Rosemary Connell v. Edward Diehl

In this quintessential palimony action, defendant Edward
Diehl appeals from a December 6, 2005, judgment in favor of
plaintiff Rosemary Connell awarding $107,494.40 in palimony,
$70,000 as a return of an inheritance Connell received in 1997
and gave to Diehl and $15,000 in counsel fees, less a partial
payment of $36,000 from Diehl to Connell after they separated.
Connell cross-appeals from the quantum of the award. We affirm
the judge's conclusion that Connell is entitled to palimony, but
reverse the quantum of the award and remand for reconsideration
of the award by the trial judge.

I.

Connell is currently sixty-one years old and suffers from
Stargardt's disease, a juvenile form of macular degeneration,
which she has had since she was thirteen years old. She is
legally blind, having only peripheral vision. Connell is a high
school graduate and collects Social Security disability
benefits, which began in 1973. When she was in her early
twenties, Connell married Brian Connell and on June 8, 1970, a
son, Brian Connell, Jr., was born. That year Connell and her
husband divorced and she received permanent alimony of $20 every
other week as well as weekly child support.

In 1972 Diehl met Connell through a dating service and they
dated for two and one-half years. In 1974 they began to discuss
cohabitation. Connell's parents did not want her and Diehl to
live together unmarried, so she told Diehl that it would be
humiliating to cohabitate without getting married. Diehl told
Connell, "It isn't necessary to have a piece of paper when two
people want to be together. You can have the same commitment.

Honey, you know me, I would never abandon you. You don't need
anything like that." Connell testified that she thought it
would be okay. Diehl then told Connell that they would tell
everyone that they were married, she would have a ring, nobody
would know they were not married and it was no one's business
anyway. Diehl gave Connell a fourteen-karat gold ring with
three garnets, which was inscribed, "Always." Diehl, Connell
and Brian, Jr., then began living together in an apartment in
Maywood.

Once Connell and Diehl began cohabitating and telling
everyone that they were married, Connell's former husband ceased
making alimony payments. Connell never disputed the termination
of alimony. Diehl introduced Connell to everyone as his wife
and Brian as his son. Connell began to use Diehl's last name,
which at that time was Pojedneck. When Diehl changed his last
name, Connell began using "Mrs. Diehl." Connell's parents were
the only people, except for medical providers, who came to know
that the two were not legally married. Connell's cousin,
Marilyn Pieretti, even sent Connell and Diehl a 25th wedding
anniversary card addressed to "Mr. and Mrs. Diehl."

After they began to live together, Diehl started investing
in residential real estate. Over the years Diehl acquired a
number of apartment buildings, which by the time of this action
contained a total of twenty-six units. Diehl's tenants all paid
their rent in cash with the lowest rent being $473 and the
highest being $800 per month. Diehl deposited this rental
income into the joint checking account with Connell to pay their
bills. Connell learned Spanish to help communicate with current
and prospective tenants. She screened prospective tenants
calling about vacant units and generally maintained Diehl's
business calendar. Connell answered late-night calls from
tenants, cleaned apartments after they were vacated and waited
in empty apartments for handymen and utility workers to arrive.
Diehl told Connell that the residential real estate investments
were for their future retirement.

In the early 1980s Diehl purchased a stuffed-potato
concession stand in East Brunswick. Connell also worked at the
stand, helping where she could by scrubbing potatoes, cleaning
the steam table, taking out the garbage and cleaning the soda
machine. Thus, Connell assisted Diehl in all of his business
ventures.

Connell used the child support payments she received and
her Social Security disability benefits to purchase food for the
family. When the Social Security Administration discontinued
issuing checks, Connell opened a bank account for direct deposit
of her disability benefits. Connell and Diehl also maintained
joint banking accounts at PNC Bank. During the entire time they
lived together, Diehl was the primary financial support for
Connell and Brian. Connell did not work outside the home but
contributed to the family by working in Diehl's business
endeavors and performing household duties, such as cleaning,
cooking and laundry. During their thirty-year relationship,
Diehl provided for Connell in his estate plans. Ultimately, he
executed a last will and testament in 1990 that made her the
sole beneficiary of his estate.

In 1978 Connell and Diehl began searching for a singlefamily
home. They looked at potential homes together. While
Connell liked all the homes that they saw, Diehl ultimately
choose the home that he liked best, which was located in Lincoln
Park. Diehl referred to the home as "our home," but title was
in his name alone. Connell never thought about the fact that
her name was not on the title of their Lincoln Park home
because, "I didn't have any insecurity at all being with
[Diehl]. I just – I just totally believed that he was taking
care of me and always would."

