Table of Contents
Cover Page.................................................................. i
Table of Contents.......................................................... ii
Table of Authorities...................................................... iii
Index to Transcripts...................................................... vii
Table of Contents to Appendix............................................. vii
Procedural History.......................................................... 1
Statement of Facts.......................................................... 6
Summary of Argument........................................................ 20
Legal Argument
I. THE TRIAL COURT ERRED IN RULING THAT THE
DEFENDANT-COUNTERCLAIMANT'S INABILITY TO ATTEND THE DECEMBER 21, 1993 HEARING
DID NOT CONSTITUTE EXCUSABLE NEGLECT......... 23
II.
THE TRIAL COURT ERRED IN HOLDING THAT MS. M WOULD NOT SUCCEED ON THE
MERITS OF HER CLAIM; THE UNCONTROVERTED FACTS OF THE CASE DEMONSTRATE THAT SHE
WILL SUCCEED ON THE MERITS ............................................................................ 29
A. The purchase of the co-habitants’ home as
joint tenants with
rights of survivorship
clearly indicates an intent on the part of the plaintiff to provide for the
defendant-counterclaimant beyond the end of their relationship..................................................................... 29
B. The trial court erred in
failing to consider the palimony factors announced
in Kozlowski v. Kozlowski,
and instead focusing on the legal irrelevancy of the nonexistence of a writing............................................ 32
III.
THE LOWER COURT'S
RULING SHOULD BE REVERSED BECAUSE ENFORCEMENT OF THE ORDER WOULD BE UNJUST,
OPPRESSIVE AND INEQUITABLE......................................... 37
IV.
THE APPELLATE DIVISION SHOULD EXERCISE ORIGINAL JURISDICTION TO REDRESS
THE FINANCIAL INJUSTICE CAUSED BY THE LOWER
COURT'S ERRONEOUS RULING..................... 43
A. The court should revive pendente lite
support pending the resolution of the defendant-counterclaimant's claims at the
trial level 47
B. As the underlying Order improperly deprived
the defendant-counterclaimant of her property, she must be considered ousted
and is therefore entitled to half the fair rental value of the residence since
her removal................. 52
Conclusion................................................................. 54
Table of Authorities
Federal Statutes
42 U.S. Code § 12114; 28 C.F.R. §
35.131(a)(2) (1993) (Americans with Disabilities Act)
................................................................... 24,
25, 27
New Jersey Constitution
Article
IV, section V, paragraph 3........................................ 43
New Jersey Statutes
N.J.
Stat. Ann. 3B:1-2 (West 1994)....................................... 24
N.J.
Stat. Ann. 30:1-12 (West 1994)...................................... 25
N.J.
Stat. Ann. 3B:12-28 (West 1994)..................................... 24
N.J.
Stat. Ann. 10:5‑4.1 (West 1992) (New Jersey Law Against Discrimination) 24, 25
N.J.
Stat. Ann. 17:48-6a (West 1994)..................................... 25
New Jersey Court Rules
Rule
4:50-1.......................................................... passim
Federal Case Law
Reitmeier
v. Kalinski, 631 F.Supp. 565 (D.N.J. 1986)............. 38,
39, 40
New Jersey Case Law
Anastasia v. Planning Board of West Orange Township, 209 N.J. Super. 499
(App. Div. 1986)........................................................... 43
Arrow
Mfg. Co. v. Levinson, 231 N.J.Super. 527 (App.Div.1989)........ 27, 36
Baird
v. Moore, 50 N.J. Super. 156
(App.Div. 1958).................. 52,
53
Baker
v. Drabik, 224 N.J. super. 603 (App.Div.1988)...................... 53
Bauer
v. Migliaccio, 235 N.J. Super. 127 (App.Div.1994).................. 52
Baumann
v. Marinaro, 95 N.J. 380 (1984) ................................. 27
Bergen Eastern
Corp. v. Kaus, 178 N.J. Super. 42 (App.Div. 1981) .... 24, 25
Bressman
v. Gash, 131 N.J. 517 (1993) ................................... 43
Citizens
Coach Co. v. Camden Horse R.R. Co., 29 N.J.Eq. 299 (E. & A. 1878) 50
City
of Newark v.
J.S., 279 N.J. Super. 178 (Law Div. 1993).............. 25
Clowes
v. Terminix Int'l Inc., 109 N.J. 575 (1988)....................... 24
Coffin
v. Kelly, 133 N.J.L. 252 (E. &
A. 1945)...................... 24,
29
Court
Inv. Co. v. Perillo, 48 N.J. 334 (1966)............................ 23
Crowe v. DeGioia, 90 N.J. 126 (1982)
reh'g on remand 203 N.J. Super. 22
(App. Div. 1985)............................................... 35, 49, 50, 51
Eiseman
v. Schneider, 60 N.J.L. 291 (Sup.Ct. 1897)....................... 35
Gery
v. Gery, 113 N.J.Eq. 59 (Ct.E. & A.1933)............................ 39
Gimello
v. Agency Rent-A-Car Systems, 250 N.J. Super. 338 (App.Div.1991). 24
Gross
v. Yeskel, 100 N.J. Eq. 293 (1926)................................. 31
Hodge
v. Giese, 43 N.J.Eq. 342 (Ch. 1887)............................... 50
In
the Matter of Collestar, 126 N.J. 468 (1991).......................... 25
In the Matter of the Adoption of a Child
by J.R.D., 246 N.J.Super. 619 (Ch. Div.1990) 26
In the Matter of George Hahn, an Attorney
at Law, 120 N.J. 691 (1990).... 24
Klockner
v. Green, 54 N.J. 230 (1969).................................... 35
Kozlowski v.
Kozlowski, 164 N.J. Super. 162 (Ch.Div. 1978), aff’d 80 N.J. 378
(1979)
........................................... 28,
30, 31, 32, 34, 35, 48, 50, 51
Lohmann
v. Lohmann, 50 N.J.Super. 37 (App.Div.1958)...................... 52
Lombardo
v. Hoag, 269 N.J. Super. 36 (App. Div. 1993)................ 24, 29
Maisonet
v. N.J. Dept. of Human Service, 274 N.J. Super. 228, cert granted
138 N.J. 265 (1994)..................................................................... 44
Mancini
v. New Jersey
Automobile Full Insurance Underwriting Association, 132 N.J. 330 (1993)..................................................................... 29
Manning Eng', Inc. v. Hudson County
Park Comm'n, 74 N.J.
113 (1977)...... 27
Marder
v. Realty Construction Co., 84 N.J. Super. 313 (App.Div. 1964), aff'd,
43 N.J. 508 (1964)................................................................. 27,
29
Margaritondo
v. Stauffer Chemical Company, 217 N.J. Super. 560 reaffrm'd 217 N.J.
Super. 565 (App.Div.1986) ........................................................ 43
Morin
v. Becker, 6 N.J. 457 (1951)....................................... 47
Moscowitz v. Middlesex Borough Building
& Loan Ass'n., 18 N.J. Super. 182
(App.
Div. 1952)........................................................... 31
Newman
v. Chase, 70 N.J. 254 (1976)................................. 39, 52
Quagliato
v. Bodner, 115 N.J. Super. 133 (App.Div. 1971)............. 37, 41
Rova
Farms Resort v. Investors Insurance Co., 65 N.J. 474 (1974)......... 24
S.E.W.
Friel Company v. N.J. Turnpike Authority, 73 N.J. 107 (1977)...... 27
S.S.
v. E.S., 243 N.J. Super. 1 (App.Div. 1990).......................... 43
Saul
v. Midlantic National Bank, 240 N.J. Super. 62 (App.Div.1990)....... 47
State
v. Tumminello, 70 N.J. 187 (1976).................................. 43
State
v. Jarbath, 114 N.J. 394 (1989).................................... 44
State
v. Macon, 57 N.J. 325 (1971)....................................... 47
State
v. Scher, 278 N.J. Super. 249 (App. Div. 1994)..................... 24
Tradesman National Bank and Trust Co. v.
Cummings, 38 N.J. Super. 1
(App.Div. 1955)........................................................ 24,
27
Weichert
Co. Realtors v. Ryan, 128 N.J. 427, (1992)...................... 31
Weiss
v. Cedar Park Cemetery,
240 N.J. Super. 86 (App.Div. 1990)......... 29
Foreign State Case Law
Clarke
v. Clarke, 423 N.W.2d 818 (S.D. 1988)..................... 26,
27, 42
Crowell
v. Danforth, 222 Conn.
150, 609 A.2d 654 (1992).................. 52
Hall
v. Eaton, 258 Ill.App.3d 893, 631 N.E.2d 833, 197 Ill.Dec. 611 (App.Div.
1994) 52
Henderson
v. Eason, 17 Q.B. 701, 117 Eng.Rep. 1451 (Ex.Ch.1851).......... 52
Iddings
v. McBurne, 657 A.2d 550 (R.I. 1995)............................. 27
Sawyer
v. Cox, 36 N.C.App. 300, 244 S.E.2d 173 (1982).................... 27
U.S.I.F.
Wynnewood Corp. v. W. G. Soderquist, 27 N.C.App. 611, 219 S.E.2d 787 (1975) 27
Other Sources
Accountability of Co‑tenants,
Weible, 29 Iowa
L.Rev. 558 (1944).......... 52
Black's
Law Dictionary, 6th Ed........................................... 30
Law
of Property, Cunningham, §§ 5.8, 5.12. .............................. 52
Real
Property, Thompson, (1940), § 1908, p. 431.......................... 52
Restatement
(Second) of Contracts §27, §213, (1982 App.)................. 31
Index to Transcripts
Transcript 1 [1T] - Feb 25,
1995 Hearing before J.S.C. Mahon, Hunterdon County
Transcript 2 [2T] - Dec 21,
1993 Hearing before J.S.C. Mahon, Hunterdon
County
Transcript 3 [3T] - June 12,
1992 Hearing before J.S.C. Sullivan, Monmouth County
All transcripts are included
in Volume II, immediately following the end of the Appendix documents.
Table of Contents to Appendix
VOLUME I
Complaint for Custody, dated June 12,
1992: (John H., Plaintiff).... Da 1 - 3
Plaintiff's accompanying Order to Show Cause,
dated June 12, 1992 ... Da 4 ‑
7
Plaintiff's Certification in Support of Order
to Show Cause, dated June 12, 1992 Da 8
‑ 21
Answer and Counterclaim (Janice M a/k/a
Janice H, Defendant-counterclaimant), dated June 17, 1992............................................................... Da
22 ‑ 36
Defendant-counterclaimant's Order to Show
Cause to Dissolve Restraints and Other Relief, dated June 17, 1992................................................ Da
37 ‑ 40
Plaintiff's Supplemental Certification in
Support of Order to Show Cause Da
41 ‑ 46
Defendant-counterclaimant's Supplemental
Certification in Support of Order to Show Cause, dated June 17, 1992................................................ Da
47 - 57
Plaintiff's Certification in Response to
Defendant-counterclaimant's Counterclaim and Certification in Support of Order
to Show Cause, dated June 29, 1992 Da
58 ‑ 80
Certification of Brian H in Support of
Plaintiff's Order to Show Cause, dated June 29, 1992................................................................... Da
414-416
Letter Brief of Jan L.
