GRAZYNA KOZIKOWSKA v. WIESLAW WYKOWSKI

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5466-09T1

GRAZYNA KOZIKOWSKA,

Plaintiff-Respondent,

v.

WIESLAW WYKOWSKI,

Defendant-Appellant.

_________________________________

September 26, 2012

Argued September 21, 2011 - Decided

Before Judges Axelrad, Sapp-Peterson and Ostrer.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FM-09-2617-08.

Michael G. Brucki argued the cause for appellant (Law Offices of Michael G. Brucki, attorneys; Mr. Brucki, of counsel and on the brief; Jason Charles Matey, on the brief).

Jenny Berse argued the cause for respondent.

PER CURIAM

In this appeal, defendant seeks reversal of the Family Part judge's order awarding palimony and twenty percent of the property and bank accounts to his former paramour. He argues: (1) the recent amendment to the Statute of Frauds, N.J.S.A. 25:1-5(h) (Amendment), requiring that palimony agreements be in writing and entered with the advice of counsel, applies to this case; (2) the trial court erred in proceeding with the default hearing the same day it entered default against him for the second time; (3) plaintiff failed to establish the existence of a valid palimony agreement; (4) the palimony award was not supported by sufficient evidence; and (5) the trial court erred in failing to find defendant incompetent. We reject all of defendant's arguments and affirm.

Plaintiff filed a complaint in June 2008 seeking, among other relief, palimony. She alleged that she and defendant had "cohabitated for over twenty . . . years . . . as if they were man and wife[,]" and that during that time "defendant . . . repeatedly promised to care for . . . [her] for the rest of her life, . . . caused her to become financially dependent upon [him], . . . made representations that he would support her, and . . . in fact supported her." She alleged defendant "breached his promises of support" and that she is "now unable to support herself."

Plaintiff served defendant with a copy of the summons and complaint on June 19, 2008, but defendant failed to respond. The court entered default against him on November 17, 2008, and scheduled a proof hearing for January 12, 2009. On December 23, 2008, plaintiff filed a Notice of Application for Equitable Partition, seeking one-half the equity in property located in Bayonne, which plaintiff estimated was valued at $750,000. She also sought $400,000 in palimony as "the present value of support for [her] lifetime[.]"

Judge Maureen P. Sogluizzo scheduled the proof hearing for February 10, 2009, "unless defendant obtain[ed] an attorney to vacate the default." Defendant, along with his attorney, appeared before Judge Sogluizzo on the scheduled date, contesting the entry of default. She entered an order vacating the entry of default and permitted defendant to file an answer. At the same time, she entered a case management order directing the parties to exchange discovery.

On June 18, 2009, Judge Sogluizzo entered an order requiring defendant to have the Bayonne property appraised by July 10, 2009, and complete all discovery by July 31, 2009. At some point subsequent to the entry of this order, defendant's attorney withdrew from the case and new counsel was obtained. However, by October 14, 2009, the new attorney also withdrew his representation. In November 2009, defendant consulted with another attorney but did not retain the attorney. Rather, defendant proceeded to represent himself.

On December 1, 2009, Judge Sogluizzo entered an order finding that defendant violated discovery obligations. As a sanction for the violations, she suppressed the answer defendant filed on February 9, 2009. In addition, she entered default against defendant.

In reaching her decision, Judge Sogluizzo noted that in February 2009, she vacated the entry of default, permitted defendant the opportunity to obtain counsel and file an answer, and since that time, defendant had retained two different attorneys, both of whom had subsequently withdrawn, and defendant had not succeeded in retaining a third attorney. These events, along with his non-compliance with discovery orders, led the judge to conclude: "It's time to stop this. Your case will be dismissed for your failure to comply with the discovery requests that have been made three times upon you."

Judge Sogluizzo advised defendant that the default hearing would be conducted on January 27 and 28, 2010. Additionally, she advised defendant that at the proof hearing, he would be permitted to "ask[] questions on cross-examination only of the witnesses and of any experts that are put in place" by plaintiff. The judge once again ordered defendant to provide an appraisal of the Bayonne property within two weeks; otherwise, plaintiff would be permitted to obtain her own appraisal.

Because plaintiff's witnesses were present, she requested that they be permitted to provide testimony at that time. Judge Sogluizzo initially refused the request, stating that she could not "proceed on a default proceeding without giving [plaintiff] the opportunity to alert [defendant] as to what his default is about." In response, plaintiff argued that defendant had previously been given notice, and specifically referenced the December 23, 2008 notice to defendant seeking equitable partition. Since she continued to seek this relief, plaintiff argued that her notice requirements had been satisfied. The judge agreed and permitted plaintiff's witnesses to testify.

Plaintiff produced four witnesses, all of whom provided testimony that the parties presented themselves as married, including plaintiff wearing a wedding ring, being together at such events as social gatherings, shopping, and church. Defendant cross-examined the witnesses. However, his questioning consisted primarily of accusing the witnesses of lying.

Trial resumed on March 8, 2010, and continued through the next three days. Plaintiff, a native of Poland, testified she met defendant in 1988, upon arriving in the United States. They commenced cohabitating shortly thereafter. Defendant introduced her as his wife. She introduced into evidence cards and other documents people had addressed to them as a married couple. They purchased the Bayonne property in 1994 for $115,000. It was a cash transaction and plaintiff contributed $13,000 towards the purchase price. The property consisted of two houses on one lot, one of which had four apartments, and the other had three apartments. The couple lived in one apartment with their two children and rented out the other units. Defendant undertook a significant amount of renovations and financed the repairs, but they decorated the apartment together and shared in its management in all respects.

Plaintiff also worked outside the home from time to time as a caretaker for the elderly, a housekeeper, and a waitress. As a caretaker, she earned "about [$]400 to $460 a week[,]" which sometimes necessitated her staying overnight for several days at a time with a patient. Her earnings were spent on "clothing, food for the children and . . . defendant and things that [they] needed for the house[.]" Her annual income between 2001 and 2008 ranged from $8706 to $23,557. Other than the income from the rental units, defendant's only source of income was Social Security.

According to plaintiff, defendant "promised to support [her]" and planned to marry her, which is why he divorced his first wife. They "were supposed to spend [their] lives together till the end of [their] lives." Plaintiff stated she did not know what happened to defendant, but something occurred that forced her to move out. They maintained joint bank accounts, and in 2003, he completed an Affidavit of Support on her behalf in connection with immigration proceedings because she had been living in the United States illegally.

The couple had two children together. When each child was born, however, they listed defendant's former spouse as their mother so that the children would be covered on defendant's medical insurance. In 2000, both parties underwent paternity testing to confirm they were the children's biological parents and later had the children's birth certificates changed to accurately reflect plaintiff as their biological mother. Plaintiff described herself as the primary caretaker of the children; however, defendant cared for them while plaintiff was working. The couple also shared responsibility for household chores. Plaintiff obtained legal status on March 3, 2010.

Plaintiff testified she moved out of the apartment with the children in April 2008 because she was "afraid." She explained defendant "started to speak nonsense," including saying their daughter was his sister, their son was somebody else's child, and plaintiff slept with her own father. Defendant took another paternity test in 2009 that once again confirmed he was the biological father of both children. Plaintiff testified that she was now living in an apartment with her two children and working part-time at ShopRite earning $8 per hour.

Plaintiff's counsel called defendant as a witness and primarily questioned him regarding his finances. With the assistance of a Polish interpreter, defendant denied that plaintiff had contributed money towards the purchase of the Bayonne property. Although plaintiff had produced documents establishing that defendant, at one point, had $334,000 in various bank accounts, he testified that he lost all the money gambling in Atlantic City.