After moving into the Lincoln Park home, Diehl continued to
fully support the family. Connell continued to use child
support and Social Security disability benefits for the family's
food. Connell continued to contribute by performing household
chores such as cooking, cleaning and laundry. Connell also
decorated the family's home. Although they made joint decisions
on carpeting and furniture choices, Connell picked out curtains,
pictures, mirrors, plants and other decorations by herself.
At some point Diehl made an arrangement with Connell's
former husband that permitted Diehl to claim Brian as a
dependent on Diehl's income tax returns every other year. In
1987 after Connell's former husband died and the child support
money ceased, Diehl claimed Brian on his tax returns annually
until Brian was eighteen. Connell was never required to file
income tax returns due to her low level of income. Because of
her limited eyesight, she has never had a driver's license.
Therefore, Diehl was her primary source of transportation.
Diehl and Brian had a very good relationship. Brian
admired Diehl and considered him to be his father. Brian never
showed Diehl any lack of respect and there was never any
fighting or arguing between them. Diehl attended Brian's school
events and drove him to places he needed to go. Diehl also
attended Brian's high school graduation. Connell, Diehl and

Brian ate their dinner meals together every night. Over the
years, Connell, Diehl and Brian took family vacations together,
and Connell and Diehl would also take vacations with each other,
some outside the United States. Diehl paid for all of the
vacations. They spent holidays together, and were always
together for other family events such as weddings, christenings,
birthday parties, anniversary parties and other family parties.
Connell and Diehl gave joint gifts, signing the cards, "Mr. and
Mrs. Pojedneck" or "Mr. and Mrs. Diehl," just as the invitations
had been addressed.

When Connell's mother died in 1997, her father having died
years earlier, Connell received an inheritance of $70,000, which
she gave to Diehl to pay for various household items and some
major home remodeling. Diehl placed the money in a joint
Scudder account, but then moved it to an account in his name
only. Diehl used the money for office equipment consisting of a
computer, scanner, printer, desk and chair; a complete
remodeling of the kitchen including all new appliances; new
landscaping; and new household furniture for the living room,
dining room and breakfast nook. The remainder of the
inheritance money went into an investment account in Diehl's
name alone.

Connell and Diehl frequently discussed their future and
potential locations for their retirement, such as South America.
Connell completely trusted that her relationship with Diehl was
permanent. Diehl had promised to take care of Connell for her
entire life, as he would a wife. Diehl told Connell that he
loved her, that they would remain together as they got older and
that she knew what kind of a man he was. Connell was very happy
with Diehl and felt very fortunate to have him, because he
provided for her and took care of her and her son. Connell
always believed that the relationship was permanent and that
Diehl would always take care of her no matter what. Connell
testified, "It never occurred to me that we ever could break up.
I knew I certainly would never leave him. It never occurred to
me."

In 2002, Diehl started a new business, The Big Finger, a
novelty-item business, which Diehl thought he could market on
the internet through sources such as eBay. Diehl used Connell's
credit to finance this business venture, borrowing $30,000 in
Connell's name. This would ultimately lead Connell to
bankruptcy.

Beginning in 2002 Connell and Diehl's relationship began to
deteriorate. Prior to that time Diehl was generally satisfied
with Connell's homemaking abilities. However, Diehl began
accusing her of losing papers and magazines when she would tidy
up the home. Connell testified that Diehl left things all over
the home and she would keep things tidy in little piles for him.
However, Diehl would wake her up at 3:00 or 4:00 in the morning,
accusing her of losing things and making her search for them,
sometimes even through their garbage cans outside. Diehl began
to ignore Connell and, when he did speak to her, he would have
outbursts where he cursed at her and was verbally abusive. He
had never done this before.

In the Spring of 2002 Connell and Diehl started eating
dinners at various local restaurants on Sunday afternoons for a
few months, because she believed it was the only way for the two
of them to spend time together. Diehl had begun to avoid her
and not spend much time with her. Connell used the joint
checking account to pay for the dinners by writing checks
payable to herself and cashing them. However, Connell hid these
expenses by writing in the check register that the check was for
a Sears Roebuck or Macy's bill. They spent approximately $200
per month on restaurant dinners. Diehl was extremely angry when
he learned that Connell was using the joint checking account for
their dinners and stated that, if he had known about the source
of the money, he would not have agreed to go out to eat with
her. As a result of the incorrect entries, Diehl did not
deposit enough money into the joint checking account to cover
the amount of checks and the overdraft line of credit linked to
the account was used to cover the overdrawn amounts.
Just before Connell's fifty-ninth birthday during the
Winter of 2002, Diehl told her that he no longer wanted her to
live with him and suggested that he take her to Florida to live
because the cost of living there was lower than in New Jersey.
Connell refused because she did not know anyone in Florida.
Sometime later Diehl brought Connell to the PNC bank where they
had a joint bank account to have Connell sign a form removing
herself from their joint account. The bank employee instructed
Connell where to sign and asked her if she knew that she was
removing herself from the account and giving up her right to the
balance in it. Connell admitted that she knew what she was
doing but assumed that there would be a new joint account.
Diehl did not create such an account.

