverses course in Maeker, by holding that enforceable palimony contracts must be in writing and that the Amendment requirements should generally be applied retroactively. The Court distinguishes Botis, because in Botis, the palimony promisor had passed away and therefore “could not have complied” with the palimony modification even if he desired to do so. It should be noted, however, that he did not name the palimony promisee as a beneficiary in his will, which perhaps did express his ultimate opinion. Conversely, in Maeker there was a written instrument (durable power of attorney) granting certain powers to the promisee. The Court found this written instrument insufficient, presumably because it did not expressly address the issue of palimony.
Thus in Maecker, the Appellate Division imposes a strict retroactive obligation that enforceable palimony agreements must be written.
Why Maecker v. Ross Leads to an Unjust Result (Public Policy Analysis)
When a contract or agreement is validly entered into, a later amendment modifying the requirements of enforceability negatively affects the parties’ freedom to contract—which is the opposite of stated legislative goals. The most fundamental question is this: how can a party be expected to comply with requirements that did not exist at the time of an Agreement?
In Maeker, the parties began a dating relationship in 1998 and soon thereafter commenced living together. According to the Maeker Decision, the facts of the case included the parties residing together until July 1, 2011, the Plaintiff not working outside the home, and the Plaintiff’s contention that: “Throughout the entirety of their relationship, Defendant made repeated promises to take care of [Plaintiff] and promised [her] lifetime support.”
The Maeker Decision holds that Plaintiff’s palimony claim is now invalid because the parties never entered into a formal written Agreement (with advice of independent counsel) regarding palimony.
I contend the Maeker Court places a disproportionate emphasis on the fact the parties had, from the time of the Amendment in 2010 to July 1, 2011, failed to enter into a formal palimony arrangement. Although ‘ignorance of the law is no excuse’, such sentiment ignores the realities of personal relationships. In particular, I agree with the trial court judge reversed in Maecker: , who wrote that: “The cause of action for palimony accrues at the time the agreement is entered…any other interpretation would release a promisor from his or her obligations based upon the timing of when the promisor elected to breach the agreement.”
Here, the parties likely entered into what was, at the time, a valid agreement. For the Court to later overrule that Agreement based upon a subsequently entered law (indeed, one entered more than twenty years after the fact), leads to a result that is less than equitable. Moreover, parties contemplating Palimony Agreements are not sophisticated consumers of legal goods. It is not as though a new regulation affecting major corporations was enacted and said corporations’ team of regulatory attorneys was then charged with enacting such changes. This Amendment effects individuals existing outside the bonds of marriage. They have therefore perhaps intentionally not sought intrusion by the court system (otherwise they would be more likely to marry), but that doesn’t mean they never made promises or obligations to one another. For years, such promises and obligations have been enforceable absent written agreement. Now, the Court is interpreting the Amendment to deny rights that were valid and legally enforceable at the time they were created.
By way of example, what if the Agreement was valid when promised orally but, even though the parties remained ostensibly together following the Amendment, the prospective payor was, by 2011, eying an exit strategy from the relationship (which is potentially the case in Maeker, as the parties split in 2011)? A written Agreement was not required prior to 2010, so the palimony promises were made orally. Is it equitable that the promisor may now use the 2010 Amendment to extinguish his palimony obligation? How many individuals (a disproportionate number of them women), will be negatively affected by the Maeker, decision?
Plain Reading of the Statute (A Legalistic Reading of Maeker)
The Maeker Court relies heavily upon legalistic arguments in denying the Plaintiff’s request for palimony. According to the Maeker Decision, the language of the 2010 Statute of Frauds Amendment is clear and unambiguous with respect to retroactive application of palimony. The Decision references the DiProspero (183 N.J. at 493) holding: “A Court may also consider extrinsic evidence if a ‘plain reading of the statute leads to “an absurd result or if the overall statutory scheme is at odds with the plain language,” but posits that retroactive application of the 2010 Amendment is clear.
The Appellate Court did not find it absurd that a Plaintiff be required to put in writing an Agreement that was perhaps validly entered into decades earlier. The Appellate Court did not find ambiguity in the Amendment, despite referencing such ambiguity in its earlier Botis Decision. In fact, in Dicta of the Botis Decision, the Appellate Court stated that:
The law states that the [2010 Amendment] shall take effective immediately. L. 2009, c. 311, 2. That language provides ‘no clear indication’ as to whether the Legislature intended the amendment to ‘apply to claims that were pending on the date of its enactment.” The legislative history explains that the amendment is ‘intended to overturn recent palimony decisions by New Jersey Courts…that statement is equally unclear as to the date on which the Legislature intended to bar actions based on oral palimony agreements. The only indication of intention with respect to prospective versus retrospective application is the suggestion implicit in the language of the statute amended, which provides no ‘action shall be brought’ and does not purport to address pending actions” (Emphasis Added).
For the Maeker Court to now allege this issue is not ambiguous is inaccurate at best and intellectually disingenuous at worst. The Statute itself does not expressly state whether the Amendment is to be applied prospectively or retroactively, and therefore Legislative intent should not be granted much weight in reaching this determination. Of course, if the legislature wants to further amend the Statute of Frauds and palimony law, then they are not foreclosed from doing so.
Absent such intent, the fundament legal question is this: should an oral agreement validly entered into by two parties later be negated by a failure by the parties to, many years later and following a legal amendment to the law, memorialize that Agreement in writing?
Because a fundamental tenant of our law is that contracts validly entered into should not be overturned, wouldn’t public policy favor a prospective reading of the Amendment—or even that the facts of each case determine the outcome?
Doesn’t any other ruling potentially lead to “an absurd result.”
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