After four days of trial in March, it recessed and resumed on June 21, 2009, with plaintiff's counsel continuing direct examination of defendant. Plaintiff's counsel completed direct examination the next day, after which Judge Sogluizzo instructed defendant as follows:

Mr. Wykowski, again, this is your time to cross-examine yourself regarding testimony that you've given at [plaintiff's counsel]'s direction. Is there anything about what you told me through her questions that you wish to further explain[,] and I would prefer that you ask yourself a question and then answer it.

Notwithstanding the judge's instruction, defendant's testimony on cross-examination was largely responsive to questions posed to him by the judge based upon defendant's direct testimony. The following day, plaintiff briefly provided rebuttal testimony before he and plaintiff's counsel made closing arguments to the court. Judge Sogluizzo reserved decision and directed the parties to return to court on June 30, 2009.

The parties appeared as ordered, and the judge rendered a decision from the bench, followed by an order of that same date. She briefly noted that the Statute of Frauds had recently been amended to provide that a palimony agreement, in order to be enforceable, must be in writing and entered into with the advice of counsel, but found that "[t]his case far preceded" the effective date of the Amendment. With respect to plaintiff's palimony claim, she found the parties cohabited for twenty years, they "lived in a "marriage[-]type relationship[,]" and defendant's testimony to the contrary was "incredible."

Judge Sogluizzo credited plaintiff's testimony that defendant told her they bought the Bayonne property for their retirement and would "be together until something happens to one of [them]." She concluded that valid consideration for the promise existed in that plaintiff "for [twenty] years . . . helped prepare . . . meals[,] . . . shared the responsibility of the home that they lived in[,] . . . cleaned, . . . did laundry[,] . . . raised their two children[,] . . . [and] took care of the tenants in the building." The judge found that plaintiff left their home after defendant started "acting strangely" by denying his paternity of their two children, causing plaintiff to become "fearful, not only for herself but for the well[-]being of her children." Finally, she found that economic inequality existed in favor of defendant because defendant "had all of the money in his name and [plaintiff] trusted that he would take care of her."

Judge Sogluizzo awarded plaintiff $483,832.80 in palimony. Based upon plaintiff's testimony, she found plaintiff needed $3412 per month "to maintain her status quo" and that she was earning only $1212.60 each month, creating a monthly shortfall of $2200. The judge found plaintiff had a life expectancy of twenty-six years and eight months, so that the total amount of money necessary for her support, over the remainder of her life, equaled $707,520, which had a net present value of $483,833.

Judge Sogluizzo also found that the Bayonne property and joint bank accounts were devisable as joint ventures and awarded plaintiff: (1) twenty percent of the value of the property ($90,000) based on her contribution to the down payment and her earnings towards upkeep of the home, and (2) twenty percent of the established value of the bank accounts ($66,800). The total award to plaintiff was $640,633. The judge also allowed plaintiff and the children to return to the Bayonne home and deducted the value of that property, $450,000, from the judgment awarded.

On July 12, 2010, defendant, represented by yet another attorney, filed a Notice of Appeal. Four days later, he filed a motion before the Family Part judge seeking a stay of the June 30, 2010 order pending appeal. Plaintiff filed opposition to the motion, as well as a cross-motion to enforce the June 30, 2010 order. Plaintiff also sought the imposition of monetary sanctions in the event defendant failed to pay court-ordered counsel fees within five days of the court's order. On August 20, 2010, Judge Sogluizzo entered an order requiring defendant to surrender his American passport to the court by August 23, 2010, and to pay plaintiff's counsel $13,000 in legal fees and $8800 for plaintiff's support by August 31, 2010.

Defendant's motion for a stay was adjourned to September 10, 2010. On that date, defense counsel advised the judge that defendant had been evaluated by Dr. Peter M. Crain, a psychiatrist, who concluded that defendant "suffers from dementia[,]" causing an inability "to understand the [c]ourt proceedings." The judge noted that defendant's motion before the court sought a stay pending appeal "based upon the decision of the [c]ourt which [defense counsel] believe[d] was against the weight of the evidence." She then asked defense counsel if he was "arguing a new motion to set aside the trial based upon [defendant's] incompetency[.]"

Defense counsel requested a "continuance to get the medical report and to amend [the] motion . . . based on the newly discovered evidence" of defendant's mental condition. The judge gave defendant twenty-one days to file such a motion. However, based upon defendant's argument of incompetency, she required defense counsel to serve as a receiver to protect the financial assets.

Judge Sogluizzo entered an order: (1) adjourning the motion for a stay of judgment for twenty-one days; (2) ordering defendant's attorney to "take control of [d]efendant's financial affairs and pay all his bills" in order to "safeguard[] all of [d]efendant's assets and person until proof has been submitted that [d]efendant is incompetent"; and (3) giving defendant until October 1, 2010, to file a motion for incompetency along with a supporting report.

On October 26, 2010, defense counsel informed the trial judge that he had been advised by the Appellate Division that his competency motion could not be heard by the trial court unless we remanded the case. Several motions were pending before us with a November 14, 2010 filing date. In the interim, defendant also obtained a full report from Dr. Crain. Defense counsel explained to the judge that once we remanded the case, he did not intend to argue that defendant was wholly incompetent in the sense that he was unable to manage his affairs. Rather, he intended to argue that defendant lacked the ability to "assist himself or his attorneys during the course of [the] legal proceeding."

Judge Sogluizzo conducted the hearing on October 26, 2010 and, at its conclusion, entered an order of the same date, which, in pertinent part, (1) denied defendant's motion for a stay of the June 30, 2010 order; (2) required defendant to immediately pay $190,633 to plaintiff or post a bond for that amount; and (3) required defendant to pay plaintiff $2200 per month, effective September 1, 2010, "until this matter is resolved."

Also on October 26, 2010, defendant filed a motion with the Appellate Division seeking a remand to the trial court for a determination as to his competency. On November 22, 2010, we entered an order granting defendant's motion for a temporary remand to determine his competency. We denied plaintiff's cross-motion for counsel fees and costs without prejudice.

On December 2, 2010, defendant sought leave to file an emergent motion with the Appellate Division, seeking a stay of the June 30, 2010 order "until the competency hearing is decided at the trial level[.]" By order dated December 3, 2010, we denied this motion, with instructions to defendant to "make a new app[lication] to [the] trial court" as the "October 26, 2010 order is ambiguous on whether a stay is granted as to the entire order or not."

On December 14, 2010, plaintiff filed a motion for an order to show cause, which the trial judge converted to a motion to enforce litigant's rights, returnable January 7, 2011. She denied defendant's motion for a stay, finding "no immediate or irreparable harm to people or property."

On January 7, 2011, Judge Sogluizzo entered an order requiring defendant to either immediately pay $190,633 to plaintiff's attorney, to be held in a trust account, or post a bond for that amount, to be held until after the competency hearing. Additionally, the judge ordered defendant to pay $13,800 in outstanding support to plaintiff and to continue the $2200 monthly support payment. That same day, she entered an order denying defendant's motion for a stay of the June 30, 2010 judgment.

Also in January, plaintiff filed a Notice in Lieu of Subpoena seeking an order directing defendant to produce pertinent financial information, contact information for tenants of the Bayonne property "from December 2009 to the present[,]" and an accounting of all rents collected since December 2009. Defendant filed a motion to quash the subpoena on January 25, 2011.

The competency hearing took place on January 31, 2011. There was some debate as to whether the matter should proceed under Rule 3:12 or Rule 4:86-1 to -12. Judge Sogluizzo ultimately concluded Rule 4:86-2 applied and found defendant failed to meet his requirement of submitting the affidavits of "two physicians . . . or . . . of one . . . physician and one licensed practicing psychologist." The judge, nonetheless, permitted defendant to present the testimony of Dr. Crain.

