KOZLOWSKI v. KOZLWSKI

N.J.Super. 162, 395

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 [her demands].

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?

I have considered the testimony of the parties and observed their demeanor on the witness stand, and am satisfied that plaintiff's version is the more credible. 1 find that the proofs indicate that she asked him specifically about her financial situation should he predecease her, in response to which he assured her he would arrange to provide for her for the rest of her life. 1 am satisfied that defendant's present argument, that his obligation to provide for her was to cease if they separated, is an afterthought and was neither stated nor intended when the new agreement was reached in 1968.

Although the agreement was oral, it does not violate the statute of frauds, NJ7.S.A. 2SA-5(c) or (e), which provides:

2SA-5. Promises or agreements not binding unless in writing

No action shall be brought upon any of the following agreements or promises, unless the agreement or promise, upon which such action shall be brought or some memorandum or note thereof, shall be brought in writing, and signed by the party to be charged therewith, or by some other person thereunto by him lawfully authorized;

An agreement made upon consideration of marriage;

An agreement that is not to be performed within one year from the making thereof.

The consideration here for the services rendered was not marriage but compensation by way of support which plaintiff has already received and the promise of future support. In Elseman v. Schneider, 60 N.J.L. 291, 37 A. 623 (Sup.Ct. 1897), the trial court allowed relief to be granted on an oral agreement made 20 years earlier between a man and his mother-in-law that in consideration of certain domestic services to be performed by her, he would support and maintain her during her lifetime. In the present case plaintiff performed the agreed-upon services for 15 years, giving up for that time all other potential avenues of pursuit of career or employment as well as other possible means of providing for her future support and retirement. She has foregone any chance to develop skills or to seek out opportunities which, in the revealing light of hindsight, may well have served her better. She performed diligently and fully her part of the bargain for a significant period of her life. This court could not countenance the unconscionable result which would obtain should all relief be denied this plaintiff who was cast adrift at 63 years of age without means of support assets, and with little hope of developing support opportunities. For the reasons stated in section 11 thereof, the contract is enforceable.

Nor does the time requirement of the statute of frauds bar enforcement of this oral agreement which would have terminated upon the death of either party. As the court in Smith v. Balch, 89 N.J.Eq. 566, 105 A. 17, 19 (E. & A. 1918), authoritatively held:

In order for this provision of the statute to apply, it must appear that the parties intended when they made the contract that it should not be performed within the year. If this does not expressly or clearly appear, and the contract is one which, taking in consideration the subject-matter, may be performed within the year, the statute does not apply,

although in fact a longer time was actually taken in performance.

Accordingly, an appropriate measure of relief will be awarded plaintiff in this claim. A preliminary determination of the damage caused to plaintiff was calculated based upon the present value of the reasonable annual support payable to plaintiff, computed by reference to the life expectancy tables contained in the Rules. Plaintiff has demanded further opportunity to present evidence because of certain limitations imposed during pre-trial discovery. A final determination of the amount of damages to be awarded will await a further plenary hearing.