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New Jersey Domestic Partnership Appeal Denying Equitable Distribution

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                                                                                                                    SUPERIOR COURT OF NEW JERSEY

                                                                                                                    APPELLATE DIVISION

                                                                                                                    DOCKET NUMBER: A-2768-07

                                                                                                                    CIVIL ACTION

SHARON A.F. MIKEN,                                              :

                            Respondent,                                                                ON APPEAL FROM

                                                                                      :                            SUPERIOR COURT OF NEW JERSEY

                                                                                                                   SPECIAL CIVIL FAMILY PART

vs.                                                                                                              GLOUCESTER COUNTY

JANE F. HIND, :

                              Appellant                                      . :

_________________________________________________________________

                                           BRIEF FOR APPELLANT JANE F. HIND

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RESEARCHED & DRAFTED ENTIRELY BY SUSAN CHANA LASK PRIOR TO PRO HAC VICE-SIGNED BY NJ COUNSEL

                                                                                                                            Stephanie Canas Hunnell Attorney at Law, LLC

                                                                                                                             Attorneys for Defendant-Appellant

                                                                                                                             801 Twelfth Avenue, PO Box 428

                                                                                                                             Belmar, NJ 07719

                                                                                                                             Tel: 732.749-3500, Fax: 732.749-3503

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TABLE OF CONTENTS

Page No.

