Kozlowski v. Kozlowski

• Decision Date: 12 July 1978
• Citation: 164 N.J.Super. 162,395 A.2d 913
• Parties: Irma KOZLOWSKI, Plaintiff, v. Thaddeus KOZLOWSKI, Defendant.
• Court: New Jersey Superior Court

Page 162

164 N.J.Super. 162

395 A.2d 913

Irma KOZLOWSKI, Plaintiff, v. Thaddeus KOZLOWSKI, Defendant.

Superior Court of New Jersey, Chancery Division.

July 12, 1978.

Michael F. Markensohn, Morristown, for plaintiff.

Slavitt, Fish & Cowen, Newark (Ben J. Slavitt, Newark, appearing), for defendant.

POLOW, J. S. C.

In this case the court must resolve whether plaintiff Irma Kozlowski, who cohabited with defendant Thaddeus Kozlowski for 15 years without the benefit of marriage, may succeed on any or all of the following demands: (1) a share of assets accumulated by defendant during those years; (2) the reasonable value of services she claims to have rendered for defendant's benefit during that time; (3) future support for the rest of her life from the date of their separation. Defendant resists all such demands, relying primarily on N.J.S.A. 37:1-10 which invalidates common law marriages contracted after December 1, 1939, and N.J.S.A. 2A:23-1 Et seq. which bans any suit based upon breach of promise to marry.

Most of the significant facts are substantially undisputed. In 1962 plaintiff, a Polish immigrant with little knowledge of the English language and little social contact outside of her own family and ethnic community, met defendant, a personable, sophisticated, apparently well-to-do business man who immediately exhibited an amorous interest in her. She was then 48 years old, married and mother of two children. He was six years younger than she, also married and father of two children. He quickly expressed his love for her and before long insisted that they leave their families and set up a new household together. After about four months of vacillating and agonizing, she capitulated. Together the loving couple moved into an apartment and later a house, in which they lived in what may be fairly characterized as the illicit equivalent of marital bliss. Three of the four children of their prior marriages joined them during the early years of their new relationship and grew up in an atmosphere not dissimilar to that of a normal family unit. The last child reached adulthood and left the household in about 1970, after which defendant sold the original house and purchased a smaller one for himself and plaintiff alone. The parties lived together for a total of 15 years, continuously except for two brief separations.

His wealth appears to have increased during that 15-year cohabitation, but he kept his business affairs to himself. Title to all of his assets, including the residences, remained solely in his own name. She knew little about his business affairs, was unaware of the extent of his assets and income and was completely dependent upon him for all of her needs, maintenance and support. She had no possessions other than clothing, personal effects and his gifts of jewelry and furs. In addition, he provided support and maintenance for all three children in the household, hers and his own.

She, on her part, provided substantial services, including housekeeping, shopping, acting as mother to the children, escorting and accompanying defendant as he desired, and serving as hostess when necessary for his customers and business associates. The latter took her to be his wife although there is no doubt that relatives and close friends on both sides were fully aware of the true relationship of the parties. Interestingly, however, her use of the name Kozlowski provides no evidence that would be of assistance in resolving this controversy. By remarkable coincidence, her first husband had precisely the same surname though unrelated to defendant. Her continued use of the name Kozlowski was, therefore, entirely proper and provides no clue as to the intentions of the parties.

She asked him about marriage from time to time. During the early years his responses were evasive. In or about 1968 the parties had a serious disagreement and separated for a week or so. Before plaintiff left, defendant had her sign a release in consideration for which she acknowledged receipt of the sum of $5,000 in full satisfaction of all claims she might have against him. That consideration consisted of $2,000 in cash delivered to plaintiff when she signed the release and cancellation of an obligation of plaintiff's daughter to return $3,000 previously advanced by defendant for her educational expenses.

Within a week after that separation defendant sought out plaintiff and pleaded for her to return. He insisted that they would be happy together for the rest of their lives, that he needed her, that he would take care of her and provide for her if she would only come back and resume her functions in the household as she had performed them in the past.

I find as a fact that at this juncture she again asked him about the prospects of marriage. He was no longer evasive he made it clear that he did not intend to marry her nor did he indicate any desire to free himself from his pre-existing marriage. On the contrary, he responded to her marital suggestions by declaring that a marriage license is only a piece of paper and that "it's what is in the heart that really counts."