Bernstein (Riker Danzig Scherer Hyland & Perretti) in support of
defendant-counterclaimant-counter-claimant's Order to Show Cause,
dated July 1, 1992................................................. Da 81 ‑
89
J.S.C. Carchman Order to
Transfer Venue (Mercer to Monmouth),
dated June 12, 1992.................................................... Da 400
Order Granting Relief and Transferring Venue
(Monmouth to Somerset), signed by Mark A. Sullivan, J.S.C. and Alexander
Lehrer, P.J.F.P., dated July 22, 1992 Da
90 ‑ 93
Plaintiff's Answer to Counter Claim, dated
July 28, 1992........... Da 94 ‑
98
Two criminal complaints
lodged by defendant-counterclaimant (harassing phone calls),
dated July 15 & 27, 1992................................................ Da
99
Third criminal complaint lodged by defendant-counterclaimant
(flashing camera through bedroom windows at night), dated Aug 18, 1992.................................. Da 100
Temporary Restraining Order
under the Prevention of Domestic Violence Act,
dated Aug 19, 1992............................................... Da 101 - 104
Domestic Violence complaint
merger and withdrawal (Mutual Restraint stipulation),
dated Jan 19, 1993............................................... Da
105 ‑ 106
District VII Ethics Committee, Disciplinary
Action against John H, for threatening J.S.C. Linda Feinberg, dated May 28,
1993............................... Da
401 - 405
Answer of John H. denying
the Judge's allegations (partial document)
....................................................................... Da
406
Cover page of
interrogatories propounded by defendant-counterclaimant,
dated Mar 26, 1993..................................................... Da 407
Cover page of Document Production Request
propounded by defendant-counterclaimant, dated Mar 26, 1993............................................................... Da
408
Consent Order re Defendant giving documents
to plaintiff, dated July 14, 1993 Da
107 - 108
Riker Danzig's Notice of Motion for Leave to
Withdraw as Counsel (Nonpayment of legal fees), dated July 9, 1993............................................... Da
109 - 110
Certification in Support of
Notice of Motion for Leave to Withdraw as Counsel,
dated July 9, 1993............................................... Da 111 - 112
Order Granting Leave to Withdraw as Counsel,
dated July 23, 1993. Da 113 - 114
Certification of John H, in Support of Order
to Show Cause, dated July 8, 1993 Da
115 - 123
Summons and Notice of Court Hearing, dated
Nov 24, 1993................ Da 124
Amended Complaint for
Partition (correctly states that title is held as "joint tenants"),
dated Nov 30, 1992............................................... Da 125 - 127
Plaintiff's trial brief (now incorrectly
claims that residence held as tenants in common), dated Dec 13, 1993............................................... Da
128 - 137
Jan 6, 1994 Order of J.S.C. Roger Mahon.......................... Da 138 - 141
Pro se Notice of Appeal, dated Feb
10, 1994............................ Da
142
Pro se Court Transcript Request,
dated Mar 8, 1994..................... Da
146
Pro se Motion to Reconsider (Trial
level), dated Mar 9, 1994........... Da
147
Pro Se "Additional Affidavit
in Support of Motion to Reconsider
Filed February 10, 1994"......................................... Da
148 - 150
Pro se Notice of Motion for Stay Pending
Appeal (Trial level)
....................................................................... Da
151
Pro Se "Affidavit in Support
of Motion for Stay Ending Appeal", dated March 15, 1994
................................................................... Da
152-154
Pro se motion "for the
Appintment of Attorney", (Trial level) dated Mar 9, 1995 Da 155
Pro Se "Certification in
Support of Application Appointing Attorney dated 3/7/94 Suing in Forma
Pauperis".................................................. Da
156 - 157
Appellate Division Notice of Docketing of
Defendant-counterclaimant's Motion for Stay and Further Relief, dated Mar 29,
1994..................................... Da
158
Plaintiff's Notice of Cross Motion,
(Appellate Division) dated Mar 29, 1994 Da
159 - 160
Plaintiff's Certification in Opposition to
Defendant-counterclaimant's Motion and in Support of Cross Motion, dated Mar
18, 1994.............................. Da
161 - 179
Appearance Grace Dennigan, Esq, (for trial
level proceedings only), dated April 14 Da
180
Plaintiff's Notice of Motion to Extend Time
to Answer, dated Apr 18, 1994 Da
181
Plaintiff's Supporting Certification of
Counsel in Support of Motion to Extend Time to file Answering Papers to Motion,
dated Apr 18, 1994................... Da
182 - 185
Appellate Division's Order on (3/18/94) Motion for Stay Pending
Appeal,
dated
Apr 21, 1994..................................................... Da
185
Defendant-counterclaimant's Supplemental
Notice of Motion for Reconsideration of All Issues Addressed in the January 5,
1994 Order (Converts out of time Reconsideration Motion into R. 4:50-1
Motion), dated Apr 27, 1994............................... Da
186 - 188
Defendant-counterclaimant's
Supporting Certification in Support of Supplemental Notice of Motion, dated Apr
14, 1994....................................... Da
189 - 195
Defendant-counterclaimant's Letter Brief in
Support of Relief From Judgment under R. 4:50-1, dated Apr 27, 1994............................................... Da
196 - 199
Defendant-counterclaimant's
Attorney's Certification of Services, dated Apr 27, 1994
................................................................. Da
200 - 202
Plaintiff's Responsive Certification in Opposition
to Defendant-counterclaimant's Motion to Reopen Judgment under R. 4:50-1
(This is partial document; the remainder is lost), dated May 4, 1994.......................................................... Da
202 - 212
Pro Se Notice of Motion to Compel Production
of Documents (Appellate Division), dated May 9, 1994................................................................... Da
213
Pro Se Certification in Support of
Motion to Compel Notice of Motion to Compel Production of Documents (Appellate
Division), dated May 9, 1994...................... Da
214
Police report re Defendant-Counterclaimant
removing her items from residence Da
413
Pro Se Notice of Motion for
Extension of Time to File The Answer to the Cross Motion for Relief, dated May
9, 1994.............................................. Da
215
Pro Se "Certification of Pro
Se in Support of Notice of Motion to Extend Time to File The Answer to the
Cross Motion for Relief AND in Support of the Motion to Compel Production of
Documents", dated May 9, 1994.................................... Da
216 - 217
Pro se letter-motion to Appellate
Division requesting Miscellaneous Relief,
dated June 2, 1994............................................... Da 219 - 220
Appellate Division: Order on Motion by
Appellant to Compel Production of Documents and to Extend Time to Answer to
Cross Motion, dated June 7, 1994.............. Da
221
Appellate Division: Order on Motion by
Respondent for Relief, dated June 7, 1994 Da
222
Appellate Division: Order on
Motion by Appellant for Stay and for Further Relief,
dated Jun 7, 1944...................................................... Da 223
Supplemental
Certification of Defendant-counterclaimant, dated Jul 14, 1994 Da 224 - 226
Responsive Certification in Opposition to Defendant-counterclaimant's
Supplemental Certification and Certification of Stephen Marrin and In Further
Support of Cross Motion,
dated
July 25, 1994.............................................. Da
227 - 239
VOLUME II
Grace Dennigan, Esq, letter
brief outlining meritorious defenses available to defendant-counterclaimant if
judgement were re-opened under R. 4:50‑1, dated Sep 9, 1994
................................................................. Da
240 - 248
Certification of Edna Bijou
concerning defendant-counterclaimant's alcoholism during period of 12/21/93
hearing,
dated Sep 7, 1994 ............................................... Da 249 - 251
Certification of Robert Bijou concerning
defendant-counterclaimant's alcoholism during period of 12/21/93 hearing, dated
Sep 7, 1994........................... Da
251 - 253
Certification of Steven Marrin concerning
defendant-counterclaimant's alcoholism during period of 12/21/93 hearing, dated
Sep 7, 1994.................... Da
409 - 412
Plaintiff's responsive
letter brief, dated Sep 12, 1994
................................................................. Da
254 - 260
Court
Order memorializing decision on August 5, 1994, dated Oct 5, 1994 Da 260 - 262
J.S.C.
Mahon Order (decided February 23, 1994) denying R. 4:50-1 Motion, dated
Mar 28, 1995......................................................................
Da 263
Defendant-counterclaimant's substitution of
Counsel (Grace Dennigan to Janice M, pro se), dated Mar 6, 1995...................................................... Da
264
Pro se Notice of Motion to Amend
Appeal (to include J.S.C.'s Mahon's
Mar 28, 1995 Order), dated May 5, 1995...................................................... Da
419
Appellate Division Scheduling Order, dated
May 11, 1995................ Da 265
Pro se Notice of Motion to Extend
Time, dated Jun 22, 1995
....................................................................... Da
266
Pro se
Certification of Janice M in support of Notice of Motion to Extend Time, dated
Jun 22, 1995............................................................. Da
267 - 269
Pro se Notice of Motion to Amend
Notice of Appeal and to Relinquish Jurisdiction, dated Jun 22, 1995............................................................. Da 270
Pro se
Certification of Janice M in support of Notice of Motion to Amend Notice of
Appeal and to Relinquish Jurisdiction, dated Jun 22, 1995................... Da 271 - 272
Certifications
of John H in Opposition to Defendant-counterclaimant's Motions to Extend Time
and Amend Notice of Appeal, dated Jun 30, 1995................... Da
273 - 276
Responsive Certification of
Janice M, dated Jul 10, 1995
................................................................. Da
277 - 284
Plaintiff's letter to J.A.D.
Shebell, dated Jul 11, 1995
................................................................. Da
285 - 289
Pro se Response letter to J.A.D.
Shebell, Jul 14, 1995
................................................................. Da
290 - 291
Pro se
Defendant-counterclaimant's Notice of Motion for Leave to File Responsive
Certification, dated Jul 14, 1995...................................... Da
292
Complaint for Divorce, dated Apr 16, 1975 (John
H. attorney for Janice M) Da 295 -
296
Counsel Fee Affidavit of John H (John H.
attorney for Janice M).. Da 297 -
299
Final Judgement of Divorce
(John H. attorney for Janice M),
................................................................. Da
300 - 304
Except where indicated to
the contrary, the following documents were not entered as part of the record
below. Please see Motion to Supplement
Record on Appeal, filed with this brief, as to why the Appellate Division
should consider them.
Admission Report, Princeton House, dated Nov
2, 1977................... Da 306
Discharge Report, Princeton
House, dated Nov 6, 1977
................................................................. Da
307 - 310
Consent Order vacating
Alimony Obligation of Stephen M,dated Aug 4, 1978
(Included in record below)....................................... Da 311 - 312
Emergency Room Report (Head
Injury), dated Nov 10, 1989
................................................................. Da
313 - 315
Emergency Room Report
(Broken Rib), dated Nov 10, 1989
................................................................. Da
316 - 318
Credit Card Receipt, Amex Card supplied by
plaintiff and bearing the name Janice H, Mar 28, 1988................................................................... Da
320
Credit Card and Letter
provided by plaintiff bearing name Janice H,
dated Oct 7, 1992...................................................... Da 319
Paycheck - Trenton Home
Fabrics, dated Mar 7, 1986
(Included in record below)............................................. Da 321
$200,000 Life Insurance Policy taken out by
John H, naming Janice M, fiancee, as beneficiary, dated 1982 ............................................................ Da
322
$300,000 Life Insurance
Policy taken out by John H, naming Janice H, spouse, as beneficiary, dated 1982
...................................................... Da
323 - 324
Custody / Visitation Report
- Hunterdon County, dated spring 1993
(Included in record below)....................................... Da 325 - 331
Admission Report, Princeton
House (Alcoholism / Depression), dated Jan 20, 1994
(Included in record below)............................................. Da 332
Admission Assessment, Princeton House (Alcoholism / Depression),
dated Jan 20, 1994 (Included in record below)....................................... Da 333 - 338
Riker, Danzig,
Scherer, Hyland & Perretti, Billing Statement, dated Aug 20, 1992
($22,327.96 total owed)............................................................ Da
339
Riker, Danzig,
Scherer, Hyland & Perretti, Billing Statement, dated Sep 29, 1992
($30,509.46 total owed)............................................................ Da
340
Riker, Danzig,
Scherer, Hyland & Perretti, Billing Statement, dated Oct 29, 1992
($37,309.96 total owed)............................................................ Da
341
Riker, Danzig,
Scherer, Hyland & Perretti, Billing Statement, dated May 26, 1993
($39,790.67 total owed)............................................................ Da
342
Riker, Danzig,
Scherer, Hyland & Perretti, Enforcement letter re John H visitation
interference / non-payment of pendente lite support, dated June 24, 1992 Da 343 - 344
Riker, Danzig,
Scherer, Hyland & Perretti, Enforcement letter re John H visitation
interference July 8, 1992........................................ Da
345 - 346
Riker, Danzig,
Scherer, Hyland & Perretti, Enforcement letter re John H harassment, dated
July 13, 1992.................................................... Da
347 - 348
Riker, Danzig,
Scherer, Hyland & Perretti, Enforcement letter re John H harassment,
visitation interference, dated July 15, 1992..................... Da
349 - 350
Riker, Danzig,
Scherer, Hyland & Perretti, Enforcement letter re John H, non-payment of pendente lite support,
dated Aug 3, 1992 .............................. Da
351
Riker, Danzig, Scherer, Hyland &
Perretti, Enforcement letter re John H,
non-payment or under-payment of pendente lite support, dated Aug
12, 1992 ...... Da 352 - 353
Riker, Danzig, Scherer, Hyland &
Perretti, Enforcement letter re John H,
non-payment or under-payment of pendente lite support, harassment
(cutting off cable, housekeeper, gardener), visitation interference, dated Sep
4, 1992 ........... Da 354 - 355
Riker, Danzig, Scherer, Hyland &
Perretti, Enforcement letter re John H non-payment or under-payment of pendente
lite support, cutting off health insurance, visitation interference, dated
Oct 1, 1992................................................ Da
356 - 357
Riker, Danzig, Scherer, Hyland & Perretti,
Enforcement letter re John H non-payment or under-payment of pendente lite
support, nonpayment of mortgage, telephone, insurance, and gas card, dated Oct
16, 1992............................................... Da
358 - 359
Riker, Danzig, Scherer, Hyland &
Perretti, Enforcement letter re John H non-payment or under-payment of pendente
lite support, nonpayment of mortgage, telephone, insurance, and gas card,
dated Dec 28, 1992..................................................... Da
360
Notice of Water Shut Off (nonpayment of
bill), dated Nov 23, 1992 Da 361 -
362
Certificate of Marriage, dated Feb 9, 1982....................... Da 363 - 364
Photographs of Janice M with
bruises
(Included in record below)....................................... Da 365 - 366
Welfare: Emergency Housing and Maintenance
Check....................... Da 367
Deed to Residence at 18 Montague Avenue ("as joint
tenants with rights of survivorship and not as tenants in common"),
dated Mar 11, 1981................... Da
368 - 376
Mortgage to Residence at 18 Montague Avenue
("as joint tenants with rights of survivorship and not as tenants in
common") indicating payoff date of Apr 1, 1986,
dated Mar 12, 1981............................................... Da 377 - 381
Property Assessment
(assessment: $279,300), dated spring 1993
....................................................................... Da
382
Property Tax Appeal
(assessment: $250,000), dated Jun 18, 1993
................................................................. Da
383 - 387
Transcript of Janice M: New York School of Interior Design,
dated May 26, 1994..................................................... Da 388
Transcript of Janice M: Mercer County
Community College, dated
May 24, 1994 Da 388
Photograph
taken by John H, at night through window, during period that John was
restrained from residence (Included in record below)................................. 390
Other photographs of
residence after damaged by John H. (attempted set-up of
defendant-counterclaimant)
(Included in record below)....................................... Da 391 - 397
Other photographs: Items
John H. purchased during relationship with defendant-counterclaimant
(Included in record below)....................................... Da 398 - 399
Advertisement made available to public by
Pellettieri, (a local firm) and Altman, received July 14, 1995............................................................. 417
Amended Notice of Appeal (to include issues
raised in March 28, 1995 Order) Da
419
Temporary Restraining Order resulting from
1983 assault committed by John H against Janice M................................................................... Da
420-421
Photographs of Janice M immediately following
1983 assault ............ Da 422
Procedural History
Jun 12, 1992 Complaint for Custody filed by
Pellettieri, (a local firm), & Altman on behalf of John H (hereinafter
"Plaintiff"). [Da 1 - 3]
Jun 12, 1992 (Simultaneous) Order to Show Cause filed
by plaintiff seeking, inter alia, an immediate transfer of custody, sole
custody of child, eviction of defendant-counterclaimant from her
residence. [Da 4 ‑ 7],
with supporting Certification. Motion
granted by J.S.C. Sullivan.
Jun 12, 1992 Order to Transfer venue from Mercer to Monmouth County signed by Philip S. Carchman,
P.J.F.P. [Da 400]
Jun 17, 1992 Answer and Counterclaim for Custody, Child
Support, Palimony, Damages, Specific Performance of Transfer of Property, Fees,
Costs and Jury Demand filed by Riker, Danzig, Scherer, Hyland, & Perretti
on behalf on Defendant-counterclaimant, Janice M (a/k/a Janice H) (Hereinafter
"Defendant-counterclaimant") filed.
[Da 22 - 36]
Jul 22, 1992 Order Granting Relief and
Transferring Venue from Monmouth County to Somerset
County signed by P.J.F.P.
Alexander Lehrer. Settled competing
orders to show cause filed by both parties.