I. PROCEDURAL HISTORY.................................... 1

II. STATEMENT OF FACTS.................................... 2

III. ARGUMENT............................................. 8

A. THE TRIAL COURT ERRED IN MODIFYING THE DOMESTIC

PARTNERSHIP ACT N.J.S.A. 26:8A-10 BY CREATING A NONSTATUTORY

CAUSE OF ACTION TO TERMINATE AFTER MIKEN

ABANDONED HER CAUSE OF ACTION AT TRIAL; THEREFORE, IT

HAD NO JURISDICTION TO DECIDE COLLATERAL ISSUES,

RENDERING ANY JUDGMENT VOID....................... 9

B. THE DOCTRINE OF JUDICIAL ESTOPPEL DISMISSES THIS CASE

BECAUSE MIKEN FOR 7 MONTHS OF LITIGATION ADVOCATED

IRRECONCILABLE DIFFERENCES WAS NOT A STATUTORY MODE

TO TERMINATE THE DOMESTIC PARTNERSHIP THEN CHANGED HER

POSITION AT TRIAL BY MISREPRESENTING CASE LAW TO OBTAIN

A DIFFERENT RESULT................................. 14

C. THE TRIAL COURT ERRED BY FAILING TO APPLY CONTRACT

PRINCIPLES AND INSTEAD APPLIED AN AFFIRMATIVE DEFENSE,

THE DOCTRINE OF ACCORD & SATISFACTION TO DENY THE

MARCH 26, 2007 SETTLEMENT AGREEMENT................ 19

D. MIKEN’S ATTEMPTED DURESS DEFENSE WAS AN ADMISSION

TO HER MARCH 26, 2007 SETTLEMENT AGREEMENT......... 26

IV. CONCLUSION.............................................. 29

TABLE OF AUTHORITIES

                                                                                                 Page

Aarvig v. Aarvig,

248 N.J.Super. 181, 185-86 (Ch.Div.1991)...................... 25

Berg Agency v. Sleepworld-Willingboro, Inc.,

136 N.J.Super. 369, 377 (App.Div.1975)............. 21

Brawer v. Brawer,

329 N.J.Super. 273 (App Div, 2000).................. 29

Bravand v. Neeld,

35 N.J.Super. 42, 52 (App.Div.1955).................. 12

Castelli v. Jereissati,

80 N.J.L. 295, 297 (E. & A.1910).......................... 26

Cohn v. Fisher,

118 N.J.Super. 286, 291 (Law Div.1972)............... 20

Communication Workers of America, Local 1087v. Monmouth Cty. Bd.,

96 N.J. 442, 452(1984)................................... 25

Cummings v. Bahr,

295 N.J.Super. 374, 387(App.Div.1996).................... 16

Davis v. Wells,

104 U.S. 159, 26 L. Ed. 686 (1881)........................ 20

Graziano v. Grant,

326 N.J.Super. 328 (N.J.Super.A.D.,1999)................. 24

Howard v. Howard,

135 N.J. Eq. 55 (Ct. Err. & App. 1944)................... 13

Jennings v. Reed,

381 N.J. Super. 217, 227 (App. Div. 2005)................ 27

Johnson & Johnson v. Charmley Drug Co.,

11 N.J. 526, at 539 (1953).............................. 20

Kimball Int'l, Inc. v. Northfield Metal Prods.,

334 N.J.Super. 596,606, (App. Div.2000), certif. denied,

167 N.J. 88 (2001)..................................... 15

Konzelman v. Konzelman,

158 N.J. 185, at 206 (1999)............................. 22

Leitner v. Braen,

51 N.J.Super. 31, 38, (App.Div.1958).................... 29

Lewis v. Harris,

188 N.J. 415 (2007).................................... 6,10-13

Loizeaux Builders Supply Co. v. Donald B. Ludwig Co.,

144 N.J. Super. 556 (Law Div.1976)..................... 25

Manalapan Realty v. Manalapan Tp. Comm.,

140 N.J. 366, 378 (1995)................................ 8

Manion v. Manion,

143 N.J.Super. 499, at 502-503 (Ch. Div.1976).......... 13

Onorato Const., Inc. v. Eastman Const. Co.,

312 N.J.Super. 565 (N.J.Super. A.D.,1998)............. 22

Pascarella v. Bruck,

190 N.J.Super. 118, 125(App.Div.), certif. den.,

94 N.J. 600 (1983)..................................... 24

Plyler v. Doe,

457 U.S. 202, 216, 102 S.Ct. 2382, 2394, 72 L.Ed.2d 786,

798-99 (1982)........................................... 12

Ramer v. New Jersey Transit Bus Operations, Inc.,

335 N.J.Super. 304, 313(App.Div.2000)................... 16

Remedial Educ. & Diag. v. Essex Co. Ed. Services Comm.,

191 N.J.Super. 524 (App.Div.1983)....................... 12

Ridge Chevrolet-Oldsmobile, Inc. v. Scarano,

238 N.J.Super. 149, 155 (App.Div. 1990)................. 24

Rubenstein v. Rubenstein,

20 N.J. 359,365 (1956)................................. 27

State v. Zeidell,

299 N.J.Super. 613, 621 (App.Div.1997)................. 13

Weichert Co. Realtors v. Ryan,

128 N.J. 427 (1992).................................... 20

ii

Statutes, Rules, Bills, Treatises

Domestic Partnership Act N.J.S.A. 26:8A-1, et seq........ 9

N.J.S.A. 26:8A-4.1....................................... 11

N.J.S.A. 26:8A-10...................................... 1,5,6,9,13,14,18

N.J.S.A. 26:8A-10(2)(a)-(g).............................. 9

Divorce Statute N.J.S.A. 2A:34-2......................... 9

N.J.S.A. 2A:342(i)....................................... 9

Civil Union Act, N.J.S.A. 37:1-28........................ 9-10

Assembly, Bill No. 3747- -L.2003, c.246.................. 11

Assembly Judiciary Statement to Assembly Bill No.

3787- -L.2006, c.103..................................... 11

Affirmative Defenses R. 4:5-4............................. 25,27

PRESSLER Current N.J. COURT RULES, Comment R. 4:5-4

[2.2.1], (GANN)........................................... 27

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I. PROCEDURAL HISTORY

Appellant Defendant herein is designated as Hind and Respondent Plaintiff herein is designated as Miken. On June 8, 2007, Plaintiff Sharon A. Miken filed in the Superior Court, Gloucester County Family Part a Summons and Complaint to terminate an October 4, 2004 domestic partnership between her and Defendant Jane F. Hind on the grounds of extreme cruelty, requesting equitable distribution and attorney fees (2a-6a). On June 28, 2007, Hind filed her Answer, including a defense that the parties had a binding settlement agreement and a counterclaim for termination on grounds of irreconcilable differences (7a-9a). On July 23, 2007, Miken filed her Answer to Hind's counterclaim, refuting Hind's counterclaim by advocating "...irreconcilable differences is not a cause of action recognized under the New Jersey Domestic Partnership Act, specifically N.J.S.A. 26:8A-10, and is therefore unavailable as a basis for terminating the parties' domestic partnership."(10a-11a).

On January 15, 2008 the trial court filed a handwritten form used for divorce judgments following its January 15, 2008 decision spread on the record, but erroneously leaving in the words "equitable distribution" contrary to its decision (12a-13a, at 13a). On February 5, 2008, Miken's counsel drafted a judgment including the improper words "equitable distribution" at paragraph 4 therein, presenting it to the trial court contrary to its decision denying equitable distribution (14a-17a, at 15a). On April 7, 2008, Hind filed a Motion to Correct Pursuant to Rule 1:13-1(clerical errors) the January 15 and February 5, 2008 Judgments (23a-42a). On April 24, 2008, the trial court by its own initiative filed a Corrected Final Judgment of Termination of Domestic Partnership removing "equitable distribution" (43a-44a),confirming its decision by its May 9, 2008 Order (45a).

II. STATEMENT OF FACTS

In about 1997, Jane Hind and Sharon Miken met at a teacher's convention in New Orleans (1T6:15-201;2T27:15-16). At that time, the parties were about 49 and 50 years old; they are now about 59 and 60 (2T26:19-22). Hind was employed as a certified teacher for 24 years living in South Carolina and Miken was employed as a teacher in New Jersey who owned a home in Palmyra (1T42:15-21,2T29:5-8). In about 1998, Hind left her teaching job to move with Miken, who could not move because she was not marketable in South Carolina and she was the primary caretaker for her 88 year old grandmother in Palmyra, New Jersey (1T43:8-13; 1T44:11-21;1T45:22-24). Hind's move permitted her to care for Miken's grandmother as well (B32:1-15, B33-34:25-3). Hind lost much of her pension as a result of her giving up her job to move to Miken's Palmyra home (2T30:5-20;2T31:22-24; 1T44-45:22-2). Hind contributed to half of the mortgage, utilities and upkeep expenses of Miken's Palmyra property from 1998 through 2004, when the parties moved to Sewell, New Jersey (1T63:6-10;2T35:7-19). On November 8, 2002 Hind purchased a property in the Villas, New Jersey for $135,000.00 by placing title and the mortgage in her name and Miken contributed $43,000.00 to the purchase price (1T14:12-14; 1T15:10-11;A20:21-24;1T21:9-14,22;1T22:1-3;1T41:5-10;1T47:1-23; 1T48-49:9-1; 2T41:5-6). In September, 2004 the parties moved to a Sewell, New Jersey property purchased by Miken (1T23-24:21-11;2T77:6-10).

On October 4, 2004 Hind and Miken filed a domestic partnership pursuant to N.J.S.A. 26:8A-2 (1T7:13-17;2T68:18-22). Hind entered into the domestic partnership for the health benefits it provided, never intending to marry Miken (2T69:3-13). In about October, 2006, Hind and Miken discussed terminating their relationship (1T26:13-15). As a step towards the termination, on October 27, 2006, Miken executed an agreement removing her name from Hind's father's financial account that Hind received as an inheritance in May, 2006 (1T12:17-21; 2T74:8-25; 2T75:2-19). In November, 2006 the parties ceased cohabiting (1T8:3-4). In furtherance of the termination, on November 8, 2006, Hind moved from their shared residence in Sewell owned by Miken to the Villas property owned by Hind (1T76:2-3). In January, 2007, Hind informed Miken they were permanently separated (1T27:9-11, 2T27-28:18-4).

