Reitmeier v. Kalinoski, Civ. A. No. 85-2205.

CourtUnited States District Courts. 3th Circuit. United States District Courts. 3th Circuit. District of New Jersey
Citation631 F. Supp. 565
Docket NumberCiv. A. No. 85-2205.
PartiesGlenn A. REITMEIER, Plaintiff. v. Kathryn Jean KALINOSKI, Defendant.
Decision Date02 April 1986

Sterns, Herbert & Weinroth, P.A. by Lawrence F. Gilman, Princeton, N.J., for plaintiff.

Calnan & Orloski, P.C. by Richard J. Orloski, Allentown, Pa., J.L. Thorpe, Camden, N.J., for defendant.


BARRY, District Judge.

Plaintiff, Glenn A. Reitmeier, and Defendant, Kathryn J. Kalinoski, were engaged to be married when, on August 10, 1984, they purchased a lot of real property with a dwelling place upon it in Ewing Township, New Jersey. On that date they also executed an agreement contingent upon their marriage attempting to set forth their respective interests in that and other property. Plaintiff and defendant subsequently broke off their engagement and this court is now called upon to determine the appropriate disposition of the Ewing Township property.

It is undisputed that plaintiff paid the entire downpayment, the costs of closing, and other associated costs and that plaintiff and defendant took out a mortgage in both of their names for the remainder of the payment due. It is also undisputed that plaintiff paid for all of the mortgage payments aside from the first which defendant may have paid in part. Similarly, it is undisputed that defendant contributed to certain fixtures on and repairs of the property. Defendant never lived on the property and, since the termination of their relationship, plaintiff has lived there, although whether this was pursuant to an agreement of the parties (according to defendant) or simply happened (according to plaintiff) is unclear. Be that as it may, it is uncontroverted that on the face of the deed plaintiff and defendant are tenants in common, based on the presumption of tenancy in common enunciated in N.J.S. 46:3-17. Mandelbaum v. Weiss, 11 N.J.Super. 27, 77 A.2d 493 (App.Div.1950).

On February 15, 1985, plaintiff commenced an action in the Superior Court of New Jersey, Chancery Division, Mercer County, seeking: a. partition of the Ewing Township property (apparently in the alternative to other requested relief), b. a determination that defendant had no interest in or title to the property, c. a determination that plaintiff alone had interest in and title to the property, subject to the mortgage, d. an order mandating that defendant deliver to plaintiff a deed conveying to plaintiff any interest in the land she might have or, in the alternative, for an order of the court to the same effect, and e. costs.

Defendant counterclaimed for: 1. fifteen counts of assault and battery, 2. a declaratory judgment that the August 10, 1984 agreement as to the disposition of the property is without force and effect, 3. partition of Ewing Township property with one half of the proceeds to go to her, and 4. damages for instances of personal injuries allegedly caused to her as a passenger in cars driven by plaintiff. Defendant removed this action to federal court pursuant to this court's diversity jurisdiction, as defendant resides in Pennsylvania.

Plaintiff now moves this court for summary judgment with reference to the counts related to the Ewing Township property and moves to strike the jury demand as to those matters which remain after disposition of the summary judgment motion.

Before a court may grant a motion for summary judgment, there must be no genuine issue of material fact and the movant must be entitled to judgment as a matter of law. Fed.R.Civ.P. 56; Mourning v. Family Publications Service, Inc., 411 U.S. 356, 362 n. 16, 93 S.Ct. 1652, 1657 n. 16 (1973), Jersey Central Power & Light Co. v. Lacey Township, 772 F.2d 1103 (3d Cir.1985). In ruling on a motion for summary judgment, the court's function is not to resolve factual issues but rather to determine whether any genuine material factual issue exists. Adickes v. Kress, 398 U.S. 144, 159, 90 S.Ct. 1598, 1609, 26 L.Ed.2d 142, 155 (1970); Jersey Central Power & Light Co. v. Lacey Township, supra. The court must draw all inferences of fact against the movant and in favor of the party opposing the motion. Adickes v. Kress, supra; Reilly v. Firestone Tire and Rubber Co., 764 F.2d 167 (3d Cir.1985). However, Rule 56(e) does not allow a party resisting a summary judgment motion to rely merely upon bare assertions, conclusory allegations or suspicions. Jersey Central Power & Light Co. v. Lacey Township, supra. Once appropriate evidence has been submitted, controversy as to the facts may not be proved merely by reliance on the pleadings, but only upon affidavits or other sworn and similarly reliable statements: "depositions, answers to interrogatories, or further affidavits." Fed.R.Civ.P. 56(e); Reilly v. Firestone Tire and Rubber Co., supra.