The Order compelled, inter
alia, plaintiff to pay $200.00 per week for defendant-counterclaimant's
support retroactive to July 2, to maintain status quo of household,
Granted defendant-counterclaimant sole occupancy of the residence. [Da 90 - 93]
Jul 28, 1992 (Out of time) Answer to Counter
Claim filed by plaintiff. [Da 94 - 98]
Aug 5, 1992 Two criminal complaints for harassment lodged
by defendant-counterclaimant in Ewing Township Municipal Court. [Da 100]
Aug 18, 1992 Criminal complaint for harassment lodged
by defendant-counterclaimant in Ewing Township Municipal Court. [Da 101].
Aug 19, 1992 Temporary Restraining Order under
Prevention of Domestic Violence Act issued for defendant-counterclaimant.
[Da 101 - 104].
Jan 19, 1993 Domestic Violence complaint merged (by
consent) into pending palimony and Domestic Torts counterclaim. [Da 105 - 106].
Jul 23, 1993 Riker Danzig withdraws of counsel
(nonpayment of legal fees). [Da 113 -
114].
Oct 28, 1993 (Order entered in Hunterdon County. Defendant-counterclaimant has no recollection
of what occurred, and does not know what the Order contained).
Nov 23, 1993 Amended Complaint for Partition filed on
behalf of plaintiff. The complaint
states that the property was held as "joint tenants". [Da 107 - 108].
Dec 13, 1993 Trial brief filed on behalf on
plaintiff. Claims that property held
as "tenants in common" and suggests partition occur based on this
fictitious status. [Da 128 - 137].
Dec 21, 1993 Hearing held without
defendant-counterclaimant present. As
more fully described in the Statement of Facts, Ms. M was suffering from severe
alcoholism, and in fact was less than a month from beginning the recovery that
continues to this day.
The trial court dismissed
all defendant-counterclaimant's claims, evicted her, required
defendant-counterclaimant to execute deed relinquishing interest in home to
plaintiff, partitioned home as if it had been held as tenants in common and
fixed defendant-counterclaimant's interest in home at $6,000, granted sole
legal and physical custody of child to plaintiff, allowed
defendant-counterclaimant only telephone visitation. [2T].
Jan 6, 1994 Written Order filed memorializing
December 21, 1993 Order. [Da 138 - 141]
Feb 10, 1994 App. Div.: Defendant-counterclaimant
filed pro se Notice of Appeal.
[Da 142].
Mar 9, 1994 Trial Court: Pro se Motion to Reconsider
filed at trial level by Defendant-counterclaimant. [Da 147].
Mar 18, 1994 Trial Court: Pro se Notice of
Motion for Stay Pending Appeal filed by Defendant-counterclaimant. Motion requested, inter alia, that the
plaintiff not be permitted to execute the deed to defendant-counterclaimant's
residence. [Da 151]. This Motion was apparently transferred by the
trial court sua sponte to the Appellate Division. See Notice of Docketing [Da 158]).
Mar 29, 1994 App. Div.: Plaintiff files Cross
Motion seeking, inter alia, counsel fees and costs, termination of his
obligation to pay defendant-counterclaimant the $6,000 Ordered on Dec 21, 1993,
and to restrain Defendant-counterclaimant from using the H name. [Da 159 - 160].
Mar 9, 1994 App. Div.: Defendant-counterclaimant
files pro se motion "for the Appintment of Attorney". [Da 155].
Mar 24, 1994 Trial Court: Grace Dennigan, Esq.
files appearance for defendant-counterclaimant for trial level aspects of
case only. [Da 180].
Apr 18, 1994 App. Div.: Plaintiff files Notice of
Motion to extend time to answer. [Da
181].
Apr 25, 1994 App. Div.: Order on (3/18/94) Motion: Grants
motion staying portion of judgement requiring defendant-counterclaimant to
convey her interest in home and temporarily relinquishes jurisdiction for trial
court to consider defendant-counterclaimant's Motion for Reconsideration. [Da 185].
Apr 27, 1994 Trial Court: Defendant-counterclaimant
(through Grace Dennigan, Esq.) files Supplemental Notice of Motion; converts
Motion for Reconsideration into Motion to Vacate Order under R. 4:50-1,
with supporting letter brief, certifications.
[Da 186 - 202].
May 4, 1994 App. Div.: Plaintiff files
certification in opposition to defendant-counterclaimant's supplemental motion
and in further support of Cross Motion.
[Da 202 ‑ 212].
May 10, 1994 App. Div.: Defendant-counterclaimant
files pro se motion "For Extension of Time to File Answer to Cross
Motion for Relief" with attached "Certification of pro se"
in support of Motion. [Da 215].
May 10, 1994 App. Div.: Defendant-counterclaimant
files pro se "Motion to Compel Production of Documents," with
supporting Certification. [Da 214].
June 2, 1994 App. Div.: Defendant-counterclaimant
files pro se letter-motion to Appellate Division requesting various
(unclear) forms of relief. [Da 219 - 220].
June 7, 1994 App. Div.: Order on Motion: Motion by
Defendant-counterclaimant for stay and further relief. Matter was temporarily remanded to the Family
Part for ruling on reconsideration motion filed by defendant-counterclaimant.
[Da 223].
June 7, 1994 App. Div.: Order on Motion: Motion by
Plaintiff for further relief. Motion was
denied without prejudice. [Da 222].
June 7, 1994 App. Div.: Order on Motion: Motion by
Defendant-counterclaimant to Compel Production of Documents and Extending Time
to Answer Cross Motion. Motions denied.
[Da 221].
Aug 5, 1994 Trial Court: Grants stay of Order
requiring defendant-counterclaimant to execute deed conveying her interest in
residence. Reserves decision on
defendant-counterclaimant's R. 4:50-1 motion and requires that
parties brief the issue of whether defendant-counterclaimant has a reasonable
chance of prevailing on merits if 12/21/93 judgement were vacated. [Da 260 - 262].
Sep 9, 1994 Trial Court:
Defendant-counterclaimant (through Grace Dennigan, Esq) files letter brief
outlining meritorious defenses available to defendant-counterclaimant if
judgement were re-opened under R. 4:50-1. Includes certifications from two people who
witnessed defendant-counterclaimant's severe alcoholism during period of
12/21/93 hearing. [Da 227 ‑ 253].
Sep 12, 1994 Trial Court: Plaintiff files letter
brief response in opposition to above.
[Da 254 - 260].
Feb 23, 1995 Trial Court: Court denied the
defendant-counterclaimant's R. 4:50‑1 motion, holding that
alcoholism did not constitute excusable neglect, that she had no meritorious
palimony claim, and that enforcement of the 12/21/93 Order would not be
unjust. [1T].
Mar 6, 1995 Trial Court: Grace Dennigan, Esq.,
files Substitution of Attorney. (Ends
all involvement in case). [Da 264].
Mar 28, 1995 Trial Court: J.S.C. Mahon signs Order
memorializing Feb 23, 1995 decision which "disposes of all contentions by
all parties and closes case." Ends
trial court involvement.
[Da 263].
May 5, 1995 Defendant-counterclaimant filed an Amended
Notice of Appeal to include issues raised in the trial court's Mar 28, 1995
Order. [Da 419].
Jun 23, 1995 Defendant-counterclaimant filed Notice of
Motion to Extend Time [Da 266] and Notice of Motion to Amend Notice of
Appeal and to Relinquish Jurisdiction [Da 270].
Amendment Motion requested that the custody / visitation issues be
excluded from the appeal and that the trial court re-evaluate its visitation
Order in light of defendant-counterclaimant's 18 months of sobriety.
Jun 30, 1995 Plaintiff filed certification in
opposition to above motions, claiming a need for "finality".
[Da 273 - 276].
Jul 10, 1995 Defendant-counterclaimant filed a
Responsive Certification addressing plaintiff's objections and misrepresentations. [Da 277 - 284].
Jul 11, 1995 Plaintiff wrote a letter to J.A.D.
Shebell, claiming Defendant-counterclaimant was being represented by counsel
and requesting that the Appellate Division therefore dismiss the appeal. [Da
285 - 289].
Jul 14, 1995 Defendant-counterclaimant wrote
responsive letter to J.A.D. Shebell, repeating her June 23, 1995 statement that
she is being assisted by a pro se support group, and pointing out
various misrepresentations made by plaintiff. [Da 290 ‑ 291].
Jul 14, 1995 Defendant-counterclaimant filed a
Motion for Leave to File Responsive Certification, requesting that the
Appellate Division consider the July 10, 1995, Responsive Certification. [Da 292].
Jul 27, 1995 Order on Motion grants
defendant-counterclaimant's Motions to Extend Time and Amend Notice of Appeal
to Exclude Custody and Relinquish Jurisdiction of custody and visitation
issues.
Statement of Facts
In the
spring of 1975, John H fell in love with his divorce client, Janice M [Da
296]. Mr. H (hereinafter
"John"), a married, successful divorce attorney, wined and dined Ms. M,
a divorcing waitress, (hereinafter "Janice") until she eventually
returned his affections. Janice was 26.
Through
John's skillful negotiations, Janice was awarded custody of her son, child
support in the amount of $40.00 per week, alimony in the amount of $35.00 per
week, and equitable distribution of approximately $30,000 [Da 300 -
304]. Although John would later deny
that he represented Janice during this period, [Da 59, 205], he appears as the
attorney of record on Janice's Final Judgement of Divorce [Da 300], although
another attorney apparently attended the pro forma final hearing.
In the
spring of 1977, after seven years of marriage, John left his wife and infant
son and rented an apartment with Janice in Plainsboro [Da 60 at ¶7].
At John's
insistence, Janice left her evening waitressing job so that she could make
dinner and be home for him when he returned from work. Thereafter, John covered all the bills and
paid all the living expenses for the couple.
Upon
discovering that Janice and John were living together, her ex‑husband
moved to have his alimony obligation terminated. By a Consent Order dated August 4, 1978, his
request was granted [Da 311 - 312].
In
discussing the relinquishment of the very alimony that he had negotiated, John
assured Janice that she wouldn't have to worry about it; that he loved her and
would take care of her. [Da 29]. Shortly thereafter, John insisted that Janice
give up custody of her son so that she could devote more of her attention to
him and their relationship. Janice
reluctantly agreed, and, by a consent Order entered in 1977, she gave custody
of her son to her ex‑husband [Da 409].
In 1977,
the couple experienced the first crisis of their relationship. Less than six months after she gave up her
alimony and child support and began living with John, Janice discovered that he
had been having an affair [Da 23 ‑ 24]. Janice became distraught and made a suicide
gesture, causing a minor laceration to her wrist. She was admitted to Princeton House for
observation [Da 306]. John came by to
visit often, and assured her that if she came back, he would never again be
unfaithful. [Da 308]. The two
reconciled. Janice was discharged after
three days, and moved back in with John.
Janice's
discharge diagnosis was "passive dependent personality" [Da 308].
John's wife
was granted a divorce on grounds of adultery by judgment entered in April 1978.
Around this time, Janice unofficially took the surname H. Although John would later deny that he
encouraged her to do this [Da 60 at ¶ 18], he in fact supported her name
change, and put her on his health insurance and credit cards as Janice H [Da
319 - 320].
In the spring of 1978, John left his
job at Mason Griffin & Pearson in Princeton
and was hired by (a local firm) (where today he is a full partner) [Da 418].
In 1980, the couple's standard of
living had improved to the point where they decided to leave their apartment in
Hunter's Glen and to purchase a home together.
Janice dropped out of Mercer
County Community
College [Da 389] and began house-hunting full
time. Within a year, she discovered a
home in an affluent section of West Trenton
that had been abandoned while still under construction because the builder had
declared bankruptcy. Exhausting most of
the proceeds from the equitable distribution received at the end of her
marriage, Janice contributed $15,000 to the down payment [Da 148]. John drew from savings and contributed
$30,000.
They took title as "joint tenants with rights of survivorship and
not as tenants in common" [Da 368 ‑ 376 (Deed), Da
377 - 381 (Mortgage)], and obtained a five year mortgage (which was paid off in
1986).
Janice took on the job of supervising
a massive landscaping project that included a waterfall, a slate patio, a
wrought iron fence, two drywells and an ejector pump. She then decorated the interior of the house,
selecting all the furniture and art. A
few years later, she selected an in ground swimming pool, and supervised its
construction along with the installation of a stone retaining wall.
She lived the life of the typical
suburban homemaker, cooking and cleaning while John continued to build his law
practice. One day a week, for four
hours, John provided a cleaning service to help with the physically difficult
aspects of maintaining the home. She
accompanied John to social affairs at the Greenacres Country Club in Princeton, dinner and pool parties held by his law
partners, as well as political functions and all other social events John
attended during the course of their relationship. John always introduced her as Mrs. H
[Da 10].
The two spoke often of marriage. In 1982, they went so far as obtaining a
marriage license and certificate [Da 363 ‑ 364]. Having both been married before, they decided
to call off the wedding, but continued to live together with John covering all
the expenses of their relationship [Da 60, 2T 24-12 to 24-13]. John told Janice that "I want to come
home to you because I want to, and because I love you, not because I have
to."
Janice learned early on that John had
a temper. As early as 1977, he had
assaulted her, causing a gash over her left eye that required stitches. In 1983, he beat her so badly [Da 421] that
she temporarily left the residence and stayed with an aunt in Trenton.
She filed charges and obtained a Temporary Domestic Violence Restraining
Order [Da 419-420]. However, after being
separated for less than two weeks, John convinced her that he loved her and
would never again be physically violent toward her, and convinced her to return
to their Montague Avenue
home and drop the charges and Restraining Order. The more serious of the subsequent assaults
resulted in breaking her nose and ribs in 1991 [Da 313 - 318], as well as
various internal injuries.
But the assaults were not constant,
and John was always extremely and sincerely remorseful afterward. Janice never reached out for help during
these periods, and only sporadically saw therapists in regard to her
"passive dependent personality disorder" diagnosis.
In the spring of 1986, Janice worked
for a few months as an interior designer, the career path she would have taken
had it not been for her relationship with John.
Although John would later incorrectly testify that “she has a degree . .
. from the New York School for Interior Design” [2T 36-6 to 36-8], she did in
fact take some classes on the subject [Da 388], and she designed the entire
line for Trenton Home Interior's Spring Show at the Princeton Hyatt [Da
321]. However, John strenuously
disapproved of her working outside the home, and insisted he wanted her there
for him when he came home from work.
Further, with John's salary there was no need for a second income.
On August 15, 1987, Janice gave birth
to Brandon Adam H. Janice's role as
homemaker now expanded to include a role as the mother to their son.
By the nature of the work,
matrimonial attorneys often anger people.