From January through April, 2007, the parties entered into settlement negotiations via a series of e-mail offers and counteroffers, resulting in a March 27, 2007 agreement that (a) Hind pay a certified check of $43,000 to Miken when Miken picks up her furniture and (b) Hind pays all filing fees and her own legal fees to file the domestic partnership termination (1T58-59:18-17; 1T61:4-8;A62:5-6;1T63-64:14-23; 1T65:2-15; 1T67:3-1067:11-22; 2T:79:7-9; 2T82:5-8;2T83:1; 2T86:9-24; 86-87:25-5;2T90-91:23-18;2T92:1-3;2T94:15-25; 2T95-96:19-13, 96:1-6). The e-mails reflected the parties' consideration to forbear from litigation and its attendant costs by settling (1T65-66:14). The e-mails were as follows:

- On January 19, 2007, Miken sends an e-mail to Hind offering a $75,000.00 settlement based on her attorney brother, Greg's advice regarding the Villas property (1T58-59:18-17;2T82:5-8);

- On March 14, 2007, Miken offered Hind a settlement of $47,000 for her interest in the Villas property (1T62-63:22-10), and once that number was settled Miken stated "then we can settle and start talking about furniture."(2T85:10-12);

-On March 15, 2007 Hind's reply e-mail, entitled "Settlement", counteroffers to pay $40,000 by certified check on the day Miken removes her furniture (2T86:9-24);

-On March 15, 2007, Miken's reply e-mail refuses $40,000 (1T86-87:25-5);

-On March 16, 2008, Hind replied via e-mail, entitled "Settlement", requesting whether they should hire an appraiser or mediator to determine the financial settlement regarding the real estate and she offered that each party prepare a list of furniture. (2T63-64:14-23). Also, in that e-mail, Hind negotiated a credit of $28,800 she paid to Miken's Palmyra property mortgage for over four years (2T87:15-25);

 

-On March 17, 2007, Miken responded via e-mail that "I have my furniture list started", with her list attached and requested her money paid towards the Villas property back. (1T65:2-15; 2T90-91:23-18;2T92:1-3).

-On March 25, 2007 Hind offered a $43,000 settlement on the Villas property.(1T67:3-10)

-On March 26, 2007, Miken responded by e-mail entitled "Settlement" by accepting Hind's $43,000 offer, to wit: "I agree to the financial settlement, $43,000, but I do not want to be responsible for any filing, lawyer's fees, (yours), or other costs associated with the dissolution. Now, let's decide about the furniture. You have my list. As far as I'm concerned, the porch furniture was a joint purchase so it remains under negotiation. Sharon.""(1T67:11-22;2T94:15-25)

-On March 27, 2007 Hind agreed to Miken's acceptance, including Miken's offer that Hind pays her own legal fees and pays all filing fees.(2T95-96:19-13,96:1-6)

Without disclosing to Hind, about a month after the settlement agreement Miken obtained counsel and in the beginning of May, 2007, rather than pick up her furniture and the $43,000 settlementas she agreed on March 26, 2007, Miken instead had counsel contact Hind to "reopen the settlement" (1T29:3-4; 2T98:8-23,2T100:24-25;2T149-150:14-4). Hind considered that communication a breach of their settlement agreement (2T149-150:14-4).

Miken filed a June 8, 2007 Complaint to terminate the domestic partnership pursuant to N.J.S.A. 26:8A-10, alleging a cause of action of extreme cruelty and demanding equitable distribution and attorney fees (2a-6a). When Hind counterclaimed to terminate on irreconcilable differences, Miken objected because "...irreconcilable differences is not a cause of action recognized under the New Jersey Domestic Partnership Act, N.J.S.A. 26:8A-10, and is therefore unavailable as a basis for terminating the parties' domestic partnership."(10a). Hind pled a defense that she and Miken had a binding settlement agreement wherein after 3 months of negotiations from January through March 27, 2007, Miken agreed to a $43,000 payment to settle without litigation (8a).

At the January 15, 2008 trial, Miken abandoned her cause of action pled as extreme cruelty and refused to prove it, insisting instead on "irreconcilable differences" that she originally objected to, while admitting the Domestic Partnership Act does not permit irreconcilable differences, to wit:

"Well, it appears that we can join with the Defendant in

asking for irreconcilable differences, although the statute

doesn't allow it, Lewis verses Harris would guide."

(2T8:21-24).

At trial, Hind's counsel raised the issue that irreconcilable differences was not a statutory ground to terminate, reminding the trial court that it was Miken's counsel who emphatically advocated irreconcilable differences was not a cause of action during the 7 month litigation (2T6:11-15). Also during the trial, on January 10, 2008, Miken raised a defense of "duress" to the parties' March, 2007 agreement to accept $43,000 to settle without litigation, but she never pled said defense before trial nor did she prove duress at trial (10-11a).

During the 7 months of protracted litigation commenced by Miken, Miken insisted the domestic partnership was a "marriage", demanding Hind pay $25,000 in legal fees generated by Miken's counsel and she demanded "equitable distribution" (1T21:8-10;2T224:19-20).

On January 10 and 15, 2008 Gloucester County Family Court Judge John Tomasello spread his findings of facts, conclusions of law and decision on the record as:

1. The Domestic Partnership was terminated on grounds of

"irreconcilable differences", finding that the parties entered into a domestic partnership on October 4, 2004 and experienced a six month breakdown with no prospect of reconciliation (2T6:9-24;2T8-9:21-1;2T9-10:20-6;2T210:1-15);

2. Equitable Distribution was denied, and instead principles of equity were granted (1T 23:8-9;1T24:15-22; 1T25:23-25;1T26:2-4;2T227:2-5);

3. A judgment of $71,000.00 was granted in favor of Miken representing the Family Court's calculation of Miken's funds contributed to real estate and their appreciation (2T25:15-18,23-25;2T26:2-4;);

4. Each party was to bear their own costs and attorney fees (2T226:1-3,7-8).

On or about February 5, 2008, Miken's counsel drafted and presented to the trial court for filing on February 5, 2008 a judgment for "equitable distribution" when equitable distribution was denied (14-15a). From about January 30 through February, 2008, Miken and her counsel faxed and e-mailed a press release to major media outlets, including the New Jersey Law Journal, and other persons misrepresenting the trial court's decision by falsely stating Miken's counsel was an expert in domestic partnerships who won a case of first impression by Judge Tomasello granting "equitable distribution" and deciding the Hind-Miken termination was a "marriage" (33-35a). As a result of Miken's misrepresentations to the media, public, Judiciary and the Bar of a decision that never happened, Hind filed with the trial court an April 8, 2008 Motion to Correct the improper February 5, 2008 Judgment drafted by Miken's counsel which said counsel used to promote their misrepresentations to the public that "equitable distribution" was awarded (a). On April 24, 2008 the trial court by its own initiative corrected the error by filing a corrected judgment removing "equitable distribution" (23-42a).