On August 10, 1984, the same day as the deed over the property at issue was signed, plaintiff and defendant signed an agreement that purported, inter alia, to delineate plaintiff's and defendant's respective percentages of ownership in the property. The agreement stated, in part, that plaintiff's percentage of ownership was to be the greater of 61.36% of the net value or $25,000 plus 50% of net remaining value of the property; defendant's percentage was to be the lesser of 38.64% of the net value or 50% of the net value less $25,000. Net value was defined as the sales price in a bona fide sale, or the fair market value less outstanding mortgages, liens and cost of sale in a disposition of the property in other than a bona fide sale. The agreement stated that all future payments were to be paid out of joint funds. Which future payments were contemplated in the agreement is uncertain, but presumably at least mortgage payments and taxes were intended. The agreement is silent as to the allocation of the respective shares of such joint payments.

In her counterclaim, defendant seeks a declaration, pursuant to 28 U.S.C. § 2201, that the agreement is invalid for several reasons: a. the marriage contemplated in the agreement never occurred; b. plaintiff failed to make full disclosure to defendant of all facts material to the agreement; and c. defendant was not represented by an attorney. In her counterclaim, she represented that a 50% share in the property was a gift (in effect a donatio ante nuptias), and that she was misled into signing the agreement. Upon deposition, she admitted that no gift was contemplated and that she thought that the agreement was a fair representation of the parties' understanding as to the division of the property. In her brief and affidavit upon this motion, defendant now contends that she was misled into signing the agreement by plaintiff's representation that the agreement represented in writing a separate oral agreement that plaintiff's interest in the property was to be two-thirds and defendant's interest was to be one-third. Finally, in oral argument upon the motion, defendant's counsel admitted that the one-third/two-thirds division articulated by defendant in her affidavit was simply a rough estimate of the terms of the disposition embodied in the agreement.

Plaintiff, on the other hand, contends that the agreement was valid, but that it is of no effect because: 1. the law holds that in a case in which a deed is made to co-tenants, their respective portions are indicated by their shares of the purchase price; and 2. plaintiff has paid all the mortgage payments and, as defendant seeks equitable relief, in order to achieve the result she seeks, she must do equity (i.e. offer to pay a share of the mortgage payments). Plaintiff contends, moreover, that even if the agreement be invalid, it is an indication of the intent of the parties.

Defendant words her objection to the agreement in the form of a condition precedent (i.e. marriage) to the contract being fulfilled. A conditional promise becomes absolute only upon performance, and therefore the contract entirely conditioned upon the occurrence or nonoccurrence of a particular event is not binding until the condition manifests itself. Duff v. Trenton Beverage Co., 4 N.J. 595, 73 A.2d 578 (1950). However, the agreement on its face does not explicitly condition the contract upon the marriage of the parties. It states merely that the agreement is being made in contemplation of the marriage. When fairness and justice require, the court may find a constructive condition in the contract. Palisades Properties, Inc. v. Brunetti, 44 N.J. 117, 207 A.2d 522 (1965). In this instance, however, there seems to be no reason why a constructive condition precedent of marriage should be imposed in this agreement, as there is no indication that the parties would have disposed of their interests in the property differently before marriage than during or after marriage.

The parties fail to note, however, that the consideration for the agreement appears to have been the contemplated marriage, no other form of consideration being recited therein. Normally, in New Jersey a sealed contract does not need consideration. Zirk v. Nohr, 127 N.J.L. 217, 21 A.2d 766 (Ct.E. & A.1941); Minch v. Saymon, 96 N.J.Super. 464, 233 A.2d 385 (Ch.Div. 1967). However, in this case, although the agreement recites that "the parties have set their hands and seals" to it, no seal appears thereon, but merely the signatures of the parties and the witnesses. The mere recital of sealing, without a seal or other device by way of seal, does not constitute a seal. N.J.S. 1:1-2.1; Fidelity Union Trust Co. v. Fitzpatrick, 134 N.J.L. 250, 46 A.2d 837 (Ct.E. & A.1946); Continental Purchasing Co., Inc. v. Daniels, 123 N.J.L. 33, 7 A.2d 887 (Sup.Ct.1939); Beneficial Finance Co. v. Dixon, 130 N.J.Super. 508, 327 A.2d 695 (Dist.Ct.1974).

The agreement, however, was made, "in consideration of the mutual covenants, provisions, promises and terms contained herein." Among the provisions is one that, "the parties contemplate marriage to each...

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