One evening in 1990 John received a death threat when two men pushed
their way into his residence and indicated that he "should back off". There was no indication which client (or
client's spouse) had sent the message.
Janice expressed her concern, and later asked what would happen if John
died before she did and she was left alone to care for Brandon.
John responded by increasing the $200,000 life insurance policy he had
taken out naming "Janice M, fiancee" as the beneficiary [Da 322] to a
$300,000 policy naming "Janice H, spouse" as the beneficiary [Da 323 - 324].
In 1990, John met Heidi while
representing her friend in a divorce [2T 51-2 to 51-3]. The relationship became romantic, and they
started dating in November of 1991.
Heidi was 28. Janice had just
turned 43.
John hid the relationship from Janice
for almost six months. During this
period, he became more aggressive, and seemed to have "a very short
fuse". The physical violence
accelerated. John's inability to control
his violent temper was shown in other areas of his life as well. In October, 1991, he was charged with an
Ethics violation for threatening a female judge in Mercer County
[Da 405]. The Judge's complaint
(and subsequent DRB hearing) found that John had displayed a hostile demeanor,
menacing the judge, waving his arms and yelling in a threatening manner. John's denials, and his implication that the
Judge was exaggerating, look strangely familiar when compared to his later
denials of his treatment of Janice. [Da 406]
Also during this period, Janice began
to rely on alcohol on an increasing basis.
In early May, she confronted John with her belief that he was seeing
someone else. John admitted it, but
asked if he could continue to see both of them.
Janice told John that she "couldn't live this way anymore",
and indicated that John’s proposed arrangement would be completely
unacceptable. She gave John an ultimatum
-- stop the affair with Heidi, or lose his relationship with Janice.
On
May 22, 1992, after 15 years of cohabitation, John moved out of the house,
leaving Janice and Brandon [Da 14].
On June 12, 1992, John (hereinafter
"plaintiff") filed an ex-parte Order to Show Cause to gain
custody of Brandon
[Da 4]. He obtained the transfer of
custody by fraudulently representing (both in his certification [Da 14] and by his attorney's statements [3T
2-11 to 2-16]) to the Court that a status quo existed in which he had
custody. Abandoned by John, and with her
son improperly removed from her, Janice's use of alcohol and prescription drugs
rapidly accelerated.
Janice (hereinafter
"defendant-counterclaimant") sought legal representation from Jan
Bernstein, Esq, of Riker, Danzig, Scherer, Hyland, & Perretti. Ms. Bernstein filed an answer and
counterclaim, [Da 22 - 36] and, on July 22, 1992, obtained for
Defendant-counterclaimant an Order requiring plaintiff to maintain the status
quo, including giving defendant-counterclaimant sole possession of the
residence, and restraining plaintiff from entering the property
[Da 90 ‑ 93].
The next year was filled with various
court hearings, motions, and cross motions.
Hundreds of pages of Certifications emanated from the Plaintiff, who
continues to be represented by "Mercer
County's Largest
Matrimonial Law Firm" [Da 417] at no expense to him. By contrast, the defendant-counterclaimant
incurred $22,327.96 in legal fees in the first month of her
representation by Riker Danzig [Da 339].
Interrogatories were propounded by
Defendant-counterclaimant, but never answered [Da 407]. Discovery requests were consistently ignored
[Da 408]. The plaintiff violated every aspect
of the July 22, 1992 Court Order, refusing to pay car insurance and household
bills, and interfering with the defendant-counterclaimant's attempts to spend
time with her son [Da 344 ‑ 360]. The $200 weekly allowance was paid
sporadically if at all. As an
experienced attorney, Plaintiff knew exactly how far to push these issues,
requiring the defendant-counterclaimant to incur more legal fee debt in
enforcement letters, but complying shortly before an enforcement motion was
actually filed [Da 344 ‑ 360]. By skillful use of these tactics, the plaintiff
successfully intimidated both attorneys who attempted to represent
Defendant-counterclaimant in the trial court, leaving her pro se and
with attorney debts in excess of $40,000 [Da 200 ‑ 202, Da
343].
Further, the plaintiff began a
harassment campaign against the defendant-counterclaimant, parking outside her
house and noting if anyone entered or left.
When the plaintiff discovered that the defendant-counterclaimant had
gone on a date with another man, he became enraged. He snuck onto the property at night with a
flash camera and took photographs through the window, then submitted the photos
to court [Da 390].
Defendant-counterclaimant obtained a Temporary Restraining Order under
the Prevention of Domestic Violence Act on August 19, 1992 [Da 101 ‑ 104].
Defendant-counterclaimant sank deeper
into alcoholism, receiving two summonses for Driving While Intoxicated in a
four month period (November, 1992 and April, 1993).
By the early fall of 1992, Riker Danzig began to back off the case. Their bill for legal services had now reached
$37,309.96 [Da 342] and the lower court had declined to assess legal fees
against the plaintiff [Da 90 ‑ 93]. The fact that almost no action was taken on
the case is demonstrated by her billing statements. On October 29, 1992, her bill was $37,309.96
[Da 342]. During the next seven
months, Riker Danzig performed less than 10 hours of work and her bill grew
only $2,480.71, to $39,790.67 [Da 343].
In one of her last actions on the
case, Jan Bernstein decided not to litigate the Domestic Violence complaint
filed in August 1992, instead agreeing to plaintiff's request to withdraw the
Complaint, and to merge the issue into Defendant-counterclaimant’s palimony
claim. A consent Order for mutual
restraints was entered by Judge Mahon on January 19, 1993 [Da 105 ‑ 106].
In April of 1993, the plaintiff
married Heidi H. [2T 52-4 to 52-5].
In July of 1993, Jan Bernstein was
granted leave to withdraw as defendant-counterclaimant's counsel, leaving her pro
se [Da 113 - 114].
Defendant-counterclaimant had no experience in using the court system,
and she was painfully aware that Plaintiff, a full partner at Mercer County's
largest matrimonial firm [Da 417], was a master at it.
For the first time in her adult life,
Defendant-counterclaimant was without personal support. Abandoned by the plaintiff and by her
attorney, she was drinking daily and mentally deteriorating by the late fall. In response to plaintiff's request for sole
custody, a Custody Evaluation had been ordered by the Court in the spring of
1993. The report indicated that
defendant-counterclaimant was in a serious stage of alcoholism, and was
becoming incoherent [Da 329].
A hearing on Defendant-counterclaimant's
palimony and custody issues was scheduled for December 21, 1993. On the morning of the hearing, a Probation
Officer from Hunterdon County called Defendant-counterclaimant at home and
testified that the she was incoherent, and that "[she] started to cry on
the telephone, and told me that she couldn't get here, that there is no way she
could get here. She had no
ride," [2T 12-12 to 12-18], and
that, as of 10:30 A.M., "[She] sounded intoxicated, and she was telling me
that her cats were starving, and that neighbors -- she didn't have any
food. The neighbors wouldn't help
her. And various things like
that." [2T 14-8 14-13].
Instead of adjourning the hearing, or
addressing only those issues that could be considered urgent, Judge Mahon decided
to proceed in the defendant-counterclaimant's absence and to address every
issue that had been raised in the litigation.
Hearing only from the plaintiff, he entered an Order which extinguished
defendant-counterclaimant's palimony and domestic torts claims, evicted
defendant-counterclaimant from her residence, deprived her of her joint
interest in the property and granted her only telephone contact with her son
[Da 138 ‑ 141].
Rejecting the plaintiff's claim that the defendant-counterclaimant was
indebted to him for $157,170, [Da 169] the trial Judge fixed
the plaintiff's total obligation to the defendant-counterclaimant at $6,000,
and Ordered that it be paid at a rate of $200 per week.
The trial judge was not completely at
fault in his partition of the residence.
He relied on the integrity of a large law firm and the word of an
attorney admitted to the bar since 1969.
The plaintiff knew his opponent was a
pro se who was in a serious state of alcoholic decay and that there was
no real chance that his assertions would be put through any sort of meaningful
adversarial testing.
The facts are self-explanatory. In 1981, the plaintiff and
defendant-counterclaimant purchased a residence, taking title as "joint
tenants with rights of survivorship and not as tenants in common" [Da 368 ‑ 376 (Deed), Da 377
- 381 (Mortgage)].
On November 30, 1993, the plaintiff
submitted an Amended Complaint for Partition, noting that the property was held
as "joint tenants" [Da 125].
Presumably, the plaintiff then began legal research on partitioning the
property to his best advantage.
On December 13, 1993, the plaintiff
submitted a trial brief now claiming that the property was held as
"tenants in common" [Da 128 ‑ 137], and relied
on case law which, while extremely relevant to a tenancy in common, was
completely irrelevant to a property purchased as "joint tenants with
rights of survivorship and not as tenants in common". The partition made in accordance with this
irrelevant case law left the defendant-counterclaimant indebted to the
plaintiff, and stripped her of her interest in the home.
Further, the plaintiff claimed that
the house was subject to a large ($160,000) mortgage and had built only a small
amount ($65,000) of equity [Da 168].
The defendant-counterclaimant was in no condition to obtain a copy of
the actual mortgage, which shows a purchase price of $137,000, and a payoff
date of April 1, 1986 [Da 377]. The plaintiff failed to disclose to the Court
below that the mortgage he referred to in his calculations was not the original
mortgage on the home, but a subsequent mortgage that he had taken out. The defendant-counterclaimant never received
any funds from any subsequent mortgages.
The trial court relied on the
plaintiff's assertions, set Defendant-counterclaimant's equity in the home at
$6,000, and gave her ten days to vacate the
household. Defendant-counterclaimant
left the home on January 16, 1994.
Near death, defendant-counterclaimant
entered Princeton House on January 20, 1994 [Da 332 ‑ 338].
Defendant-counterclaimant emerged
from Princeton House in February, 1994, with only the clothes on her back and
her sobriety. Plaintiff, earning
approximately $200,000 per year [Da 326 ‑ 330] in salary alone, decided that he was authorized to
place a small portion of older furnishings from the home into storage for the
defendant-counterclaimant [Da 233], and deducted the storage fees from the
pittance he was required to pay defendant-counterclaimant so that she could
find a new residence and begin getting her life together. Now living in the couples' luxurious West
Trenton home, the plaintiff provided no funds for defendant-counterclaimant to
find a new residence (in spite of his promises to the trial court that he would
provide her with a new residence), and she became homeless.
Upon re-entering the residence, the
plaintiff strew garbage around, took photos, then submitted them to the Court.
When he discovered that the defendant-counterclaimant had removed various
items (cooking pots, some paintings, some furniture) before departing from the
home on January 16, 1994, Mr. H called the police and filed a criminal
complaint [Da 413]. He waited until the
day of the municipal court hearing to drop the charges.
When the plaintiff was specifically
asked to live up to his promise to provide housing [2T 32-6 to 32-24], he
responded by saying:
¶ 35 . . . . [Defendant-counterclaimant] states she
was left without money or a place to go.
Again, Defendant begs for sympathy, when she really has been given
considerably more than she was due.
and
¶ 36. I do not
have an obligation to provide housing for Defendant. . .
[Da 171, Certification of John H].
Defendant-counterclaimant ended up
sleeping at the houses of friends and A.A. members, then applied for welfare
and received an emergency housing allowance [Da 367].
On February 10, 1994,
Defendant-counterclaimant filed a pro se Notice of Appeal, appealing the
Order entered by Judge Mahon on December 21, 1993 [Da 142]. Shortly thereafter, she filed a motion in the
trial Court requesting a reconsideration, and a stay of the portion of the
Order that required her to sign the deed to the house over to the plaintiff. The Appellate Division relinquished
jurisdiction to the trial court to determine whether the judgement should be
opened, and granted a stay of Judge Mahon's Order requiring her to sign over
her interest in the house [Da 185].
On February 23, 1995,
Defendant-counterclaimant's motion to vacate the December, 1993 Order was
denied by the trial court [Da 263].
J.S.C. Mahon ruled that, while defendant-counterclaimant was clearly in
an alcoholic state during the period of the hearing, this did not, as a matter
of law, constitute excusable neglect, that she had no valid palimony claim, and
that enforcement of the earlier Order was not unjust [Da 263, 1T]. Further, Judge Mahon let stand the partition
of the plaintiff and defendant-counterclaimant's property, even though it was
divided as if it had been a tenancy in common when in fact it is held as joint
tenants with rights of survivorship.
Judge Mahon signed an Order
memorializing this decision on March 28, 1995.
On May 5, Defendant-counterclaimant amended her notice of appeal to
include the issues raised by Judge Mahon's denial of her R.4:50-1
motion. [Da 419].
Summary
of Argument
This appeal arises from a denial of a
R. 4:50-1 motion to open a judgment entered on January 21, 1994. Appellant submits that the trial court's
errors were an egregious departure from the standard that controls such
motions, and that the lower court must be reversed so that a plenary hearing on
the merits of the defendant-counterclaimant's underlying claims can be held.
Every challenge being raised is one
that asserts that the trial court made errors in its conclusions of law. Because almost none of the facts found by the
trial court during this hearing are contested, this court should apply a
standard of de novo review throughout this appeal.
The issues are not complex. On December 21, 1993, a final hearing was
scheduled to address the defendant-counterclaimant's claims to palimony, child
custody, and domestic torts damages. She
did not appear. The trial court
determined, based on its own experience with the Defendant-counterclaimant and
the testimony of a member of the Probation Department who had conversed with
her that morning, that the appellant was suffering from severe alcoholism
during the period of December 1993.
Nonetheless, the Judge went on to rule in the plaintiff's favor on every
issue raised in the litigation, and dismissed all the
defendant-counterclaimant's claims.
In February, 1994, after the
defendant-counterclaimant began her recovery from alcoholism, she brought a pro
se motion under R.4:50-1 requesting that the trial court vacate the
earlier judgment and hold a plenary hearing on her claims. In February, 1995, the trial court again
affirmed that the defendant-counterclaimant was suffering from crippling
alcoholism at the time of the December, 1993 hearing, but determined as a
matter of law that alcoholism does not constitute excusable neglect. As shown below, this conclusion of law is
wholly insupportable. This issue has
been visited repeatedly and unambiguously by the Supreme Court of New Jersey,
and is covered by State and Federal laws.
As shown below, the trial court also
erred in concluding that the appellant had not demonstrated a reasonable
probability of succeeding on the merits.