III. ARGUMENT

Hind appeals on matters of law to be determined by the appellate court and reviewed without deference to the trial court's interpretation of the law and the legal consequences that flow from established facts. Manalapan Realty v. Manalapan Tp. Comm., 140 N.J. 366, 378 (1995). With all due respect, a remand is unnecessary since the record is sufficiently complete to permit the appellate court to determine matters of law to dismiss the Complaint or, in the alternative, to uphold the parties' settlement agreement based upon the following arguments.

 

A. THE TRIAL COURT ERRED IN MODIFYING THE DOMESTIC

PARTNERSHIP ACT N.J.S.A. 26:8A-10 BY CREATING A

NON-STATUTORY CAUSE OF ACTION TO TERMINATE AFTER

MIKEN ABANDONED HER CAUSE OF ACTION AT TRIAL;

THEREFORE, IT HAD NO JURISDICTION TO DECIDE COLLATERAL

ISSUES, RENDERING ANY JUDGMENT VOID

The Domestic Partnership Act is a creature of statute created in 2004. N.J.S.A. 26:8A-1, et seq.(the "Act"). It lists 7 statutory causes of action at N.J.S.A. 26:8A-10(2)(a)-(g) to terminate. Irreconcilable differences is not a cause of action listed in N.J.S.A. 26:8A-10 (2)(a)-(g). Irreconcilable differences is only a cause of action mandated in this State's divorce statute N.J.S.A. 2A:34-2 or the Civil Union Act, N.J.S.A. 37:1-28. The legislature amended the marriage statute on January 20, 2007 allowing divorcing parties a cause of action for divorce characterized as "irreconcilable differences."N.J.S.A. 2A:342(i). The Civil Union Act was enacted soon thereafter in February, 2007, also allowing "irreconcilable differences." To prevail on that cause, one need only assert: "irreconcilable differences which have caused the breakdown of the marriage for a period of six months and which make it appear that the marriage should be dissolved and that there is no reasonable prospect of reconciliation."N.J.S.A. 2A:342(i). Despite those proofs allowed only in a divorce or civil union termination and not under the Domestic Partnership Act, the trial court accepted those proofs to terminate the Hind-Miken statutory domestic partnership once Miken abandoned her cause of action.

The trial court's error was based upon Miken's counsel's misrepresentation at trial that Lewis v. Harris, 188 N.J. 415(2007) permitted it to treat the domestic partnership as a marriage so Miken could abandon her "extreme cruelty" cause of action pled to substitute "irreconcilable differences" (1T6:9-24;1T8-9:21-1;2T8:21-24). Miken confused the trial court more by arguing at trial that her complaint pled similar to a marriage based on the ruling in Lewis and that Lewis automatically confers marriage rights to all same sex couples (1T21:8-10;2T8:21-24). Miken's arguments are wholly irrational and patent misrepresentations of the law considering the case law and legislative history regarding Domestic Partnerships.

Most compelling to the fact that domestic partnerships are not marriages as Miken and her counsel misrepresented throughout the litigation is the fact that it was same sex couples who filed suit in Lewis complaining the Act was too limited and did not confer marriage rights to them. The Supreme Court responded by holding in Lewis that an equal protection right existed for same sex couples to enjoy the rights and benefits of heterosexual marriages and that only a legislative act can create such rights. Lewis, id at 430. As a result of Lewis, the Legislature enacted the Civil Union Act in February, 2007 to confer equal rights of marriage and "divorce" upon same sex couples. N.J.S.A. 37:1-28.

Nowhere does Lewis hold that domestic partnerships are marriages, nor that "irreconcilable differences" is a cause of action to terminate a domestic partnership as Miken and her counsel pretended before the trial court, nor does Lewis or any legislative act veto or amend the statutory directives of the Domestic Partnership Act to include "irreconcilable differences". Lewis found that the Legislature explicitly acknowledged in the Domestic Partnership Act that same-sex couples cannot marry. Lewis,at 437; N.J.S.A. 26:8A-2(e).

The Domestic Partnership Act's legislative history by the Assembly Appropriations Committee Report specifies that a "domestic partnership is a status distinct from marriage". Assembly, No. 3747- -L.2003, c.246. The Civil Union Act's legislative history confirms that it was enacted separate and distinct from the Domestic Partnership Act, to wit:

"This bill will not alter the rights and responsibilities

of domestic partnerships existing on or before the

effective date of the act..."Assembly Judiciary Statement

to Assembly Bill No. 3787- -L.2006, c.103.

The Civil Union Act mandates that it will not alter the rights of parties who filed domestic partnerships before February, 2007, to wit:

"This act shall not alter the rights and responsibilities

of domestic partnerships existing before the effective

date of this act, ... Entry into a civil union, when

joined by both parties to an existing domestic partnership,

shall operate to terminate the domestic

partnership."N.J.S.A. 26:8A-4.1

The marriage statute, the Civil Union Act and the Domestic Partnership Act are very distinct statutes with their own rights, limitations and meanings. It is clear that the Legislature deliberately created three distinct statutes of marriage, civil unions and domestic partnerships with their distinct causes of action to terminate. If the Domestic Partnership Act does not confer termination on "irreconcilable differences" grounds then no litigant or court can override the legislature and create a cause of action in lieu of the statutory grounds. Courts "are not free to read unwarranted meanings into an unambiguous statute 'even to subserve a supposedly desirable policy not effectuated by the statute as written." Remedial Educ. & Diag. v. Essex Co. Ed. Services Comm., 191 N.J.Super. 524 (App.Div.1983).