Dr. Crain testified that he examined defendant in September 2010 "to determine whether or not he was mentally competent to understand the proceedings against him, assist in his own defense in the trial that took place from December 1, 2009[,] through June 23[], 2010." He concluded defendant was "incompetent mentally[,] [i]ncapable of preparing an adequate defense to the palimony [claim], and representing himself in the trial." He opined that defendant suffered from a "delusional disorder" that contributed to his belief that he was not the biological father of his children and his additional delusion that plaintiff and the children attempted to poison him. With respect to the trial, Dr. Crain expressed the opinion that defendant understood the roles of the attorneys and the judge, but was "not capable of grasping the distinction between questioning the witness and giving his own personal testimony."

After the parties concluded their direct and cross- examinations of Dr. Crain, the judge questioned the doctor regarding his opinions related to defendant's competency. Dr. Crain opined that defendant "can handle his affairs" and "does not require a guardian to take care of his affairs."

At the conclusion of Dr. Crain's testimony, plaintiff urged the judge to dismiss the competency proceeding. Plaintiff argued defendant had failed to provide either two physicians or one physician and one psychologist to testify as to his competency. Judge Sogluizzo granted plaintiff's application, noting Dr. Crain did not express the opinion that defendant was incapacitated, as defined by N.J.S.A. 3B:1-2. She also granted plaintiff's application for counsel fees in connection with the proceeding.

On February 7, 2011, the judge entered an order declaring that defendant's motion to quash was now "moot." The order also placed a lien on defendant's vehicles as security for the $26,373 in support owed to plaintiff and the children.

On February 22, 2011, the judge entered an order incorporating, into its most recent order, the terms of the September 10, 2010 order, in which she appointed an attorney-in-fact for purposes of transferring the Bayonne property. By a separate order entered that same day, the judge ordered defendant to vacate the Bayonne property within seven days and turn over all rents received for January and February 2011. She ordered plaintiff to notify the tenants that she owned the property. Also on February 22, 2011, the judge issued an arrest warrant for defendant based upon his failure to comply with her order directing him to pay the $26,373 by February 22, 2011.

On March 3, 2011, defendant filed a motion in the Appellate Division to stay the appellate proceedings due to his incarceration. We denied defendant's motion by order dated April 5, 2011. By separate order, we denied plaintiff's request for counsel fees and costs, instructing the trial court to address this issue.

On appeal, defendant raises the following points for our consideration:

POINT I

THE TRIAL COURT INCORRECTLY HELD THAT N.J.S.A. 25:1-5(h) SHOULD NOT BE APPLIED RETROACTIVELY.

(a) "PIPELINE" RETROACTIVITY SHOULD BE APPLIED IN THIS MATTER.

(b) THE TRIAL COURT FAILED TO APPROPRIATELY CONSIDER THE LEGISLATIVE INTENT.

(c) THE TRIAL COURT FAILED TO PROPERLY CONSIDER THE CURATIVE INTENT OF THE STATUTE.

(d) THE RETROACTIVE APPLICATION OF THE STATUTE WOULD NOT RESULT IN A MANIFEST INJUSTICE TO . . . PLAINTIFF.

POINT II

THE TRIAL COURT INCORRECTLY ENTERED DEFAULT ON THE FIRST DAY OF TRIAL WITHOUT PROVIDING ANY NOTICE TO . . . DEFENDANT AND IMMEDIATELY STARTED THE HEARING[,] IN VIOL[]ATION OF RULE 5:5-10.

POINT III

THE TRIAL COURT INCORRECTLY HELD THAT . . . PLAINTIFF PROVED HER PALIMONY ACTION AGAINST . . . DEFENDANT.

POINT IV

THE TRIAL COURT INCORRECTLY DETERMINED THAT . . . DEFENDANT UNDERSTOOD THE COURT PROCEEDINGS AND FOUND THAT HE WAS COMPETENT.

Family courts have special jurisdiction and expertise in family matters. Cesare v. Cesare, 154 N.J. 394, 413 (1998). Therefore, as a reviewing court, we accord deference to a family court's fact-finding. Ibid. This is largely because the family court "has the opportunity to make first-hand credibility judgments about the witnesses who appear on the stand; it has a 'feel of the case' that can never be realized by a review of the cold record." N.J. Div. of Youth & Family Servs. v. I.H.C., 415 N.J. Super. 551, 578 (App. Div. 2010) (quoting N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008)). "When the credibility of witnesses is an important factor, the trial court's conclusions must be given great weight and must be accepted by the appellate court unless clearly lacking in reasonable support." N.J. Div. of Youth & Family Servs. v. F.M., 375 N.J. Super. 235, 259 (App. Div. 2005) (citing In re Guardianship of D.M.H., 161 N.J. 365, 382 (1999)).

Accordingly, the family court's factual findings "should not be disturbed unless 'they are so wholly insupportable as to result in a denial of justice,' and should be upheld whenever they are 'supported by adequate, substantial and credible evidence.'" In re Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div. 1993) (quoting Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 483-84 (1974)). See also Connell v. Diehl, 397 N.J. Super. 477, 490 (App. Div.), certif. denied, 195 N.J. 518 (2008).

Even when the alleged errors are in the trial judge's evaluation of the underlying facts, an appellate court "will accord deference unless the trial court's findings went so wide of the mark that a mistake must have been made." N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007) (citations omitted) (internal quotation marks omitted). We are cognizant, however, that we owe no such special deference to a Family Part judge's conclusions of law, which we review de novo. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

I.

Defendant urges that the Amendment, which became effective January 18, 2010, should be applied retroactively. We disagree.

We initially note the retroactive application of the Amendment was not a contested issue before the Family Part judge. Defendant, acting pro se, did not address this issue. As this issue was not properly raised before the trial court, we ordinarily will decline to reach it. Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973). Nonetheless, we conclude Botis v. Estate of Kudrick, 421 N.J. Super. 107 (App. Div. 2011), is dispositive, and make the following brief comments.

The Amendment provides that a

promise by one party to a non-marital personal relationship to provide support or other consideration for the other party, either during the course of such relationship or after its termination. For the purposes of this subsection, no such written promise is binding unless it was made with the independent advice of counsel for both parties.

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

The legislative history of the Amendment makes clear that the Legislature intended to "overturn recent 'palimony' decisions by New Jersey courts," specifically referencing Devaney v. L'Esperance, 195 N.J. 247 (2008) (upholding the enforceability of a palimony promise, whether express or implied); In re Estate of Roccamonte, 174 N.J. 381 (2002) (holding that a promise of support between unmarried persons may be enforced against a decedent's estate); and Kozlowski v. Kozlowski, 80 N.J. 378 (1979) (first recognizing that a promise between unmarried persons for support, whether express or implied, may be enforceable). Senate Judiciary Committee, Statement to S.2091 (Feb. 9, 2009).

Although Judge Sogluizzo issued her ruling awarding palimony to plaintiff after the legislation was enacted, plaintiff's complaint seeking palimony was filed June 12, 2008, eighteen months prior to the effective date of the Amendment. Moreover, at the time of the judge's decision, there were no reported decisions addressing whether the statute would be accorded retroactive application. On April 21, 2010, Botis, supra, 421 N.J. Super. 107, was decided, holding that N.J.S.A. 25:1-5(h) would be accorded prospective application.

In reaching this decision, the Botis panel rejected the defendant's contention that the curative nature of the amendment called for retroactive application of the legislation. Rather, the panel stated that "affording a statutory amendment retroactive effect based upon its curative intent is appropriate where the 'cure' is addressed to prior legislation, not to the decisions of our courts." Id. at 118. As the earlier palimony decisions reflect, the recognition of palimony as a viable cause of action is based upon common law principles of contract rather than by virtue of any statutory provision. Devaney, supra, 195 N.J. at 261 (Long, J., concurring). Thus, "an amendment intended as a derogation of the common law cannot be said to 'cure' a judicial misapprehension of a legislative act." Botis, supra, 421 N.J. Super. at 119 (citation omitted). We discern no basis to depart from that reasoning. As such, defendant is not entitled to the benefit of retroactive application of the Amendment here.