The court plainly misread the import of the parties taking title to
their residence as joint tenants with rights of survivorship. Ignoring the obvious, the court concluded
that, because the joint tenancy status could have been changed by the
parties at some future date, the choice to take title as joint tenancy with
rights of survivorship was meaningless and did not show an intent on the part
of the plaintiff to provide for the defendant-counterclaimant beyond the end of
their relationship. In reaching this
conclusion, the court violated the basic tenant of the law of contracts that
the intent of parties is to be judged as of the moment of the contract's
creation, not based on their possible future actions.
Further, the issue of the tenancy
status of the party's home was only one facet of what should have been a
multi-factor analysis encompassing all the factors the Supreme Court has
indicated must be considered in palimony
cases. In two recent decisions, the Supreme
Court provided very specific criteria to guide the lower Courts on this
question. One of the most significant
omissions of the lower court in this regard was that, in denying the
defendant-counterclaimant's motion to vacate the judgement, it deprived itself
of the opportunity to consider the testimony of the defendant-counterclaimant
as to the existence of an oral contract.
Instead of considering these factors,
the trial court stated that the absence of a writing was a factor in its
dismissal of the defendant-counterclaimant's palimony claim, in spite of the
fact that every case to visit the issue has specifically held that the statute
of frauds is inapplicable in the palimony context.
As shown below, the trial Court also
erred in determining that enforcement of the judgment entered below would not
result in a manifest injustice. Relying
only on statements made by the plaintiff, the appellant will show that she
spent a minimum of 15 years living together as husband and wife. The defendant-counterclaimant bore
plaintiff's son and acted as a homemaker and mother for a decade and a half,
sacrificing her career and educational goals in order to provide the plaintiff
with the stable and pleasant home necessary for him to build a successful law
practice. The relationship ended when
the plaintiff left the defendant-counterclaimant for a woman 21 years his
junior. As a result of the judgement
entered below, the defendant-counterclaimant, after becoming completely dependent
on the plaintiff over a 15 year period, is now accepting public welfare and
food stamps in order to survive.
Next, the appellant argues that if
this court is to reverse the trial court and revive her palimony claim, the
court should exercise original jurisdiction to revive injunctive relief to her
in the way of pendente lite support pending a resolution of the issues
at the trial level, providing her with sufficient resources to afford the
necessary legal and expert fees to permit her the opportunity to have her case
properly adjudicated.
Finally, defendant-counterclaimant
argues that because she was ousted from a property to which she held title as a
joint tenant, she is entitled to half the fair rental value of the property for
the period of her ouster. Again, this
argument involves no fact finding that would violate the traditional role of
the Appellate Division when considering such issues, and falls within the
equitable powers of the Court to decide.
LEGAL ARGUMENT
I. THE TRIAL
COURT ERRED IN RULING THAT THE DEFENDANT-COUNTERCLAIMANT'S INABILITY TO ATTEND
THE DECEMBER 21, 1993 HEARING DID NOT CONSTITUTE EXCUSABLE NEGLECT.
At the hearing below, it was
uncontroverted that Ms. M was suffering from
serious, advanced alcoholism and was thus incapacitated during the
period of the December 21, 1993 hearing.
Commenting on this issue, the trial Court found:
THE COURT: I
don't know that there's much discussion that she was in an intoxicated state
during that period. The question is
whether, I suppose, I don't believe that's disputed, the question is whether
that's excusable. It may be neglectful,
but is it excusable neglect?
[1T 5-23 to 6-3].
Further, at the December 21, 1993
hearing, the Court took testimony from Teresa LaCosta of the Hunterdon County
Probation Department on the issue of the defendant-counterclaimant's
nonappearance at the hearing:
THE WITNESS:
When I -- she did not seem to recall who I was, when I first identified
myself. And then she started to cry on
the telephone, and told me that she couldn't get here, that there is no way she
could get here. She had no ride. She had no family. And then just -- she talked about it being
the holidays, and being alone, and not having a Christmas tree and her
financial situation.
[2T 12-12 to 12-18].
THE WITNESS: .
. . She, today, when I spoke to her, she again found it to be -- well, she was
crying, but she sounded intoxicated, and she was telling me that her cats were
starving, and that neighbors -- she didn't have any food. The neighbors wouldn't help her. And various things like that.
[2T 14-8 to 14-13].
The first issue presented to this
Court for review is whether alcoholism constitutes excusable neglect. Although generally an appeal of a motion
brought under R. 4:50-1 is reviewed under an abuse of discretion
standard, Court Inv. Co. v. Perillo, 48 N.J. 334, 341, (1966), the
factual question of whether Ms. M was suffering from alcoholism is undisputed,
leaving only a question of pure law warranting a de novo review from
this court. Rova Farms Resort v.
Investors Insurance Co., 65 N.J. 474, 483 (1974), Coffin v. Kelly,
133 N.J.L. 252 (E. & A. 1945), Lombardo v. Hoag, 269 N.J. Super. 36,
(App. Div. 1993).
In its decision, the court below
concluded that alcoholism did not constitute excusable neglect:
THE COURT:
Excusable neglect is neglect in which a reasonable[,] prudent person may
have engaged under the circumstances, Tradesman National Bank and Trust Co.
v. Cummings, 38 N.J. Super. 1 (App.Div. 1955).
In Bergen
Eastern Corp. v. Kaus, 178 N.J. Super. 42 (App.Div. 1981), the Court did
find excusable neglect where defendant's untimely response to a -- for a
defendant's untimely response to a foreclosure action. In so deciding, the Court reasoned defendant
was a 74-year-old widow with a history of serious psychological problems and
hospitalizations for mental illness, which obviously she had no or little
control over.
Here, I am not satisfied that the excusable neglect
advanced by Ms. M is sufficient to meet that standard.
I therefore find that prong of the necessary two
prongs is not present.
[1T 16-5 to 16-20].
In addressing the issue of
alcoholism, New Jersey
courts have reached several firm conclusions.
Both the New Jersey Supreme Court and Appellate Division have repeatedly
affirmed that alcoholism is both a disease and a handicap. See, e.g., In the Matter of George Hahn, an Attorney
at Law, 120 N.J. 691 (1990), Clowes v. Terminix Int'l Inc., 109 N.J.
575, 593, (1988), State v. Scher, 278 N.J. Super. 249, 274
(App.Div.1994), Gimello v. Agency Rent-A-Car Systems, 250 N.J. Super.
338 (App.Div. 1991).
For the purposes of the state Law
Against Discrimination (LAD) and federal Americans With Disabilities Act (ADA),
alcoholism is classified as a disability. See N.J. Stat. Ann. 10:5‑4.1 (West
1992), 42 U.S.C.A. § 12114, 28 C.F.R. § 35.131(a)(2)(i)‑(iii)
(1993), Clowes, 198 N.J. 575.
Other statutory provisions in New
Jersey have similarly defined alcoholism. See, N.J. Stat. Ann. 3B:1-2
(West 1994) (impairment caused by
alcoholism included in definition of mental incompetence), N.J. Stat. Ann. 3B:12-28 (West 1994)
(Alcoholics sober over one year considered to have returned to competence), N.J.
Stat. Ann. 30:1-12 ([T]he department may at its discretion establish and
maintain specialized facilities and services for the . . . care, treatment and
rehabilitation of persons who are suffering from chronic mental or neurological
disorders, including, but not limited to alcoholism . . .), cf. N.J. Stat. Ann. 17:48-6a
(West 1994) (Insurance plans cannot discriminate against alcoholism in their
in-patient coverage plans).
Both the LAD and ADA were enacted to protect persons with
disabilities from the exact type of discrimination visited on the
defendant-counterclaimant by the trial court's denial of her R. 4:50-1
motion. In a recent case addressing this
issue, the Law Division held that "[t]he ADA is remedial legislation designed to
eliminate a long history of discrimination.
42 U.S.C.A. § 12101.
Persons with HIV disease, alcoholism, epilepsy and emotional illness are
equally covered, although there are unfounded myths associated with those
conditions." City of Newark v. J.S., 279
N.J. Super. 178, 196 (Law Div. 1993).
In quoting Bergen Eastern Corp. v.
Kaus, the trial judge concluded that the court found excusable neglect in
that case because the movant suffered from illnesses "which obviously she
had no or little control over" [1T 16-15 16-16]. When Judge Mahon thereafter found that the
defendant-counterclaimant's alcoholism did not qualify as such an illness, he
was accepting and perpetuating the myth that alcoholics have control over their
illness. This holding is plainly
contrary to New Jersey
case law, as well as the intent of the legislature as expressed in the Law
Against Discrimination and the intent of Congress as expressed in the Americans
with Disabilities Act.
Although a willful failure to embrace
treatment for alcoholism can lead the courts to reject it as an excuse, In
the Matter of Collestar, 126 N.J. 468 (1991), there was no such allegation
in the instant case. The
defendant-counterclaimant had, through continuing membership in Alcoholics
Anonymous, maintained her sobriety since her first in-patient treatment, and at
the time of the R. 4:50-1 hearing, had been sober for over a year.
Such a "sincere confrontation [of her] alcoholism and commitment to
rehabilitation" should warrant deference from this court. Id. at 477.
In another recent case, the Chancery
Division prevented a step-parent adoption when it found that the abandonment by
the natural father could not be considered “intentional" as the father had
been suffering from severe alcoholism. In
the Matter of the Adoption of a Child by J.R.D., 246 N.J.Super. 619, 620
(Ch. Div.1990).
Foreign jurisdictions directly
considering whether alcoholism constitutes excusable neglect have uniformly
held that alcoholism is sufficient to meet the "excusable neglect"
standard.
In Clarke v. Clarke, 423
N.W.2d 818 (S.D. 1988), the Supreme Court of South Dakota considered a request
for relief from a judgment under a statute that is nearly identical to New
Jersey's R. 4:50-1. In Clark, the Court reviewed trial level findings on
the legitimacy of alcoholism and depression when presented as grounds for
excusable neglect. The court held that
the existence of this type of relief is "to preserve the delicate balance
between the sanctity of final judgments and the incessant command of the
court's conscience that justice be done in light of all the facts." Id.
at 820.
Like New Jersey courts, the South Dakota Court
held that "excusable neglect" must be neglect of a nature "that
would cause a reasonable prudent person to act similarly under similar
circumstances." Clarke 423 N.W.2d at 821, Tradesman National
Bank and Trust Co. v. Cummings, 38 N.J. Super. 1 (App.Div. 1955).
Even without the benefit of guidance
from an equivalent to the New Jersey Law Against Discrimination, and before
such a holding would have been suggested by the enactment of the Federal
Americans with Disabilities Act, the Clarke court held that the
defendant's alcoholism and depression clearly constituted excusable
neglect. See also Iddings v.
McBurney, 657 A.2d 550, 553 (R.I. 1995) (Defendant's medically documented
disability constituted an extenuating circumstance to render his neglect
excusable), U.S.I.F. Wynnewood Corp. v. W. G. Soderquist, 219 S.E.2d 787
(N.C.App. 1975) (Defendant's lack of a sound mind constituted excusable
neglect), Sawyer v. Cox, 244 S.E.2d 173 (N.C. App. 1982) (Defendant's
alcoholism did not amount to "excusable neglect" because, by
his own testimony he had not had any alcohol for some time prior to entry of
judgment).
It is well established that New
Jersey Case Law favors resolving claims on their merits. S.E.W. Friel Company v. N.J. Turnpike
Authority, 73 N.J. 107 (1977). Rule
4:50-1 is an embodiment of this policy, and its purpose is to ensure that
unjust results are avoided.
The Rule "`is designed to reconcile the strong
interests in finality of judgments and judicial efficiency with the equitable
notion that courts should have authority to avoid an unjust result in any given
case.'" Baumann v. Marinaro,
95 N.J. 380, 392, (1984) quoting Manning Eng'g, Inc. v. Hudson County Park
Comm'n, 74 N.J. 113, 120, (1977) . . . A court should view "the
opening of default judgments ... with great liberality," and should
tolerate "every reasonable ground for indulgence ... to the end that a
just result is reached." Marder
v. Realty Constr. Co., 84 N.J.Super. 313, 319, (App.Div.), aff'd, 43 N.J.
508 (1964). All doubts . . . should be resolved in favor of the parties
seeking relief. Arrow Mfg. Co. v.
Levinson, 231 N.J.Super. 527, 534, (App.Div.1989) (emphasis supplied).
In the only case in which New Jersey courts
addressed the issue of alcoholism in the palimony context, it was held that it
was not an abuse of discretion to exclude testimony concerning alcoholism when
considering the existence of a palimony contract. Kozlowski v. Kozlowski,
164 N.J. Super. 162 (Ch.Div.1978), aff’d 80 N.J. 378 (1979). “Her end of the agreement was, in general
terms, to take care of defendant, his children and his home; to cook and keep
house for him, and to help entertain his friends and business associates. There was no indication that the
understanding of the parties required plaintiff to abstain from drinking
alcoholic beverages.” Id. at 388.
Whether alcoholism is viewed by this
court as a disability or as a disease, its uncontroverted role in the instant
case makes clear that the legal conclusion of the court below that it was
"not satisfied that the excusable neglect advanced by Ms. M is sufficient
to meet [the] standard" [1T 16-17 to 16‑18] was legal error and must
be reversed.
II. THE TRIAL
COURT ERRED IN HOLDING THAT MS. M WOULD NOT SUCCEED ON THE MERITS OF HER CLAIM;
THE UNCONTROVERTED FACTS OF THE CASE DEMONSTRATE THAT SHE WILL SUCCEED ON THE
MERITS.
To succeed on a motion to open a
judgment under R. 4:50-1, a movant must show not only that her neglect
was excusable, but that she has a meritorious defense to the action. Marder v. Realty Construction Co., 84
N.J. Super. 313 (App.Div. 1964), aff'd, 43 N.J. 508 (1964), Mancini
v. New Jersey
Automobile Full Insurance Underwriting Association, 132 N.J. 330
(1993). In ruling on this issue, the
court below made a plainly erroneous conclusion of law, again warranting a de
novo review from this court. Coffin
v. Kelly, 133 N.J.L. 252, 44 A.2d 29 (E. & A. 1945), Lombardo v.
Hoag, 269 N.J. Super. 36, (App. Div. 1993).
A. The purchase
of the co-habitants’ home as joint tenants with rights of survivorship clearly
indicates an intention on the part of the plaintiff to provide for the
defendant-counterclaimant beyond the end of their relationship.