This principle is engrained in our State's history as expressed by the Appellate Division more than 50 years ago in Bravand v. Neeld, 35 N.J.Super. 42, 52 (App.Div.1955): "Courts must interpret and enforce the legislative will as manifested by the statute, and not according to some merely supposed expressed intention. We are not at liberty through surmise or external consideration to ignore, alter or depart from the clear meaning of the unambiguous statutory language." The United States Supreme Court ruled courts should not overstep the legislatures' powers: "A legislature must have substantial latitude to establish classifications," and therefore determining "what is 'different' and what is 'the same' " ordinarily is a matter of legislative discretion. Plyler v. Doe, 457 U.S. 202, 216, 102 S.Ct. 2382, 2394, 72 L.Ed.2d 786, 798-99 (1982)".

The Hind-Miken trial court must forbear to the very limitations of deferring to the legislature just as the Supreme Court recognized in Lewis its own limitations in deference to statutory law, "... a court must discern not only the limits of its own authority, but also when to exercise forbearance, recognizing that the legitimacy of its decisions rests on reason, not power." Lewis, supra at 223. If the language of a statute is plain, "the sole function of the courts is to enforce it according to its terms." State v. Zeidell, 299 N.J.Super. 613, 621 (App.Div.1997). The Act's terms did not encompass "irreconcilable differences" and the Legislature never amended the Act in 2007 when it amended other acts; thus, it is limited to its specific grounds of termination, and no new grounds can be created by any litigant or court.

For purposes of illustration only regarding statutory limitations over the courts,2 courts presiding over divorce proceedings have only that authority provided by statute and it is the trial court's duty to grant relief "where warranted under the applicable statutes". Howard v. Howard, 135 N.J. Eq. 55 (Ct. Err. & App. 1944); "The court, as the public's conscience and protector of state interests, is compelled to be satisfied that the statutory mandates have been fulfilled..." Manion v. Manion,143 N.J.Super. 499, at 502-503 (Ch. Div.1976). Similarly then, courts presiding over domestic partnership terminations are bound to and limited by the termination grounds enumerated in N.J.S.A. 26:8A-10. Thus, as Miken and Hind were never married and the statutes can not be gratuitously mixed and matched by litigants and the courts, the Miken was limited to termination pursuant to the Act's grounds. Miken's refusal to prove a statutory cause of action under the Domestic Partnership Act N.J.S.A. 26:8A-10 and instead pretending the marriage and civil union statutes applied resultantly divested the trial court of jurisdiction to terminate the domestic partnership and decide collateral issues. Usually dismissal occur when the evidence was legall insufficient. Here, Miken's evidence to terminate was not even legally insufficient, it was never proven by a scintilla of evidence to establish the termination grounds she filed. Miken's abandonment of her complaint at trial dismisses her action and the judgment on collateral issues must be vacated.

B. THE DOCTRINE OF JUDICIAL ESTOPPEL DISMISSES THIS CASE

BECAUSE MIKEN FOR 7 MONTHS OF LITIGATION ADVOCATED

IRRECONCILABLE DIFFERENCES WAS NOT A STATUTORY MODE TO

TERMINATE THE DOMESTIC PARTNERSHIP THEN CHANGED HER

POSITION AT TRIAL BY MISREPRESENTING CASE LAW TO

OBTAIN A DIFFERENT RESULT

On July 23, 2007, Miken filed her Answer to Hind's counterclaim, refuting Hind's counterclaim to terminate based upon irreconcilable differences by stating "...irreconcilable differences is not a cause of action recognized under the New Jersey Domestic Partnership Act, specifically N.J.S.A. 26:8A-10, and is therefore unavailable as a basis for terminating the parties' domestic partnership."(10a). Miken advocated that only extreme cruelty was the cause of action in this case that "estopped" Hind from asserting any other cause of action to terminate (11a). At trial, on January 15, 2008 Miken changed her position, abandoned her cause of action for extreme cruelty and insisted on a termination on grounds of "irreconcilable differences".

Notably, Miken's conflicting legal positions, theories, laws and defenses at whim is in line with her denying she agreed to a March 26, 2007 settlement with Hind, using various unpled defenses at trial such as duress and she had "secret" intentions not to settle (discussed herein below). One can surmise Miken's true motives in commencing and protracting over 7 months of litigation against Hind after they settled. One guess is that the litigation kept them "together" so to speak in the courts when Hind wanted to separate and Miken admitted later she did not want to separate. Notwithstanding Miken's motives and her bending all procedural rules and laws at her whim, Miken is judicially estopped from changing her position in this case as her position to use the courts as her playground caused many judicial errors. With those errors, Miken and her counsel took advantage of everyone involved, including the court, to mislead them into false promises, misrepresentations of laws, false pleadings filed and Miken and her counsel fooled the public with false press relases that they won a case of first impression that never happened (33-35a).

The purpose of the judicial estoppel doctrine is to protect 'the integrity of the judicial process.' " Kimball Int'l, Inc. v. Northfield Metal Prods., 334 N.J.Super. 596,606, (App. Div.2000), certif. denied, 167 N.J. 88, 769 A.2d 1051 (2001) (quoting Cummings v. Bahr, 295 N.J.Super. 374, 387(App. Div. 1996)). "A threat to the integrity of the judicial system sufficient to invoke the judicial estoppel doctrine only arises when a party advocates a position contrary to a position it successfully asserted in the same or a prior proceeding." Kimball, supra, 334 N.J.Super. at 606, 760 A.2d at 799. Judicial estoppel is an extraordinary remedy that should be invoked only when a party's assertion of a contrary position will result in a miscarriage of justice and only in those circumstances where invocation of the doctrine will serve its stated purpose, which is to protect the integrity of the judicial process. Ramer v. New Jersey Transit Bus Operations, Inc., 335 N.J.Super. 304, 313(App.Div.2000). See also Kimball, supra, 334 N.J.Super. at 608, 760 A.2d at 800.