When the novelty items sold by The Big Finger were not
enough to pay back the loans, Diehl told Connell at the end of
2002 to file for bankruptcy rather than use his own money to pay
back the loans taken in her name. He found a bankruptcy
attorney for her, took her to the attorney's office and told her
how to answer the questions for the bankruptcy paperwork.

Connell did not indicate that she had any claim against Diehl in
the bankruptcy petition. She filed the petition in 2003 and was
discharged in bankruptcy on December 26, 2003.
In January 2004 Diehl told Connell that she had to move out
of their home. Connell begged Diehl to change his mind but he
would not do so. On March 4, 2004, Connell secured counsel and
paid a $5000 retainer. Connell had difficulty finding an
apartment due to her inadequate monthly income and her recent
bankruptcy. Although Diehl suggested she get Section Eight
housing and other governmental services, she instead found a
trailer in Tom's River where her uncle lived. Diehl secured the
trailer for her with a $26,000 down payment. Connell wanted to
purchase the trailer solely in her name but was unable to do so
due to her poor credit rating and low income. Therefore, Nick
and Pat Hervonovich, friends or relatives of Connell, co-signed
for the trailer. On May 25, 2004, Connell filed a complaint for
palimony, distribution of assets, partition of the family home
and other equitable relief.

In May 2004 Connell and Brian moved out of their family
home, which by that time had no mortgage, and Brian began living
with his fiancé. Connell and Diehl did not divide their
household possessions. Connell testified that Diehl would not
allow her take the furniture or appliances bought with her
inheritance and that Diehl expected to keep everything. Connell
was afraid of confrontation and knew that it would be
unsuccessful, so she did not pursue the issue of dividing their
possessions. Diehl took Connell to Home Depot, purchased some
supplies for her and installed some light fixtures in the mobile
home. Connell lived on her $762 monthly social security checks
and food stamps, which did not cover her monthly expenses.
Connell has no driver's license and must rely on public
transportation and taxi cabs.

II.

After a three-day bench trial in August 2005, the Family
Part judge made findings of fact and drew conclusions of law in
a written opinion. The judge credited the testimony of Connell
and her five witnesses, who have known the couple for the
duration of their relationship. Each confirmed Connell's
testimony that she and Diehl held themselves out as a married
couple. Conversely, the judge found that Diehl's witnesses
offered little information. The judge observed that Diehl's
witnesses were either current or former tenants in Diehl's
buildings or were paid by Diehl for various services. The judge
also found that Diehl himself offered "little relevant or
credible testimony . . . relating to the issues before this
Court," although Diehl did refer to Brian as "our son" during
his testimony, corroborating the existence of their family unit.

The judge concluded that Connell had adequately established
the elements required in a palimony action. He found that
Connell and Diehl cohabitated for thirty years, holding
themselves out as husband and wife. Hence, a quasi-contract
existed between the parties.

The Family Part judge found that Connell had not worked
outside the home since 1974. He concluded
that other than Social Security and food
stamps, [Diehl] was the sole support of
[Connell] for thirty years and that they
lived together in a relationship tantamount
to marriage. [Connell] had a substantial
basis to conclude that [Diehl] would take
care of her for the rest of her life. The
Court does conclude that there was no
written or express contract, but the
unequivocal conduct of the parties can
require no other conclusion. There was a
quasi-contract between the parties that
[Diehl] would always take care of [Connell].

After finding that Connell had established the requisite
elements to support an award of palimony, the Court calculated
the amount thereof. The judge stated that, if there had been a
legal marriage, Connell would be entitled to permanent alimony
of $170 weekly in order to enable her to enjoy her former
lifestyle with Diehl. Because Diehl's income was derived
exclusively from investments, the judge concluded that Diehl
would never "retire." The judge determined that Diehl's life
expectancy at the time of trial was almost eighteen years.

Because Diehl had not provided a Case Information Statement
(CIS) at trial, the judge concluded that Diehl had not
established that he could not afford $170 in weekly palimony.
The judge also determined that Diehl had adequate assets to
satisfy a palimony award. Based on defendant's life expectancy,
the trial judge, using a 4.5% interest rate to determine a
present-value lump-sum award, calculated a lump-sum palimony
award of $107,494.40. The judge rejected Diehl's defenses that
Connell had unclean hands in that she accepted food stamps while
they lived together and that she was judicially estopped from
claiming palimony because she did not disclose that claim on her
bankruptcy petition.