In the sixth year of their 17 year
cohabiting relationship, [Da 24]
Plaintiff and Defendant-counterclaimant purchased a home together. The plaintiff, a skilled matrimonial attorney
admitted to the bar since 1969, chose to take title as joint tenants with
rights of survivorship. There are no
economic advantages in taking title in this manner. It does not reduce liability, taxes, nor
insurance obligations. The only
logical reason that a party (especially an attorney, who presumably possesses
an in-depth understanding of the law) would take title in this manner is to
demonstrate an intent to provide a home in the event of a purchaser’s early
demise. There is no right of
survivorship in tenancy in common as there is in joint tenancy, Weiss v. Cedar Park Cemetery, 240 N.J.
Super. 86 (App.Div. 1990), and, as pointed out at the trial level, the grand
incident of joint tenancy is survivorship since upon the death of any joint
tenant, title descends to the survivor by operation of law. Black's Law Dictionary, 6th Ed.
While taking title in this manner is
not determinative of the palimony issue, it is clearly indicative that the
defendant-counterclaimant has a meritorious claim to palimony damages. This may explain why the plaintiff
misrepresented that they had purchased the home as tenants in common [Da 129 -
137].
The defendant-counterclaimant resided
in this home for nearly 12 years, during which time she raised the plaintiff's
son and acted as his wife. Nonetheless, due to the incapacitating disability of
the illness from which she began to suffer during this period, she was deprived
of the property to which she held title without the opportunity to participate
in an accounting or partition.
Although the applicability of Kozlowski
v. Kozlowski, 164 N.J. Super. 162 (Ch.Div. 1978), aff’d 80 N.J. 378
(1979), is more thoroughly discussed below, it should be noted here that the
Appellate Division in Kozlowski specifically held that, in considering
whether a partnership has been created for palimony purposes, “common ownership
and control of partnership property” is a factor tending to support the
existence of such a relationship. Id. at 162.
Instead of denying that joint tenancy
with rights of survivorship evinces an intent to provide past the end of the
relationship, plaintiff’s counsel argued to the lower court that the
possibility of terminating the joint tenancy status negated the original intent
of the purchasers:
MS. KEEPHART:
Any joint tenant can, at any time, destroy the right of survivorship by
severing the joint tenancy. Upon severance,
the joint tenancy becomes tenancy in common. And in no way does that tenancy
indicate that Mr. H intended to leave her this house.
[1T 13-8 to 13-12]
Amazingly, the Court below accepted this argument:
THE COURT: As has
been pointed out by counsel, that joint tenancy status can be, of course,
changed by the parties. I find no law to
support the proposition that joint tenancy somehow is indicative of a -- some
sort of a promise to leave something upon Mr. H's death and the like.
[1T 17-3 to 17-9]
Contrary to the holding of the lower
Court, it is a basic tenet of contract law that the intent of contracting
parties is measured as of the creation of the contract, not based on whether
they could have been altered by a party at some future date. See, e.g. Restatement (Second) of
Contracts §§27, 213, (1982 App.), See also Weichert Co. Realtors v.
Ryan, 128 N.J. 427 (1992), Gross v. Yeskel, 100 N.J. Eq. 293, 134 A.
737 (1926), Moscowitz v. Middlesex Borough Building & Loan Ass'n.,
18 N.J. Super. 182 (App. Div. 1952).
For the purpose of clarifying and
properly emphasizing this point: Had the plaintiff made out a will leaving Ms. M
all his assets, according to the lower court's ruling this also would not have
indicated an intent to provide for the defendant-counterclaimant in the event
of Mr. H's death, because, like a joint tenancy, a will may be changed at any
time.
Further, the whole of palimony law
would fall under an analysis that permits judging a party's intent based upon
their possible future actions and intentions.
Clearly, Mr. H's intent toward Ms. M changed dramatically after he left
her for a younger woman.
The purchase of the co-habitants'
home as "joint tenants with rights of survivorship and not as tenants in
common" clearly indicated Plaintiff's intent to provide for the
defendant-counterclaimant beyond the end of their relationship. The lower Court’s ruling on this issue was an
error of law that must be reversed.
B. The trial court erred in failing to consider the
palimony factors announced in Kozlowski v. Kozlowski, and by instead
focusing on the legal irrelevancy of the nonexistence of a writing.
The applicability of the palimony
test outlined in Kozlowski v. Kozlowski, was raised before the trial
court during oral argument and in the trial briefs. However, the trial court ignored the test
promulgated by the New Jersey Supreme Court and focused on a factor that had
been specifically excluded from consideration by at least two Supreme
Court cases. Therefore, the trial Court
must be reversed.
Where the majority in Kozlowski
set the general principles of law concerning palimony, Justice Pashman’s concurrence proposed a non-exclusive list of factors for
the courts to consider when confronted with a palimony claim. While stressing that a palimony remedy is
based in equity and that each case depends on the individual facts and
circumstances presented, the court provided a list of factors, none of which
were considered by the court below.
The factors that the concurrence
directed the lower courts to consider ("as examples only") are: the
duration of the relationship, the amount and type of services rendered by each
of the parties, the opportunities foregone by either in entering the living
arrangement, and the ability of each to earn a living after the relationship
has been dissolved. Id. at 910. In the case at bar, the lower Court
considered none of these factors.
Although the exact amount of
time remains in dispute, the relationship lasted a minimum of 15 years [Da 60
at ¶ 7] and a maximum of 17 [Da 24]. It
is undisputed that the parties lived together at 18 Montague Avenue in West
Trenton for nearly 12 of those years.
When the couple purchased the home in
1981, it was in an unfinished state. The
plaintiff continued to build his law practice, working approximately 70 hours
per week, including most weekends, and rarely (by his own admission) made it
home before 7:30 P.M. on weeknights [Da 10].
The defendant-counterclaimant took on the full time supervision of the
completion and maintenance of the home.
Thereafter, she supervised the installation of a stone retaining wall,
two drywells and an ejector pump, an inground pool, and a massive landscaping
project that included a waterfall, a slate patio, and a wrought iron
fence. She also decorated the interior
of the house, utilizing proven professional skills of an undetermined monetary
value.
In addition, the defendant-counterclaimant maintained the house, cleaned
it, prepared meals for the plaintiff, and established a pleasant and stable
home environment which permitted the plaintiff to earn an income of nearly a
quarter million dollars per year.
It is undisputed that the
defendant-counterclaimant became pregnant by the plaintiff in 1986, and bore
his son in 1987. From this time onward
she acted as a homemaker and mother, as caring for the child took up the vast
majority of her waking hours.
The uncontroverted facts show that
during the majority of her relationship with the plaintiff, Ms. M acted as a
homemaker and companion to the plaintiff, as well as a mother to their child,
while he built his law practice.
The opportunities foregone by
Defendant-counterclaimant due to her relationship with the plaintiff were
explored at length at the trial level.
Aside from the $75 per week in combined alimony and child support that she
received, the defendant-counterclaimant showed promise as an interior designer,
taking various classes in the subject [Da 388] and working whenever the
plaintiff would permit her to do so.
The capacity of each to earn a living
after the relationship has been dissolved is painfully obvious. During the course of her relationship with
the plaintiff, Plaintiff was hired at Mercer County's
largest matrimonial law firm [Da 417].
Today, he is a partner earning $200,000 per year in salary alone
[Da 327]. The defendant-counterclaimant
remains on welfare and food stamps, working occasional odd jobs cleaning houses
[Da 367].
Moreover, Defendant-counterclaimant
continues to insist that the plaintiff made frequent oral promises to take care
of her for life [Da 29]. In keeping
with these oral promises, the plaintiff fully supported the
defendant-counterclaimant throughout their 17 year cohabiting
relationship. Further,
Defendant-counterclaimant provided a copy of a $300,000 life insurance policy
taken out by the plaintiff naming "Janice H, spouse" [Da 323 - 324]
as the beneficiary. In addition, as
discussed, they purchased their residence as joint tenants with rights of
survivorship.
Finally, the
defendant-counterclaimant has not had the benefit of discovery nor has the
trial court had the opportunity to assess her demeanor and credibility, and the
denial of her R. 4:50-1 motion permanently denied her this
opportunity. She continues to assert
that the plaintiff left her for another woman (his present wife), who is
twenty-one years younger than he is.
The factors set out in Kozlowski
v. Kozlowski were raised by the defendant-counterclaimant below (see
defendant-counterclaimant’s brief, transcripts generally) however, the court
declined to consider any of them.
Instead, the court below focused on
whether there was a writing between the parties:
THE COURT: Also
the court did entertain proofs as to what would be reasonable compensation for
that of what would be present [sic].
The other arguments -- there is no writing advanced on the part of the
defendant as to any of her claims.
I am simply not persuaded that there is a basis after
a careful review of her filing that meritorious offense does exist.
The Motion for Reconsideration is therefore denied.
[1T 17-10 to 17-16] (Emphasis supplied).
When the Kozlowski case was
first considered in the Chancery Division, the court discussed the statute of
frauds at length, holding that “[a]lthough the agreement was oral, it does not
violate the statute of frauds . . . [t]his court could not countenance the
unconscionable result which would obtain should all relief be denied this
plaintiff who was cast adrift at 63 years of age without means of support
assets, and with little hope of developing support opportunities.” Kozlowski,
164 N.J. Super. at 177, 178. See also
Eiseman v. Schneider, 60 N.J.L. 291, 37 A. 623 (Sup.Ct. 1897).
The Appellate Division was more
concise on this issue. When confronted
with a statute of frauds defense in Crowe v. DeGioia, the Court held “a
Statute of Frauds should not be used to work a fraud”. Crowe v. DeGioia, 203 N.J. Super 22
(1985), (quoting Klockner v. Green, 54 N.J. 230 (1969)).
The lower court should have
considered whether the defendant-counterclaimant had made a prima facia
case under the standards announced by the Supreme Court in Kozlowski,
and whether, given the opportunity to present all of her proofs and to testify as to the contract
that existed between the parties, she would have had a reasonable chance of
success on the merits. Any doubts that
the trial court had at this stage concerning the viability of
Defendant-counterclaimant's claims should have been resolved in her favor. Arrow Mfg. Co. v. Levinson, 231
N.J.Super. 527, 534 (App.Div.1989).
Instead, the court ignored those
factors, and based its decision on the legal irrelevancy of whether a writing
existed between the parties.
It is respectfully submitted that the
lower court must be reversed on these errors and that the matter should be
reversed and remanded for a trial on the merits.
III. THE TRIAL
COURT ERRED IN FAILING TO HOLD THAT ENFORCEMENT OF THE LOWER COURT'S ORDER WOULD BE UNJUST,
OPPRESSIVE AND INEQUITABLE
In Quagliato v. Bodner, 115
N.J. Super. 133 (App.Div. 1971), the court set a final requirement that must be
met in order for a movant to obtain relief under R. 4:50-1. A movant
must show that enforcement of the order would be "unjust, oppressive, or
inequitable" Id.
at 138.
As demonstrated above,
defendant-counterclaimant sacrificed her education and career goals in order to
bear and raise the plaintiff's and defendant-counterclaimant's son and provide
him with the household which enabled him to build a multi-million dollar law
practice. As a result of the lower
court's Order, the defendant-counterclaimant is left homeless and living on
welfare, while the plaintiff enjoys the couple's home and all the other rewards
of the defendant-counterclaimant's sacrifices.
The plaintiff agrees with this
result. He has stated clearly that his
position is that the defendant-counterclaimant is entitled to
"nothing".
Incredibly, he noted with disapproval that Ms. M was unsatisfied with a
shelter provided by the State while he continues to occupy the couple’s
suburban West Trenton home.
Apparently, the plaintiff believes that Ms. M should somehow gracefully
accept the transition from the lifestyle they shared for 12 years in an
affluent section of West Trenton to homeless
shelters and welfare. If the Court were
seeking a definition to the terms “unjust, oppressive, and inequitable,” the
lower court's Order, which embodies the plaintiff’s attitude, surely would provide one.
The plaintiff perpetrated a fraud on the lower court by claiming that
the couples' residence had been purchased as tenants in common [Da 133]
when in fact it had been purchased as "joint tenants with rights of
survivorship and not as tenants in common" [368], and by his implication
that the original mortgage was still outstanding [Da 168, 2T 23-24 to 24-3],
when the original mortgage had in fact been paid off in 1986 [Da 377]. It would be a manifest injustice to permit
the division of the property as entered by the trial court to stand.
In making its calculations, the Court
relied on plaintiff's personal (and wildly inaccurate) assertion that Reitmeier
v. Kalinoski, 631 F.Supp. 565
(D.N.J. 1986) was controlling [Da 167]. However, the Reitmeier case dealt with
a partition between co‑tenants where the property had been held as
tenants in common. The Reitmeier
decision was clearly inapplicable to the case at bar for numerous reasons.
As mentioned, the property in Reitmeier
was held as tenants in common, not as joint tenants with rights of
survivorship. The only time the Reitmeier Court
even mentions joint tenancy is to distinguish it from the case
then being considered. ". . .
[T]enants in common are seized per my et non per tout, by the part and
not by the whole, whereas joint tenants are seized per tout et per my,
by the part and by the whole . . . "
Id.
at 575 (footnote 6), (citing Newman v. Chase, 70 N.J. 254, 262 n. 5 (1976)), Gery v.
Gery, 113 N.J.Eq. 59, 166 A. 108 (Ct.E.&A. 1933). The argument is made in Reitmeier that
a tenancy in common is not necessarily a 50 - 50 split; ownership is
apportioned amongst its owners, and the estate can be divided according to
their contributions. This is not so with
a joint tenancy with rights of survivorship, in which the whole is owned
equally by both parties.
The tenants in Reitmeier never
co-habited, the property was held jointly only for a very short period of time,
and the issues of quantum merit, unjust enrichment, and detrimental
reliance were never even raised. Reitmeier
was neither a contract nor a palimony case, and it has no applicability in the
case at bar. Clearly, it would be unjust
to permit a partition made in accordance with Reitmeier to stand.
Further, in addition to the value of
the services defendant-counterclaimant rendered in maintenance and upkeep, she
contributed nearly $15,000 to the purchase of the home [Da 148]. The plaintiff has consistently refused to
produce the closing file, and has made conflicting claims as to the amount contributed
by the defendant-counterclaimant.
As was pointed out by the plaintiff's
counsel, the Order entered below technically leaves the
defendant-counterclaimant, who had been reduced to homelessness and welfare,
indebted to the plaintiff for $157,170 [Da 169], and leaves viable the
preposterous argument that the defendant-counterclaimant has been unjustly
enriched!
MS. KEEPHART:
Her bottom line comes out to be that she owes Mr. H well in excess of
$150,000 . . .