II.

Defendant contends he was prejudiced by Judge Sogluizzo's commencement of the trial immediately after entering default, contrary to Rule 5:5-10. We find no merit to this contention.

As previously noted, plaintiff initially filed her complaint seeking palimony and partition of jointly-owned assets on June 12, 2008. On November 17, 2008, the judge entered default against defendant for failure to file responsive pleadings. On December 23, 2008, plaintiff filed a Notice of Application for Equitable Partition, providing defendant with notice that she was seeking one-half the value of the Bayonne property and $400,000 in palimony. A Case Information Statement (CIS) accompanied the application. On February 10, 2009, the judge vacated the entry of default, only to enter default again on December 1, 2009, after defendant failed to comply with discovery orders. Defendant was on notice the trial was scheduled to commence on that day and had been given prior notice of plaintiff's application for equitable partition and alimony. Judge Sogluizzo, to accommodate plaintiff's witnesses, commenced the trial.

Rule 5:5-10 provides:

In those cases where equitable distribution, alimony, child support and other relief are sought and a default has been entered, the plaintiff shall file and serve on the defaulting party . . . a Notice of Proposed Final Judgment . . ., not less than 20 days prior to the hearing date. The Notice shall include the proposed trial date, a statement of the value of each asset and the amount of each debt sought to be distributed and a proposal for distribution, a statement as to whether plaintiff is seeking alimony and/or child support and, if so, in what amount, and a statement as to all other relief sought . . . . Plaintiff shall annex to the Notice a completed and filed Case Information Statement . . . .

The purpose of the notice provisions embodied in Rule 5:5-10 is to avoid problems "either in proving the identity and value of distributable assets or in the court's power to enter a judgment of distribution" because "the complaint . . . typically allege[s] only that assets were acquired during the marriage and should be equitably distributed without any specification of the assets or their value." Pressler & Verniero, Current N.J. Court Rules, comment 1 on R. 5:5-10 (2012). Defendant argues that commencing the hearing the same day default was entered against him resulted in extreme prejudice to him because he did not have notice that the matter would proceed in this manner. The record, however, indisputably establishes otherwise.

As plaintiff notes, "[d]efendant was indeed properly served with the default as well as the [N]otice of [E]quitable [Partition]" in December 2008. Thus, defendant had notice of what assets would be subject to equitable partition for one year. Because he had already submitted to the court's jurisdiction by filing an answer in February 2009, the fairness purposes underlying Rule 5:5-10 were fulfilled. Therefore, defendant was not "prejudiced" by the court's failure to adjourn the default proceeding for an additional twenty days in order for plaintiff to re-serve him with notice of which assets she claimed were subject to equitable partition. Moreover, as plaintiff urges, trial had already been scheduled to begin on the day that default was entered against defendant and he had already been provided with "all of the [t]rial exhibits, including plaintiff's [CIS] . . . [and] [t]rial subpoenas." Due to defendant's noncompliance with discovery orders, instead of a trial, a default proof hearing commenced. Defendant was permitted to cross-examine the witnesses and submit documents as "counter-proofs." See Scott v. Scott, 190 N.J. Super. 189, 195-96 (App. Div. 1983). Moreover, following the testimony of the four witnesses, the judge adjourned the trial, which did not resume until three months later. Although there was some indication in the record that during these ensuing three months, defendant conferred with at least one attorney, he did not make any application to set aside the entry of default.

Rule 4:23-2, applicable to the Family Part, pursuant to Rule 4:1, permits the court to "render[] a judgment by default against [a] disobedient party," as a sanction for non-compliance with court orders. It is a discovery sanction rule, which is not subject to the two-step process set forth in Rule 4:23-5 for non-compliance with discovery. A default entered based upon a failure to comply with court-ordered discovery implicates the court's exercise of its sound discretion to ensure compliance with court orders and the fair and efficient administration of justice. State v. 1987 Chevrolet Camaro, 307 N.J. Super. 34, 45 (App. Div.), certif. denied, 153 N.J. 214 (1998). On appeal, absent a clear abuse of discretion, we will not set aside a trial court's entry of default for non-compliance with discovery orders. See Abtrax Pharms. v. Elkins-Sinn, 139 N.J. 499, 517 (noting that the standard of review for dismissal of a complaint with prejudice for discovery misconduct is whether the trial court abused its discretion).

In sum, defendant's failure to provide any discovery "'stonewalled' plaintiff completely. . . . [H]e had full knowledge of plaintiff's position on what she claimed was distributable, her intendment for allocation and her position on value." Scott, supra, 190 N.J. Super. at 194. Therefore, the trial judge did not err in allowing the proof hearing to proceed on the same date it entered default against defendant for the second time. The notice that would otherwise have been required pursuant to Rule 5:5-10 had already been provided in conjunction with the prior default entry, and defendant was not disadvantaged by the judge's decision to not require another such notice.

III.

Defendant next claims the trial court erred in concluding that plaintiff had adequately proven her palimony claim and in awarding a lump sum amount that was not supported by the evidence. We disagree.

Palimony is "a claim for support between unmarried persons." Devaney, supra, 195 N.J. at 253. "A valid cause of action for palimony requires an agreement to pay future support made during a marital-type relationship between unmarried persons." Bayne v. Johnson, 403 N.J. Super. 125, 139 (App. Div. 2008), certif. denied, 198 N.J. 312 (2009). Prior to the enactment of N.J.S.A. 25:1-5(h), such agreements could be express or implied. Kozlowski, supra, 80 N.J. at 384. "[T]he entry into [a marital-type] relationship and then conducting oneself in accordance with its unique character is consideration" to enforce a promise for support. Roccamonte, supra, 174 N.J. Super. at 393. "There is no bright-line definition of a marital-type relationship," Bayne, supra, 403 N.J. Super. at 139, but it has been described in general terms as one

in which people commit to each other, foregoing other liaisons and opportunities, doing for each other whatever each is capable of doing, providing companionship, and fulfilling each other's needs, financial, emotional, physical, and social, as best as they are able. And each couple defines its way of life and each partner's expected contribution to it in its own way.

[Devaney, supra, 195 N.J. at 257 (quoting Roccamonte, supra, 174 N.J. at 392-93).]

"Furthermore, while a palimony claimant need not show complete dependency on the other party or destitution, there must be a showing of economic inequality and an inability by the party seeking palimony to live independently at a reasonable level of support." Bayne, supra, 403 N.J. Super. at 142 (citing Connell, supra, 397 N.J. Super. at 494). "[T]he relevant question is whether the promisee is self-sufficient enough to provide for herself with a reasonable degree of economic comfort appropriate in the circumstances." Roccamonte, supra, 174 N.J. at 393.

Defendant argues the trial judge erred in awarding plaintiff palimony because she failed to establish that defendant promised to support her, and palimony "is not recompense for years spent in a failed relationship." He emphasizes, "it cannot be ignored that it was . . . plaintiff who left [defendant]," citing Bayne, supra, 403 N.J. Super. at 143, in which the court referred to the fact that the plaintiff had left the defendant in concluding the plaintiff failed to establish a promise of support.

Because defendant defaulted, plaintiff was required only to establish a prima facie case for palimony, meaning that in considering plaintiff's proofs, Judge Sogluizzo was not to weigh the evidence or make findings of fact but to only determine the bare sufficiency of plaintiff's proffered evidence. Pressler & Verniero, Current N.J. Court Rules, comment 2.2.2, Proof of Liability on Rule 4:43-2(b); see also Heimbach v. Mueller, 229 N.J. Super. 17, 20-24 (App. Div. 1988). The trial court credited plaintiff's proofs establishing a marital-type relationship, defendant's promise to support her, plaintiff's economic inequality, and defendant's breach. Those findings establish a prima facie case of plaintiff's entitlement to palimony and are entitled to our deference. Cesare, supra, 154 N.J. at 413.