Nothing is more a miscarriage of justice then Miken and her counsel filing a pleading on statutory grounds of "extreme cruelty" to create a false juridictional ground because they had no other statutory grounds, and said false filing was solely to get the attention of Hind and the court in an effort to push a better deal. The falsity of Miken's actions is proven by her abandoning grounds at trial and maintaining before a court of law that "irreconcilable differences" could be invoked by misrepresenting law. That position was taken by Miken who had counsel that claims they are "experts" in domestic partnerships. 3Miken's adamant position of refusing to grant a termination upon "irreconcilable differences" throughout the litigation allowed her to maintain a false pleading based on extreme cruelty that she ultimately could not and would not prove at trial, creating a false attribution of cruel behavior by Hind that never existed, and allowing seven months of litigation to proceed on what ultimately was a sham complaint.

In reading Miken's complaint, it is clear her standards of extreme cruelty were not provable. If that is the best she could plead, it is no wonder she abandoned her grounds at trial-they never existed. There were only two other ways these parties had to terminate pursuant to statute: 12 months desertion or 18 months separation without a chance for reconciliation. Miken did not file under the 18 months separation or 12 months desertion statutory grounds because the parties were only separated 6 months, not 18 months or even a year. Rather than wait the statutory time, Miken flew under the radar by filing on extreme cruelty to get in court and create 7 months of litigation in an attempt to push Hind to abandon their settlement agreement. Miken did not expect Hind to defend herself to trial, so Miken abandoned her own complaint at trial, then created defenses of duress and a "secret" motive of not really wanting to settle--all defense she never pled as mandated by the rules.

The Domestic Partnership Act had specific termination grounds of because the Legislature did not want people to enter into domestic partnerships then easily terminate them as if the Act meant nothing. Miken's misconduct of filing a sham complaint then abandoning it at trial on false pretenses allowed her to confuse the trial court, resulting in an unlawful modification of N.J.S.A. 26:8A-10. Her misconduct is more disturbing as she and her counsel not only mocked the trial court with misrepresentations of the law and ignoring statutory mandates but went the ultimate shameful step of their February 5, 2008 drafted judgment improperly including "equitable distribution" when the trial court emphatically denied that. Then they disseminated false press releases about the trial court's decision to confuse the public, Judiciary and the Bar. That caused false publications to the Judiciary, Bar and the public, including in the New Jersey Law Journal (which was ultimately corrected due to Hind's intervention (36a). Therefore, it is important in this case to insure a decision directing Miken and her counsel to respect our statutes to prevent their repeated misconduct of misrepresenting law, filing sham pleadings and falsely pleading a domestic partnership is a marriage when by law it is not. Such misconduct mocks the integrity of the judicial process, makes bad law and causes the Bar and Judiciary to act upon "precedent" that does not exist.

C. THE TRIAL COURT ERRED BY FAILING TO APPLY CONTRACT

PRINCIPLES AND INSTEAD APPLIED AN AFFIRMATIVE DEFENSE,

THE DOCTRINE OF ACCORD & SATISFACTION, TO DENY THE

MARCH 26, 2007 SETTLEMENT AGREEMENT

In this case, Hind and Miken's three months of e-mails, some of which were entitled "Settlement", memorialized essential terms manifesting their intent to be bound to a settlement:

A. The Negotiations

-On January 19, 2007, Miken sends an e-mail to Hind offering a $75,000.00 property settlement based on her attorney brother, Greg's advice (1T58-59:18-17;2T82:5-8). Hind testifies that was the start of their settlement negotiations.(2T83:1-2)

-Miken testifies that on March 14, 2007 she offered Hind a settlement of $47,000 for her interest in the Villas house (1T62-63:22-10), and once that number was settled Miken stated "then we can settle and start talking about furniture." (2T85:10-12).

-On March 15, 2007 Hind's reply e-mail, entitled "Settlement", counteroffers with paying $40,000 by certified check on the day Miken moves her furniture out (2T86:9-24).

-On March 15, 2007, Miken's reply e-mail does not agree to $40,000 (1T86-87:25-5).

-On March 16, 2008, Hind replied via e-mail, entitled "Settlement", offering whether they should hire an appraiser or mediator to determine the financial settlement regarding

the real estate and she offered that each party prepare a list of furniture. (1T63-64:14-23). Also, in that e-mail, Hind negotiated a credit of $28,800 she paid to Miken's Palmyra

property mortgage for over four years. (2T87:15-25).

-On March 17, 2007, Miken responded via e-mail that "I have my furniture list started", with her list attached and requesting her money paid towards the Villas property back. (1T65:2-15; 2T90-91:23-18;2T92:1-3).

-On March 25, 2007 Hind offered a $43,000 settlement on the Villas property.(1T67:3-10)

Miken's counsel admits the parties negotiated via their emails (1T61:4-8;1T62:5-6) Here, the dispute only concerns the element of Miken's acceptance. The law is clear that "[t]he essentials of a valid contract are mutual assent, consideration, legality of object, capacity of the parties and formality of memorialization." Cohn v. Fisher, 118 N.J.Super. 286, 291 (Law Div.1972); Davis v. Wells, 104 U.S. 159, 26 L. Ed. 686 (1881). A contract is created by an offer and acceptance, being sufficiently definite that each parties' performance to be rendered can be ascertained with reasonable certainty. Weichert Co. Realtors v. Ryan, 128 N.J. 427 (1992). Miken wants us to believe she never intended to accept; however, on March 26, 2007 she made an "unqualified acceptance" necessary to manifest express assent by stating on March 26, 2007 "I agree to the financial settlement, $43,000". Johnson & Johnson v. Charmley Drug Co., 11 N.J. 526, at 539 (1953):

B. The Settlement Agreement

-On March 26, 2007, Miken responded by e-mail entitled "Settlement" by accepting Hind's $43,000 offer, to wit: "I agree to the financial settlement, $43,000, but I do not want to be responsible for any filing, lawyer's fees, (yours), or other costs associated with the dissolution. Now, let's decide about the furniture. You have my list. As far as I'm concerned, the porch furniture was a joint purchase so it remains under negotiation. Sharon.""(1T67:11-22;2T94:15-25)

-On March 27, 2007 Hind agreed to Miken's counteroffer, including Miken's offer that Hind pays her own legal fees and pays all filing fees.(2T95-96:19-13,96:1-6)

Consideirng it was after 3 months of negotiations that her March 26, 2007 e-mail was titled "Settlement" specified "I agree to the financial settlement, $43,000...", she testified from the start in January, 2007 she had the advice of her licensed attorney brother Greg and she testified that she understood the e-mails, then undoubtedly she intended to be bound as she proceeded for 3 months until a final acceptance.