[1T 14-2 to 14-3]
Unjust enrichment, perhaps, has occurred if the whole
concept of quantum meruit is going to be addressed. Unjust enrichment has occurred perhaps on the
side of the defendant.
[1T 14-22 to 14-25].
The Domestic Violence aspects of this
case present another compelling reason to reverse the trial court, and another
reason why enforcement of the lower court's Order is a manifest injustice. As was spelled out in the defendant’s
counter-claim, the Ewing police were first
called to the H residence in 1977. In
1983, he beat her so badly [Da 421] that she temporarily left the residence and
stayed with an aunt in Trenton. She filed charges and obtained a Temporary
Domestic Violence Restraining Order [Da 419 - 420]. However, after being separated for less than
two weeks, John convinced her that he loved her and would never again be
physically violent toward her, and convinced her to return to their Montague Avenue
home. The more serious of the subsequent
assaults resulted in medical reports that show a cut to the
defendant-counterclaimant's head requiring six stitches [Da 313 ‑ 315]
(defendant-counterclaimant asserted that this was caused by being pushed into a
coffee table by the plaintiff), a broken nose and ribs in 1991 [Da 316 ‑ 317]
(defendant-counterclaimant asserted that this was caused by a vicious assault
by the plaintiff [Da 33]), a history of cuts, bruises, and various internal
injuries (defendant-counterclaimant asserted that these were caused by various
beatings inflicted by the plaintiff over the course of their relationship [Da
33]).
The defendant-counterclaimant's
non-appearance due to her disability deprived her of the opportunity to testify
as to the abuse she suffered at the plaintiff's hands. At various pre-trial hearings, she produced
medical reports and horrific photographs of bruises inflicted on her by the
plaintiff [Da 365 - 366]. Yet, in
another outrageous statement, the plaintiff has claimed “I am in reality, the
victim!” [Da 231, ¶15, emphasis in original], and “I am clearly the party
to this action who has been unfairly burdened and abused” [Da 235].
Defendant-counterclaimant deserves a
chance to have the issue of who was victimized by whom determined by a
factfinder. Denying her this opportunity
means that the plaintiff gets away with what he did to the
defendant-counterclaimant, and would clearly be the sort of injustice that the
court in Quagliato had in mind when requiring such a showing to open a
judgment.
The plaintiff’s physical and
emotional abuse of the defendant-counterclaimant, followed by his abandonment
of her for a woman 21 years his junior, contributed significantly to the
defendant-counterclaimant's deterioration after the end of their
relationship. This fact strengthens
every claim of the defendant-counterclaimant, and makes it even more compelling
that this Court reverse the lower court and remand for a trial on the merits. See, Clarke v. Clarke, 423
N.W.2d 818 (S.D. 1988).
The trial Court erred in failing to
hold that enforcement of the lower Court's judgment would constitute a manifest
injustice. This error alone should
warrant reversal of the lower Court.
IV. THE APPELLATE
DIVISION SHOULD EXERCISE ORIGINAL JURISDICTION TO REDRESS THE FINANCIAL
INJUSTICE CAUSED BY THE LOWER
COURT'S ERRONEOUS RULING.
Article IV, section V, paragraph 3 of
the New Jersey Constitution and R. 2:10-5 permit courts of review to
exercise original jurisdiction whenever necessary to the complete determination
of any matter on review.
New Jersey Case Law has determined a
variety of factors for deciding if an exercise of original jurisdiction in the
Appellate Division is appropriate, all of which support
Defendant-counterclaimant's request that original jurisdiction be exercised in
the instant case.
Undeniably, the
defendant-counterclaimant is harmed by the continued existence of the Order
under appeal, and the delay inherent in leaving these issue to the trial Court
would only exacerbate the damage. This
is a factor that the Court should consider when considering whether to exercise
original jurisdiction. State v.
Tumminello, 70 N.J. 187 (1976). The
case at bar has an incredibly protracted history, Anastasia v. Planning
Board of West Orange Township, 209 N.J. Super. 499, 518 (1986), and the
record (including a 422 page appendix) presented to this Court is very nearly a
complete record of every pleading, exhibit, and transcript that was created in
the lower Court. See, S.S. v.
E.S., 243 N.J. Super. 1, 14 (1990) (the paltry record submitted was
uninformative and, thus, inadequate for the purpose of exercising original
jurisdiction), Margaritondo v. Stauffer Chemical Company, 217 N.J.
Super. 560, 564 reaffrm'd 217 N.J. Super. 565 (App.Div.1986).
Further, the issues presented for
original jurisdiction are purely legal; no purpose would be served by remanding
them to the trial Court for a determination that would be subject to de novo
review by this court. Bressman v.
Gash, 131 N.J. 517, 528 (1993).
Finally, the Appellate Division has
held that undefined "other circumstances" could justify an exercise
of original jurisdiction, and the equities of this case, where a party has been
unfairly reduced to homelessness and welfare, should surely supply
justification for an exercise of original jurisdiction. Maisonet v. N.J. Dept. of Human Service,
274 N.J. Super. 228 (1994), cert granted 138 N.J. 265 (1994). (there were no "other circumstances"
that would warrant jurisdiction Id.
at 232). See also State v.
Jarbath, 114 N.J. 394 (1989).
If justice is to be done in this
case, it must be noted that the plaintiff practices matrimonial law as a full
partner in Mercer
County's largest
matrimonial law firm. He stated to the
custody and visitation investigator that his income is around $200,000 a
year. His "large expendable
income" [Da 135] permits him to live in an affluent section of West Trenton, and lease a Mercedes Benz.
The defendant-counterclaimant is pro-se
with only an eleventh grade education.
After becoming accustomed to the upper-middle class lifestyle that her
support permitted the plaintiff to build, she now subsists on welfare, food
stamps, and occasional work cleaning houses.
Her housing allowance from welfare is $50 a month less than her
rent. Attorney's fees arising out of
this litigation have left her nearly $50,000 in debt.
In fact, her first attorney (Jan
Bernstein of Riker Danzig) withdrew because their legal fees were not being
paid. [Da 113 ‑ 114,
Da 341]. In response to not being paid,
her second attorney became so non-responsive that Ms. M, having no idea what
was going on with her case, was eventually forced to dismiss her.
Utilizing his professional skills,
the plaintiff managed to delay this matter for almost three years, and, even if
this court reverses, the need for pre-trial discovery would probably entail
another enormous delay.
The plaintiff has one of the state's most powerful law firms litigating
for him without charge. He possesses and
has demonstrated the capability to "paper the defendant-counterclaimant to
death." Without an award of
attorney's fees, or a pendente lite Order that would permit her to be
able to retain an attorney, this case will again devolve into a war of
attrition at the trial level, and the plaintiff must eventually prevail on
those terms. The Appellate Division
should not close its eyes to the tremendous injustice that must inevitably
result if this Court does not take action and provide the
defendant-counterclaimant with the resources necessary to obtain a fair hearing
on her claims.
The plaintiff, who has 26 years
experience in matrimonial matters, is already beginning to cry poverty;
presumably in anticipation of a negative result on this appeal, he stated the
following in response to a motion to enforce payment of the $200.00 per week
(to a $6,000 total) that the trial Court compelled him to pay:
¶ 15. The
bigger problem now, is that I simply do not have the funds to pay her more than
$200.00 per week to satisfy the $6,000. . .
[Da 202]
¶ 16. . . . I
just do not have the means to put out the lump sum amount at this time. Defendant should have taken it when my
attorney offered it the first time [and her request to receive it now should be
denied]. [Da 203]
While this is not conclusive evidence
that the plaintiff has begun to hide his assets, it is unseemly that an attorney
who earns $200,000 per year in salary alone cannot raise the relatively minor
sum of the $5,400 still owed to the defendant-counterclaimant from the 12/21/93
Order. Without professional legal
assistance and forensic accounting experts, the defendant-counterclaimant's
prospects of a just determination are dim indeed, regardless of whether the
other claims of error raised in this appeal result in a reversal.
The arguments below establish that
Defendant-counterclaimant is entitled to injunctive relief in the way of pendente
lite support pending a plenary hearing on this matter, and that she is
entitled to significant arrearage, both for Orders that were ignored, and for
the time period since the entrance of the lower court's Order.
Under the unique facts of this case,
the Appellate Division should, in addition, order that the plaintiff pay the
defendant-counterclaimant's attorney's fee debt and provide counsel and expert
fees for the future trial level proceedings, or provide her with a sufficient
level of support so that she can afford to retain an attorney whose abilities
approximate those of the plaintiff. Our
adversarial system is dependent upon there being a level playing field. No relief short of this will possibly result
in a just conclusion to this case.
A. The court
should revive pendente lite support pending the resolution of the
defendant-counterclaimant's claims at the trial level
In the absence of an exercise of
original jurisdiction, appellate courts will generally decline to consider
questions or issues not presented to the trial court when there was an
opportunity to do so. However, appellate
courts may consider them if the question is one of important public interest. R. 2:10-2. Further, if an appellate court on its own can
interject an issue, it may in its discretion permit a party to do so. See Saul v. Midlantic National Bank,
240 N.J. Super. 62 (App.Div.1990), State v. Macon, 57 N.J. 325, 331 (1971), Morin
v. Becker, 6 N.J. 457 (1951).
Public policy is clearly implicated
in this case. No one should be permitted
to foster the total dependence of another human being for 17 years and then
abandon them to the welfare rolls, middle aged and stripped of the years during
which the most fundamental survival skills otherwise would have been
developed. For 17 years, the defendant
provided a high standard of living for Janice M, who spent these same years
providing the plaintiff with the home, eventually child care for the son she
bore him, and all other domestic support necessary to enable him to concentrate
on building his own earning power to a significant degree. Then, when she was in her mid-forties, he
abandoned her with absolutely no recognition of her contributions to his
present life and well-being, for a successor in her twenties.
In the instant case, this Court
should use every available resource to unequivocally demonstrate that such
behavior is intolerable in this State.
The plaintiff's attempt to terminate this relationship with no
acknowledgment whatsoever of his obligations to Janice, simply because their
commitment to each other lacked the formality of a marriage ritual, should be
summarily rejected. That the plaintiff
would use all his legal expertise and skill to walk away while the woman he
once promised to love and care for the rest of her life suffers the pain and
degradation of homelessness and poverty speaks volumes on both his narcissistic inhumanity and the
legitimacy of the defendant-counterclaimant's charges that he was physically,
emotionally, verbally, and sexually abusive during their time together.
In addition, that a member of the bar
would undertake such morally abhorrent action and abuse of the power of the law
in pursuit of such objectives should be especially offensive to this
Court. If John H., lacks the character
and human decency to reach into his very deep pocket and live up to his obvious
promise to provide for Janice for the rest of her life, or at least to show a
willingness to compensate her for the 17 years during which she gave him her
youth, her love, her time, her companionship and a son, then this Court should
have no reservations about forcing him to do so.
In addition to the now-exposed fraud
in the plaintiff's claims concerning the mortgage and tenancy status of the
home, the defendant-counterclaimant continues to insist that she was
physically, emotionally, verbally, and sexually battered by this man. This court should not ignore the fact that
the plaintiff has spent the last quarter century honing his courtroom skills
into a powerful weapon which even today he continues to use against the
relatively naive, emotionally-battered middle-aged and impoverished defendant,
who despite what she has been through, today is sober in A.A., and desperately,
courageously struggling to rebuild her broken life.
If this Court cannot rule, based on
the plaintiff's admissions, the eerie similarity between the
fact patterns in the case at bar and the Kozlowski facts, and the lack of any other possible explanation
for Ms. M's actions, that an oral contract existed between these people, then
the Court should at least order substantial relief pending the resolution of
the underlying issues before a factfinder.
This issue can be addressed by this
Court as a matter of law by a simple application of the certifications of Mr. H
to the applicable legal standard.
The issue of whether injunctive
relief in the way of pendente lite support is appropriate in the
palimony context is such a matter. In Crowe
v. DeGoia, 90 N.J. 126 (1982), the Court held that several factors should
be considered in deciding whether injunctive relief should issue.
First, the Supreme Court held that
injunctive relief should not issue except when necessary to prevent irreparable
harm. Crowe at 132, (citing
Citizens Coach Co. v. Camden Horse R.R. Co., 29 N.J.Eq. 299, 303 (E.
& A. 1878)). The Court noted that
“in certain circumstances, severe personal inconvenience can constitute
irreparable injury justifying issuance of injunctive relief”. Crowe 90 N.J. at 133,(citing Hodge
v. Giese, 43 N.J.Eq. 342, 350, 11 A. 484 (Ch. 1887)). In Crowe, the plaintiff was seeking
support because she was threatened with homelessness and the loss of her only
means of support. The Court held that
“the trauma of eviction . . . may well justify the intervention of equity. Neither an unwarranted eviction nor reduction
to poverty can be compensated adequately by monetary damages awarded after a
distant plenary hearing”. Crowe,
90 N.J. at 132-133.
In the case at bar, the
defendant-counterclaimant was given temporary emergency housing through the
Department of Welfare. She has been
informed that she must vacate this housing by September 1, 1995. Having become completely dependent on the
plaintiff during their 17 year relationship, she is again faced with the
prospect of a homeless shelter while he continues to reside with her
far-younger replacement in the air conditioned luxury of their suburban home.
The second factor that the Crowe
court announced was that temporary relief should be withheld where the
underlying legal claim is uncertain. The
legal claim in the instant case is the same as the one considered in Crowe,
which held “the enforceability of a support agreement between unmarried
cohabitants was well settled as a matter of law in Kozlowski v. Kozlowski”.
Crowe 90 N.J. at 133.
The final factor that the Supreme
Court announced was that “preliminary relief should not issue where all
material facts are controverted”. Id.
Unlike the facts in Crowe,
where the economically advantaged co-habitant claimed that he had maintained
only a friendly relationship with the plaintiff, the plaintiff in the instant
case has admitted a fact pattern that clearly indicates the palimony elements
as set forth by the New Jersey Supreme Court in Kozlowski v. Kozlowski
and Crowe v. DeGoia. The
extensive admissions by the plaintiff preclude any assertion that all the
material facts of such a claim are controverted.
By an Order entered on July 22, 1992
by the Honorable Sullivan, J.S.C., the plaintiff was ordered to maintain the status
quo of their upper-middle class household.
She was granted exclusive occupation of the home, use of a Mercedes
Benz, and the payment of $200 per week as injunctive relief pending a plenary
hearing on her palimony claim [Da 90 - 93].
