Devaney v. L'ESPERANCE

Justice LONG,

concurring.

I write separately to express my view that although the Court’s opinion is an entirely correct paradigm in an implied contract case like the one before us, it should not be read in the future as applicable to an express contract.

The right to support in a palimony action “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 , 808 A.2d 838 *261 (2002). To be enforceable, a contract must be supported by valuable consideration which involves a detriment incurred by a promisee or a benefit received by a promisor, at the promisor’s request. Shebar v. Sanyo Bus. Sys. Corp., 111 N.J. 276, 289 , 544 A.2d 377 (1988). The nature and sufficiency of the consideration is not a factor so long as it has been bargained for. Ibid. Even where those requirements are satisfied, however, today, as at common law, certain contracts cannot be enforced, for example, contracts that are illegal or violative of public policy. Vasquez v. Glassboro Serv. 83 N.J. 86, 98-99 , 415 A.2d 1156 (1980).

At common law, that bar applied where promises were based in whole or in part on sexual intercourse outside of the marriage relationship. 15 Corbin on Contracts § 81.4 (Perillo ed., rev. ed. 2003). Indeed, in a broad sweep, courts tended to view any contract arising from such a relationship as “meretricious” and unenforceable even if the relationship was not an express part of the bargain. Ibid.

In a watershed decision, the California Supreme Court in Marvin v. Marvin, 18 660, 134 Cal.Rptr. 815 , 557 P.2d 106 (1976), addressed the topic of meretricious consideration. In that case, the plaintiff who had cohabited with the defendant without the benefit of marriage sought, by way of a contract action, to enforce his promise that they would share earnings and property accumulated during their relationship. In reversing a judgment on the pleadings in the defendant’s favor, the court in Marvin concluded that non-marital cohabitants should be treated “as any other persons,” and that contracts between them are valid and enforceable so long as they are not solely and exclusively based on sexual services, i.e., prostitution. Id. at 815 , 557 P.2d at 116 . In other words, Marvin established the limited principle that cohabitation in itself is not meretricious and that the “judicial barriers that may stand in the way of a policy based upon the fulfillment of the reasonable expectations of the parties to a nonmarital relationship should be removed.” Id. at 815 , 557 P.2d at 122 .

*262 We fully subscribed to that holding in Kozlowski v. Kozlowski, 80 N.J. 378 , 403 A.2d 902 (1979), which involved a contract claim for lifetime support by a plaintiff who had cohabited for many years with a defendant, again without the benefit of marriage. There we declared that there is no legal impediment to the enforcement of an agreement between adult parties living together, so long as the relationship is not proscribed by law or based on a promise to marry. Id. at 387 , 403 902.

The suggestion that Marvin and Kozlowski somehow established the cohabitation of the parties as an essential element of a common law contract action between romantic companions has wisely been rejected by my colleagues. Cohabitation only played a part in those decisions because it was advanced as an impediment to an otherwise maintainable contract action. In turn, a marital-type relationship was only considered in Marvin and Kozlowski because it raised the spectre of cohabitation. Indeed, all that Marvin and Kozlowski established was that living together in a marital-type relationship is not a meretricious disqualifies not that those circumstances are the only route to a contract claim.

That is not to suggest that the existence of a marital-type relationship is irrelevant. To the contrary, it bears on the issues of contract formation and bargained-for consideration. Indeed, in an implied contract case such as the one before us, where courts look beyond what was said to the parties’ acts, Roccamonte, supra, 174 N.J. at 389 , 808 A.2d 838 , it is hard to imagine that any scenario other than a marriage-type relationship would sustain the conclusion that an implied promise of lifetime support was made. It is for that reason that I concur in the result reached here.

I note as well that a party’s actual willingness to live in a marital-type relationship is relevant to a consideration analysis. As we recognized in Roccamonte , “[wjhatever other consideration may be involved,” the entry into a marital-type relationship “is consideration in full measure.” Id. at 393 , 808 A.2d 838 .

*263 My concern is that the Court’s broad requirement of a marital-type relationship, which is entirely appropriate in an implied contract case such as this, will be carried over and bar enforcement of an express contract for lifetime support based on some other type of consideration. Under contract law, plaintiffs who have acted in reliance on an express promise for support and who have provided consideration other than conformance with marital roles are nevertheless entitled to recover.

The point is that, under our established case law, like every other person, a participant in a non-marital romantic relationship may recover in contract if she can show that she incurred a detriment in reliance on an express promise of support, that that promise was breached, and that she was damaged thereby. Any other conclusion would contradict our statement in Roccamonte that “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 , 808 A.2d 838 (quoting Kozlowski supra, 80 N.J. at 384 , 403 A.2d 902 ) (emphasis added).

To be sure, to succeed on a claim of an express promise for lifetime support will be difficult because those kinds of representations are rarely made in the presence of witnesses and are usually denied by the putative promisor when the relationship breaks down. Nevertheless, in a case in which a plaintiff in fact proves an express promise of lifetime support, and that she provided the agreed upon consideration, she should not be barred from recovery based on the absence of a marital-type relationship.

For example, had the trial judge in this case credited Ms. Devaney’s claim of an express promise of lifetime support by Dr. L’Esperance, the only questions for disposition would be the nature of the agreed upon consideration for the promise and whether Ms. Devaney fully performed her part of the bargain. Any other approach would confound our contract law and render a so-called palimony case an independent cause of action based upon the nature of the parties’ relationship. We have already rejected *264 that approach in Kozlowski and reaffirmed that view in Roeea-monte where we said that the right to support in a palimony action “does not derive from the relationship itself but rather is a right created by contract.” Id. at 389 , 808 A.2d 838 .

I write only to flag that issue for future consideration. In all other respects I am in accord with the majority’s view.