Kozlowski v. Kozlowski

• Decision Date: 25 June 1979
• Citation: Kozlowski v. Kozlowski, 80 N.J. 378, 403 A.2d 902 (N.J. 1979)
• Parties: Irma KOZLOWSKI, Plaintiff-Respondent, v. Thaddeus KOZLOWSKI, Defendant-Appellant.
• Court: New Jersey Supreme Court

Page 378

80 N.J. 378

403 A.2d 902

Irma KOZLOWSKI, Plaintiff-Respondent, v.Thaddeus KOZLOWSKI, Defendant-Appellant.

Supreme Court of New Jersey.

Argued April 2, 1979.

Decided June 25, 1979.

Ben J. Slavitt, Newark, for defendant-appellant(Slavitt, Fish & Cowen, Newark, attorneys; Terry Kassel, Newark, on the brief).

Michael F. Markensohn, Morristown, for plaintiff-respondent.

The opinion of the court was delivered by

HALPERN, P. J. A. D. (temporarily assigned).

The primary issue on appeal is whether a man and a woman who are not married to each other, and who live together without a promise of marriage, may enter into a contract which, if otherwise valid, is enforceable by our courts.The trial judge in a detailed and well-reasoned opinion, 164 N.J.Super. 162, 395 A.2d 913 decided the issue in favor of plaintiff, and we certified the appeal then pending unheard in the Appellate Division79 N.J. 475, 401 A.2d 230(1978).

The essentially undisputed facts are fully set forth in the trial judge's opinion:

In 1962plaintiff, 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 1968the 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.¹

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.(164 N.J.Super. at 167-169, 395 A.2d at 915-916)

We are satisfied from a review of the record that the trial judge could reasonably have reached his factual and legal determinations on sufficient credible evidence present in the record as a whole, giving due regard to his ability to judge the credibility of the witnesses.Nat'l Newark & Essex Bank v. American Insurance Co., 76 N.J. 64, 78, 385 A.2d 1216(1978);Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 483-484, 323 A.2d 495(1974);State v. Johnson, 42 N.J. 146, 162, 199 A.2d 809(1964).

Because the issues presented are novel in New Jersey and have potentially far-reaching effects, we deem it advisable to comment briefly on the parameters of Judge Polow's decision.

I

The contract between the parties hereto, entered into in 1962 under a promise of marriage, was not a partnership or a joint venture entitling plaintiff to a share of defendant's accumulated assets.Relief predicated upon a promise of marriage has been barred since 1935 by the Heart Balm Act, N.J.S.A. 2A:23-1, Et seq.

Plaintiff is not entitled to alimony or equitable distribution.Alimony may be awarded only in actions for divorce or nullity, and equitable distribution is awarded only in actions for divorce.N.J.S.A. 2A:34-23, Et seq.

II

In 1968, following their separation of one week's duration, it became clear that defendant had no intention of marrying plaintiff and he advised her of that fact.Despite the sharp factual dispute on the subject, Judge Polow found that at that time defendant expressly agreed to support plaintiff for the rest of her life.Thereafter, their relationship continued until 1977 when defendant caused plaintiff to leave his home shortly before he married another woman.

Whether we designate the agreement reached by the parties in 1968 to be express, as we do here, or implied is of no legal consequence.The only difference is in the nature of the proof of the agreement.Parties entering this type of relationship usually do not record their understanding in specific legalese.Rather, as here, the terms of their agreement are to be found in their respective versions of the agreement, and their acts and conduct in the light of the subject matter and the surrounding circumstances.Martin v. Campanaro, 156 F.2d 127, 129(2 Cir.), Cert. den., 329 U.S. 759, 67 S.Ct. 112, 91 L.Ed. 654(1946);St. Paul Fire, etc., Co. v. Indemnity Ins. Co. of No. America, 32 N.J. 17, 23, 158 A.2d 825(1960);West Caldwell v. Caldwell, 26 N.J. 9, 28-29, 138 A.2d 402(1958);1 Williston, Contracts (3 ed. 1957), § 3 at 8-12;1 Corbin, Contracts (1963), § 18 at 39-43.

The trial judge, in finding that an express agreement was made by defendant to support plaintiff for life, believed the testimony of plaintiff and the testimony of plaintiff's daughter, son-in-law and niece.After weighing all the testimony concerning what occurred following the reconciliation in 1968, he stated in his oral conclusions:

However, the defendant did not let it lie there.Once again there has been no contradiction.It was the testimony of the plaintiff that very shortly after she left (1968), he came to her.He again pleaded his love for her.He again urged her to live with him and run his household and insisted that they would live happily for ever after, again urged her to let him take care of...