Considering the plaintiff's
demonstrated ability to delay the proceedings of the trial court, should this
court see fit to reverse and remand for a trial on the merits, thus reviving
her palimony claim, it would be just for this Court to also re-establish the
injunctive relief of the July 22, 1992 support order.
It is respectfully requested that
this court revive the July 22, 1992 Order requiring the plaintiff to provide pendente
lite support to the defendant-counterclaimant. If it is not within this Court's equitable
powers to award defendant-counterclaimant counsel fees, the fact that she has
no realistic chance of a fair adjudication unless she can afford to retain an
attorney should move this Court to provide sufficient pendente lite
support so that she might retain counsel.
B. As the
underlying Order improperly deprived the defendant-counterclaimant of her property,
she must be considered ousted and is therefore entitled to half the fair rental
value of the residence since her removal.
The nature of joint tenancy is that
each co‑tenant's possessory rights theoretically extend to the entire
premises, co‑equal with the rights of his co‑tenants. Each has the right to utilize the entire
property consistent with the right of the co‑tenant to do the same. Baird v. Moore, 50 N.J. Super. 156,
166 (App.Div. 1958), (quoting 4 Thompson, Real Property (1940),
§ 1908, p. 431).
If one co‑tenant in a joint
tenancy prevents the other tenant from occupying the residence, an ouster
results. Under such circumstances, the
occupying tenant is affirmatively accountable for the value of his use and
occupation, as such. Baird at 16,
(quoting Henderson v. Eason, 17 Q.B. 701, 117 Eng.Rep. 1451
(Ex.Ch.1851), Annotation 27 A.L.R. 184, 190, et seq. (1923), see Weible,
Accountability of Co‑tenants, 29 Iowa L.Rev. 558, 560‑‑561
(1944)).
When a co‑tenant has been
ousted from property to which they hold title as a joint tenant, they are
entitled to half the fair rental value of the property. See, e.g., Newman v. Chase, 70 N.J. 254 (1976), Bauer
v. Migliaccio, 235 N.J. Super. 127 (App.Div.1994), Crowell v. Danforth,
222 Conn.
150, 609 A.2d 654 (1992), Hall v.
Eaton, 258 Ill.App.3d 893, 631 N.E.2d 833, 197 Ill.Dec. 611 (App.Div.
1994), Cunningham, Law of Property, supra at §§ 5.8, 5.12. , cf. Lohmann
v. Lohmann, 50 N.J.Super. 37 (App.Div.1958).
This is not necessarily so if the
property is held as tenants in common. See
Baker v. Drabik, 224 N.J. Super. 603 (App.Div.1988), Baird v. Moore, 50 N.J. Super. 156.
To determine whether the plaintiff
ousted the defendant-counterclaimant we must examine whether the
defendant-counterclaimant "left the premises voluntarily and was free to
resume possession at any time". Baird, 50 N.J. Super. at 167.
In the case at bar, the
defendant-counterclaimant left the property under a court Order (based in part
of the plaintiff's fraudulent misrepresentations to the court) that threatened
"a warrant of removal" being issued instructing "all constables,
police, or sheriff's officers" taking "whatever steps are necessary
to dispossess defendant" [Da 139].
The property was then partitioned based totally upon the fraudulent
misrepresentation of the plaintiff that title was held as tenants in common.
In spite of his extensive promises
that he would find the defendant-counterclaimant another residence, paying all
the necessary expenses including a deposit, the defendant-counterclaimant was
cast into homelessness.
In contrast to the July 2, 1992
hearing which awarded the defendant-counterclaimant temporary possession of the
residence, the Order under appeal was invalid for the reasons discussed supra,
and it should then logically follow that the defendant-counterclaimant was
improperly deprived of her property, resulting in an ouster.
Accordingly, this Court should remand
this issue for an expedited hearing as to what amount constitutes half the fair
rental value of the property for the period since she was ousted.
Conclusion
For the foregoing reasons, it is
respectfully requested that this Honorable Court reverse the lower court’s
decision and exercise original jurisdiction to award injunctive relief in the
way of pendente lite support, retroactive to the date of the lower
court's ruling.
To simply reverse the trial Court on
the denial of the defendant-counterclaimant's R. 4:50-1 motion and
to remand for further proceedings would be to throw the
defendant-counterclaimant, pro se, back into the plaintiff's
element. He has spent better than a
quarter century litigating in the trial courts, and is a full partner at Mercer County's
largest matrimonial law firm.
As an example of the plaintiff's
skill, the judge in this case was talked into accepting the legally
insupportable concept that joint tenancy was meaningless because the tenancy
status could have been changed by the parties at some uncertain point.
If this Court is without authority to
award attorney's fees, or pendente lite support at a level sufficient
for her to retain an equally skilled attorney, and if this Court cannot
exercise its original jurisdiction or retain jurisdiction over the matter, the
defendant-counterclaimant has little if any chance of ever obtaining a fair
hearing on her claims.
Respectfully
submitted,
Janice M,
Pro se
appellant
See Mary
Ann H v. John H, Mercer
County Docket No. M-216717-76.
Because John has consistently refused to produce the
closing file, this amount is an estimate based on the conflicting claims he has
made on the amount he contributed. See
Da 168 and Da 60.
When
testifying on the issue of the mortgage, plaintiff was specifically asked about the mortgage status,
and misled the Court by not mentioning that the original mortgage was satisfied
in 1986:
Q (By Ms. Keephart, attorney for plaintiff): Okay, the
-- you have a mortgage on that house?
And the amount of which is?
A (By Mr. H): 122,000
Q: Is there a second mortgage for the house?
A: There's a second mortgage for 35,000 a home equity.
[2T 23-24 to 24-3].
In reality, the $122,000 is a second or subsequent
mortgage.
John has consistently denied that he dated Heidi
before he left Janice:
¶ 6. . . . I
did not leave Defendant for another woman.
[Da 228 - Certification of John H].
However, when Heidi testified on the issue, she
stated:
MRS. HEIDI H:
We started dating in November, 1991.
[2T P51 L28-33].
In order to reach his figures, the plaintiff's
assessed costs against the defendant-counterclaimant included half the electricity
used by the couple for the entire period of their cohabitation ($13,320), as
well as half the gardening done ($4,500) [Da 168].
Defendant is
unaware if a subsequent mortgage was taken out on the home. During the course of her relationship with
the plaintiff, he would often present her with papers and say "sign
these". Being in love with him, and
not being experienced with the law, she rarely read such papers before signing
them. In any case, she never received
any funds from any subsequent mortgage, and the plaintiff has continually
portrayed the outstanding mortgage as the original.
$5,400 of this
remains unpaid as of this writing.
It is
impossible to determine plaintiff's investment income, or even to know for
certain if the numbers he provided to the Probation Department were accurate,
as there has been no discovery in this case.
The following
testimony was given by the plaintiff on direct examination by his attorney at
the December 21, 1993 hearing:
BY MS. KEEPHART:
Q What you're
suggesting is that you would have her in a position where she would be set up
in another residence, without any difficulty.
She'd have a fairly smooth transition?
A [Mr. H]: And
no expense for household furniture, furnishings.
. . .
Q Okay. And you would pay the $1,000 moving cost
assessment?
A Well, either
we -- right. It would be --
Q Immediately.
A -- that's
what I would have spent, a $1,000 whether I give it to her directly or whether
or not we just moved her, or however it was handled. It would be $1,000, it should do it. Plus the deposit that she might need.
[2T 32-6 to 32-24].
Photos enclosed as Da 393 ‑ 394. Although Defendant-counterclaimant has never
had the opportunity to testify on this issue, we ask that this Court look
closely at these photos, which
were included as an attachment to one of the
Plaintiff's certifications.
Common sense would dictate that, even if
defendant-counterclaimant were living in a slovenly manner (which she wasn't),
it makes no sense for a full-sized U.S. mailbox to be placed on the
kitchen counter. Also, please note that
the photos of the bedroom include drawers removed from the dresser;
not simply clothes strewn around - again indicative of a set up.
As to all the bizarre sexual items, if defendant is
given the opportunity to conduct discovery, she will prove that all these items
were purchased by the plaintiff on his credit cards, with receipts bearing
his signature.
Again, the plaintiff is a highly skilled matrimonial
attorney, admitted to the bar since 1969.
As of this writing, the defendant has been sober for
over a year and a half. She continues to
attend A.A. meetings on a daily basis and has become a temporary sponsor for a
newcomer to the program. Also, she is
actively participating in out patient therapy.
During the
period of December, 1985 and March, 1986, she returned to work on a part‑time
basis as an interior designer, during which time she designed and coordinated
the entire spring line for the Spring Home Show at the Princeton Hyatt while
employed by Trenton Home Fabrics [Da 321].
This was the only employment held by the defendant-counterclaimant since
(on his insistence), she quit her job as a waitress when she moved in with the
plaintiff.
Again, it must be stressed that the plaintiff simply
ignored all requests for discovery [Da 407 - 408].
Defendant is
totally self-centered and does not recognize her responsibilities. . .
Defendant owes me money -- I owe her nothing.
[Da 237, ¶ 31.
Certification of John H].
Defendant
states she cannot "make it" in a facility which the State has
provided . . . She has no regard for the value of property and such, and
expects that people owe her a life - complete with spending money. This is just not so and I respectfully submit
that Defendant's conduct has caused me financial ruin. [Da 234, ¶ 23 Certification of John H].
Plaintiff's
attitude toward the defendant was demonstrated early on when, during a June 12,
1992 ex-parte hearing attempting to summarily evict her from her
residence, the following exchange occurred between his counsel and the Court:
THE COURT: . .
. I am hesitant to[,] you know[,] turn over possession, -- especially in light
of her condition at the present time.
You know, she might be dead if you put her out on the street.
MS. ROSE: Well,
that is true, but she may be . . . destroying everything and herself in the
house, in the meantime, that was our concern.
[3T 3-24 to 4-6].
Although not
raised below, the fraudulent misrepresentation of the plaintiff that the house
was held as tenants in common, and his "omission" that the original
mortgage had been paid off in 1986, would provide alternate grounds for this
Court to reverse the trial court.
For example, Defendant-counterclaimant asserts that
all contributions to the residence (mortgage, taxes, upkeep, etc.) made during
the course of their relationship should have been considered as having been
made equally by the parties. The trial
court, focused on Reitmeier due to the plaintiff's assertion that it
controlled, did not consider this issue and fixed the defendant's
equity in the house at $6,000 (of which, not
incidentally, plaintiff has paid defendant only $600).
¶ 23. The Court's decision was based upon Reitmeier
v. Kalinoski [cite omitted] which summarizes the law of partition in the
state of New Jersey
[Da 167, Certification of John H].
At various
times, the plaintiff has alleged the following contributions to the downpayment
we made by the defendant-counterclaimant:
$7,500 Da 168
- Certification of John H.
$8,000 2T 20-7,
(Testimony of John H).
$9,000 Da 60, ¶
9 - Certification of John H.
$10,000 Da
131, Plaintiff's Trial Brief.
The Supreme
Court's decision in this case has been digested in the New Jersey Law Journal, and the high Court's ruling did not
adversely affect this portion of the decision.
Plaintiff
pointed out that "[Defendant] has expended close to $50,000 in legal fees
with another law firm and they were unable to prove this to be a palimony
case" [Da 202, Certification of John H].
What the plaintiff neglects to mention is that the majority of
these fees were expended on enforcement for non or under payment of the court
ordered support, visitation interference
and in response to a "paper blizzard"
created by the plaintiff, [Da 343 - 360] who continues to receive free
representation from "Mercer County's largest matrimonial law firm" [Da 417].
The delay
between the defendant filing the motion to vacate the December 21, 1993 order
[2/10/94] and the entrance of the Order [3/28/95] under appeal was over a
year.
Without counsel fees, the plaintiff would be foolish
not to continue his paper war on the defendant; it remains his best strategy to
wear down his opponent [unless he is paying for the "wearing
down"]. A side benefit to him is
that, even if the defendant were to win a sizable recovery after a trial on the
merits, he would find satisfaction in knowing that
most of it wasn't going to Ms. M but to a law firm. Without expert fees (specifically, expert
fees for a forensic accountant), the plaintiff may well convince a trial court
that he is "without funds".
Absent either of these, the plaintiff has no motivation to make a just
settlement offer to the defendant.
The
following admissions were made by the plaintiff during the course of this
litigation:
1. The parties
lived together for 15 years. ("We
did not live together until 1977", Certification of John H, Da 60 at ¶ 7;
"I moved out on May 22, 1992", Certification of John H, Da 14]).
2. The parties
jointly purchased a home in 1981 [Certification of John H, Da 60].
3. The
defendant-counterclaimant did not contribute to the expenses of the household
[Certification of John H, Da 166].
4. The parties
had a child together. [Certification of John H, Da 165].
5. The
plaintiff now has "a large expendable income" [Da 128 - 137], and the
defendant is now on welfare [Da 367].
The parties in the instant case and the parties in Kozlowski
lived together for 15 years. The male
cohabitant was married when the cohabiting relationship began and subsequently
married a much younger woman shortly after the cohabiting relationship
ended. The man's wealth greatly
increased during the course of the relationship as he pursued his career goals,
and the woman's wealth and career did not advance, as she provided the
household necessary for the wage earner to succeed. In both cases the man paid all the expenses
of the relationship during its duration, and the woman, through detrimental
reliance, was left without basic survival skills at the end of the
relationship. [Da 60, Kozlowski at 381].
The only significant differences between the two cases
is that the parties in the instant case had a child together, Ms. M was
actually reduced to welfare and homelessness, and Mr. H is an attorney who
specializes in matrimonial law.
For Plaintiff's estimation of what it cost to
maintain the status quo (and what amount would therefore constitute
appropriate pendente lite support should this Court revive the July 22, 1992
Order), see Da 169. It should be noted
for this purpose that the plaintiff's amount did not include half the fair
rental value of the home.
With appropriate language indicating that the Order
is to be taken seriously. The plaintiff
has in the past simply ignored payment Orders that he disagreed with. See Da 343-362 (Enforcement letters regarding
pendente lite support ordered on July 22, 1992), Da 203 (Certification
stating that the $5,400 balance [still] owed on $6,000 payment ordered on
12/21/93 would not be paid), Da 401 (Disciplinary Review Board Complaint - The
issuance of an arrest warrant by J.S.C. Lenox was necessitated by Plaintiff's
refusal to comply with payment of sanction).
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