A settlement agreement requires that the parties intend to be bound in order for the agreement to be enforceable, Berg Agency v. Sleepworld- Willingboro, Inc., 136 N.J.Super. 369, 377 (App.Div. 1975). In Berg the court held that a letter agreement was enforceable even though one party rescinded prior to signing lease. Here, on March 26, 2007 Miken had an agreement by her settlement e-mail and on March 27, 2007 Hind unconditionally agreed to Miken's Settlement terms. Miken breached a month later. Miken admitted her breach by testifying that she obtained counsel a month later because she wanted to "reopen" the $43,000 settlement agreement she had with Hind (1T77-78:22-3).

The trial court should have upheld the parties' contract. Miken had no defense to her breach. Most detrimental was that Miken actually misled Hind for 3 months into a final agreement while Hind forbeared from her right to litigate sooner and gave up her rights to property and money from Miken. Then Miken breached by springing an attorney on Hind because Miken wanted a better deal. Hind had every right to file the termination on "extreme cruelty" against Miken in Hind's venue at the Villas. Miken's underhanded conduct led Hind to forbear from litigation while Miken secretly filed a complaint against Hind in Gloucester, over an hour and a half away from Hind's residence.

As Justice O'Hern categorized the essence of the holding in his dissent,"a deal is a deal",Konzelman v. Konzelman, 158 N.J. 185, at 206 (1999), and this deal should have been upheld against Miken's unclean hands she presented before the trial court and towards Hind throughout her negotiations, her breach and her inconsistent positions she took at trial and throughout 7 months of litigation.

Notwithstanding the Hind-Miken deal should have been upheld, the trial court nevertheless ignored contract principles and erroneously applied the doctrine of accord and satisfaction to hold consideration failed:

"In order for the Court to determine that there was an

agreement there needs to be more than merely, "Yes,

okay, let's do that." On the contract rule terms, there

needs to be a satisfaction, the accord, and consideration.

In this particular matter, no one changed their position

to their detriment. It's certainly not detrimental

reliance. No consideration, there was no payments made,

there was no consideration, there was no tender of payment.

There was simply e-mails exchanged."(2T39-48)

The January through March 27, 2007 e-mails evidenced the parties consideration to forbear the expense of litigation and settle on their own. Forbearance from legal action is consideration, being a detriment sufficient to support a contract, even if not directly stated it may exist by implication. Onorato Const., Inc. v. Eastman Const. Co. 312 N.J.Super. 565 (N.J.Super. A.D., 1998).

In its attempt to impose the doctrine of accord and satisfaction, which happens to be an affirmative defense not a contract principle (discussed further herein below), the trial court completely disregarded that the Hind-Miken financial settlement took 3 months of deliberate negotiations between two senior, educated adults experienced in buying and selling property during their lifetimes, resulting in Miken's testimony that she understood her March 26, 2007 e-mail entitled "Settlement" to be an acceptance.

As a result of the litigation Miken commenced, both parties suffered the exact huge financial losses in attorney fees to the tune of over $25,000 each that they wanted to avoid by agreeing to forbear from litigation. A litigation that in itself proves the value of consideration to forbear from litigation. Miken's $71,309 judgment left her with only $46,000.00 after deducting her $25,2000 legal fees generated by this protracted litigation run more on emotions than logic. By the time the trial finished on January 15, 2008, Miken undoubtedly received less than the $43,000 settlement she agreed to on March 26, 2007. Miken was in a better position if she would not have breached her agreement 7 months before. In fact, Miken ultimately agreed to stay the judgment pending the appeal by filing a stipulation dated March, 2008. Resultantly, Miken financially crippled her and Hind in legal fees and costs by the litigation Miken commenced. To this day, the consideration these parties had to forbear litigation was more valuable than the litigation they are in because of Miken's breach.

Yet, the trial court did not place value on their consideration to forbear litigation nor the strong public policy of this state favoring enforcing settlements. Pascarella v. Bruck, 190 N.J.Super. 118, 125(App.Div.), certif. den., 94 N.J. 600 (1983). It instead voided the Hind-Miken agreement by erroneously focusing on whether the $43,000.00 check was tendered or the furniture delivered, and failing to account for the fact that the contract called for Miken to pick up the furniture to receive the check, not for Hind to deliver it.

The trial court erroneously felt that "time" in tendering the check was crucial. Although the contract did not specify a time and date for Hind's performance in tendering the check, "[o]rdinarily, where no time limit is set forth in the contract for completion, a reasonable time is implied." Ridge Chevrolet-Oldsmobile, Inc. v. Scarano, 238 N.J.Super. 149, 155 (App.Div. 1990). The absence of specification of a time for performance did not make the contract unenforceable. Graziano v. Grant,326 N.J.Super. 328 (N.J.Super. A.D.,1999). Notably, Hind was never given the chance to perform because Miken breached the contract within 30 days of the agreement. Tendering $43,000 in thirty, sixty or even ninety days is a reasonable time. Hind was simply waiting for Miken to pick up her furniture as agreed, which even 90 days would have been acceptable.