Moreover, defendant's reliance upon Bayne is misplaced. The mere fact that plaintiff voluntarily left the home the parties shared does not disqualify her from palimony. We do not read Bayne as holding that a valid claim for palimony is vitiated where the party pursuing the claim has left the relationship. While such a factor may be relevant, it is not dispositive. Devaney, supra, 195 N.J. at 258 (noting "whether the parties cohabitated is a relevant factor in the analysis of whether a marital-type relationship exists"). Critical to our decision in Bayne was our determination that the record did not support the trial judge's finding that there had been "an implied promise by the defendant to support the plaintiff for her lifetime." Bayne, supra, 403 N.J. Super. at 141. As the Court stated in Devaney, supra, 195 N.J. at 258, where the issue before the Court was whether "cohabitation is an indispensable element of a cause of action for palimony":

We do not read our jurisprudence as being so confining to make cohabitation a necessary requirement to a successful claim for palimony. Rather we opt for a more flexible approach that seeks to achieve substantial justice in light of the realities of the relationship. It is the promise to support, expressed or implied, coupled with a marital-type relationship, that are the indispensable elements to support a valid claim of palimony.

Thus, the fact that plaintiff left defendant does not extinguish his obligation to support plaintiff. "'The entry into [a marital type relationship] and then conducting oneself in accordance with its unique character is [sufficient] consideration' to enforce a promise for support." Devaney, supra, 195 N.J. at 257 (quoting Roccamonte, supra, 174 N.J. at 392-94).

Our dissenting colleague states that "[p]laintiff presented sufficient proof to establish the existence of a marital-type relationship and an agreement to support." Nonetheless, he too, citing Bayne, similarly highlights the fact that plaintiff "abandoned the relationship after defendant started to talk 'nonsense'" and concludes plaintiff "failed to show defendant breached the palimony agreement which is essential to her claim for damages." There is, however, no requirement that plaintiff remain in a relationship where she is placed in fear for her well being and that of her children in order to recover palimony damages. Her testimony that defendant's conduct made her feel afraid, to the point she was compelled to leave with her children, was credited by the court. Thus, plaintiff's continued performance was excused by defendant's conduct, which ceased to maintain his end of the bargain, and plaintiff was "therefore entitled to the monetary benefit of that bargain." Roccamonte, supra, 174 N.J. at 396-97.

In addition, the plaintiff in Bayne was self-sufficient and left the defendant because she realized he would always be dependent on his ex-wife. Bayne, supra, 403 N.J. Super. at 143. This is clearly distinguishable from the present case, where plaintiff was not self-sufficient and felt compelled to leave because defendant had placed her in fear of her well-being and that of her children.

Defendant also argues the trial judge erred in calculating the palimony award because she "did not consider all of the requisite elements of future support" and "did not make specific fact findings with respect to each expense and determine a reasonable amount of support." In Kozlowski, supra, the court held that a plaintiff who establishes a valid palimony claim is "entitled to a one-time lump sum judgment in an amount predicated upon the present value of the reasonable future support defendant promised to provide, to be computed by reference to her life expectancy as shown by the tables referred to in R. 1:13-5." 80 N.J. at 388. We are satisfied the record reflects detailed findings by the judge on this issue.

Judge Sogluizzo discussed at great length the basis for her calculation of plaintiff's monthly expenses. She credited plaintiff's testimony and CIS. Furthermore, she then calculated plaintiff's life expectancy to determine the expected duration of support, and reduced the total lump sum amount to net present value. Defendant's argument that the judge did not make "specific findings" supporting each expense provides no specifics and is directly contradicted by the record.

IV.

Defendant contends the trial judge erred in failing to find he was incompetent at the time of the proof hearing.1 The trial judge dismissed defendant's competency motion for failure to comply with Rule 4:86-2(b). That rule requires that a complaint for the determination of incapacity of a person be accompanied by the "[a]ffidavits of two physicians . . . or the affidavit of one . . . physician and one licensed practicing psychologist" that states, among other things "the affiant's opinion of the extent to which the alleged incapacitated person is unfit and unable to govern himself . . . and to manage his . . . affairs . . . ."

N.J.S.A. 3B:1-2 defines an "[i]ncapacitated individual" as one "who is impaired by reason of mental illness or mental deficiency to the extent that he lacks sufficient capacity to govern himself and manage his affairs." Defendant failed to provide an affidavit or testimony from any licensed physician or psychologist that he met the statutory definition of incapacitated. Therefore, the judge properly dismissed defendant's motion for failure to meet the requirements of Rule 4:86-2, and it was unnecessary to make any finding as to whether or not defendant was competent during the proof hearing proceedings.

"In the absence of . . . supporting affidavits, a court has no inherent power to determine mental incompetency. Its jurisdiction in such matters is purely statutory and hence a court has no inherent power to expand it." In re Schiller, 148 N.J. Super. 168, 180 n.4 (App. Div. 1977). The trial judge could not proceed to hear defendant's arguments as to his incompetency in the absence of the requisite supporting affidavits.

Defense counsel argued, however, he was not seeking an order declaring defendant incapacitated, as defined by N.J.S.A. 3B:1-2, pursuant to Rules 4:86-1 to -8. Rather, he explained that he was seeking an order finding that defendant was not competent to stand trial, and proffered Dr. Crain as his expert. Dr. Crain testified that based upon his review of the trial transcripts, defendant was not competent to represent himself in the legal proceedings:

I wanted to finish[.] I'm saying that he was not capable of grasping the distinction between questioning the witness and giving his own personal testimony. I see this happening repeatedly over and over again in the transcript. His responses to the question -- the [j]udge's request of him, were totally irrelevant. On and on and on. Because they were more about himself personally and it had nothing to do with the testimony, it had nothing to do with the witness' testimony whatsoever.

. . . .

What I said was he understood some aspects of the trial process -- some aspects, not all. And what he didn't understand was the distinction between questioning a witness -- his own testimony. Over and over again I see this happening. Which is the next paragraph, I do the same thing there, as well, for the next paragraph it has that example.

Judge Sogluizzo rejected Dr. Crain's opinion finding that the inability to represent oneself at trial and at times being unable to grasp the distinction between asking a question and testifying is not indicative of incompetency in a legal sense. We agree.

The judge noted that Dr. Crain, during cross-examination, acknowledged that the inability to make such a distinction could be attributed to ignorance, not necessarily incompetence. The judge agreed that defendant may have mental illness but that "does not mean that he is incompetent. He is absolutely able to handle his affairs . . . write checks, take care of his property, pay his bills, drive a motor vehicle." The judge noted further that Dr. Crain, in his testimony, acknowledged defendant could perform all of these functions.

In short, while not required to make a determination of incompetency, given defendant's failure to comply with Rule 4:86, the judge nonetheless made detailed findings which support its rejection of Dr. Crain's opinion regarding defendant's ability to represent himself during the default proceedings. These findings are supported by substantial credible evidence in the record and are entitled to our deference. Cesare, supra, 154 N.J. at 413.

The remaining arguments advanced have been considered and rejected as without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed.

OSTRER, J.S.C. (temporarily assigned), dissenting.

On the day trial was to begin in plaintiff's palimony action, defendant appeared pro se, having discharged his third attorney that year. After the court determined defendant had failed to provide discovery, the court without prior warning entered default against defendant and commenced a proof hearing that same day.