Further, the judge found that Connell was entitled to a
return of her $70,000 inheritance because after she gave that
money to Diehl, "those funds were used solely by [Diehl] who
alone has obtained the benefit of same." With respect to
partition of their family home, the judge concluded:

In this case, the parties purchased the home
together, although placing it, at [Diehl's]
insistence, in his name alone. There was no
real testimony as to the basis of the
deposit. The Court does, however, conclude
that this was the marital home and was
selected by [Connell] and [Diehl] to be
their home. [Connell] is entitled to get
her $70,000 back. These funds clearly were
hers and were provided to [Diehl] and
invested in the family home in reliance upon
the continuing relationship of the parties.
(Emphasis added.)

Because the $70,000 portion of the judgment was a claim against
the Lincoln Park home, the judge permitted Connell to file a lis
pendens. Finally, the judge awarded counsel fees to Connell in
the amount of $15,000 after reviewing the factors set forth in
R. 5:3-5(c).

III.

In his brief on appeal, Diehl contends that the trial judge
erred: (1) in ordering palimony because there was insufficient
credible evidence to support such relief, (2) in ordering
palimony because not all of the prima facie elements of a
palimony action were established, (3) in permitting Connell to
assert her Fifth Amendment privilege against self-incrimination
and (4) in failing to bar Connell's palimony claim under the
doctrine of judicial estoppel. In his supplemental brief on
appeal, Diehl also asserts that the judge erred: (5) in
assuming jurisdiction over Connell's claims because they were
subject to the exclusive jurisdiction of the federal bankruptcy
court, (6) in finding an implied contract between the parties,
(7) in failing to enforce the settlement reached by the parties
and (8) in failing to credit Diehl with $126,880.31 paid to
Connell prior to trial.

In support of her cross-appeal, Connell asserts that the
judge erred: (1) in calculating palimony based on Diehl's life
expectancy rather than hers, (2) in failing to include all the
usual expenditures in his calculations, (3) in failing to order
a partition of the family home and (4) in failing to divide the
personal property.

IV.

The scope of our appellate review of a Family-Part judgment
following a bench trial is limited. Generally, we are required
to disregard any error or omission "unless it is of such a
nature as to have been clearly capable of producing an unjust
result." R. 2:10-2. Findings of fact by the trial court are
generally binding on appeal if they are supported by adequate,
substantial and credible evidence. Rova Farms Resort Inc. v.
Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974). "[W]hen the
evidence is largely testimonial and involves questions of
credibility," deference is particularly appropriate. In re
Return of Weapons to J.W.D., 149 N.J. 108, 117 (1997). A trial
judge "has a better perspective than a reviewing court in
evaluating the veracity of witnesses" because that judge
observes the witnesses and hears them testify. Pascale v.
Pascale, 113 N.J. 20, 33 (1988).

We may not disturb the "factual findings and legal
conclusions of the trial judge unless [we are] convinced that
they are so manifestly unsupported by or inconsistent with the
competent, relevant and reasonably credible evidence as to
offend the interests of justice." Rova Farms, supra, 65 N.J. at
484. We may only "exercise [our] original fact finding
jurisdiction sparingly and in none but a clear case where there
is no doubt about the matter." Ibid.

"Furthermore, matrimonial courts possess special expertise
in the field of domestic relations." Cesare v. Cesare, 154 N.J.
394, 412 (1998) (citation omitted). Rule 5:1-2 provides that
the jurisdiction of the Family Part extends to "[a]ll civil
actions in which the principal claim is unique to and arises out
of a family or family-type relationship." The Cesare Court
instructed that "[b]ecause of the family courts' special
jurisdiction and expertise in family matters, appellate courts
should accord deference to family court factfinding." Cesare,
supra, 154 N.J. at 413. However, no special deference is
accorded a trial judge's interpretation of the law. Manalapan
Realty v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995) ("A
trial court's interpretation of the law and the legal
consequences that flow from established facts are not entitled
to any special deference.").

V.

With respect to the trial judge's fact-findings, Diehl
contends that the judge ignored evidence establishing that the
parties functioned as "separate economic entities" despite
living together. Furthermore, Diehl asserts that the conclusion
that he agreed to support Connell for the rest of her life was
belied by the child support Connell received for Brian from his
father and Diehl's sole ownership of his rental properties.
Although Connell and Diehl did have separate accounts,
Connell was clearly not independent of Diehl. Rather, she
depended on him almost entirely and devoted the small sums she
received from Social Security to purchasing food for the family.
They were hardly "separate economic entities." The fact that
Connell received child support for Brian does not militate
against a palimony action, nor does Diehl's sole ownership of
the rental properties that he promised would provide for their
joint retirement. Having reviewed the record in detail, we are
more than satisfied that the judge's fact-findings were
supported by "competent, relevant and reasonably credible
evidence," giving due regard to his determinations of
credibility. Rova Farms, supra, 65 N.J. at 484. As a result,
we "accord deference to family court factfinding[s]," Cesare,
supra, 154 N.J. at 413, and will not disturb them on appeal.