She moved back into the house they had previously shared and resumed the same relationship as theretofore, but did so knowing that he refused to take steps toward marriage. She proceeded to again perform services of value to defendant, including housekeeping, cooking, food shopping, serving as his escort and companion and entertaining his business associates and customers as he desired. The parties, it may be assumed, also indulged in a meretricious relationship.

In July 1977 it became obvious that defendant had another romantic interest, no longer loved plaintiff and wanted to be rid of her. She was crushed and hurt and left in a huff. Without her knowledge he had recently instituted a suit for divorce against his wife of so many years, and a divorce judgment was ultimately rendered dissolving that marriage, after the parties hereto separated. He has since married; the bride is at least 30 years younger than plaintiff.

I am satisfied, based upon the evidence produced, that Kozlowski originally promised to divorce his wife in order to be free to marry plaintiff. He went even further: he sought out plaintiff's then husband and demanded that he permit or arrange for a divorce for her. In fact, a divorce was obtained for plaintiff within the early years of the relationship between the parties hereto. On the other hand, defendant's then existing marriage was not dissolved until 1977 after he and plaintiff had separated and severed their relationship. No explanation for the delay in attempting to dissolve his prior marriage was offered.

The long-range social consequences of the "new morality," its relaxed moral standards and the substantial increase in cohabitation by unmarried couples has been the subject of considerable, comment and concern in recent years. The plight of one of the parties rejected after many years of cohabitation, without assets and with limited or no income, is also attracting attention, particularly since the decision by the Supreme Court of California in Marvin v. Marvin, 18 Cal.3d 660, 134 Cal.Rptr. 815, 557 P.2d 106 (1976). See 90 Harv.L.Rev. 1708 (1977); Note, "Beyond Marvin: A Proposal for Quasi -Spousal Support," 30 Stan.L.Rev. 359 (1978); 23 Wayne L.Rev. 1305 (1977); Kay & Amyx, "Marvin v. Marvin: Preserving the Options," 65 Calif.L.Rev. 937 (1977); Mitchelson & Glucksman, "Equal Protection for Unmarried Cohabitors: An Insider's Look at Marvin v. Marvin, 5 Pepperdine L.Rev. 283 (1978); 62 Minn.L.Rev. 449 (1978).

The dilemma may be simply stated: Is there any remedy available under our law for a woman who has devoted 15 or more years living with a man, for whom she provided the necessary household services and emotional support to permit him to successfully pursue his business career and for whom she has performed housekeeping, cleaning and shopping services, run the household, raised the children, her own as well as his, all without benefit of marriage; a woman who was literally forced out of the household with no ongoing support or wherewithal for her survival?

Plaintiff here claims that she is entitled to a share of the assets accumulated during their time together, based on partnership and joint venture theories; she further claims the value of services rendered, based upon express, implied or Quasi -contract, and finally she claims the value of support for the rest of her life, also based upon express, implied or Quasi -contract.

I The Claim for a Share of the Accumulated Assets

Plaintiff first claims a share of the accumulated assets on the theory that they had formed a partnership. The Uniform Partnership Law, N.J.S.A. 42:1-1 Et seq., defines a partnership as an association of two or more persons to carry on as co-owners a business for profit. The statute then goes on to establish rules for determining the existence of a partnership. N.J.S.A. 42:1-7. The elements of a partnership were clearly set forth in Fenwick v. U.C.C. of N.J., 133 N.J.L. 295, 44 A.2d 172 (E. & A. 1945). They include agreement, sharing profits and losses, ownership and control of the partnerships property and business, community of power, rights upon dissolution and the conduct of the parties towards third persons, among others. Though these requirements may be reduced as regards married persons for income tax purposes, Farris v. Farris Engineering Corp., 7 N.J. 487, 81 A.2d 731 (1951), they must be met by the complainant here if she is to prevail on this theory of relief. Lang v. Hexter, 137 N.J.Eq. 100, 43 A.2d 690 (Ch.1945), aff'd 138 N.J.Eq. 478, 48 A.2d 918 (E. & A. 1946).

The elements of a joint venture are virtually identical with those required for a partnership. Wittner v. Metzger, 72 N.J.Super., 438, 178 A.2d 671 (App.Div. 1962), Cert. Den. 37 N.J. 228, 181 A.2d 12 (1962), citing 2 Williston, Contracts (3 ed. 1959), § 318A at 556 Et seq. Furthermore, the...