According to the evidence produced during the hearing that extended over numerous subsequent days, plaintiff and defendant cohabited in a marriage-like relationship for roughly twenty years. They had a son in 1988 and daughter in 1991. Defendant promised to support plaintiff for life. He promised to divorce his wife in Poland and did so by a New Jersey judgment of divorce in 2003. However, implicit in the parties' agreement was plaintiff's promise to live in defendant's home, and to provide him the care, affection and companionship integral to a marriage-like relationship.

The evidence showed defendant had ceased regular employment in 1992 and had been collecting Social Security income thereafter. Plaintiff worked as an in-home personal care assistant to elderly or infirm persons. At the time of the hearing, she was working at a supermarket. During their relationship, the parties purchased two neighboring homes with seven apartments. They rented six and lived in one. Defendant maintained the apartments and stayed at home with the children.

In April 2008, plaintiff vacated the parties' home. Plaintiff testified that defendant had "started to speak nonsense." He was then sixty-nine years old and fifteen years her senior. He made bizarre allegations to plaintiff that she was promiscuous, his son was another man's child, and that his daughter was his half-sister, the child of plaintiff and defendant's father. Despite two separate DNA tests confirming the parties' parentage of the children, defendant incomprehensibly persisted at the proof hearing in a request for yet another test. Plaintiff testified that she moved out because "[s]omething happened to him." She said, "I was afraid." After plaintiff vacated the parties' common home, defendant ceased supporting her.

After judgment was entered against him, defendant retained his fifth attorney2 who sought to set aside the judgment on the ground defendant lacked the capacity to understand the proceedings and to assist in his own defense. Upon our limited remand, the trial court denied the request. Applying R. 4:86 and N.J.S.A. 3B:12, the court found defendant was competent to represent himself at the default hearing. The court found defendant had failed to prove he was so incapacitated as to require appointment of a guardian; he failed to present affidavits of two physicians under R. 4:86-2. Nonetheless, during that subsequent hearing, the court heard expert psychiatric testimony that defendant suffers from a delusional disorder. The court also received evidence that after plaintiff left the parties' home, defendant chained and padlocked his refrigerator, believing that plaintiff, or their children, might poison his food. Concededly, this evidence was not before the court during the proof hearing.

I believe the trial court erred in entering default and striking defendant's answer. Also, there was insufficient credible evidence to establish defendant committed a material breach of the agreement to entitle plaintiff to contract-based damages, inasmuch as defendant ceased support only after plaintiff voluntarily vacated the parties' household.

I.

When defendant appeared in court for trial on December 1, 2009, he was unrepresented. The court had permitted his second attorney to withdraw in October.3 Defendant conferred with another attorney, but was unwilling to pay his $15,000 retainer. The court determined that defendant had failed to produce significant discovery to plaintiff, as ordered in previous case management orders. This included a formal real estate appraisal (defendant produced a handwritten appraisal), more specific answers to interrogatories, and a response to a notice to produce. The discovery requests are not part of the record.

Defendant claimed the attorney who withdrew in October retained his files; she refused to return them until he paid $500; and her office was "always closed." "The attorney took everything from me, the the accounting for my six years, my passport, my savings. Everything. Nothing was returned to me." She also retained his tax returns.

The court instructed defendant to retrieve his files. She stated he should pay the $500 and, if he believed the charge was inappropriate, file a complaint thereafter.

Plaintiff's counsel indicated she was prepared to begin trial without the discovery. Regarding the lack of a formal appraisal, counsel stated, "I didn't feel that the appraisal was even as necessary because if we succeed in our palimony case and my client is awarded either a partition or all of the house and compensation then the value is going to be what it is." The court then suggestively asked, "You're willing to proceed without answers to interrogatories?"

Counsel responded that "my other option would be to once again request . . . a default," and noted when a default, later vacated, had been entered in January, a notice of application for equitable partition and other equitable relief had been filed. After counsel expressed her frustration in obtaining discovery, the court stated:

Mr. Wykowski through your past two attorneys there have been a group and a list of things that were needed by counsel that are allowed by the rules of court in order to proceed. You have not complied with any of them. Interrogatories were sent first to [your first attorney] and then renewed to [your second attorney]. They have not been answered. They were supposed to have been returned even with an extension some time in August.

In August, when yourself, Ms. Berse, [your second attorney], Ms. Kozikowska were here, I noted that you needed bank records from the Polish Slavic Bank. You needed to answer the notice to produce. You needed more specific answers to interrogatories, but I don't know if your attorney ever sent them. You needed the DNA test to be taken which I understand was done.

You need in paragraph four of the June 18th of 2009 court order a transfer of the ownership of all certificates of deposits in your name with your daughter . . . by the end of business June the 19th.

As of August the 20th, that [w]as not done. Has it been done to date?

Defendant responded, "I don't have anything." He asserted, "Everything was done. The house was appraised. [My first attorney] had all of these[.]" He said his attorney did not return anything. The court then responded:

Go and pick it up. I'm putting you in default today. There's a notice of equitable distribution that was served on you in January. Counsel will re[-]serve it. I'll give you a date 30 days from today at which point you will [have] no voice to prosecute the case but you'll be permitted to ask questions of your children's mother in order to determine her credibility and the value of property.

I'm shutting your case down. She's moving on a default proceeding on her case. It's what we call a proof hearing. At that time, she needs to prove to me the truthfulness of her statements and what it is that she requires. You will have no prosecutorial v[o]ice in this proceeding.

. . . .

In October of 2009 after our conference of August the 20th, [counsel] asked to [be] relieved and I granted it. You've been given two months since that day almost and three and a half months since the day you were in court on August the 20th when [counsel] said she could no longer represent you to get another lawyer. You haven't done anything.

It's time to stop this. Your case will be dismissed for your failure to comply with the discovery requests that have been made three times upon you.

Defendant was barred from calling his own witnesses, including testifying on his own behalf. The court allowed him to cross-examine plaintiff's witnesses and to confront witnesses with documentary evidence in response to testimony elicited on direct examination. Plaintiff called defendant as a witness in her case, and defendant was permitted to cross-examine himself, but the court restricted him to matters raised on direct. Defendant was permitted to make closing argument, but only in response to plaintiff's evidence. See Jugan v. Pollen, 253 N.J. Super. 123, 129-31 (App. Div. 1992) (discussing court's discretion in allowing defaulting defendant to participate in proof hearing).

We review for an abuse of discretion a court's order under Rule 4:23-2 striking a party's pleadings as a sanction for violating a discovery order. Abtrax Pharm., Inc. v. Elkins-Sinn, Inc., 139 N.J. 499, 517 (1995).

Courts should dismiss a complaint or strike an answer only as a last resort, when no lesser sanction will suffice. Id. at 514. The prejudice to the non-delinquent party must be great, and the non-compliance deliberate. Ibid. "Since dismissal with prejudice is the ultimate sanction, it will normally be ordered only when no lesser sanction will suffice to erase the prejudice suffered by the non-delinquent party, or when the litigant rather than the attorney was at fault." Ibid. (quoting Zaccardi v. Becker, 88 N.J. 245, 253 (1982)). Dismissal generally should not be ordered "'except in those cases where the order for discovery goes to the very foundation of the cause of action, [. . .] or where the refusal to comply is deliberate and contumacious.'" Abtrax Pharm., Inc., supra, 139 N.J. at 514 (quoting Lang v Morgan's Home Equip. Corp., 6 N.J. 333, 339 (1951)). Our courts have expressed a strong preference for adjudication of causes on the merits. Kent Motor Cars, Inc. v. Reynolds & Reynolds Co., 207 N.J. 428, 447 (2011).