VI.

Next, Connell contends that his "act in buying properties
and keeping them in his own name contradicts the idea that he
intended to provide future support for [Connell]." He urges
that the facts were akin to a joint venture rather than the type
of relationship recognized in the leading palimony cases. Diehl
argues that Connell did not prove that she had any expectation
of remuneration for the services she performed and, as such,
quasi-contractual liability should not have been found. He
contends that the evidence merely "show[s] two individuals with
separate economic interests who just happened to live together."
These arguments are inconsistent with the facts of this case and
the law of palimony in New Jersey.

An unmarried person has a well settled right to enforce her
cohabitant's promise to support her for life. This right was
initially established in Kozlowski v. Kozlowski, 80 N.J. 378
(1979). Plaintiff, whose name was Irma Kozlowski by virtue of
her first marriage, began living with defendant Thaddeus
Kozlowski in 1962 when she was forty-eight years old. Id. at
381, 383. She was still married to her first husband and was
the mother of two children. Id. at 381. Defendant, who also
had two children, was six years her junior. Ibid. They began
living together about four months after they first met and
cohabited with three of their four children in a marital-type
relationship, which lasted for fifteen years. Ibid. Early
during this relationship plaintiff divorced her husband. Id. at
383. Over time defendant became increasingly wealthy, although
he kept his business affairs to himself. Id. at 381. Plaintiff
depended on defendant for all of her needs, maintenance and
support. Ibid. She took care of their house, acted as a mother
to their children, and acted as a hostess for defendant's
business associates and customers, who took her to be his wife.
Id. at 382.

In 1968 they separated, apparently as a result of
defendant's failure to get a divorce. Id. at 382, 384. Within
a week defendant begged plaintiff to return and promised to take
care of her and provide for her. Id. at 382. She asked if he
would divorce and he said no. Ibid. He declared "that a
marriage license is only a piece of paper and that 'it's what is
in the heart that really counts.'" Ibid. Plaintiff returned
and lived with defendant until July 1977 when it became obvious
that defendant had another romantic relationship with a person
thirty years junior to him, whom he married after separating
from plaintiff and divorcing his wife. Ibid.

The trial judge rejected defendant's testimony based on his
demeanor on the witness stand, rejected his counsel's
characterization of defendant as a sensitive man and found that
his testimony was not believable. Id. at 384. He concluded,
I'm perfectly satisfied that he did promise
to take care of her the rest of her life as
she testified. I find also that when she
indicated concern about what would happen to
her if he died first, he reassured her by
telling her he would see that she was taken
care of, and again I find that as a fact.
[Id. at 384-85.]

The Supreme Court held that "[s]uch agreements by adult
nonmarital partners which are not explicitly and inseparably
founded on sexual services are enforceable." Id. at 385
(citations omitted). Finding that "there was no legal
impediment to the parties cohabiting in 1968," the Court
concluded that "any lawful agreement made by them is
enforceable." Id. at 387.

Three years later, in Crowe v. De Gioia, 90 N.J. 126, 129
(1982) (Crowe I), the Supreme Court determined that temporary
relief pending the outcome of the trial was available in a
palimony action. And Crowe v. De Gioia, 203 N.J. Super. 22, 31
(App. Div. 1985), aff'd o.b., 102 N.J. 50 (1986) (Crowe II),
held that "the amount and sufficiency of consideration is not
significant, so long as it is the bargained for detriment
actually intended as such between the parties." Ibid. We
concluded that the detriment was not required to be equal to the
benefit. Ibid.

More recently, we concluded that there was no requirement
that a palimony claimant show "'almost complete dependency'" on
the cohabitant or prove that the cohabitant had "'tossed aside'
the other unfairly." In re Estate of Roccamonte, 346 N.J.
Super. 107, 119-20 (App. Div. 2001) (concluding that a palimony
claim for damages survives the death of the promissor), aff'd,
174 N.J. 381 (2002). In affirming our judgment, the Supreme
Court defined a marital-type relationship as "the undertaking of
a way of life in which two people commit to each other,
foregoing other liaisons and opportunities, doing for each other
whatever each is capable of doing, providing companionship, and
fulfilling each other's needs, financial, emotional, physical,
and social, as best as they are able." In re Estate of
Roccomonte, 174 N.J. 381, 392 (2002). The Court also rejected
the notion that complete dependence must be shown before relief
may be granted. Id. at 393. Rather, the Court held that "[t]he
issue is . . . one of economic inequality, and the relevant
question is whether the promisee is self-sufficient enough to
provide for herself with a reasonable degree of economic comfort
appropriate in the circumstances." Ibid.