Granted, this case was before the Family Court allowing "particular leniency to agreements made in the domestic arena, and likewise allows judges greater discretion when interpreting such agreements." Guglielmo v. Guglielmo, 253 N.J.Super. 531, 542 (App.Div. 1992). Nevertheless, once parties have reached an agreement, no court may create a "new or better" contract for them, Communication Workers of America, Local 1087v. Monmouth Cty. Bd., 96 N.J. 442, 452(1984), even in the area of family law. Aarvig v. Aarvig, 248 N.J.Super. 181, 185-86 (Ch. Div.1991). Voiding the contract because within 30 days a delivery was not made is unreasonable, particularly when the tender was not made because one party breached within that 30 day period.

The trial court reached its decision by ignoring contract concepts and erroneously substituting the doctrine of accord and satisfaction to justify Miken's breach. Miken, however, was the plaintiff who argued a contract never existed, just negotiations. The doctrine serves as an affirmative defense, not a cause of action. R. 4:5-4. Rule 4:5-4 mandates that the affirmative defense of accord and satisfaction must be pleaded, if available. Loizeaux Builders Supply Co. v. Donald B. Ludwig Co., 144 N.J. Super. 556 (Law Div.1976). Miken never pled accord and satisfaction in any of her filings because it was not a defense she was pursuing nor could she pursue.

An accord and satisfaction is a method of discharging an already enforceable contract by substituting another agreement for the original claim. ( "[W]here a claim is unliquidated, or in dispute, payment and acceptance of a less sum than claimed in satisfaction, operates as an accord and satisfaction." ) Castelli v. Jereissati, 80 N.J.L. 295, 297 (E. & A.1910). Miken would have had to claim that she made the accord and satisfaction, not the other way around to use accord and satisfaction as a cause of action against Hind. Miken's position throughout the trial was a contract never existed. She claimed there were only negotiations from January through March, 2007. If it was Miken's argument that there was no contract made by her March 26, 2007 e-mail then it logically follows that accord and satisfaction could not exist because according to Miken, nothing existed.

Nevertheless, accord and satisfaction had no place in this matter and the true principles of contract law were never properly applied by the trial court. The trial court erred in applying the doctrine of accord and satisfaction to render a judgment for Miken when it is an affirmative defense and was never pled by any party.

D. MIKEN'S ATTEMPTED UNPLED DURESS AND "SECRET"

MOTIVES DEFENSES WERE AN ADMISSION TO HER

MARCH 26, 2007 SETTLEMENT AGREEMENT

Miken attempted to defend her breach by testifying that she "was under the duress of having a partnership, a relationship, a marriage that was dissolving. That's my duress." (1T75:18-23). Her injection of a duress defense at trial was actually her admission that she had a valid agreement, she just needed a defense to get out of it. There would be no reason to proffer such a specific defense if she never made an agreement and a contract was never breached by her. To proffer at trial defenses never pled showed a last minute desperation by Miken to persuade the trial court she had a defense to the contract-a contract she claimed never existed. Notwithstanding, at no time did Miken claim duress during the 3 months of negotiations she commenced January, 2007 nor 4 months later when she injected her counsel in May, 2007.

Moreover, Miken never satisfied her burden of proving duress at trial. Feeling upset about a breakup is not a defense to breaching a contract, nor does it support duress. A contract may be set aside for duress where there is clear proof of wrongful pressure to settle that is "sufficient in severity or in apprehension to overcome the mind or will of a person of ordinary firmness[.]" Rubenstein v. Rubenstein, 20 N.J. 359,365 (1956). The party seeking to set aside a settlement as in any other contract action has the burden of proving an "extraordinary circumstance sufficient to vitiate the agreement." Jennings v. Reed, 381 N.J. Super. 217, 227 (App. Div. 2005). See PRESSLER Current N.J. COURT RULES, Comment R. 4:5-4[2.2.1], (GANN).

Miken's testimony of duress was incredible. Miken testified that she knew exactly what she was doing by starting the negotiations on January 17, 2007 by informing that she was receiving advice for the settlement from her brother Gregg, a practicing attorney, "I think at this point, we should get our houses appraised. Greg says this is the way it would work. And I'm just using ball -- ballpark figures. Say my house appreciated 40,000 and yours appreciated 100,000." (1T51:17-22;1T58-59:18-11; 2T82:6-8;2T148:5-8). Miken had the benefit of counsel, family and friends in addition to herself, an educated woman of about 59 years of age who testified she entered into many contracts by purchasing real estate properties, entering into agreements with Hind during their 10 year relationship and during the relationship break-up she was able to enter into a significant legal agreement to pay her counsel over $25,000.00 for this litigation.

Miken's testimony that she never intended to go through with her $43,000 agreement because she secretly did not want to separate is incredible. The parties were separated since November, 2007. Miken testified Hind told her in January, 2007 that Hind would not reconcile. Miken engaged Hind in settlement negotiations for 3 months, never once claiming she did not intend to settle or secretly wanted to reconcile when she finally agreed on March 26, 2007 to the $43,000 settlement without litigation.

The lower court unfortunately fell victim to Miken's claims of secretly wanting to reconcile while she negotiated for 3 months. Nevertheless, the law is contrary to the trial court's permitting Miken's breach because she had secret intentions. A contracting party is bound by the apparent intention he outwardly manifests to the other party, and it is immaterial that he has a different, secret intention from that outwardly manifested. Brawer v. Brawer,329 N.J.Super. 273 (App Div, 2000). It is the expressed intent, and not the "so-called real intent of a party" controls. Leitner v. Braen, 51 N.J.Super. 31, 38,(App.Div.1958). Nothing is more certain of an intent to be bound than 3 months of negotiations, entitled at the end "Settlement" and Miken's March 26, 2007, e-mail entitled "Settlement" that "I agree to the financial settlement, $43,000 ..." was an intended settlement agreement that should be upheld.

III. CONCLUSION

For the forgoing reasons, Hind respectfully requests this court reverse the trial court's termination based upon non-statutory grounds, dismiss the complaint and vacate the judgment.

Dated: June 16, 2008 Respectfully

RESEARCHED & DRAFTED ENTIRELY BY SUSAN CHANA LASK PRIOR TO PRO HAC VICE- SIGNED BY NJ COUNSEL,

 

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