In assessing whether dismissal is warranted, an important factor is whether the delinquent party was warned that dismissal could result from his continued failure to comply with discovery. Although neither R. 4:23-2 nor its federal analog, Fed.R.Civ.P. 37, expressly require prior notice of court-imposed sanctions, persuasive federal authority deems the absence of warning significant in determining a party's contumaciousness, and the appropriateness of the harsh sanction of dismissal. See, e.g., Bass v. Jostens, Inc., 71 F.3d 237, 241 (6th Cir. 1995) (factor in determining appropriateness of dismissal is "whether the dismissed party was warned that failure to cooperate could lead to dismissal"); Johnson v. U.S. Dep't of Treas., 939 F.2d 820, 825 (9th Cir. 1991) ("Because dismissal is the harshest available penalty, we have long recognized that district judges have an 'obligation to warn the plaintiff that dismissal is imminent.'") (quoting Hamilton v. Neptune Orient Lines, Ltd., 811 F.2d 498, 500 (9th Cir. 1987)); Velasquez-Rivera v. Sea Land Serv. Inc., 920 F.2d 1072, 1078 (1st Cir. 1990) (reversing dismissal in part because "this is not a case where the plaintiff received and ignored earlier warnings of the consequences of the misconduct in question").

A warning is particularly important, if not essential, when the party is pro se.

Dismissal with prejudice for discovery failures is a harsh sanction that is to be used only in extreme situations . . . and then only after (a) the court finds willfulness, bad faith, or fault on the part of the party refusing discovery, and (b) the court gives notice, especially to a pro se litigant, that violation of the court's order will result in a dismissal of the case with prejudice.

[Simmons v. Abruzzo, 49 F.3d 83, 88 (2d Cir. 1995).]

See also Valentine v. Museum of Modern Art, 29 F.3d 47, 50 (2d Cir. 1994) ("The severe sanction of dismissal with prejudice may be imposed even against a plaintiff who is proceeding pro se, so long as a warning has been given that noncompliance can result in dismissal.") (emphasis added).

The lack of warning implicates notions of due process. "The minimum requirements of due process of law are notice and an opportunity to be heard." Klier v. Sordoni Skanska Const. Co., 337 N.J. Super. 76, (App. Div. 2001) (trial judge erred in sua sponte instituting summary procedure resulting in dismissal of complaint). See also Curzi v. Raub, 415 N.J. Super. 1, 28 (App. Div. 2010) (holding that due process required the trial judge to give the parties notice and an opportunity to be heard prior to reviewing a punitive damage award). Cf. Societe Internationale v. Rogers, 357 U.S. 197, 209, 212, 78 S. Ct. 1087, 1094, 1096, 2 L. Ed. 2d 1255, 1265, 1267 (1958) (regarding Fed.R.Civ.P. 37, "there are constitutional limitations upon the power of courts, even in aid of their own valid processes, to dismiss an action without affording a party the opportunity for a hearing on the merits of his cause" and holding that Fed.R.Civ.P. 37 "should not be construed to authorize dismissal of this complaint because of petitioner's noncompliance with a pretrial production order when it has been established that failure to comply has been due to inability, and not to willfulness, bad faith, or any fault of petitioner").

Consistent with the notion that dismissal should be imposed only when a lesser sanction would not suffice, dismissal should affect only those causes of action dependent on the undisclosed discovery.

If, as a result of a party's violation of a discovery order, the trial court imposes a sanction that would affect a party's ability to litigate the merits of the action, some appellate courts are likely to insist that the sanction may only affect the claims or defenses to which the discovery would have been pertinent. This specific relationship requirement is designed to ensure that the remedy fits the wrong.

[Wayne D. Brazil, Moore's Federal Practice, Civil, 37.50[2][c] (2012).]

Applying these principles, I believe the trial court mistakenly exercised its discretion in striking defendant's answer and entering default against him. Although the court understandably expressed great frustration that the discovery remained outstanding as trial was to begin, the court did not expressly find that defendant's failure was deliberate and willful. Defendant asserted that his papers were held by previous attorneys. That assertion was untested and the court made no express findings regarding it. The court was obliged to create an appropriate record, and set forth its findings and reasons in sufficient detail, before imposing the sanction. See Klajman v. Fair Lawn Estates, 292 N.J. Super. 54, 61 (App. Div. 1996). The court also conceded that it was unclear whether the requests for more specific answers to interrogatories were forwarded to defendant.

The court also acted without warning. Plaintiff did not formally move to strike defendant's answer. The court had not previously warned defendant that if he did not produce the discovery, his answer would be stricken, nor did the court explain the consequences to his defense.

Finally, lesser sanctions would have sufficed. To the extent discovery pertained to appraisal of the property and defendant's bank accounts, the court could have suppressed defendant's proofs as to damages. This would have preserved defendant's defense to the liability portion of the case, pertaining to plaintiff's claim that she entered an express or implied agreement in which defendant promised to support her for life, and his alleged breach.

II.

Notwithstanding entry of default, plaintiff presented inadequate proof on liability. "Even though a defendant's answer is stricken for failure to make discovery, the plaintiff may be . . . precluded from recovery where the proof which he offers in support of his own case reveals a legal defense to his claim." Johnson v. Johnson, 92 N.J. Super. 457, 465 (1966) (rejecting argument that the defendant whose answer was stricken was barred from appealing the liability phase of judgment). See also Chakravarti v. Pegasus Consulting Group, Inc., 393 N.J. Super. 203, 211 (App. Div. 2007) (notwithstanding entry of default, court at proof hearing "went so far as to evaluate plaintiff's showings on liability in the light of defendant's cross examination").

Plaintiff presented sufficient proof to establish the existence of a marital-type relationship, and an agreement to support. However, as plaintiff testified that she abandoned the relationship after defendant started to talk "nonsense," she failed to show defendant breached the palimony agreement, which is essential to her claim for damages.

The right to palimony is grounded in contract principles, based on a mutual exchange of promises, including one party's promise of support. Our Court summarized the development of the law:

In Kozlowski v. Kozlowski, 80 N.J. 378, 403 A.2d 902 (1979), [superseded by statute, the Statute of Frauds, N.J.S.A. 25:1-5(h) (Amendment), as recognized in Botis v. Estate of Kudrick, 421 N.J. Super. 107, 114-16 (App. Div. 2011)], we recognized that unmarried adult partners, even those who may be married to others, have the right to choose to cohabit together in a marital-like relationship, and that if one of those partners is induced to do so by a promise of support given her by the other, that promise will be enforced by the court.

We made clear in Kozlowski that the right to support in that situation does not derive from the relationship itself but rather is a right created by contract.

[In re Estate of Roccamonte, 174 N.J. 381, 389 (2002), superseded by statute, the Statute of Frauds, N.J.S.A. 25:1-5(h) (Amendment), as recognized in Botis v. Estate of Kudrick, 421 N.J. Super. 107, 114-16 (App. Div. 2011).]

Given the intensely personal nature of the contract, the Court held the promises may be express or implied; and "a general promise of support for life, broadly expressed, made by one party to the other with some form of consideration given by the other will suffice to form a contract." Id. at 389-90.

Cohabitation is a factor, but not an essential element of a marital-type relationship that triggers a palimony obligation. Devaney v. L'Esperance, 195 N.J. 247, 258 (2008), superseded by statute, the Statute of Frauds, N.J.S.A. 25:1-5(h) (Amendment), as recognized in Botis v. Estate of Kudrick, 421 N.J. Super. 107, 114-16 (App. Div. 2011). Nor does a marital-type relationship necessarily include a duty to perform housekeeping services. Roccamonte, supra, 174 N.J. at 392. On the other hand, in some cases, the promise of support does depend on the promisee's performance of household tasks. "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." Kozlowski, supra, 80 N.J. at 388. See also Crowe v. De Gioia, 90 N.J. 126, 129 (1982) ("In return for his support, she acted like his wife: cooking, cleaning, caring for him when he was ill . . . .")

In all cases, however, the existence of a marital-type relationship includes a commitment to the welfare of the other.