We again addressed the elements of a palimony claim in
Levine v. Konvitz, 383 N.J. Super. 1, 3 (App. Div. 2006),
certif. denied, 186 N.J. 607 (2006). We noted:
In order to establish a prima facie case for
palimony, a plaintiff must present competent
evidence showing: (1) that the parties
cohabitated; (2) in a marriage-type
relationship; (3) that, during this period
of cohabitation, defendant promised
plaintiff that he/she would support him/her
for life; and (4) that this promise was made
in exchange for valid consideration.
[Ibid.]

Of course, a critical element of a palimony claim is
cohabitation for a significant period of time and a failure to
prove a significant cohabitation in a marital-type relationship
is fatal. McDonald v. Estate of Mavety, 383 N.J. Super. 347,
360-61 (App. Div.), certif. denied, 187 N.J. 79 (2006); Levine,
supra, 383 N.J. Super. at 2.

In this case, it is undisputed that Connell and Diehl
cohabitated for thirty years, a significant period of time,
without separation in a marital-type relationship. Diehl told
Connell that they would tell everyone that they were married,
that they would always be together, that the relationship would
be just like marriage and that therefore legal marriage was not
necessary. Diehl clearly induced her to cohabitate with him,
promising that it would be just like marriage. In fact, Diehl
always presented the parties as a married couple, and Connell
always referred to herself as Mrs. Pojedneck and then Mrs.
Diehl. Diehl even referred to Brian during his testimony as his
own son. Connell presented numerous witnesses who testified
that they were always under the impression that the two were
married. Diehl and Connell attended all types of family
functions and the invitations were always addressed to Mr. and
Mrs. Diehl. Thus, the first two prongs of a palimony cause of
action have been established beyond peradventure.

As to the third prong, the judge found that an implied
contract existed. This conclusion is clearly supported by the
record. Diehl knew that Connell was totally disabled due to her
functional blindness. He promised he would never abandon her
and he provided for all her financial needs for thirty years.
He referred to the home he purchased as "our house," and left
her seventy-five percent of his real and personal property in
one of his wills. He later made further provision for Connell
for the balance of her life by leaving his entire estate to her,
including all the rental properties that he said would provide
for their retirement. The fact that he took legal title to
those properties in his name alone is not determinative because
in equitable suits such as this the court must evaluate the
parties' conduct in light of all the surrounding circumstances
and not on one fact alone. Crowe II, supra, 203 N.J. Super. at
34.

As to the fourth prong, Connell provided ample
consideration through her services as a housewife, cooking,
cleaning, doing laundry and otherwise providing for Diehl's
needs. Additionally, she worked in Diehl's various business
endeavors without any wages for her efforts and this, too, was
consideration for Diehl's promise to provide for her for her
life. Connell was not required to prove that she expected any
remuneration for the tasks she performed.

VII.

After carefully reviewing the record in the light of the
written arguments advanced by the parties, we conclude that the
issues presented by Diehl relating to Connell's invocation of
her fifth amendment privilege on cross-examination respecting
her receipt of food stamps and the effect of Connell's
bankruptcy are without sufficient merit to warrant extensive
discussion in this opinion, R. 2:11-3(e)(1)(E). We note only
that the parties continued to cohabit throughout the pendency of
the bankruptcy proceedings and no claim for palimony accrued
until Diehl breached his implied promise of lifetime support.
Reid v. Reid, 310 N.J. Super. 12 (App. Div.), certif. denied,
154 N.J. 608 (1998), does not require a different result because
there a divorce proceeding was pending at the time of the
bankruptcy.

VIII.

A dependent person is entitled to an award of damages for
breach of an agreement to provide lifetime support. The
Kozlowski Court addressed the issue of damages, first noting
that "[p]laintiff is not entitled to alimony or equitable
distribution [because a]limony may be awarded only in actions
for divorce or nullity, and equitable distribution is awarded
only in actions for divorce." Kozlowski, supra, 80 N.J. at 383
(citing N.J.S.A. 2A:34-23, et seq.) The Court then held:

While the damages flowing from
defendant's breach of contract are not
ascertainable with exactitude, such is not a
bar to relief. Where a wrong has been
committed, and it is certain that damages
have resulted, mere uncertainty as to the
amount will not preclude recovery -- courts
will fashion a remedy even though the proof
on damages is inexact. Accordingly,
plaintiff is entitled to a one-time lump sum
judgment in an amount predicated upon the
present value of the reasonable future
support defendant promised to provide, to be
computed by reference to her life expectancy
as shown by the tables referred to in R.
1:13-5.

[Id. at 388 (citations omitted) (emphasis
added).]

Accord Roccamonte, supra, 174 N.J. at 397 ("[I]t is the
promisee's life that is, in effect, the measuring life."); Crowe
I, supra, 90 N.J. at 129.

The determination of a lump-sum palimony award required the
trial judge to perform three calculations. First, the judge was
required to determine the reasonable future support Diehl
promised to provide. Koslowski, supra, 80 N.J. at 388. That
amount is to be calculated on a weekly or monthly basis.
Second, the judge was required to determine the duration of
future support. Third, the judge was required to reduce that
period of annual future support to a present value lump sum. We
have consistently applied the Kozlowski formula. See McDonald,
supra, 383 N.J. Super. at 347 (awarding a one-time lump sum
calculated on the basis of the promisee's lifetime); In re
Estate of Sasson, 387 N.J. Super. 459, 467 (App. Div.), certif.
denied, 189 N.J. 103 (2006) (finding that the appropriate
palimony award is a one-time lump sum calculated on the basis of
the promisee's lifetime); Maksuto v. Hyson, 242 N.J. Super. 452
(App. Div. 1990) (following the Kozlowski formula in the
determination of palimony).

Connell contends that the judge erred in two respects.
First, Connell asserts that the judge erred in determining
reasonable future support because he did not consider all of the
requisite elements of future support. Second, she asserts that
he erred in using Diehl's life expectancy of 17.88 years as the
duration of future support. Beginning with the second point,
Connell correctly asserts that the trial judge erred when he
used Diehl's life expectancy as a measure of a lump-sum palimony
award. It is abundantly clear from Supreme Court decisions that
the judge was required to use Connell's life expectancy of 22.52
years in determining the duration of support. Roccamonte,
supra, 174 N.J. at 397; Crowe I, supra, 90 N.J. at 129;
Kozlowski, supra, 80 N.J. at 388. As a consequence, the lumpsum
award must be recalculated.

With respect to the first alleged error, in our review of
palimony awards the determination of the promisee's needs in
order to maintain her lifestyle is within the sound discretion
of the trial judge and should only be reversed if it constitutes
an abuse of discretion. Crowe, supra, 203 N.J. Super. at 35-36;
see, e.g., Martindell v. Martindell, 21 N.J. 341 (1956). The
Court stated that the award of weekly support "should provide
her with her minimal needs and prevent the necessity of her
seeking public welfare." Crowe I, supra, 90 N.J. at 136; see
also Roccamonte, supra, 174 N.J. at 395 (finding that while the
couple lived lavishly during their cohabitation, it is highly
unlikely that the intent was for the promisee to become
impoverished; therefore, a palimony award for adequate support
is reasonable).

The judge determined that a budget of $1812 contained in
Connell's CIS marked P-1 in evidence was generally consistent
with the lifestyle of the marriage. He deducted the $100 for
vacations on the CIS and also deducted $100 for savings because
those sums "were not part of the lifestyle to any degree." He
then deducted Connell's Social Security benefits of $702 and her
food stamps of $128 to arrive at a monthly shortfall of $722.
Connell's CIS in the appendix prepared by Diehl is dated
October 6, 2004, and it reflects a monthly budget of $2691, not
$1812, and does not contain any sums for vacations or savings.
It may be that Diehl included the wrong CIS in his appendix, but
we cannot resolve the discrepancy between Connell's October 6,
2004, CIS and the judge's findings. We also note that Connell
testified to various expenses which are not reflected in her
October 6, 2004, CIS, such as ground rent for the trailer park
and sewer charges, and we do not know if they were set forth in
P-1. Furthermore, Connell's testimony as to other expenses
differed from the amounts on the October 6, 2004, CIS.

We find no error in the exercise of the judge's discretion
in using Connell's post-separation lifestyle as the basis for a
palimony award, so long as the quantum of support was reasonably
adequate and did not leave Connell reliant on public assistance,
such as food stamps. The case law does not require that Connell
be able to live just as before. Rather, the award need only
provide reasonable support sufficient to meet "her minimal needs
and prevent the necessity of her seeking public welfare." Crowe
I, supra, 90 N.J. at 135 (emphasis added).1 It is not clear that
$170 per week accomplishes that goal.