[i]t is . . . the undertaking of a way of life in which two people commit to each other, foregoing other liaisons and opportunities, doing for each other whatever each is capable of doing, providing companionship, and fulfilling each other's needs, financial, emotional, physical, and social, as best as they are able. And each couple defines its way of life and each partner's expected contribution to it in its own way.

[Roccamonte, supra, 174 N.J. at 392.]

In the Court's landmark decisions endorsing palimony, the breach by the promisor of support was clear. In Kozlowski, supra, 80 N.J. at 384, the defendant-promisor "caused plaintiff to leave his home shortly before he married another woman." In Crowe, supra, 90 N.J. at 129-30, the Court awarded interim relief where the defendant left the plaintiff to marry a woman twenty-two years his junior. See also Crowe v. De Gioia, 203 N.J. Super. 22, 28-29 (App. Div. 1985), aff'd o.b., 102 N.J. 50 (1986). Although the promisor in Roccamonte did not breach, his death relieved the other party of the obligation to perform. "There is no doubt that plaintiff provided that consideration here until her obligation was discharged by Roccamonte's death." Roccamonte, supra, 174 N.J. at 393.

In Bayne v. Johnson, 403 N.J. Super. 125 (App. Div. 2008), certif. denied, 198 N.J. 312 (2009), we reversed a trial judge's award of palimony because the facts were insufficient to establish an implied promise of lifetime support. We also relied on the fact that the defendant did not breach his promise to support; rather, the plaintiff left the defendant.

Finally, it cannot be ignored that it was Fiona who left Earl. She did so not as a result of a breach of promise of support or Earl abandoned her in favor of another like the promisees in Kozlowski and Crowe. Rather it was because she finally recognized that her relationship with Earl was not going to work out to her satisfaction[.]

[Id. at 143-44.]

In this case, applying contract principles upon which our palimony law is based, there was insufficient evidence that defendant breached his promise. Defendant ceased support of plaintiff only after she removed herself from their household. Defendant's support was conditioned upon plaintiff's marital-type commitment. The court made no finding that he directed her to leave. Plaintiff's proofs were that "something happened to him," he started to "speak nonsense" and plaintiff was afraid. Although plaintiff alleged in her complaint that defendant engaged in acts of violence against her, and plaintiff's counsel argued in her closing that defendant committed acts of domestic violence against her, there was no record evidence, nor court finding, that defendant engaged in physical abuse, or that he made any unsettling statements with the purpose to harass.

The evidence at the post-judgment hearing on capacity was that defendant suffered from a delusional disorder. He also chained and padlocked his refrigerator out of fear plaintiff or his children would poison him. The psychiatric expert expressly opined that defendant was not malingering. I recognize that this proof was not before the court during the proof hearing. But, the absence of this proof only serves to highlight the prejudice of the court's unwarranted and unwarned entry of default.

Simply put, plaintiff ceased performing "[h]er end of the agreement[.]" Kozlowski, supra, 80 N.J. at 388. She ceased providing defendant emotional support and companionship. She did not "car[e] for him when he was ill[.]" Crowe, supra, 90 N.J. at 129.

Plaintiff may not claim damages as payment for her past performance. Bayne, supra, 403 N.J. Super. at 143 (palimony "is not recompense for years spent in a failed relationship"). Rather, her entitlement to support depended on her continued performance, unless excused. "It is an elementary principle of the law of contracts that for a party to recover upon a contract where the adverse party fails to perform, the party seeking recovery must establish his or her own performance or a valid excuse for the failure to perform." Richard A. Lord, Williston on Contracts 39:1 (4th ed. 2000). See also Duff v. Trenton Beverage Co., 4 N.J. 595, 604 (1950) ("Generally, no liability can arise on a promise subject to a condition precedent until the condition is met."). Her material breach of her mutual promise precludes her from seeking specific performance of defendant's obligation of support.

Nor can one find, on this record, that defendant's behavior excused plaintiff's non-performance. Cf. Allstate Redevelopment Corp. v. Summit Assocs., 206 N.J. Super. 318, 324 (non-performance of condition precedent may be excused by promisor's wrongful behavior); Coastal Oil Co. v. Eastern Tankers Seaways Corp., 29 N.J. Super. 565, 577 (App. Div. 1954) (where a promisor "prevents or hinders" fulfillment of condition, which otherwise would have been fulfilled, then performance of the condition is excused and the promisor's liability is fixed regardless of the condition's non-fulfillment). Defendant did not eject plaintiff from the household, nor commence a relationship with a different person as in Kozlowski and Crowe.

I do not minimize the emotional impact of defendant's accusations that plaintiff was promiscuous, and that he was not the father of plaintiff's children after twenty years of living together as a family. Indeed, in a marriage, such behavior might form the basis of a claim for divorce on the grounds of extreme cruelty, giving rise to a right to alimony. See David Chapus, Insanity as defense to divorce or separate suit post 1950 cases, 67 A.L.R.4th 277, 8b (2012) (noting view of some jurisdictions that mental illness is not a defense to a claim of extreme cruelty). Under our divorce law principles, the court would also not ask which spouse in such a scenario were at fault in determining the award of alimony. See Mani v. Mani, 183 N.J. 70 (2005). Our laws would allow divorce and release a spouse of the marriage vow to support "in sickness and in health." Cf. Houlahan v. Horzepa, 46 N.J. Super. 583, 591 (Ch. Div. 1957) (dismissing complaint for annulment that was based on alleged concealment of spouse's mental illness).

However, it would stretch contract principles to the breaking point to find, implicit in these parties' agreement, an understanding that if defendant were to become delusional, or significantly infirm in some other way, plaintiff would be released of her obligations to support him, which impliedly include support when he was ill, yet he would remain financially obliged to support her for the rest of her life. Such an inference is especially difficult to justify in view of the fact that defendant is fifteen years plaintiff's senior and the parties presumably understood that he was likely to become infirm and in need of care before plaintiff would.4

I recognize the court did not have before it at the proof hearing the subsequent testimony diagnosing defendant as suffering from a delusional disorder, nor the evidence that he believed not only plaintiff, but his children might try to poison him, leading him to chain and padlock his refrigerator. Nonetheless, focusing solely on the evidence at the proof hearing, plaintiff did not claim defendant acted with a purpose to harass her. She stated that "something happened to him," implying that his change in behavior was attributable to that "something." Defendant displayed irrationality at the proof hearing by inexplicably questioning two rounds of DNA tests proving paternity, and persistently requesting a third. Plaintiff's testimony that defendant spoke nonsense, and her conclusory claim that she was afraid, were insufficient to establish that defendant materially breached his contractual obligations, or substantially prevented plaintiff's performance. Thus, the evidence was insufficient to excuse her own performance and render him liable to support her for life.

For these reasons, I dissent from the majority opinion affirming the trial court's judgment.

1 It should be noted that defendant did not amend his original Notice of Appeal to reflect his intent to appeal from the February 1, 2011 order denying his competency motion. The Notice of Appeal filed in July 2010 indicates only that defendant seeks to appeal from the June 30, 2010 order.

2 Defendant retained a fourth attorney on December 7, 2009, paid him $6000 to review his file and consult with him during December, but then discharged him in February 2010.

3 The record does not include the order, or the submissions, if any, explaining the basis for the withdrawal.

4 The absence of a right to contract-based damages would not necessarily preclude any and all relief to plaintiff. See Kozlowski, supra, 80 N.J. at 390-91 (Pashman, J., concurring) (suggesting that equitable remedies should be available to insure that parties are treated fairly upon dissolution of a non-marital relationship, even in the absence of an express or implied agreement). See also Ira Mark Ellman, Unmarried Partners and the Legacy of Marvin v. Marvin: "Contract Thinking" Was Marvin's, 76 Notre Dame L. Rev. 1365 (2001) (suggesting that reliance on contract principles may deny parties a fair dissolution of an unmarried couple's relationship).