Furthermore, the judge made no findings with respect to the
effect of potential liability for payment of state and federal
income taxes, nor has the matter been adequately briefed on
appeal. It is not clear whether a lump-sum palimony award such
as in this case is subject to taxation. See, e.g., United
States v. Harris, 942 F.2d 1125, 1134 (7th Cir. 1991) ("It is
also worth noting that [the concurring judge's] argument has no
application to the case of Green v. Commissioner, T.C. Memo
1987-503, which . . . suggests that Marvin-type palimony
payments are not taxable income as a matter of law.")
Furthermore, the judge did not consider the effect of inflation
in calculating the present value of future support. See, e.g.,
Model Jury Charge (Civil), § 8.11(c).

We are thus constrained to remand the issue of reasonable
support to the trial judge for recalculation in accordance with
this opinion in light of the applicable case law. Because Diehl
promised that the rental properties were going to provide for
their retirement, the judge must consider them as a source for
support. He must determine Connell's need for reasonable
support and explain how he arrives at an amount. On remand the
judge must make specific fact findings with respect to each
expense and determine a reasonable amount of support. He must
employ Connell's life expectancy in calculating a lump sum and
must consider the potential effects of interest, inflation and
taxes in his award.

IX.

Connell asserts that the trial judge erred when he did not
order a partition of the family home and a division of the
personal property in that home. Specifically she argues that
the home was a joint venture, as they referred to the family
home as "our home;" that Diehl left the home to Connell in his
will; and that Connell invested her $70,000 inheritance in the
home.

Generally, a mere promise to provide lifetime support does
not extend to a claim against assets owned solely by the
promissor. Crowe II, supra, 203 N.J. Super. at 37; accord Olson
v. Stevens, 322 N.J. Super. 119, 123 (App. Div. 1999). However,
unmarried cohabitating persons "who have engaged in a joint
venture to purchase property in which they reside, are entitled
to seek a partition." Mitchell v. Oksienik, 380 N.J. Super.
119, 127 (App. Div. 2005); see also Olson, supra, 322 N.J.
Super. at 123. Joint venturers are entitled to seek a partition
of their property when their joint enterprise comes to an end.
Mitchell, supra, 380 N.J. Super. at 127; see Swartz v. Becker,
246 N.J. Super. 406, 410-11 (App. Div. 1991).

Further, we have stated that the fact that the purchase of
property under one unmarried cohabitant's name "is essentially
irrelevant to an equitable action." Crowe, supra, 203 N.J.
Super. at 34. In Mitchell we rejected a promissor's argument
that taking title to real property in his name only showed that
he had no intention of conveying such property to his former
cohabitant because the record was full of evidence suggesting
the promisor considered the home to be the couple's home.
Mitchell, supra, 380 N.J. Super. at 130.

In this case, the trial court found that:

[T]he parties purchased the home together,
although placing it at [Diehl's] insistence,
in his name alone. There was no real
testimony as to the basis of the deposit.
The Court does, however, conclude that this
was the marital home and was selected by
plaintiff and defendant to be their home.
The court also considered Diehl's former will, which made
Connell his sole inheritor, which would of necessity have
included the family home. Additionally, we note that Connell
invested a significant sum, her entire inheritance from her
mother, into remodeling and furnishing the home as well as
decorating it. These facts were certainly relevant to the issue
of a joint venture, but the judge did not explain why he was not
persuaded that one existed. He must address this issue on
remand and its impact on the other economic issues to be
addressed.

If the judge finds that a joint venture existed, he must
partition the home. If he concludes otherwise, a mere return of
Connell's investment is not equitable. The judge must determine
the present value of $70,000 as though it had been invested in
some reasonable manner, such as certificates of deposit.
Alternatively, he may determine its present value based on the
appreciation in the value of the family home since it was
remodeled. Otherwise, Diehl will have enjoyed the use of
Connell's money without recompense. This rationale applies
equally to division of the personal property in the family home.
At the very least, Connell is entitled to the return of personal
property she purchased with her inheritance. This issue must be
considered on remand.

X.

Finally, Diehl asserts that the trial judge erred when he
refused to enforce an alleged settlement agreement that he
contends the parties made. Diehl also urges that the judge
failed to credit him with monies that he provided to Connell
before trial. The settlement agreement was a disputed issue of
fact; Connell testified that no settlement had been reached. We
defer to the Family Part judge's rejection of Diehl's testimony
regarding the alleged settlement. Cesare, supra, 154 N.J. at
413. However, as to the monies given by Diehl to Connell in
2004 as a down payment on a trailer and any monies voluntarily
provided to her thereafter, the judge is to determine whether
Diehl is entitled to a credit against either palimony or a
distribution of assets.

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http://www.judiciary.state.nj.us/opinions/a2331-05.pdf